EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, October 19, 2012

I Rest My Case, Take 4: Court Of Appeals Of Michigan Finds No Problem With Additional Witness After Both Parties Rested

In yesterday's post, I preliminarily endorsed a dichotomy under Rule 614(a). Under this dichotomy, after the parties rested in a criminal case, a judge could call additional witnesses to clarify facts when there had been conflicting testimony/evidence. (e.g., Eyewitness A saw one thing while Eyewitness B saw something else). But, under the same circumstances, the judge could not call additional witnesses to testify on a matter on which there had not been conflicting testimony/evidence. (e.g., Eyewitness A testified that the shooter was 5'9" while Defendant is 6'2", and Eyewitness B, the only other eyewitness, had not been called by either side).

Under this dichotomy, I would agree with the opinion of the Court of Appeals of Michigan in People v. Betts, 400 N.W.2d650 (Mich.App. 1986).

In Betts, Christopher Betts was charged with felonious assault by means of a shotgun and was given a bench trial. 
The complainant went to his brother's house with a wrecker to tow a disabled car away and, after he crawled out from under the car and was hooking up the wrecker, he heard defendant swearing at him and also saw defendant in defendant's doorway on the porch with a shotgun, which was racked and pointed at the complainant.
Defendant testified that the complainant had pulled the tow truck up into his driveway and he believed that the complainant was trying to take what turned out to be the complainant's brother's car. He claimed the complainant swore at him and made what appeared to be a threatening gesture, so he grabbed a shotgun but denied pointing it at the complainant.

After both parties rested, the trial judge indicated that he

wanted to question a witness, Anita Turner, who had earlier been waived by the parties but who had been listed as a res gestae witness. The court allowed the prosecutor to reopen the case because there were two conflicting versions of the testimony and the court did not know what to believe. The case was continued for a few days to allow the witness to be brought in and, at that time, defense counsel objected to the trial court's calling of the witness, stating that both parties had already rested and that the witness was not indorsed on the information. Defendant further claimed complete surprise. The trial court permitted defense counsel to have a recess to talk to the witness if he had not already had the opportunity to do so.

After the recess, Turner 

testified that, on the morning in question, she heard people swearing and looked out the window. She saw two men standing by a tow truck, and the man on the passenger side was talking to someone in front of him, but she could not see who it was. She came downstairs then and went out the door, acting like she was getting the mail. At this point, she saw defendant on the porch with a rifle, so she ran to the telephone to call the police.

After he was convicted, Betts appealed, claiming "that the trial court committed prejudicial and reversible error in calling a res gestae witness after both sides had rested when the court was not convinced beyond a reasonable doubt as to the guilt of the defendant." In response, the Court of Appeals of Michigan noted that "[w]hile our research has not indicated a case exactly like this where both parties had rested, we find a number of earlier cases permitting the trial court to allow reopening of the proofs on the prosecutor's motion for proof of a necessary element omitted from the case-in-chief."

The court then again reiterated that "[w]e have been unable to find any discussion under MRE 614 relative to the issue in this case...." It then weakly concluded that there was no reversible error:

In this case no constitutional question has been properly raised, and the trial judge very carefully indicated that defense counsel should have an opportunity to talk with the witness before the witness testified. The record further indicates that the witness had been indorsed but was waived by both sides, so defendant cannot now claim surprise which denied him a fair trial.

As noted in the introduction, under my proposed dichotomy, this would be the correct ruling, but, looking at the facts of Betts, I'm not so sure that I agree with my prior reasoning. I guess it is time for more research to determine exactly where I stand.



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