Appeal from Oakland, Farrell E. Roberts, J.
McGregor, P. J., and D. E. Holbrook, Jr. and M. J. Kelly, JJ.
1. Witnesses -- -- Indorsed Witnesses -- Failure to Produce -- Motion for New Trial.
A motion for a new trial is required before an appellate court will review a claim by a defendant that a prosecutor failed in his duty to produce a witness who has been indorsed; a motion for new trial is not excused even though a hearing has already been held and the trial court has already excused the witness.
2. -- Appeal and Error -- Grounds for Reversal -- Using Error to Advantage.
The Court of Appeals will not allow a defendant to use as grounds for reversal a possible error which the defendant attempted to use at trial to his tactical advantage; therefore, reversible error did not occur when a clothing store security officer used a box bearing the name of the store to carry a shirt which was the subject of the charged larceny while the defendant claimed the shirt came from another store, where defense counsel did not object to the box being present, did not request a curative instruction, and attempted to use the box to advantage by pointing out to the jury that the prosecution must be trying to influence the jurors by use of the box.
The opinion of the court was delivered by: Holbrook
Samuel Baines was convicted of larceny in a building. Defendant appeals.
Defendant was convicted by a jury on October 31, 1974, of larceny in a building. MCLA 750.360; MSA 28.592. On November 18, 1974, the trial court sentenced the defendant to a term of from 2 to 4 years in prison. On December 9, 1974, defendant filed his claim of appeal as of right with this Court.
At trial the prosecution presented two witnesses, a security guard and a sales person from Hughes & Hatcher's Northland store where the larceny occurred. Over objection, the prosecution was excused from producing another person who had assisted in detaining the defendant outside of Hughes & Hatcher and was indorsed on the information. *fn1 This is the basis for defendant's first claim of error.
Initially, we note that defendant did not move for a new trial. Such a motion is required under People v Robinson, 390 Mich 629; 213 NW2d 106 (1973). Although in that case the Supreme Court remanded for an evidentiary hearing as to the testimony that the witness would have given or the reason why the witness was not produced, the holding in that case explicitly states:
"In appeals filed after this opinion is published [January 28, 1974] a defendant desiring reversal or a new trial because of a failure to produce an unindorsed or an indorsed witness shall, before filing his brief on appeal, move the trial court for a new trial." *fn2 (Emphasis supplied.) People v Robinson, supra at 634.
The purpose behind the remand in People v Robinson, supra, was to give that defendant the opportunity to make his motion for a new trial since he could not have known of the new requirement. Likewise, the early decisions of this Court *fn3 followed the action taken and not the holding of People v Robinson, supra. This was a correct procedure since most of these cases were necessarily filed with this Court before the publication of People v Robinson, supra.
The language of the holding is clear, before the appellate courts of this state will review a claim that the prosecutor failed in his statutory duty to produce a witness *fn4 a motion for a new trial is required. The holding does not excuse a motion for a new trial when a hearing has already been held and the trial court has already excused the witness's production. But see, People v Wynn, 60 Mich App 636, 640; 231 NW2d 269 (1975). A motion for a new trial should have been filed in this case since defendant could not have filed his claim of ...