People v. Burwick

537 N.W.2d 813, 450 Mich. 281

• Court: Michigan Supreme Court
• Decided: August 22, 1995
• Docket: 98173, (Calendar No. 9)
• Status: Published

Opinions

Boyle, J.

Allen Dale Burwick was convicted of breaking and entering with intent to commit larceny.¹ The Court of Appeals affirmed.² We granted leave to appeal "limited to whether permitting the late endorsement of witness Timmons deprived [Burwick] of a fair trial.”³ Because the prosecutor had no duty to discover Timmons before trial, and there is no legally cognizable prejudice to defendant from Timmons’ endorsement, we affirm the decision of the Court of Appeals.

i

Burwick was accused of breaking into the home of a girlfriend, Renee Green, on December 12, 1990, and stealing her television set and two shotguns belonging to her son, Darrial Goss. About six weeks before the trial, on March 6, 1991, the trial court entered an order requiring the endorsement of witnesses within fourteen days. The prosecutor provided a list on April 8, 1991, with six names.

The prosecutor indicated during jury voir dire that he would rely on circumstantial evidence linking Burwick to the break-in. The testimony would be that Burwick was familiar with Green’s house, and that he was in possession of the stolen property. In his opening statement, the prosecutor stated that he would call the following witnesses: Renee Green to testify regarding her relationship with Burwick, and regarding events on the day of the incident; Darrial Goss to describe the guns and to testify that he identified the guns at the home of a family friend; Randy Evans, a family friend, to testify that he purchased guns from Burwick and then telephoned Kenneth Blunk, the boyfriend of Green’s sister Rebecca Timmons, about his purchase; and David Holloway, the owner of a local appliance store and former boyfriend of one of Green’s other sisters, to testify that someone had tried to sell him a television set on the evening of the break-in. Burwick’s lawyer made a brief opening statement that the question was who did what and why.

On the second day of trial, the prosecutor moved to endorse Rebecca Timmons, Green’s sister, as an additional witness. The prosecutor said that he was unaware that Timmons had evidence until he talked to Green the previous afternoon. The prosecutor said that Timmons had not been named in the police reports because the last report was dated December 19, 1990. Timmons would testify that Burwick confessed to her that he broke into Green’s home. Burwick’s lawyer opposed the endorsement, stating that he would need to investigate Burwick’s whereabouts at the time Timmons claims Burwick spoke to her in an effort to establish an "alibi.”

The judge granted the prosecutor’s motion on the basis that Timmons’ testimony was relevant and material. He conditioned the endorsement on Burwick’s lawyer being provided an opportunity to speak with Timmons before she testified. The judge recessed to provide Burwick’s lawyer with an opportunity to interview Timmons.⁴

After a brief recess, the judge inquired whether the length of the recess had been sufficient. Bur-wick’s lawyer responded that it had. Before the trial resumed, Burwick’s lawyer reiterated his objection to the endorsement of Timmons, citing the need for time to investigate Burwick’s whereabouts at the time of the purported confession; he did not request a continuance.

Green testified that at about 5 p.m. on the day of the break-in she took Burwick, who had stayed overnight at her home, to his mother’s home and then continued on with her children to the Timmons home in Battle Creek to bake Christmas cookies. Burwick had inquired whether Green’s children would accompany her on the visit to her sister’s house.

When Green returned home about 9:30 p.m., she found the knob of the front door broken and discovered her television and two shotguns missing. Green testified that she had received a telephone call from her sister four days after the break-in, reporting that another former boyfriend and Goss had seen the stolen guns at the home of a family friend, Randy Evans. Green then mentioned, for the first time, that Burwick had telephoned her before Christmas and confessed to having stolen the property, saying that he did not know why he did it, and that he was sorry but he had been hurt by Green. Green acknowledged that she had not told the police about the conversation, even when a police officer followed up with her two weeks later early in January.

Timmons testified that she had a telephone conversation with Burwick sometime on or after December 16, but before Christmas, and that Bur-wick said he was sorry and, in response to her question, admitted breaking into Green’s house.

Testimony of the other witnesses was generally evasive and all failed to identify Burwick.

The jury convicted Burwick, and the trial court sentenced him to a seven- to fifteen-year term.⁵ The Court of Appeals affirmed Burwick’s conviction in an unpublished opinion⁶ and we granted leave to appeal. Finding no error, we affirm the decision of the Court of Appeals.

II

The issue is one of statutory construction. Our primary obligation is to determine the intent of the Legislature and to effectuate it. The statute in question, MCL 767.40a; MSA 28.980(1), does not impose an obligation on the prosecutor to discover and produce unknown witnesses, either by the exercise of due diligence or some lesser burden the dissent would engraft upon it.⁷

Before its amendment in 1986, MCL 767.40; MSA 28.980 was interpreted to require the prosecutor to use due diligence to endorse and produce all res gestae witnesses.⁸ The amended statute creates four classes of witnesses: 1) witnesses known at the time of filing of the information who might be called at trial, 2) res gestae witnesses known to the prosecution or law enforcement officials at the time of filing of the information, 3) res gestae witnesses whose names later become known, and 4) witnesses the prosecutor determines he intends to call at trial. In pertinent part, the statute unambiguously provides first that

[t]he prosecuting attorney shall attach to the filed information a list of all witnesses known to the prosecuting attorney who might be called at trial and all res gestae witnesses known to the prosecuting attorney or investigating law enforcement officers. [MCL 767.40a(1); MSA 28.980(1)(1) (emphasis added).]

The statute then provides:

The prosecuting attorney shall be under a continuing duty to disclose the names of any further res gestae witnesses as they become known. [MCL 767.40a(2); MSA 28.980(1)(2) (emphasis added).]

The statute next provides that the prosecutor shall send to the defendant not less than thirty days before trial

a list of the witnesses the prosecuting attorney intends to call at trial. [MCL 767.40a(3); MSA 28.980(1)(3).]

It further provides that the list of witnesses the prosecutor intends to call at trial may be amended as follows:

The prosecuting attorney may add or delete from the list of witnesses he or she intends to call at trial at any time upon leave of the court and for good cause shown or by stipulation of the parties. [MCL 767.40a(4); MSA 28.980(1)(4).]

Finally, to assist the defendant in locating and serving witnesses, and without a showing of demonstrated need or unsuccessful efforts on the part of the defense, the statute provides that

[t]he prosecuting attorney or investigative law enforcement agency shall provide to the defendant or defense counsel, upon request, reasonable assistance, including investigative assistance, as may be necessary to locate ánd serve process upon a witness. [MCL 767.40a(5); MSA 28.980(1)(5).]

The prosecutor’s former obligation to use due diligence to produce any individual who might have any knowledge, favorable or unfavorable, to either side,⁹ has been replaced by a scheme that 1) contemplates notice at the time of filing the information of known witnesses who might be called and all other known res gestae witnesses, 2) imposes on the prosecution a continuing duty to advise the defense of all res gestae witnesses as they become known, and 3) directs that that list be refined before trial to advise the defendant of the witnesses the prosecutor intends to produce at trial. The prosecutor’s duty to produce res gestae witnesses has been replaced with an obligation to provide notice of known witnesses and reasonable assistance to locate witnesses on defendant’s request.¹⁰

The Legislature has thus eliminated the prosecutor’s burden to locate, endorse, and produce unknown persons who might be res gestae witnesses and has addressed defense concerns to require the prosecution to give initial and continuing notice of all known res gestae witnesses, identify witnesses the prosecutor intends to produce, and provide law enforcement assistance to investigate and produce witnesses the defense requests.

The witness, Timmons, was not known to the prosecutor, or to the police. The prosecutor had no legal duty to discover, endorse, or produce her. Her belated discovery was for good cause shown. There being no prejudice to the defendant, the Court of Appeals decision must be affirmed.

III

In 1986, the Legislature amended MCL 767.40; MSA 28.980 to clarify and correct a considerable body of law unique "in the country, if not the world”¹¹ that had placed the burden on the prosecution to use due diligence to find, endorse and produce "res gestae” witnesses. The rationale of the amendment was to abolish the former approach, which "actually impedes, rather than contributes to, a fair trial, and that . . . serves no purpose except in defense counsel 'gamesmanship’ to get a case dismissed or to lay the basis for a reversal.” Id.12

Thus, as Justice Griffin recently observed on behalf of a majority of this Court in People v Hana, Gallina, Rode, 447 Mich 325, 358, n 10; 524 NW2d 682 (1994), MCL 767.40a(4); MSA 28.980(1)(4), as amended, in pertinent part allows the prosecution to add to the list of witnesses it intends to call at trial "at any time upon leave of the court and for good cause shown.” The dissent’s premise that the endorsement of witness Timmons was "late” because the prosecution should have discovered her earlier is thus legally incorrect. Timmons’ endorsement was not "late” unless the prosecution had a duty to learn about her at an earlier time.

As amended, the statute contemplates that the prosecutor will give advance notice of all known res gestae witnesses and specify before trial which known witnesses it intends to call. Having advised the defendant of all known witnesses and who among that list the prosecutor will produce at trial, the defense determines which known witnesses the prosecutor will not call and, upon request, the government must provide reasonable assistance "as may be necessary to locate and serve process . . . MCL 767.40a(5); MSA 28.980(1)(5).

Having thus fully addressed all known witnesses and provided for notice of their existence and a designation of who will be produced, the statute contemplates that the defense will seek production of the witnesses it desires and allows the prosecutor to delete from or add to the list of witnesses it will produce "at any time” as long as the good-cause requirement of MCL 767.40a(1); MSA 28.980(1)(1) is satisfied. The advance notice required by the statute is advance notice of witnesses known to the prosecution. Thus, strain as the dissent will, it can find no principled basis in the statute for an obligation to discover unknown witnesses.

Endorsement or deletion from this list is within the discretion of the trial court, reversible only for abuse.¹³

IV

After concluding that the statute imposes a duty to discover witnesses, the dissent would apply the five-part test of the alibi-witness statute construed in People v Travis, 443 Mich 668; 505 NW2d 563 (1993), and conclude that defendant was deprived of a fair trial. The notice-of-alibi witness statute,¹⁴ which we construed in Travis, and the "list of all witnesses” and "res gestae witnesses” statute,¹⁵ deal with witnesses called at different stages in a trial, employ distinct language regarding the parties’ obligations, and serve different policy goals.

First, as previously noted, the list-of-witness statute in plain language imposes no discovery requirement. The prosecutor’s only burden of production is to produce those witnesses it intends to call, a list that can be amended on good cause shown, at any time. While the prosecutor has a continuing duty to give notice of all known res gestae witnesses and to advise the defendant of the witnesses it will produce,, it is the defendant’s responsibility to determine which witnesses it wants produced at trial.

The Legislature could have, but did not, condition the addition or deletion of the witnesses the prosecution would produce on a showing of prior due diligence. It could have, but did not, condition investigative assistance to the defense on defense counsel’s due diligence in locating defense witnesses. Thus, the Legislature apparently intended to eliminate distortions to the truth-finding process at this stage of the proofs whether due diligence hurdles were advanced by the defense or the prosecution.

By contrast, the alibi-witness statute contains a section that specifically conditions endorsement of additional alibi witnesses on rebuttal:

[A] showing by the moving party that the name of an additional witness was not available when the notice required by subsections (1) or (2) was filed and could not have been available by the exercise of due diligence . . . . [MCL 768.20(3); MSA 28.1043(3).]

The Legislature apparently determined that the belated endorsement of alibi and rebuttal witnesses is much more likely to prejudice the prosecution or the defense than would the addition of non-alibi witnesses. Hence, the Legislature deemed that with respect to additional witnesses called to establish and rebut an alibi, each party must show due diligence as a condition for belated endorsement. Thus while rejecting the argument that the "due diligence” standard alone should be adopted as the controlling test for abuse of discretion in the addition of alibi or rebuttal witnesses, we recognized in Travis that diligence was part of the inquiry. Id. at 680-681.

The dissent suggests that Travis is appropriately applied here because Travis adopted the five-part test of Myers,16 and Myers construed language identical to the good-cause language of MCL 767.40a; MSA 28.980(1). The observation perpetuates the selective omission of the words "at any time” appearing in MCL 767.40a(4); MSA 28.980(1)(4), thus obscuring the fact that both our notice-of-alibi statute and the federal rule impose an obligation to learn of alibi witnesses and implying that a similar obligation exists under the list-of-witness statute. There is no requirement to exercise due diligence under MCL 767.40a; MSA 28.980(1) to discover the names of witnesses, and we have neither authority nor reason to create one.

This is not to say that in a different situation the failure to grant a continuance upon discovery of a previously unknown witness could not constitute an abuse of discretion, People v Charles O Williams, 386 Mich 565; 194 NW2d 337 (1972), or that in certain circumstances the failure to declare a mistrial at defendant’s request because of prejudice to a defendant from production of such a witness would not justify reversal. Cf. United States v Myers, 550 F2d 1036, 1041 (CA 5, 1977). However, we have recognized in an analogous context that precluding evidence is an "extremely severe” sanction limited to an egregious case. People v Merritt, 396 Mich 67, 82; 238 NW2d 31 (1976).

v

The trial court accepted the representation of counsel that witness Timmons was not known to the prosecution until the day before the motion, that the name of the witness was not in the police report, and that Timmons had never spoken to the police. At this point in the trial, defense counsel had done no more than make a two paragraph opening statement that did not commit him to any particular defense. After an adjournment to speak to the witness, defense counsel said the interview was "sufficient.” Although observing that he would have to investigate his client’s whereabouts on two Thursdays, defense counsel did not request a continuance.

The statute allows the prosecutor to add to the list of witnesses "at any time” on good cause shown. The trial court determined there was good cause. Defendant did not request a continuance of the trial and acknowledged that there was no sandbagging.

VI

Assuming that the five factors considered in People v Travis, supra, are the appropriate standard to review the addition of witnesses to be called in the case in chief, defendant was not deprived of a fair trial. First, and. most importantly, the prosecutor did not violate any statutory duty. Thus, unlike the prosecutor in Travis, who did not endorse known rebuttal witnesses before trial because he had lost their names, the defendant does not dispute that the prosecutor had no indication that Timmons existed until after the first day of trial. Indeed, Green, the complainant, testified that she had failed to tell the officer who interviewed her about defendant’s admissions to her and her sister because of ambivalent feelings regarding the defendant.¹⁷ Second, the defendant has not shown that his case was severely prejudiced by the untimely disclosure. Id. at 683. In fact, there is no colorable claim that defendant would have proceeded any differently had advance notice been given.¹⁸ A telephone call can be made at any time from anywhere and does not lend itself to an alibi. Third, assuming unlawful damage was caused, it was mitigated when the trial court allowed the defendant to interview the witness before taking the stand. After doing so, defense counsel indicated that his interview had been sufficient to understand the nature of the testimony. While the defendant preserved his appellate claim by objecting to admission of the testimony, he did not request a continuance and still has not shown that a continuance would have produced any evidence to rebut the witnesses’ testimony. Contrary to the dissent’s speculation, defense counsel does not claim he was hampered in his efforts to cross-examine Timmons with respect to her credibility. Given that defense counsel requested and received information regarding the criminal convictions of prosecution witnesses, it is reasonable to conclude such potential specific impeachment of Timmons was nonexistent. In any event, appellant does not make this claim.

Finally, the amount of other evidence admitted against the defendant was compelling. In addition to circumstantial proof that the defendant committed the offense, there is no dispute that the entirety of complainant Green’s testimony was properly admitted.¹⁹ Green testified that the defendant called her and confessed that he had broken into her house.

CONCLUSION

Rules of discovery are intended both to enhance the fairness of the adversary system, Wardius v Oregon, 412 US 470; 93 S Ct 2208; 37 L Ed 2d 82 (1973), and to vindicate the principle that the "ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts.” Taylor v Illinois, 484 US 400, 411; 108 S Ct 646; 98 L Ed 2d 798 (1988), quoting United States v Nixon, 418 US 683, 709; 94 S Ct 3090; 41 L Ed 2d 1309 (1974). Where there is a potential conflict between these interests, the trial court must balance the interests in fairness within "the broader public interest in a full and truthful disclosure of critical facts.” 484 US 412. Where, as here, there is no cognizable prejudice to defendant in allowing endorsement, excluding the testimony would convert the salutary purpose of discovery into a weapon against the truth-determining function of the trial process.

The res gestae witness rule was abolished precisely because the notion of due diligence to produce at trial ail "res gestae” witnesses had become a vehicle for claims that failure to use due diligence to locate, endorse, and produce witnesses required an adverse inference instruction or reversal on appeal. The prosecution must disclose material evidence favorable to the defense—even without a request²⁰—must advise defendant of all known witnesses and those it discovers, must indicate which witnesses it will call at trial, and must provide reasonable assistance to produce witnesses it does not intend to call. The dissent’s attempt to resurrect "the fat lady”²¹ from the legislative bone yard serves neither fair play nor truth.

A primary purpose of discovery is to enhance the reliability of the fact-finding process by eliminating distortions attributable to gamesmanship. Assuming a statutory violation, the court must weigh this paramount interest against the opposing parties’ interests in an adequate opportunity to meet the proofs. Where a continuance can accomplish both objectives, it serves administrative efficiency and is the remedy of choice. In other circumstances, other methods of addressing the problem may be appropriate. In all events, the remedy is confided to the discretion of the trial court.

Given that there is no duty to discover res gestae witness, there was no statutory violation. In this case there is not even a colorable claim of abuse of the trial court’s discretion.²² Thus, we affirm the decision of the Court of Appeals.

Brickley, C.J., and Riley and Weaver, JJ., concurred with Boyle, J.

1 MCL 750.110; MSA 28.305.

2 Unpublished memorandum opinion, issued November 5, 1993 (Docket No. 140851).

3 446 Mich 868 (1994).

4 The judge said that he would be willing to hear from Burwick’s lawyer if he needed additional time after the interview. Burwick’s lawyer requested that the prosecutor be present during the questioning.

5 Burwick was an habitual offender. He did not testify.

6 See n 2.

7 The Court of Appeals is divided on this question. People v Canter, 197 Mich App 550; 496 NW2d 336 (1992); People v DeMeyers, 183 Mich App 286; 454 NW2d 202 (1990), contra, decided before the effective date of Administrative Order No. 1990-6, 436 Mich lxxxiv. We approve the result and rationale of People v Canter at 562-563.

8 People v Baskin, 145 Mich App 526; 378 NW2d 535 (1985).

9 People v Buschard, 109 Mich App 306; 311 NW2d 759 (1981).

10 Unquestionably, the prosecutor has a duty to adequately prepare the case. The duty owed, however, is imposed by the oath of office and is owed to the client, the public. Likewise, defense counsel owes a duty to the client, imposed by the Sixth Amendment, to provide the defendant with effective assistance of counsel. Neither the prosecution nor the defense has an affirmative duty to search for evidence to aid the other’s case. The duty created by this statute is not to investigate for the benefit of the adversary, but to share the evidence that is discovered in fulfilling the prosecutor’s and defense counsel’s duties to their respective clients (subject of course to the provisions of the Fifth Amendment and the attorney-client privilege).

11 Senate Analysis, SB 119 (1986 PA 46), March 26,1986.

12 The prosecutor has a constitutional obligation to disclose exculpatory material and to exercise due diligence before using prior testimony of a missing witness. Neither concept is implicated in this case.

13 Our court rule likewise requires that in the presentation of evidence the parties must comply with the Rules of Criminal Procedure and the Rules of Evidence. See MCR 6.416. The commentary explicitly recognizes that each party has discretion in deciding what witnesses and evidence to present. As the note explains, the rule

is consistent with a 1986 legislative enactment abrogating the prosecutor’s duty to endorse and produce res gestae witnesses. See 1986 PA 46; MCL 767.40; MSA 28.980.

14 MCL 768.20; MSA 28.1043.

15 MCL 767.40a; MSA 28.980(1).

16 United States v Myers, 550 F2d 1036, 1043 (CA 5, 1977), post at 306.

17 Her disclosure to the prosecutor occurred on the day she was allegedly threatened by friends of the defendant. While it is only speculation that this event caused the change of heart that prompted her disclosure, it is also speculation that had the prosecutor interviewed her earlier she would have disclosed the information.

18 The dissent asserts that the defense was "foreclosed from presenting alternative defense theories” and that cross-examination of Timmons was "hampered ... by his inability to investigate beforehand important issues, such as Timmons’ credibility.” Post at 310 and n 25. The record in this case, however, belies any assertion of prejudice.

First, defendant has never alleged an alternate defense theory other than that he might be able to create an alibi for the time when Timmons received his confession. Beyond a hypothetical alibi, defendant has never alleged any possible "alternative defense theory.”

Second, at the beginning of the trial, defense counsel requested the criminal records of any witnesses the prosecution intended to call in order to obtain material to impeach the witnesses’ credibility. Defense counsel, however, never requested Timmons’ previous record, if there is one, and there is no indication that such a request would not have been granted.

19 The dissent, however, incorrectly concludes that any effect on the defendant’s anticipated defense from a change in the proofs in the case in chief is prejudicial. Defendant’s case was damaged when the complainant, Green, unexpectedly testified that defendant had admitted to her that he had committed the crime, but there is no claim of "prejudice” from unfavorable testimony, and the dissent has not suggested otherwise.

20 United States v Agurs, 427 US 97; 96 S Ct 2392; 49 L Ed 2d 342 (1976).

21 The Senate Analysis cited "the fat lady” as an example of the abusive use of the former rule. In People v Edward Charles (Supreme Court Docket No. 72497), the defendant on appeal claimed lack of due diligence in the prosecutor’s failure to locate and produce a missing "fat lady,” who, a witness testified at trial, had seen the crime. Hie Court of Appeals in an unpublished opinion per curiam, remanded the case for a hearing to determine 1) whether the fat lady was a res gestae witness, 2) whether the prosecutor adequately attempted to produce her for trial, 3) whether the defendant was prejudiced, and 4) if so, an appropriate remedy. Issued July 21, 1983.

22 While the dissent accuses the majority of an "essentially standardless approach,” it is the dissent who offers no explanation why the brief continuance offered by the court and accepted as satisfactory by the defense lawyer did not address the public interest, the court’s interest, and the defendant’s interest in a fair trial. Post at 308. The rule the dissent espouses is that the judge should have offered options the parties did not request, failing which the trial judge is to be reversed for not granting the extreme request the defendant made. The formulation can only be described as illogical.