People of Michigan v. Donnie Everett
899 NW2d 94
| Mich. Ct. App. | 2017Background
- Defendant Everett was convicted by a jury of second-degree murder, multiple counts of assault with intent to commit murder (AWIM), assault with intent to do great bodily harm less than murder (AWIGBH), felon in possession, and felony-firearm for a shooting that killed a 3-year-old and wounded several others.
- The shootings arose from a fight between teenagers; defendant brought and fired a gun at a house and at multiple persons; others also fired.
- The prosecutor’s pretrial witness list (per MCL 767.40a) listed over 60 names; Brittany Dawning’s name had an “X” (endorsed) but also a handwritten “and/or” notation.
- At trial the prosecutor moved to remove Dawning from the witness list; the court allowed it without making a on-the-record “good cause” finding and without treating the “and/or” label as problematic.
- Defendant objected and later argued on appeal that (1) Dawning was an endorsed witness and the prosecutor improperly deleted her without showing good cause or obtaining a stipulation, and (2) the trial court erred in refusing to give a missing-witness instruction and in some AWIGBH lesser-included instructions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prosecutor may endorse a witness “in the alternative” ("and/or") and remove without good cause | Prosecutor: "and/or" means alternative endorsement; removal allowed without showing good cause | Everett: Dawning was endorsed (X) under MCL 767.40a(3); deletion required court leave and good cause under MCL 767.40a(4) | Court: No statutory basis for "and/or" endorsements; prosecutor’s X meant Dawning was endorsed and removal required good cause; trial court abused discretion by failing to make a good-cause determination, but no prejudice shown so no relief granted |
| Whether failure to give missing-witness instruction (M Crim JI 5.12) requires reversal | Prosecutor: no due-diligence failure; no instruction necessary | Everett: court should have given instruction because endorsed witness did not appear | Court: Claim unpreserved; plain-error review fails—record does not show lack of due diligence and, given evidence against defendant, instruction would not have affected outcome |
| Whether trial court erred by denying AWIGBH lesser-included instruction for victims who were shot | Prosecutor: evidence supports AWIM intent to kill for victims who were shot; instruction not required | Everett: AWIGBH is necessarily included and jury should have been instructed for all AWIM counts | Court: AWIGBH is a necessarily included offense but evidence did not "clearly" support AWIGBH for Frieda, Demetrius, Tkira; no prejudice shown to overturn AWIM convictions |
| Whether prosecutor’s procedural errors require reversal of convictions | Prosecutor: any deletion was for good cause and defendant not prejudiced | Everett: procedural violations and missing testimony prejudiced defense | Court: Even assuming some procedural error, Everett failed to show prejudice; convictions affirmed |
Key Cases Cited
- People v Koonce, 466 Mich 515 (describing prosecutor duties under MCL 767.40a)
- People v Duenaz, 306 Mich App 85 (prosecutor must show good cause to delete endorsed witness)
- People v Eccles, 260 Mich App 379 (duty to exercise due diligence to produce endorsed witnesses)
- People v Canales, 243 Mich App 571 (inability to locate a listed witness after due diligence constitutes good cause)
- People v Cornell, 466 Mich 335 (requirement for giving a necessarily included lesser-offense instruction)
- People v Brown, 267 Mich App 141 (AWIGBH is necessarily included offense of AWIM)
- People v Elston, 462 Mich 751 (appellant’s burden to develop record on appeal)
- People v Henderson, 306 Mich App 1 (intent to kill may be inferred from totality of evidence)