People v. Hicks

¶1(dissenting). This is an appeal of right from convictions of felonious assault1 and possession of cocaine.2

¶2The case arose out of a raid on what is sometimes referred to as a "dope pad”. The enforcement officers, as was their duty, first obtained a search warrant. Then they sought entrance by virtue thereof. The premises were protected by steel bars and a steel door. True to their public duty some of the raiding party put a ladder up against the house and one of them attempted to gain entrance by an upstairs window.

¶3He was most uncordially greeted by the defendant pointing a shotgun in his direction. Somehow the officer got in (alive). The defendant was found to have envelopes of cocaine on his person.

¶4A number of other persons were in the building and they were charged with loitering in a place where narcotics or narcotic paraphernalia was kept.

¶5The defendant contends that the failure of the prosecution to indorse the loiterers as res gestae witnesses was reversible error.

¶6There was extensive oral argument at the time of defendant’s belated motion3 to indorse the other *599persons present in the building as res gestae witnesses. Both the prosecutor and defense counsel vigorously argued their positions pro and contra as to the people’s alleged obligation to indorse and produce the witnesses in question. I read the trial judge’s ruling to have in effect held that the loiterers were not res gestae witnesses and that there was no duty owed by the people with respect thereto.

¶7The rule of law in this state is that the trial court’s ruling as to who is or is not a res gestae witness is not to be disturbed on appeal unless it is clearly erroneous. See People v Dixon, 45 Mich App 64; 205 NW2d 852 (1973), reversed on other grounds, 392 Mich 691; 222 NW2d 749 (1974). See also GCR 1963, 517.1. There is no way on the record in this case I could possibly find that its holding fell within this category.

¶8As to the alleged error in the jury instructions, I also find this claim without merit. Failure to define easily understood terms in the absence of a specific request is not error. People v Cannon, 252 Mich 182; 233 NW 210 (1930).

¶9I find no error that would warrant reversal.

¶10I would affirm the verdict of the jury.