Opinion
Docket No. 75832.
Decided May 8, 1985. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Frederick R. Doetsch, Jr., Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Norris J. Thomas, Jr.), for defendant on appeal.
Before: BRONSON, P.J., and J.H. GILLIS and ALLEN, JJ.
Following a bench trial on September 22, 1983, defendant was found guilty of armed robbery, MCL 750.529; MSA 28.797. Sentenced to one and one-half to five years in prison, defendant appeals as of right raising the single issue that the prosecutor erred by failing to endorse two res gestae witnesses.
While returning from a school basketball game, the complainant was hit on the head with a gun and robbed. Complainant was able to identify only the defendant. Two unidentified boys were not charged and the prosecution did not endorse or call either boy as a res gestae witness, even though their names were known to the police.
The prosecution contends that it is not obligated to endorse or produce accomplices. People v Lytal, 415 Mich. 603; 329 N.W.2d 738 (1982). Defendant relies on Judge T.M. BURNS'S dissenting opinion in People v Gawthrop, 106 Mich. App. 722, 729; 308 N.W.2d 621 (1981). That case came back to this Court on remand by the Supreme Court, People v Gawthrop (On Remand), 130 Mich. App. 806; 345 N.W.2d 204 (1983). On remand we held that, while the prosecutor is not required to endorse or produce accomplices, the prosecutor is required to endorse the name of any accomplice whom he intends to call.
Once the prosecution decides to use an accomplice as a witness, that witness must be endorsed so as to prevent surprise and allow defense counsel time to prepare. In Gawthrop the accomplice was called as a witness but not endorsed. In the instant case, the accomplices were neither endorsed nor called. We find no error.
Affirmed.