People v. Pearson

273 N.W.2d 856, 404 Mich. 698, 1979 Mich. LEXIS 390

• Court: Michigan Supreme Court
• Decided: January 8, 1979
• Docket: Docket Nos. 57147, 56977, 57273. (Calendar Nos. 8-10)
• Status: Published

Opinions

Coleman, J.

We agree that the convictions of Willie and Lindsay Pearson should be affirmed. We also concur in the result that the convictions of Willie Wynn and John J. Schwartz should be reversed. In Schwartz, reversal is required because the prosecutor failed to exercise sufficient diligence in his attempts to produce Don Cager (one of two on-the-scene witnesses), regardless of the "good faith” on the part of the prosecution. Reversal in Wynn is predicated upon the prosecution’s lack of diligence in attempting to produce Moore and its apparent disregard for its responsibility to present to the judge and jury the "whole transaction” of the alleged crime.

A separate opinion is necessary, however, to set forth the points of departure from Justice Levin’s opinion. We do not agree that in all cases where there has been a hearing during the course of trial concerning the prosecution’s obligation to produce a given res gestae witness and its diligence in the attempt, the defendant should be able to raise missing res gestae witness issues on appeal without first presenting them to the trial judge in a Robinson (post-trial) hearing.¹ As Justice Levin notes: "The purpose of a Robinson hearing, however, is twofold. It is not only to determine the reason for a failure to indorse or a failure to produce but also to determine whether the defendant has been prejudiced by non-production of the witness.”

In cases where the trial judge has determined that the prosecution failed to exercise due diligence when attempting to produce a missing res gestae witness (e.g., Wynn), the issues of the existence of prejudice (if any) and the appropriate remedy remain to be resolved. These issues should be raised in a post-trial hearing in order to perfect them for appeal. In cases where the trial court has ruled that a missing witness is not a res gestae witness or that the prosecution was sufficiently diligent in its efforts to produce (e.g., Schwartz), a Robinson hearing would be superfluous and is not required prior to an appeal.

Furthermore, we are unable to accept our brother’s standards for determining whether a defendant has been prejudiced by the prosecution’s lack of due diligence.² While we agree that the defendant should be presumed prejudiced unless and until the prosecution overcomes this presumption, utilization of the standard "possible” (i.e., the witness could not "possibly” have been produced or his testimony would have been of no "possible” assistance to defendant) makes rebuttal of the presumption virtually impossible. Also, it could be read as eliminating the "cumulative evidence” and "harmless error” exceptions to the res gestae rule. Therefore, in Wynn and Schwartz, post-remand hearings and Robinson hearings, the determination of the existence of prejudice to the defendant as a result of a violation of the prosecution’s obligation to indorse, produce and call all known res gestae witnesses should be in accordance with the standards delineated infra.

I

John J. Schwartz was convicted of delivery of heroin. MCL 335.341(l)(a); MSA 18.1070(41)(l)(a). The testimony establishes that the defendant delivered heroin to a police officer who had been introduced to the defendant by Don Cager, an informant. Cager was present during the transaction, but was not produced at trial. Consequently, Cager was clearly a missing res gestae witness. He was indorsed on the information. The defense was entrapment.

During the course of the trial, the defendant raised the issue of non-production. The prosecution recalled the police officer who had worked with Cager. The officer testified that the last time he had seen Cager was about six months prior to trial. In the interim, and particularly over the five weeks preceding trial, he had made several unsuccessful (vaguely described) attempts to find Cager regarding other matters. In preparation for the Schwartz trial (which was to begin the next day), the officer went to Cager’s residence in Algonac, Michigan, spoke to several people on the street in Cager’s age group, and spoke to a local police officer. He was unsuccessful in locating Cager. On the morning that he was recalled to the witness stand, the same officer had been sent out in search of Cager armed with a subpoena. The officer returned to Algonac and checked Cager’s residence, a boathouse, a firehouse, a pool hall, two bars and two restaurants. The court ruled that these efforts constituted a "good faith” attempt to locate and produce Cager.

The Court of Appeals reversed on the grounds that the trial judge used the wrong standard (good faith versus due diligence) and that the prosecution did not exercise sufficient diligence in its attempts to produce Cager. 62 Mich App 188; 233 NW2d 517 (1975). We agree.

It is clear that the standard is one of due diligence and not good faith.³ We also believe that the standard of due diligence was not met. Prior to trial there was no attempt to subpoena Cager, nor did anyone keep track of his whereabouts between defendant’s arrest and trial. It was clear that Cager was a res gestae witness who would have to be produced. Consequently, a diligent attempt would have included serious pretrial efforts to locate and subpoena Cager.

We must agree with Justice Levin’s assessment of the police officer’s efforts during the two trips to Algonac. A thoughtful, serious attempt, even at that late date, would have included prior telephone inquiries (particularly in the evening) to Cager’s residence, his parents, the local police, an inquiry of neighbors, etc. Of particular concern to this Court, however, is that no serious effort was made sufficiently in advance of trial to allow for the difficulties which occurred. Therefore, we agree that the defendant’s conviction be vacated, but subject to the prosecution’s right to seek relief in a post-remand hearing consistent with the procedures and standards set forth infra.

II

Willie Wynn was convicted of assault with intent to do great bodily harm less than murder. MCL 750.84; MSA 28.279. The testimony establishes that Earl Berry had beaten Wynn’s ex-girlfriend and threatened Wynn. James Moore (the girlfriend’s brother), Wynn and an unknown third person went to the Berry family’s home in an alleged attempt to straighten out matters and pacify Earl Berry. A rifle was brought along.

Moore entered the Berry house first. Earl Berry was not home so Moore spoke to Floyd and Arm-stead "Rudy” Berry (Earl’s brothers) in a back bedroom. A few minutes later Wynn ran in the house with the rifle and a shot was fired, narrowly missing Rudy Berry.

Wynn was charged with assault with intent to commit murder. The key element of the proofs was Wynn’s intent. Wynn testified that he entered the house with the rifle, that he saw Rudy Berry coming toward him, that he ordered Rudy to halt while raising the rifle and that the rifle accidently discharged. The prosecution’s witnesses testified that Wynn aimed and ñred at Rudy. All parties agree that Moore was an eyewitness to the incident.

We cannot agree, however, with Justice Levin’s characterization of the importance of Moore’s testimony. It is stated:

"Moore was standing about two feet in front of and to the side of the complainant when the shot was fired, and may have been the only person who had an unblocked view of the incident.”

Rudy Berry testified that Moore preceded him out of a back bedroom as Wynn ran in the front door with a rifle in his hands. Rudy Berry said that when he and Wynn saw each other they both stopped still and Wynn then aimed at him from a distance of 7 or 8 feet. Berry then said:

”Q. What happened then?

"A. He pulled the trigger, you know, and as he fired, you know, I ducked, you know, I seen he fired and I ducked the bullet, and after he ñred it, I grabbed James Moore.

"Q. Okay, where was James Moore standing?

”A. He was standing about two feet in front of me to the left, next to the wall, so all I had to do was jump out and grab him, so I grabbed him, because if he shot again I wanted him to hit James Moore instead of me since they were together.” (Emphasis added.)

We understand this and other testimony to place Moore to one side of Rudy Berry when the shot was fired. Because the defendant’s intent was the key issue, his actions before the shot were of paramount importance. Further, the evidence establishes that Floyd Berry and Doris Smith also had unobstructed views of the entire transaction. Floyd Berry, Doris Smith and Rudy Berry were produced and called by the prosecution.

Thus, we do not believe it is fair to depict Moore as the crucial eyewitness. However, given that the only witnesses produced by the prosecution were friends or relatives of the Berrys, it is fair to conclude that Moore may have provided a different picture of the event.

Moore was not indorsed prior to trial, but in response to a defense motion the court ordered. Moore indorsed and produced during trial. The police located Moore and he said he would appear. No attempt to serve a subpoena was ever made. Moore did not come to court and the prosecution made no further efforts to produce him. The court found that this constituted a lack of due diligence and instructed the jury that it could infer Moore’s testimony would have been unfavorable to the prosecution.

The Court of Appeals reversed. 60 Mich App 636; 231 NW2d 269 (1975). We agree that there was a lack of due diligence. Of particular concern is the fact that an obvious res gestae witness was not indorsed, no pretrial efforts to subpoena him were made and no serious attempt to comply with the prosecution’s obligations in this regard was ever established. Consequently, the defendant’s conviction should be vacated, subject to the prosecution’s right to seek relief in a post-remand hearing consistent with the procedures and standards set forth later in this opinion.

We do not read the record to suggest that Moore’s testimony was intentionally withheld. Although the prosecutor may have appeared recalcitrant and less than diligent in his efforts to produce Moore, we still find an insufficient basis to infer "that the prosecution’s lack of due diligence was purposeful”. To the contrary, there is no record support for the assumption that Moore’s testimony would have been detrimental to the prosecution’s case beyond the fact that Moore probably was not favorably disposed toward the Berry family. Indeed, the defense was not interested in helping to locate Moore on the basis that he would testify against Wynn.

Therefore, we would not grant the defense the many depositions and other discovery aids provided by Justice Levin. Discovery is always available through traditional means.

Ill

Central to the judicious and efficient administration of criminal justice are procedures allowing the trial court to decide all the issues necessary to dispose of a case prior to appeal, whenever possible. Moreover, factual questions should be resolved while the testimony is fresh and available, not after the delays of the appellate process leave only a stale record and failing memories to be assessed by the trier of fact. Whether a defendant has been prejudiced by the prosecution’s failure to exercise due diligence is a factual issue which should be resolved by the trial court. Whether due diligence was employed and whether a person, in fact, is a res gestae witness are similar factual issues.

It is our opinion that the following procedures provide a fair and effective resolution of these problems without repeatedly traveling up and down the judicial ladder.

If the question of a missing res gestae witness is raised during the course of trial, it is our opinion that the court should hold a hearing and decide first whether the witness is in fact a res gestae witness.⁴ 5If it is determined that the person is a res gestae witness, the court should order the prosecution to produce him or her.⁵ If the witness is not produced, then the court should hold a hearing on the issue of whether the prosecution was duly diligent in its attempts to produce the witness.⁶

Assuming the trial judge decides that there was a lack of due diligence, as in Wynn, then the judge should instruct the jury that it may infer that the missing "witness’s testimony would have been unfavorable to the prosecutor’s case”. CJI 5:2:14(3). However, determination of the existence of prejudice to the defendant and possible remedies must await the verdict. Assuming a verdict of guilty, the defendant must raise the issue of prejudice and seek a remedy in a Robinson-type procedure or be foreclosed from raising these issues on appeal. If the defendant is dissatisfied with the results of the Robinson hearing, review may be sought in the defendant’s appeal as of right.

In cases like Schwartz, where the missing person is determined to be a res gestae witness but the court finds the attempts to produce sufficiently diligent, there is no purpose in forcing the defendant first to seek a remedy in a Robinson proceeding. The defendant may seek a review of the court’s ruling on the due diligence issue in an appeal without first bringing a post-trial motion. Identical procedures should be followed when the issue of a missing witness is raised at trial, but the court determines the person is not a res gestae witness.

The third type of case is the typical Robinson scenario. There, the issue of a possible missing res gestae witness is not raised during the course of trial. We would still require the issues to be raised in a Robinson hearing in order to perfect them for appeal. However, we would refine the procedure to require that the trial court reach all the issues necessary to dispose of the case. In summary, and consistent with our earlier analysis, the order of inquiry should be as follows:

1. The court shall ascertain whether the claimed missing person is a res gestae witness;

2. If so, the prosecutor shall produce the witness or explain why the witness cannot be produced and why the witness was not indorsed and produced at trial;

3. If the witness is not produced, the court shall determine whether the prosecution was duly diligent in its attempts to produce the witness;

4. If a lack of due diligence is found or if the witness is produced, the court shall ascertain whether the defendant has been prejudiced by the failure to produce the witness at trial;

5. If the defendant is found to be prejudiced the court shall fashion an appropriate remedy.

Except in cases where the court finds in favor of the prosecution on the issues of whether a person is a missing res gestae witness or whether due diligence was exercised, these procedures will make it more likely that the missing witness ultimately will be produced and result in a maximum of one appeal, removing the need for a remand and continuing appellate jurisdiction. In the Schwartz type of case, if the defendant is successful on appeal a new trial should be conditioned upon the prosecutor’s right to establish a lack of prejudice. Consequently, we would hold that in Wynn, Schwartz, and future similar cases the prosecutor shall have 30 days to seek a hearing to determine the existence of prejudice. The Court of Appeals shall be deemed to have retained jurisdiction to review the hearing record upon application of either party within 30 days of the entry of the judge’s order. Should the prosecutor fail to seek a post-remand hearing, within 30 days, the conviction shall be deemed vacated and the prosecutor may proceed with a new trial.

IV

A new trial is not automatically warranted simply because the prosecution has failed to exercise due diligence in the production of a missing res gestae witness. The key issue in determining the proper remedy for the defendant when the prosecution has failed to fulfill its responsibilities is whether the defendant is prejudiced. Our area of disagreement with Justice Levin primarily resides in the standards for determining the existence of prejudice.

In effect, his approach rebuttably presumes that the defendant was prejudiced upon a finding of a lack of due diligence. This presumption could be rebutted only "[i]f the prosecutor establishes that the witness could not possibly have been produced at the trial or his testimony would have been of no possible assistance to the defendant * * * .” (Emphasis added.) Moreover, it is stated that: "If the witness cannot be produced for a post-remand hearing (unless the prosecutor establishes further that the witness could not possibly have been produced at the trial), the conviction must be reversed because there is no way of knowing whether at the trial he might possibly have given testimony of assistance to the defendant.” The motivation for fashioning such restrictive standards appears to be that they will discourage prosecutorial failure to employ due diligence. Unfortunately, these standards will also result in many unnecessary new trials.

Such an approach confuses two concepts. New trials should be awarded because of prejudicial error, whereas professional misconduct should be remedied by the Attorney Grievance Commission (e.g., deliberate withholding of res gestae testimony favorable to the defendant).

At either a post-remand hearing or a Robinson hearing, we would have the trial court assess whether the defendant actually suffered any prejudice and fashion appropriate remedies. The burden should be on the prosecution to establish that its failure to exercise due diligence in the production of a res gestae witness did not adversely affect the defendant’s right to a fair trial (i.e., the defendant is presumed prejudiced until the contrary is established). If the prosecution can establish that the missing testimony would have been of no assistance to the defendant, that it merely constitutes cumulative evidence,⁷ that its absence constitutes harmless error⁸ or that the witness could not have been produced at trial, then this burden has been met and the conviction should be affirmed. A failure to meet this burden should result in a new trial.

V

In summary, the procedures delineated in Part III of this opinion provide a means for judiciously and efficiently disposing of missing res gestae witness issues. Emphasis is placed upon disposition of issues prior to appeal in order to avoid post-remand hearings and continuing appellate jurisdiction.

We prefer a less extreme standard than that chosen by Justice Levin for determining whether a defendant has been prejudiced by the prosecution’s lack of due diligence in attempting to produce res gestae witnesses.

If it appears to the judge that there has been professional misconduct but that defendant’s right to a fair trial has not been adversely affected, then the sanctions should rest upon the individual prosecutor rather than upon society. If professional misconduct also results in prejudice, the defendant should have his remedy and the code violation should be referred to the Grievance Commission for appropriate action.⁹

However, it is worth noting that although the state is ultimately responsible for the lack of due diligence in the production of res gestae witnesses, not all such failures are the result of prosecutorial negligence or misconduct. For example, it is arguable that the failure to produce Cager in Schwartz is more a result of the lack of diligence of the police officer than the prosecutor. There are many possible fact situations which would amount to a lack of due diligence and yet not rise to the level of professional misconduct proscribed by the Code of Professional Responsibility. The preferred course, however, would be for the trial judge to refer a proper case to the Grievance Commission for investigation.

We affirm in Pearson. In Wynn and Schwartz, we reverse subject to the prosecution’s right to seek a post-remand hearing, concerning the existence of prejudice, within 30 days from the issuance of this opinion. Should the prosecutor seek such a hearing in either case, within 30 days from the entry of the judge’s order either party may seek review of the hearing from the Court of Appeals. The Court of Appeals shall be deemed to have continuing jurisdiction for the purpose of reviewing such hearings. If the prosecutor does not seek a post-remand hearing within 30 days, then the conviction(s) shall be deemed vacated and the prosecutor may commence a new trial.

Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred with Coleman, J.

1 People v Robinson, 390 Mich 629; 213 NW2d 106 (1973).

2 Justice Levin focuses on the standard a prosecutor would have to meet to rebut a presumption of prejudice. He says:

"If the prosecutor establishes at such a post-remand hearing that the defendant was not so prejudiced because the witness could not possibly have been produced or because his testimony would have been of no possible assistance to the defendant, upon the trial judge’s •entry of an order so finding the defendant’s conviction shall be deemed affirmed.” (Emphasis added.)

3 The good faith or bad faith of the prosecution is simply irrelevant when deciding whether the prosecution has fulfilled its obligation to present the "whole transaction” of an alleged crime. Due diligence is the standard. Good faith-bad faith becomes relevant when prejudice and professional misconduct are considered.

4 To prevent a repetition of evidence, this hearing should be held at the close of the prosecution’s proofs in most cases. However, the exact point during trial when this hearing and the hearing on due diligence (if necessary) are to be held should be within the trial court’s discretion.

5 The court may want to consider a continuance to allow the prosecution time to produce the witness, particularly when the witness was unknown to the prosecution prior to trial. Clearly, it is preferable that this testimony be presented to the jury whenever possible.

6 Footnote 6 on next page.

7 For discussion of the cumulative evidence rule see, e.g., People v Raider, 256 Mich 131, 134; 239 NW 387 (1931), People v Bartlett, 312 Mich 648, 654-655; 20 NW2d 758 (1945), People v Cooper, 326 Mich 514, 523; 40 NW2d 708 (1950), People v Reynold, 20 Mich App 397, 399; 174 NW2d 25 (1969), People v Harrison, 44 Mich App 578, 588-590; 205 NW2d 900 (1973), People v Sims, 62 Mich App 550, 554-555; 233 NW2d 645 (1975), People v Saunders, 68 Mich App 546; 243 NW2d 679 (1976).

8 For discussion of the harmless error rule see, e.g., Chapman v California, 386 US 18; 87 S Ct 824; 17 L Ed 2d 705 (1967), People v Shirk, 383 Mich 180, 195-197; 174 NW2d 772 (1970), People v Robinson, 386 Mich 551, 560-564; 194 NW2d 709 (1972), People v Mobley, 390 Mich 57, 65-66; 210 NW2d 327 (1973), People v Wichman, 15 Mich App 110; 166 NW2d 298 (1968), People v Swan, 56 Mich App 22, 30-35; 223 NW2d 346 (1974), People v Hadley, 67 Mich App 688; 242 NW2d 32 (1976). See, generally, Saltzburg, The Harm of Harmless Error, 59 Va L Rev 988 (1973).

9 It is clear that the Disciplinary Rules encompass and proscribe prosecutorial misconduct. E.g., Code of Professional Responsibility, DR 7-103; DR 7-109, subds (A), (B); DR 7-106, subds (A), (C)(7); DR 7-102, subds (A)(1), (A)(3), (A)(6)-(A)(8); DR 1-102.

6 Standard Criminal Jury Instruction 5:2:14 allows the judge to submit the issue of due diligence to the jury. We believe that this procedure should not be utilized. Such a determination is essential to resolve cases where the missing witness is a res gestae witness and there is a guilty verdict. Because the jury would not ordinarily disclose its decision on the issue, we believe that the court must hold the hearing, make a record and state its determination of the issue so that the parties and the court may know whether due diligence was exercised and the reasons for this finding.