# People v. Gawthrop

> Michigan Court of Appeals · June 3, 1981 · 106 Mich. App. 722

URL: https://www.frixlaw.com/law-library/cases/9689058

## Case

- **Full name:** People v. Gawthrop
- **Court:** Michigan Court of Appeals
- **Decided:** June 3, 1981
- **Citations:** 106 Mich. App. 722; 308 N.W.2d 621
- **Precedential status:** Published
- **Opinion:** Dissent by Burns
- **Judges:** Cavanagh, Burns, Campbell
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9689058

## Opinion text

T. M. Burns, J.
(dissenting). The conclusion of the majority opinion does not follow from its scholarly presentation of the current status of Michigan law regarding the indorsement and calling at trial of a defendant’s alleged accomplice. The question before us encompasses a problem greater in scope than merely protecting a prosecutor from the prejudice he may encounter by calling a witness who may be biased in favor of the defendant.
As the majority correctly states in their opinion, "the rule that the prosecutor need not indorse or call witnesses who are alleged accomplices of the defendant violates the due process safeguards to which an accused is entitled”. If a defendant claims innocence and denies any participation in the alleged crime, how can it be said that any *729 witness was an accomplice of the defendant until the jury has returned a verdict of guilty? In essence, permitting the prosecutor to determine who is and who is not an accomplice of the defendant violates due process because it permits the state to prejudge a defendant’s guilt or innocence on the crucial question of what witnesses the state should be required to present against him.
If a prosecutor is not required to indorse the alleged accomplice of the defendant on the information but is wrong in his determination that the witness was an accomplice, the defendant may never know of the witness’s existence. Further, even if the defendant knows of the witness’s identity, requiring the defendant rather than the prosecutor to call the witness at trial is certainly likely to diminish the credibility of the witness in the eyes of the jury and, as a consequence, prejudice the defendant.
A prosecutor’s fears that he may be prejudiced if required to call a witness who is more likely to testify in favor of the defendant pales in comparison to the defendant’s right to due process. Therefore, I would hold that the proper statement of the law is that a prosecutor must indorse on the information all witnesses known to him, but that he need not call at trial any witness who is an accomplice of the defendant.
Application of this rule would notify the accused of all potential res gestae witnesses and would require the prosecutor to make a motion to strike from the information the names of any witness he believes to have been an accomplice of the defendant. Such a motion would necessitate the holding of the hearing at which evidence could be taken and at the conclusion of which a judge, and not the prosecutor, would make the determination as *730 to whether the witness was an accomplice. This procedure would better comport with due process than one which permits the prosecutor to make this determination.
I would hold that the lower court erred in permitting the prosecutor to call at trial a witness whose name was neither indorsed originally on the information nor added to it subsequently. Defendant was prejudiced by the testimony of Lionel Gonzales. Contrary to what the majority states, defendant was surprised by the calling of this witness and in fact clearly stated that he had not received any notice that Mr. Gonzales would be called.
Both the present rule regarding the indorsement and calling at trial of alleged accomplices of a criminal defendant and the rule that the majority advocates in this case violate due process. This cause should be reversed and remanded for a new trial.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9689058. Public record. Not legal advice.