*1 698 404 Mich WILLIE
PEOPLE v PEARSON PEOPLE v LINDSAY PEARSON
PEOPLE v WYNN
PEOPLE v SCHWARTZ
57147, 56977,
3,
(Calendar
Argued
Docket Nos.
February
57273.
8-10)
8,
January
Rehearing
Nos.
1979.
. Decided
denied as to
Pearson
Willie Pearson and jury Pearson were convicted Detroit, Colombo, J., Recorder’s Court of Robert J. of first- degree argued partic- murder. Defendants that a third man had ipated they Raymond in the crime and moved at trial gestae witness; Collins be indorsed as a res he had been charged charge with the murder but the was dismissed after investigation. police further A officer testified that witnesses [26] [27] [28] [25] [20] [24] [23] [14] [19] [15] [16] [13] [8] [12, [3, [5] [4, 7, 17, [1, 2, 10, 21, 81 Am Jur Witnesses 2.§ 81 Am Jur Witnesses 2.§ 9, 23 Am 6, 81 Am Jur 40 Am Jur 75 Am Jur 40 Am Jur 29 Am Jur 81 Am Jur 81 Am Jur 81 Am Jur 75 Am Jur 30 Am Jur 30 Am Jur 21 Am Jur 13] 29 Am Jur Am Jur 11] 63 Am Jur 5 Am Jur Jur 18] 22] 2d, 2d, 2d, 2d, Depositions 2d, 29 Am Jur 2d, 2d, 2d, 2d, 2d, 2d, 2d, 2d, 2d, 2d, 2d, 2d, References 29 Am Jur Indictments and Informations Witnesses 2.§ Homicide 525. Trial 884. Homicide Trial 193. Witnesses Witnesses 480. Evidence 1172. 2d, Prosecuting Evidence Evidence 181. Witnesses 2.§ Evidence 225. Criminal Law 328. 2d, Appeal § § 2d, 2d, for Points in Headnotes § § §§ § §§ § §§ § Evidence 180. and Error 783. Evidence 180. 1094, 72, 560, § Discovery Attorneys 474. 561. 1095. § § § §§ 27.§ 314-323. §§ 56, 60. v Pearson killing that Collins was not present at the scene of the said investigation present that Collins was further showed Selfridge Air Base at the time of the crime. court Force officer’s the defendants’ motion on the basis denied *2 testimony. that if Collins had been The court also found even therefore, and, accomplice present would need he have been an Appeals, gestae of witness. The Court not be indorsed as a res (V. Brennan, P.J., Holbrook, O’Hara, Jr., con- JJ. J. D. E. and 20063). (Docket 20062, curring part) Nos. Defend- in affirmed appeal, raise several other issues which ants Pearson and prosecutorial misconduct. concern jury by Wynn a Court of was convicted in Recorder’s Willie O’Brien, J., Detroit, to of with intent do John Patrick assault bodily judge great than murder. trial instructed harm less The witness, they might gestae jury that infer that a res James the Moore, produce people the to trial would have that failed although people, unfavorably produced, if the the testified to prosecution judge due found the not show dili- trial did produc- gence producing in Moore and another witness whose Appeals, judge R. trial. B. the had ordered at The Court of tion P.J., Maher, JJ., Burns, Burns and R. reversed and T. M. M. 19808). (Docket people The new trial No. and remanded for a appeal. by jury Court a in Recorder’s' of John J. Schwartz was convicted J., Detroit, Poindexter, delivering of heroin. Thomas L. The Burns, P.J., (O’Hara, Appeals, Kelly, J. Court of R. B. and M. J. J., dissenting), trial on and remanded for a new reversed diligence ground people had failed to due in show produce gestae attempting to indorsed on the a res witness (Docket 18615). people appeal. The Held: information No. The the defendants are affirmed. The convictions of Pearson Wynn reversed, subject of are to convictions and Schwartz prosecution’s right post-remand hearing concerning to seek a hearing prejudice days. the existence of within 30 a is If such sought, not then vacated the conviction shall be deemed prosecution may new commence a trial. hearing during there 1. Where has been a the course concerning prosecution’s produce obligation a trial to res gestae diligence attempt, witness and its the defendant is always appeal not able the issues without first to raise on hearing.- presenting judge post-trial them to the trial in a post-trial non-production purpose hearing concerning of a of a witness twofold. It is not to determine reason produce failure to a failure but also to for a indorse or to prejudiced determine the defendant has non- been judge production the trial deter- the witness. has Where diligence to exercise due mined that the failed witness, missing gestae the issues of the existence resolved, remedy prejudice appropriate remain to be and the perfect post-trial in a them and should be raised missing appeal. judge ruled that a the trial has Where was suffi- is not a res witness or post-trial hearing produce, ciently diligent in its efforts to required prior appeal. superfluous and is not an would be prejudiced presumed 2. A should be been defendant prosecu- prosecution’s lack of unless the However, presumption. use of tion the standard overcomes i.e., "possibly” "possible”, the witness have been could "possible” have been no or his would defendant, presumption assistance to the makes rebuttal virtually "possible” impossible inappropriate. stan- eliminating dard be read as the "cumulative evi- could also exceptions the res rule. dence” "harmless error” wrong 3. The trial Schwartz used standard faith”) (“good ruling prosecution’s effort on the to locate and gestae witness. It is clear that the standard is one a res *3 good diligence not The of due of due and faith. standard diligence met. It that the was a res was not was clear witness diligent gestae produced, witness who would have to be and a attempt pretrial included to locate would have serious efforts him; sufficiently subpoena no was made in serious effort to allow occurred. advance of trial for the difficulties which vacated, subject prose- Therefore Schwartz’ conviction is to the right post-remand hearing. relief cution’s to seek in a prosecution’s Wynn Wynn, In4. the witness testified Wynn Rudy Berry, aimed a fired at rifle and testified accidentally discharged raising rifle as he was it. missing eyewitness fairly Moore could not be the crucial called eyewitness, given produced by but that the witnesses Berry, or were friends relatives of it is fair may provided picture conclude that Moore a different diligence: res event. There was a lack of due an obvious gestae indorsed, pretrial subpoena witness was not no efforts to made, attempt comply him and no were serious with prosecution’s obligation Consequently, was ever established. Wynn’s vacated, right prose- subject conviction is to the However, post-remand hearing. cution there to seek relief in a prosecu- is not'a sufficient basis in to infer that the the record diligence purposeful. tion’s lack of due There no record was is v Pearson testimony support assumption that Moore’s would have for the prosecution’s beyond the fact that to the case been detrimental Berry favorably disposed probably not toward he helping family, in the defense was not interested and indeed Therefore, granted the should not be locate him. the defense suggested by many depositions discovery aids Justice and other Discovery always through traditional means. available Levin. prejudiced by prosecu- 5. Whether a defendant has been diligence is a factual issue which tion’s failure to exercise due court; be resolved the trial whether due should gestae employed person is a res witness are and whether a following procedures Accordingly, the similar factual issues. problems: provide a fair and effective resolution of missing gestae question is raised res witness If the of a trial, hearing during should hold a the course of the the court gestae a res the witness is fact and decide first whether witness, witness; gestae to be a res if the witness is determined ordered; production be if the witness is of the witness should produced, on the issue of due a should be had diligence. a) diligence, then the If the trial finds a lack of due missing jury may it infer that should be instructed prosecution’s witness’s would be unfavorable prejudice possible remedies must case. Determination of guilty, there is a verdict of then the await the verdict. If remedy prejudice and seek a defendant must raise issue raising post-trial hearing foreclosed from these issues in a or be appeal. the results of the on If the defendant is dissatisfied with appeal right. post-trial hearing, may sought in his review b) missing In witness is determined to be a cases where the gestae diligence, it res witness but the court finds due where witness, is not a res determined that appeal without first defendant seek review of the issue on bringing post-trial motion. c) missing possible In of a cases where the issue during it must be witness is not raised the course of appeal. post-trial hearing perfected raised to be inquiry order of should be as follows: *4 ) missing ascertain whether the claimed court shall 1. The gestae witness; person res is a ) so, explain produce or 2. If shall the witness why produced why the witness was the witness cannot be trial; produced not indorsed and at ) produced, 3. If the is not the court determine witness shall diligent attempts prosecution duly in its produce witness; ) diligence 4. found or if the witness is If a lack of due is produced, whether the defendant has the court shall ascertain trial; prejudiced by been the failure to the witness at ) prejudiced the court 5. If the defendant is found to be shall remedy. appropriate fashion an simply automatically warranted 6. A new trial is because prosecution diligence has failed to exercise due in the missing key production gestae of a witness. issue determining proper remedy for the when the defendant prosecution responsibilities has failed to fulfill its is whether prejudiced. post-remand hearing the defendant is At either a post-trial hearing, the trial court should assess whether the actually any prejudice appropri- defendant suffered and fashion ate remedies. The burden should be on the diligence produc- establish that its failure to exercise due in the adversely tion a res witness did not affect the defend- (i.e., right presumed ant’s to a fair trial the defendant is established). prejudiced contrary until the If the missing testimony can establish that the would been of no defendant, merely assistance that it constitutes cumula- evidence, tive its absence harmless constitutes error or the witness could not have been then this burden has been met and the conviction should be af- firmed. A failure to meet this burden result in should a new trial. appears judge professional 7. If it that there has been right misconduct but that defendant’s to a fair trial has not affected, adversely upon been then the sanctions should rest upon society. professional individual rather than If prejudice, misconduct also results in the defendant should have remedy his and the code violation should be referred to the Attorney appropriate Grievance Commission for action. Al- though ultimately responsible the state is for the lack of due diligence witnesses, production of res not all such prosecutorial negligence failures are the result of or miscon- example, arguable duct. For it that the failure to diligence Schwartz is more a result of the lack prosecutor. many possible officer than the There are fact situations which would amount to a lack of due yet pro- professional not rise to the level of misconduct Responsibility. prefer- scribed the Code of Professional course, however, red refer a would be for the trial *5 v Pearson investi- Attorney proper Commission Grievance case gation. Kavanagh Levin, joined by and Justice Justice Chief Justice Williams, dispositions He of these cases. concurred wrote: requires underlying the the rule which 1. The rationale of information, produce in court and prosecutor to indorse on the gestae is the known res witnesses is call all people’s duty obliged present is the whole transaction. guilt points is only as toward such evidence not met where may suggest evidence which when there exists other innocence. is the on the information of witnesses indorsed 2. The list right. matter of only discovery defendant as a available to the Michigan practice argue in people modern While the discretionary discovery discovery discovery, and one of wide people exception, are in a the rule. The the orders are identify position and secure than a defendant
better prosecution production relieved of the If the were of witnesses. witnesses, produce gestae would obligation defendants justice upon and would be for assistance. Trials call the court providing in delayed be incurred and additional costs would duplicative indigent assistance with alternative and defendants crime, locating identifying investigating in and and in securing Post-conviction claims their attendance. witnesses and evidence, relatively rare Mich- withheld that the hearings post-conviction igan, surely multiply as would would might have said had the undisclosed witness to determine what produced. of the burden Allocation to the he been production investigation witnesses has of all res people the efficient and of this state and advanced served century. justice for more than a fair administration of criminal resolving 3. The trial in Pearson erred in hearsay Raymond the scene on the arrested Collins was at officer, but there was no affirmative assertions of the all, Collins, than as if there other evidence that there participated third man who in the commission offenses; only justified by if he the record is that conclusion required accomplice, to be was not was there he was an prosecu- produced. Accordingly, judge’s conclusion that the obliged produce is sustained. tor was not Collins Wynn was inten- was whether the shot 4. The issue complain- people’s witnesses were tional or accidental. girl- ant, complainant, complainant’s and the relatives of the complainant’s fam- was "bad blood” between friend. There Wynn. man who ily Moore and the third James and defendant provided Wynn Berry accompanied home could have Wynn’s regarding purpose ex- visit and evidence pressed that Moore intent. It is fair to conclude provided picture than the event the witnesses a different Manifestly, produced by prosecution. Moore the third' obliged and the man were res witnesses *6 failure to to them. The to exert due ground he was justified the that an Moore cannot be on the issue accomplice for than because when if no other reason prosecutor non-production the did not claim was raised of his produced, accomplice. Moore could have been that was an he justifica- judge correctly no found that there was and trial open prosecutor, It to the tion for the failure to do so. was production complying requiring of res in with the rule lieu of witnesses, jury may accept gestae that an instruction to unfavorably missing testify infer witness would people. jury permissible is not an A on a inference instruction Indeed, adequate the instruction is for a live witness. substitute where, diligence, despite the witness case intended option produced. prosecutor of A does not have the cannot be calling accepting jury gestae an adverse a res witness or permissible regarding a inference. The order instruction remanding reversing Wynn’s is Appeals and conviction Court of prosecu- is to believe that the affirmed. Because there reason purposeful, post-re- before a tion’s lack of due was trial, opportunity hearing Wynn or have an mand a new should depositions prosecutors who to of all officers and take Moore, produced any questioned have and there should be by made Moore and the records of such interviews. statements Moore, produce prosecutor exert best to The should his efforts Wynn opportunity an to take his and should be afforded deposition. positive produce to 5. The burden all res witnesses imposed upon people protect from false the defendant preserve presumption of innocence. The accusations his obligation essentially witnesses is deriva- right trial and his tive a defendant’s constitutional to a fair pf guilt beyond right’ prosecutorial proof a to demand of his "diligence” For these reasons means devoted reasonable doubt. painstaking accomplish undertaking. application The an inquire obliged thus officer the Schwartz case was persons might He who know whereabouts. did the witness’s good Focusing not do so. on the officer’s faith was erroneous. diligence. question whether the exerted due v Pearson This not a doubtful case was resolved the trial judge’s timely exercise of discretion. failure to make in- persons address, quiry, any inquiry living of other at or friends, neighbors, might parents, or authorities who whereabouts, support about the information witness’s the con- prosecution’s inadequate. clusion that the efforts were where, Wynn and 6. In cases such as Schwartz the course prosecution’s hearing regarding of the there was a finding and a failure to the witness efforts to insufficient, produce him were a defendant should be able to However, appeal seeking post-trial hearing. a without first if Appeals the Court of concludes that a witness have been should insufficient, produced prosecutor’s and the efforts were by right a be order for new trial should deemed conditioned a seek, hearing prosecutor days, to deter- within prejudiced mine whether the trial defendant at non- production of the witness. If the establishes such hearing prejudiced that the defendant was not so because the possibly witness could not have been or because his possible would of no have been assistance to the defendant, upon judge’s entry finding the trial of an so order the defendant’s conviction should deemed affirmed. Other- wise, upon expiration days without upon seeking entry following such a of an order *7 prejudiced, such a that the defendant was the convic- prosecutor tion be should deemed vacated and the allowed to proceed Appeals with a new trial. The Court of should be jurisdiction purpose to have deemed retained for the of review- record, ing post-remand hearing including by a a statement the judge findings decision, upon applica- of his and reasons for his prosecutor by days entry tion the or defendant within of the judge’s Supreme order. The Court address the does not question prosecutor’s whether a failure to a witness may, circumstances, require in some justify or dismissal of the prosecution. appear deprived 7. It does not the that Pearsons were of a by prosecuting attorney charging fair trial the Pearson’s Willie girlfriend perjury subpoenaing with The other witnesses. girlfriend prelimi- testimony adhered at the trial to her the nary subpoe- examination. Since two not the witnesses were placed they naed or under bond until after at the had testified Pearsons’ there reason is no to believe that their testi- charge mony prosecutor’s the was influenced the decisions girlfriend place subpoena or to or them bond. Nor under any but for those decisions the reason to believe that there testimony. changed damaging girlfriend her would that the innuendo of the further 8. The Pearsons contend girlfriend prosecutor’s questioning was that she of Pearson’s improperly, given he which earlier inconsistent had through paper flipping of by suggestively sheets as reinforced judge might questions. the have earlier propounded While he inquiry, prosecutor pursuing the stopped from this form of the subsidiary the questions and dealt a issue and answers with thereby prejudiced. were Pearsons not merit in the contention that 9. there Nor departed in The was from the record his summation. argumentative response permissible within the bounds of asking jury to infer that Raymond Collins not the one who had killed the knew that was argued had victim’s victim after defense counsel prosecution, girlfriend, who a witness for the was untruth- was killed the victim had testified that Collins had ful because she his was later dismissed. theory. judge jury instructed the on the defense’s 10. completed he he his instructions was asked instruct After place jurors killing that the in one that if concluded they robbery could not not a "continuation” of another first-degree it that would be murder. The said convict request jury inconsistent with defense counsel’s acquit. first-degree or There convict of murder instructed was no error. jury presumption of inno- 11. The was instructed that every you are cence attaches until "each and one of satisfied guilt”. beyond a reasonable doubt of each defendant’s After brought responded jury guilty, counsel in its verdicts defense negative anything fur- when asked whether there was ther, jury polled. and thus Pearsons were not deprived judge’s fair trial failure to instruct the verdict must be unanimous. requires on While a decision an instruction second- 12. recent first-degree degree regard to murder in a murder case without declined, by requested terms instruction is its 1, applies only January the rule that case to cases tried after 25, February 1976. The trial in the Pearson case concluded on 1974. (1975) 366; App
61 Mich
A to have been defendant should producing gestae prosecution’s diligence in a res lack of due presumption; witness unless the overcomes however, i.e., "possible”, could of the standard the witness use "possibly” testimony would have have been or his defendant, "possible” makes the been of no assistance to the impossible, inappropri- presumption virtually rebuttal of the ate, eliminating also be the "cumulative and could read as exceptions the res evidence” and "harmless error” rule. — — —
5. Production Due Criminal Law Res Gestae Witnesses Diligence. ruling prosecution’s on the effort to locate The standard in of due and not a res witness is one good faith. *9 — — — 6. Law Indorsement Criminal Res Gestae Witnesses Production. vacated, subject prosecution’s A defendant’s conviction is hearing, right post-remand to seek relief in a because the locate, diligence prosecution’s standard of due effort to produce gestae not met where it a res witness was was produced, that the witness was one who would have to be clear diligent attempt pretrial serious would have included efforts him, subpoena to locate and and no serious effort was made sufficiently in advance of trial to allow for the difficulties which occurred. — — —
7. Criminal Law Res Gestae Production Due Witnesses Diligence. There is not a sufficient basis in the record to infer that prosecution’s diligence producing gestae lack of due in a res purposeful support witness was where there was no record assumption testimony that the witness’s would have been prosecution’s beyond detrimental case the fact that he probably favorably disposed family was not toward the charged, victim of crime and indeed not defense was interested helping him; to locate therefore the defense should not be granted extraordinary discovery concerning any aids state- missing might ments the witness have made to the prosecutors. Discovery. — 8. Criminal Law
Discovery through always traditional means is available to a criminal defendant. — — — 9. Law Criminal Res Gestae Witnesses Production Due Diligence Evidentiary Hearing. — prejudiced by prosecution’s Whether a defendant has been diligence producing failure to exercise due a res witness is a factual issue which trial should be resolved available, court while the is fresh and not after the delays appellate process leave a stale record and failing fact; memories to be assessed the trier of diligence employed person and whether a is a res gestae witness are similar factual issues. — — — 10. Criminal Law Res Gestae Witnesses Production Evidentiary Hearing. inquiry possible missing The order of on a witness in a 1) criminal trial where the issue is raised after trial should be missing person the court shall ascertain whether the claimed People v Pearson 2) gestae witness; so, produce a res if shall explain why produced witness or the witness cannot be 3) why trial; the witness was indorsed and at if produced, the witness is not the court shall determine whether duly diligent attempts in its 4) witness; aif lack of due is found or if the witness is produced, the court shall ascertain whether the defendant has 5) prejudiced by trial; been the failure to prejudiced if the defendant is found to be shall court appropriate remedy. fashion an *10 — — — 11. Criminal Law Res Gestae Witnesses Production Due Diligence — New Trial. automatically A simply new trial is not warranted because the prosecution produc- has failed to exercise due missing gestae witness; key tion of a res in issue determin- ing proper remedy for the defendant where the responsibilities has failed to fulfill its is whether the defendant prejudiced. is — — 12. Criminal Law New Trial Professional Misconduct. A new trial in a criminal case should be awarded because of error, prejudicial professional prosecu- whereas misconduct of a by Attorney Commission; tor should be remedied Grievance professional prejudice if misconduct also results in right defendant’s to a fair the defendant should have his remedy and the violation of the Code of Professional Conduct Attorney
should be referred to the Grievance Commission for appropriate action. Dissenting Opinion Levin, J. — — —
13. Criminal Law
Res Gestae Witnesses
Indorsement
Production.
underlying
requires
prosecu-
rationale of the rule which
information,
court,
tor to indorse on the
in
and call all
gestae
known
obliged
res
witnesses is that the
is
present
transaction;
people’s duty
the whole
is not met
only
points
where
guilt
such evidence as
toward
when
may suggest
there exists other evidence which
innocence
(MCL
28.980).
767.40;MSA
n —(cid:127)
—
—
14. Criminal Law Res Gestae Witnesses
Indorsement
Production.
The list of
only
witnesses indorsed on the information is the
discovery
right,
available to the defendant as a matter of
people than a defendant in a better are witnesses, prose- allocation to the production of secure the production investigation of all res the burden cution of and fair administra- gestae the efficient has advanced witnesses century; justice than a this for more state of criminal tion therefore, change Supreme the rule Court declines gestae production known res requiring of all indorsement and obligation in some relieve the witnesses to 28.980). (MCL 767.40;MSA instances — — — 15. Criminal Indorsement Law Res Gestae Witnesses Hearsay. — Evidence person of a crime on a Resolving was at the scene whether a person on the information as motion for indorsement hearsay allegation by relying of a on the witness was, fact, person at the time elsewhere officer that the 28.980). (MCL 767.40;MSA of the crime is erroneous Accomplices. — — 16. Criminal Witnesses Law Res Gestae obliged attorney a res prosecuting as was not A having charged as arrested and a man who had been but later dis- participated with two defendants in an offense that, if the no affirmative evidence missed where there was all, was there as of the offense at he man had been at the scene that a bystander, a mere observer charge participated to have been in the offense third man defendants; justified conclusion committed accomplice of the two he was an *11 that if the man was there obligated produce not to and the was defendants 28.980). (MCL 767.40;MSA him — — 17. Criminal Law Phrases. Witnesses Words and Res Gestae accompanied com- to the home of a 7Vo men who a defendant complain- allegedly plainant the where the defendant assaulted prosecutor gestae with rifle were res witnesses and ant diligence produce obliged where the due them exert only shot at the at trial was whether the defendant’s issue accidental; people’s witnesses victim intentional or complainant, complainant, and relatives of the were complainant; girlfriend between there was "bad blood” defendant; complainant’s family two men who and the accompanied provided evidence the defendant could have intent; expressed purpose the visit and the defendant’s person had an who of them have been the one 28.980). (MCL 767.40; shooting MSA view of the unblocked People v Pearson — — — 18. Criminal Law Res Gestae Witnesses Production Jury. Instructions prosecutor option calling gestae A not have does a res accepting jury witness or of an adverse instruction that jury may missing testify infer that witness would unfavor- people; ably jury adequate such a instruction is not an - witness, where, substitute for a live but is intended for the case despite diligence, produced. the witness cannot be — — — 19. Criminal Law Res Gestae Witnesses Production Diligence — Words Phrases. obligation prosecutor diligent to exercise efforts to produce gestae witnesses at trial is derivative of a defend- right right constitutional to a fair trial and ant’s his to demand proof guilt beyond doubt; of his a reasonable therefore "dili- gence” painstaking application means "devoted and to accom- plish undertaking”. an — — — 20. Criminal Law Res Gestae Witnesses Production Diligence — Words and Phrases. timely gestae inquiry Failure of to make of a res witness’s whereabouts, any inquiry persons living of other at the address, parents, neighbors, friends, witness’s or of his might authorities who have information about his whereabouts support prosecution’s produce a conclusion that the efforts to inadequate; him were in such a case it was error to focus the inquiry prosecutorial diligence "good into on the faith” of the by police. efforts which were made — — — 21. Criminal Law Res Gestae Witnesses Production Diligence. opportunity, should have an even in a case where produce gestae the issue of his failure to a res witness was preserved by objection post-trial at the on show motion prejudiced that the defendant was not the failure to witness; undermining long-established but to avoid rule requiring indorsement of res on witnesses the informa- them, producing tion and due the nature of the inquiry hearing upon appeal in such a remand from an limited to prejudice, the defendant suffered missing testimony may subsequent whether the witness’s at a bring trial about a different result. — — — 22. Criminal Law Res Gestae Witnesses Production Diligence — New Trial. prejudiced A defendant was not at trial and a new trial is not required for failure a res *12 404 Mich establishes, prosecutor the at the ñrst trial where upon remand from an or at a añer trial the ñrst trial possibly appeal, have been that the witness could possible testimony of no would have been at the trial or his any defendant; other the consideration assistance to the question parties should at trial on this adduced the evidence jury not extend to the nature and should be limited to its comparison weight questions quality in relation or of its testimony. missing witness’s — — — Fair Trial. Intimidation Criminal Law Witnesses 23. deprived charged ñrst-degree murder were not with Defendants charging prosecutor’s in one actions a fair trial because plac- perjury subpoenaing girlfriend with defendant’s perjury ing witnesses for her trial two under bond girlfriend they trial testiñed at the defendants’ where añer given change exculpatory testimony had at the she did not examination, preliminary there was no reason to defendants’ testimony of the two witnesses was inñuenced that the believe actions, prosecutor’s to believe and there was no reason girlfriend of the defendants’ for those actions the that but changed damaging testimony given at her victim would have preliminary examination. — — — Law Witnesses Prosecutorial Misconduct Criminal 24. Trial. Fair prejudiced by charged murder were not Defendants with prosecutor questioning a witness that she innuendo of the improperly given inconsistent which he had earlier through paper by suggestively dipping as reinforced sheets where, might questions although trial he asked stopped pursuing this form of earlier have from subsidiary inquiry, questions and answers dealt with issue. Argument Improper — — Remarks.
25. Criminal Law of Counsel argumentative permissible A within the bounds of response asking jury that criminal to infer that the fact charges dropped against claimed were a man who the defense participated had two defendants showed that crime with was not the third man after knew he charges argued dropping defense counsel had witness, their showed that the did not believe own against preliminary had testiñed the third man at his who
examination. *13 People v Pearson Fikst-Degkee — — Jury. 26. Homicide Murder Instructions request charged ñrst-degree Refusal of a with defendants robbery murder the a in commission of for an instruction to the jury they killing place the that if concluded that in one was not robbery they a of a in could "continuation” another not convict ñrst-degree murder defendants was not erroneous where request completed was made the trial after court its in- jury theory structions on the defendant’s that another requested man the victim killed instruction would degrees of necessitate instructions on the lesser murder which previous would been inconsistent with defense counsel’s request jury be instructed to convict the defendants of (MCL ñrst-degree acquit 750.316; murder or to them MSA 28.548). Jury — — 27. Criminal Law Instructions Unanimous Verdict. deprived judge’s Defendants were of a fair trial failure jury to instruct the that the verdict must unanimous be where jury presumption was instructed of innocence every you beyond attaches until "each and one of are satisñed guilt” reasonable doubt of each defendant’s and defense counsel request jury polled did not after verdicts of guilty were announced. First-Degree Second-Degree — — — 28. Homicide Murder Murder Jury — — Instructions Common Law Precedent. requires jury The decision which an instruction to the on second- degree ñrst-degree regard murder murder case without requested applies by whether the instruction is or declined its 1, January terms to cases tried after 1976. Kelley, Attorney General, Frank J. Robert A. Derengoski, General, Solicitor L. and William Ca- Prosecuting Attorney, people. halan, for the Reilly Training Wilson, Research, Edward & Appeals, Raymond Walsh, P. Assistant Prose- cuting Attorney, people for in Pearson.
Stephen Raymond Walsh, H. Boak and P. Assist- Prosecuting Attorney, people ants for Wynn. 404 op Opinion the Court Training Reilly Research, Wilson, &
Edward Corrigan, Appeals, Prose- D. Assistant and Maura cuting Attorney, people in Schwartz. Pearson.
Carl Ziemba for defendants Wynn. for defendant Leonard Townsend Sallen) (by for de- B. Sallen Alvin C. Theodore Schwartz. fendant *14 agree of J. that the convictions We
Coleman, Lindsay Pearson should be affirmed. We Willie and in that the convictions also concur the result Wynn J. should be Willie and John Schwartz required Schwartz, In reversal is because reversed. diligence the in on-the-scene failed to exercise sufficient (one Cager attempts produce to Don of two his witnesses), "good regardless of the part prosecution. in Reversal faith” on the predicated prosecution’s Wynn upon lack of diligence attempting to and its Moore disregard present apparent responsibility for its judge jury to the the the "whole transaction” alleged crime. separate opinion necessary, however,
A to set points departure forth the from Justice Levin’s opinion. agree do not that in all cases where We hearing during trial there has been a the course of concerning prosecution’s obligation given gestae a attempt, missing res witness and its to raise
the defendant should
able
gestae
appeal
witness
on
with
res
issues
presenting
judge in a
out first
them to the trial
(post-trial) hearing.1
Robinson
As Justice Levin
hearing,
purpose
how
notes: "The
a Robinson
ever, is
It
twofold.
is not
to determine
(1973).
Robinson,
629;
People v
In cases where the trial has determined prosecution failed to due dili- exercise gence attempting produce missing when a (e.g., Wynn), the issues of the exis- (if prejudice any) appropriate tence of and the remedy remain to be These resolved. issues should post-trial hearing perfect be raised in order to appeal. them for In cases where the trial court has missing ruled that a witness is not a res sufficiently witness diligent produce (e.g., Schwartz), in its efforts to superfluous Robinson would be and is not required prior appeal. to an accept
Furthermore, are we unable broth our determining er’s standards for whether a defend prosecution’s prejudiced by ant has been lack diligence.2 agree of due While we the defend presumed prejudiced ant should be unless and presumption, until the this overcomes (i.e., "possible” utilization of the standard "possibly” witness could not have been *15 testimony "possible” or his would have of been no defendant) assistance to makes rebuttal of the presumption virtually impossible. Also, it could be eliminating read as the "cumulative evidence” and exceptions gestae "harmless error” to res rule. Wynn post-remand Therefore, in Schwartz, and Justice Levin focuses on a standard would to presumption prejudice. meet says: to rebut a of He post-remand hearing "If establishes such a prejudiced the defendant was not so because the could not possibly produced testimony have been or because his would have defendant, possible upon judge’s been of no to assistance the trial (cid:127)entry finding of an order shall so the defendant’s conviction added.) (Emphasis deemed affirmed.” op Opinion the Court hearings, determina- hearings and Robinson defendant of prejudice of the existence tion prosecution’s result of a violation as a all indorse, and call known obligation with in accordance should be res witnesses infra. delineated the standards
I delivery was convicted John J. Schwartz 18.1070(41)(l)(a). 335.341(l)(a); MSA heroin. MCL the defendant de- establishes police a officer who had been livered heroin to Cager, Don an to the defendant introduced during the transac- Cager present informant. was tion, at trial. Consequently, but was witness. He clearly missing a Cager information. The defense was on the was indorsed entrapment.
During defendant the course non-production. raised the issue with who had worked police recalled the officer the last time he The officer testified Cager. prior six months Cager had seen was about interim, trial. In over five particularly trial, he preceding weeks had several unsuc- made described) Cager to find (vaguely attempts cessful regarding other matters. In for the preparation (which day), Schwartz trial next begin Cager’s Algonac, officer in went residence Michigan, spoke people to several on the street Cager’s to a local age group, spoke locating Cager. officer. He was unsuccessful On morning that he to the witness was recalled stand, out in search the same officer had been sent Cager subpoena. armed a The officer re- with residence, to Algonac Cager’s turned and checked boathouse, firehouse, hall, a two bars pool *16 Pearson v Opinion op the Court two restaurants. The court ruled these efforts attempt "good faith” to constituted locate and produce Cager. Appeals grounds
The Court of on the reversed wrong (good that the trial used the standard diligence) prosecu- faith versus and that due diligence tion did not exercise sufficient in its attempts produce Cager. App 188; to (1975). agree. NW2d 517 We It is clear that standard is one of due dili gence good and not faith.3 We believe that the also diligence standard of not met. Prior to subpoena attempt Cager, trial no there was to nor anyone keep did track of his whereabouts between defendant’s Cager and trial. It was clear arrest
was a res would who produced. diligent Consequently, attempt pretrial would have included serious efforts subpoena Cager. locate and agree We must with Justice Levin’s assessment during trips officer’s efforts the two Algonac. thoughtful, attempt, A serious even at prior date, late would have included tele- phone inquiries evening) (particularly Cager’s parents, police, residence, his the local an inquiry neighbors, particular etc. Of concern to Court, however, this is that no effort serious sufficiently made in advance of trial to allow for agree Therefore, difficulties which occurred. we that subject vacated, the defendant’s conviction be but prosecution’s right to seek relief in a post-remand proce- consistent with the dures and set standards forth infra. good simply faith or faith bad irrelevant deciding obligation
when present has fulfilled its alleged the "whole transaction” of an crime. Due prejudice the standard. Good faith-bad faith becomes relevant when professional are misconduct considered. *17 Opinion of the Court
II with in- assault Wynn was convicted of Willie murder. less than bodily to do harm great tent estab- 750.84; MSA 28.279. The MCL ex-girl- Wynn’s had beaten Berry lishes Earl (the James Moore Wynn. friend and threatened brother), third an unknown Wynn and girlfriend’s in an family’s went home person Berry and out matters alleged attempt straighten brought along. A rifle Berry. Earl was pacify first. Berry house Earl Berry Moore entered Arm- spoke Floyd so Moore was home brothers) (Earl’s in a back "Rudy” Berry stead A minutes ran Wynn few later bedroom. fired, narrowly with the rifle and shot was house missing Berry. Rudy intent charged was with assault with
Wynn key proofs murder. The element commit he testified that entered Wynn intent. Wynn’s rifle, Berry saw Rudy with the that he house him, that he ordered to halt coming Rudy toward accidently the rifle and that the rifle raising while testified discharged. prosecution’s witnesses and ñred aimed Rudy. parties All Wynn inci- an agree eyewitness Moore was dent. however, cannot Justice Levin’s agree,
We with tes- of Moore’s importance characterization It is timony. stated: standing of and "Moore about two feet front fired, complainant side of the the shot was when un- person who an have been had view the incident.”
blocked him preceded testified that Moore Rudy Berry the front of a as ran in Wynn out back bedroom People v Pearson op Opinion the Court with a rifle in his Rudy Berry door hands. said Wynn that when he and saw other both they each him stopped Wynn still and then aimed at from a of 7 or 8 feet. then Berry distance said: happened ”Q. What then? know, fired, pulled trigger,
"A. He you and as he know, ducked, know, I I I you you seen he fired and bullet, it, grabbed I ducked the Moore. he ñred James after "Q. Okay, standing? where was James Moore standing ”A. He was about two feet in front of me to left, wall, jump next to the so all I had to do was *18 him, him, grab grabbed out and I if so because he shot again I wanted him to hit James Moore instead of me added.) they together.” (Emphasis since were place We understand this and other to testimony to Rudy Berry Moore one side of when the shot was fired. Because the defendant’s intent was the issue, his actions before the shot were of key Further, paramount importance. the evidence es- that Floyd Berry tablishes and Doris Smith also had unobstructed views of the entire transaction. Floyd Berry, Berry Doris Smith and were Rudy produced prosecution. and called
Thus, depict we do not believe it is fair to Moore However, as eyewitness. given the crucial produced witnesses were friends or relatives it is fair to Berrys, conclude that Moore different provided have picture the event. prior
Moore was not indorsed to but response to a defense motion the court ordered. during Moore indorsed and trial. The Moore and he appear. located said he would attempt subpoena No to serve a was ever made. Moore did not come to court and the 404 Mich Opinion of the Court court him. The to efforts no further made diligence of due a lack constituted this found that infer Moore’s it could jury and instructed unfavorable have been would testimony prosecution. App reversed. of Appeals
The Court (1975). there agree that We 636; 231 NW2d concern diligence. particular Of of due was a lack witness was an obvious is the fact that him subpoena indorsed, efforts pretrial no comply with attempt and no serious were made regard was in this obligations the prosecution’s the defendant’s Consequently, ever established. vacated, the prose- subject should be conviction hear- in a post-remand relief right to seek cution’s and standards procedures with ing consistent opinion. in this forth later set suggest record to We do not read Al- withheld. intentionally testimony Moore’s recalci- appeared prosecutor may though pro- in his efforts to diligent less than trant and Moore, an insufficient basis still find duce we lack of the prosecution’s infer "that there is no contrary, To the purposeful”. that Moore’s assumption support record detrimental would have been that Moore the fact beyond case prosecution’s toward disposed favorably was not probably *19 inter- Indeed, was not the defense family. Berry that on the basis locate Moore helping ested in to against Wynn. testify he would Therefore, grant not the defense we would pro- aids discovery and other many depositions availa- always Discovery Justice vided Levin. means. through traditional ble
Ill efficient administra- judicious Central to the v Pearson op Opinion the Court justice procedures allowing tion of criminal are necessary to trial court decide all the issues to dispose prior appeal, possi- of a case whenever questions Moreover, ble. factual should be resolved testimony while the available, is fresh and delays appellate process after the leave failing a stale record and memories be assessed by the trier of fact. Whether a defendant has been prejudiced prosecution’s by the failure to exercise diligence is a factual issue which should be diligence resolved the trial court. Whether due employed person, fact, and whether a is a gestae res witness are similar factual issues. opinion following procedures It is our provide a fair and effective resolution of these problems repeatedly traveling up without judicial down the ladder. question missing
If the of a res witness is during opinion raised the course of it is our hearing the court should hold a and decide first whether the witness is in fact a res person 5If witness.4 it is determined that ais gestae witness, the court should order the prosecution produce him or her.5 If the witness produced, is not then the court should hold a hearing on the issue of diligent duly attempts in its witness.6 prevent repetition evidence, hearing To this should be held at prosecution’s proofs However,
the close of the
point during
in most cases.
the exact
hearing
trial when this
and the
on due
(if necessary) are to be held should be within the trial court’s discre-
tion.
The court
want
to consider a
continuance
allow the
witness, particularly
time to
when the wit-
prosecution prior
Clearly,
ness was unknown to the
preferable
possible.
to trial.
it is
presented
jury
this
whenever
page.
Footnote 6 on next
*20
Assuming that there was trial decides the diligence, Wynn, then the as in a lack due may jury that the it infer the should instruct missing un- would have been "witness’s 5:2:14(3). prosecutor’s CJI the case”. favorable to preju- However, the existence of determination of possible to the remedies must dice defendant Assuming guilty, the the await verdict. a verdict prejudice and raise issue of defendant must the procedure Robinson-type remedy or be seek a in a raising appeal. on If foreclosed from issues these the defendant is dissatisfied with results hearing, may sought Robinson review appeal right. as of defendant’s person missing Schwartz, In cases like where gestae to be a witness but the is determined res attempts produce sufficiently court finds the diligent, forcing purpose no the defend- there is proceed- remedy ant first to ing. a in a Robinson seek may The defendant seek a review of ruling diligence court’s on the due issue an appeal bringing post-trial motion. without first procedures followed Identical should be when missing of a witness raised at issue is but person gestae not a court determines the res witness. typical type of case Robinson third missing possible There, res the issue of a
scenario. during course witness is raised Jury judge to 5:2:14 allows the Standard Criminal Instruction diligence jury. this We the issue of due believe submit procedure essential should not be utilized. Such a determination is missing cases witness is a resolve where ordinarily jury guilty would not there is disclose its decision on the that verdict. Because the issue, hold court must we believe hearing, so determination of the issue make a record state its parties court and the know finding. for this exercised and the reasons Pearson v Opinion Court raised the issues to be require trial. We would still *21 them for perfect in order to hearing in a Robinson However, procedure the we would refine appeal. all the issues trial court reach the require In summary, dispose of the case. necessary the order of analysis, earlier with our consistent be as follows: inquiry should the claimed whether 1. The court shall ascertain witness; gestae is a res missing person the produce witness so, shall prosecutor 2. If the produced cannot be the witness explain why pro- was not indorsed the witness why trial; duced at court shall the produced,
3. If the witness is dili- prosecution duly the whether determine witness; the attempts gent its if is found or diligence due 4. If a lack of shall ascertain court produced, witness is prejudiced by has been the defendant trial; the witness failure to prejudiced found to be 5. If the defendant remedy. appropriate fashion an court shall finds in favor of where the court Except cases person a of whether on the issues due or whether missing is a res witness exercised, will procedures these diligence was missing make it more likely in a maxi- and result will be ultimately for a the need removing mum one appeal, In continuing appellate jurisdiction. remand and case, if defendant type the Schwartz condi- trial should be appeal successful on a new to establish prosecutor’s right upon tioned hold we would prejudice. Consequently, lack of Schwartz, cases and future similar in Wynn, a hear- to seek days shall have prejudice. the existence ing to determine op Opinion the Court Appeals be deemed to have retained Court shall upon jurisdiction record to review application party days of either within entry judge’s order. Should post-remand hearing, days, fail within 30 to seek the conviction shall be deemed vacated and the prosecutor may proceed trial.
with a new IV automatically A new trial is not warranted sim- ply because the has failed to exercise production missing of a determining key witness. The issue in proper prose- remedy for the defendant when the *22 responsibilities cution has failed to fulfill its prejudiced. whether the defendant area of Our disagreement primarily with Justice Levin resides determining in the standards for prejudice. the existence of approach presumes rebuttably effect, In his that upon finding prejudiced the defendant was of a diligence. presumption lack of due This could be only "[i]f rebutted that establishes produced possibly the witness could not at the trial or his have been would have of no been * * * (Em- possible assistance to the defendant .” added.) phasis Moreover, "If it is stated that: produced post-remand witness cannot be hearing (unless further establishes possibly that the witness could not have been trial), produced at the conviction must be knowing way reversed because there is no might given possibly at the trial he testimony of assistance to the defendant.” The fashioning motivation for such restrictive stan- appears discourage they dards to be that will People v Pearson Opinion op the Court prosecutorial employ diligence. failure to Un- fortunately, these standards will also result many unnecessary new trials. approach concepts.
Such an confuses two New prejudicial trials should be awarded because of professional error, whereas misconduct should be Attorney remedied (e.g., Grievance Commission withholding deliberate of res testi- defendant). mony favorable post-remand hearing At either a or a Robinson hearing, we would have the trial court assess actually any preju whether the defendant suffered appropriate dice and fashion remedies. The burden should be on the establish its production failure to exercise due adversely of a res witness did not affect the (i.e., right defendant’s to a fair trial the defendant presumed prejudiced contrary is lished). until the is estab
If the
can establish that
missing testimony would have been of no assist
merely
defendant,
ance to the
it
constitutes
evidence,7
cumulative
its absence constitutes
harmless error8 or that the witness could not have
been
then this burden has been
met and the conviction should
A
be affirmed.
see, e.g., People
For discussion of the cumulative evidence rule
v
Raider,
131, 134;
(1931),
Bartlett,
People
256 Mich
V in Part delineated summary, procedures In judiciously for a means opinion provide this III of wit- missing of disposing efficiently upon disposition placed Emphasis ness issues. post-re- in order to avoid appeal prior issues jurisdic- continuing appellate hearings mand tion. than that extreme standard a less prefer
We determining whether for Justice Levin chosen prosecu- prejudiced by a defendant has been attempting pro- diligence tion’s lack of gestae witnesses. duce res that there has been appears If it right defendant’s but professional misconduct affected, then adversely trial has not been to a fair pros individual upon rest the sanctions should If upon society. professional than ecutor rather the defendant prejudice, results misconduct also violation and the code remedy have his should Commission to the Grievance should be referred appropriate action.9 However, although the noting it worth of due for the lack responsible state is ultimately witnesses, of res diligence production prosecutorial not all such failures are the result argua- it is example, or misconduct. For negligence Cager in Schwartz the failure to ble is more a result of the lack many are There prosecutor. officer than proscribe encompass Disciplinary Rules It is clear that Responsibility, DR E.g., prosecutorial misconduct. Code Professional 7-102, 7-106, (A), (C)(7); 7-109, (A), (B); 7-103; DR subds DR subds DR (A)(1),(A)(3),(A)(6)-(A)(8);DR 1-102. subds *24 727 v Pearson by Opinion Dissenting Levin, J. to a would amount which situations fact
possible the level rise to and not yet of due lack Code proscribed by misconduct professional of preferred The Responsibility. Professional of however, for the trial course, would be Commission to the Grievance case proper refer a investigation. for Schwartz, Wynn in Pearson. In affirm
We right prosecution’s subject we reverse exis- concerning the hearing, post-remand seek a the issu- 30 from days prejudice, of within tence seek Should opinion. of this ance from case, 30 days within hearing in either such party may order either judge’s entry of the Court hearing from review seek be deemed shall Appeals Court of Appeals. purpose for continuing jurisdiction not If the does hearings. reviewing such then days, within post-remand seek a conviction(s) vacated and be deemed shall trial. a new commence prosecutor may Moody, Jr., JJ., Fitzgerald, Ryan, and Blair Coleman, J. concurred with (dissenting). Levin, It was claimed J. cases consolidated in each of these defense at trial a res produce failed to had gestae witness. Ap- case, the Court with in each agree,
We obliged Pearson peals: Schwartz Wynn witness, efforts sufficient and did not exert obliged it sowas him. we which are other issues Pearson In there the Pearsons’ infra. We VII, affirm in Part address convictions. the convictions reversed Appeals The Court new trials. remanded and Schwartz and Wynn J. Dissenting Opinion Levin, principal presented issue there a post-trial hearing, must be such as was required Robinson, 629; in People v 213 NW2d *25 (1973), such as and Wynn cases Schwartz where, in the course of the there was á hearing regarding prosecution’s pro- failure to finding, duce the witness and a trial or on appeal, the efforts to him were insuf- ficient. agree
We with the Court Appeals of that where there has been hearing finding such a and a may appeal seeking defendant without first a Rob- hold, however, hearing. inson We would if the Appeals Court of concludes that a witness should have been and produced prosecutor’s efforts insufficient, were the order for a new trial shall be right deemed conditioned a of by prosecutor seek, within a days, hearing to determine the defendant prejudiced at trial by non-production If prosecutor witness. post-remand establishes at such a hearing that defendant was not so prejudiced because the wit- ness could not possibly have been or because his testimony would have been of no possible defendant, assistance to the upon the trial judge’s of an entry finding order so the defendant’s conviction Otherwise, shall be deemed affirmed. upon expiration of the 30 days prose- without cutor seeking such a hearing upon or of an entry order following such a hearing that the defendant was prejudiced, the conviction shall be deemed vacated and the proceed with new trial. The Court of Appeals should be deemed to have retained jurisdiction for the purpose reviewing post-remand record, which shall include a statement by the of his findings decision, and reasons his upon applica- v Pearson Dissenting Opinion Levin, J.
tion or within defendant 30 days the judge’s order. entry
We do not question, suggested address the our Wynn Schwartz consideration but not or argued, prosecutor’s briefed whether a failure circumstances, may, a witness in some require prosecution. dismissal of justify
I contends "[t]he rule, couched in modern process, compulsory process, pre-trial motions and discovery depo- sitions, merged has and no reason calls for its expensive continuance redundancy”.
It Michigan an appears from case that early rule is derived the English practice.1 from The rule *26 legislative 1859;2 took form in the statute now provides:
"All
having
shall
informations
be filed in the court
therein,
jurisdiction
specified
of the offense
the
after
proper
by
examining magistrate, by
return
filed
is
the
prosecuting attorney
the
county
informant;
as
he
shall indorse
the
thereon
names of the witnesses known
him at
Sling
the
of
time
the same. The information
by
prosecuting
shall be
attorney
subscribed
or in his
by
name
an
prosecuting attorney.
assistant
of
Names
during
additional witnesses
before or
indorsed
the trial by
upon
leave of
court and
such conditions
as the court
767.40;
shall determine.” MCL
MSA 28.980
(emphasis supplied).
1
405,
(1872).
People,
Hurd v
25 Mich
416
2
138, 2;
7938;
11934;
9549;
1859 PA
CL
1871
How
1897
§
Stat
CL
CL
1915
15761.
prosecution upon
The relevant
been consist
The statute has
first enacted.3
since
prose
require
ently
this Court
construed
information,
to indorse on
cutor
court and call
gestae witnesses.4
all known res
prosecutor’s
underlying
is that the
rationale
present
obligation
transaction”:
the "whole
is to
case,
never,
criminal
can
in a
"But
which, ex
upon
evidence
properly claim conviction
part
by implication,
but a
of
res
pressly
shows
or
transaction,
appear
if it
gestae, or whole
is
transaction
attainable.
evidence of the rest
the
the defendant
benefit of
deprive
This would be
innocence,
upon him
throw
presumption of
gestae,
proving
It is
his innocence.
the burden
transaction,
proving
rests
the burden of
which
or whole
(so
least
the evidence is
upon
attainable).
far at
as
prosecutor’s
It is that which constitutes
which,
right
case,
cross-examination;
to
difficult to
of the
has the
the defendant
as
that,
jury are
it is
which the
entitled
shown,
them, and,
it
'until
this
have before
guilt,
legitimate inference of
any
how
see
”
offense,
Hurd
degree
v
can be drawn.’
405,
25
415
People, Mich
(1872).5
3
175,
portions
1927 PA
ch
of the statute have been amended.
Other
11,
184, 1;
24, VII, 40;
VII, 40;
PA
1.§
PA
1961
§
1929
ch
1955
§
PA
§
4
212,
See,
(1862);
e.g.,
People,
Hurd v
Maher v
10 Mich
225-226
16,
(1874);
(1872);
People,
People, 25
405
Wellar v
30 Mich
22-24
Mich
Price,
37, 41;
(1889); People
Swetland,
People v
74 Mich
"Its roots are in this Court’s historic concern that
when the
investigative
full
prosecutorial
power against
the state
arrayed
is
an accused in a criminal
case,
people’s
duty is not
met where
such
points
evidence
guilt
as
toward
is
when there
exists other evidence
may suggest
which
innocence. It is
product
a
judicial
policy
that the
may not
pick and choose
present
which witnesses
fairly
will
production
picture,
whole
requires
but
of all wit-
alleged crime,
nesses to an
to decide
leaving it to the trier of fact
guilt
whether in the totality
proven.”
is
State
Bar Grievance
Jaques,
516,
Administrator v
401 Mich
533-534;
(1977).
The people
are
position
better
than a de-
fendant
to identify and
production
secure the
witnesses. Few defendants
have a staff of investi-
gators to assist
police
them. The
generally receive
cooperation from citizens and also have
sup-
(1869);
People, supra; People Deitz, supra;
Raider,
Wellar v
People
v
v
supra; People Tann, supra.
v
6Discovery
discretionary
judge.
People
with the trial
See
v
Johnson,
619;
(1959);
McIntosh,
service conveys strongly authority law and obligation appear and that there witness the consequences may if he does not. be adverse obligation prosecution were relieved If the witnesses, would defendants They upon would, if for assistance. call indigent, the court investiga- are, seek most defendants and identify and locate and assistance to tors other process. Ad- and to serve and enforce witnesses sought journments because of of trials would be obtaining in the at- difficulties real and fancied tendance of witnesses. justice Trials would be and delayed in costs would be incurred and additional indigent providing and defendants with alternative investigating duplicative crime, assistance locating identifying se- witnesses and curing claims Post-conviction their attendance. relatively prosecution evidence, that rare in withheld Michigan, multiply, surely would as would post-conviction hearings Robinson to determine might had what the undisclosed have said witness produced. he been of
Allocation to the
of the burden
investigation
production has
witnesses
subpoenas”
provides
shall be
7RCR
that "service
indigent
Department
defend-
"made
the Detroit Police
on behalf of
general
(Emphasis
comparable
supplied.)
court
is no
ants.”
rule.
There
v Pearson
Dissenting Opinion by Levin, J.
served the
of this
for more
people
state well
than
The efficient
century.8
and fair administration
justice system
the criminal
advanced
requir
witnesses,
ing
present
all
those whose evidence tends to
support
theory
and,
prosecution,
well,
as
those who
*29
give
exculpate
evidence
to
tending
the defendant
raise a
or
reasonable doubt.9
8
people point
the
The
out that
rule has been criticized and abro-
(Chadbourn
gated
rev),
Wigmore
jurisdictions.
in other
See 7
on Evidence
2079-2080,
p
seq.
536 et
is
§§
criticism not recent:
"The rule that
the
indorse
call
the
must
and
all
* * *
available,
eyewitnesses
although
crime
to a
of violence who are
rejected materially
tions
jurisdic-
or
in
modified most or all other American
(16
918,
CJ,
Homicide,
note;
846;
p
p
Ann Cas
2
on
Michie
1362), is too
in
well established
this State to need the
of
citation
(1931).
Raider,
People
supra, pp
authorities.”
v
134-135
Perhaps
criticism,
response
767.40a;
Legislature
the
enacted 1941
336;
28.980(1),
provides:
PA
MCL
MSA
which
by
people
obliged
"Witnesses
the
are
law
as
whom
to call
impeached
may
though
witnesses
the
be
same as
such
had
witnesses
by
respondent.”
called
been
the
23-24,
Compare
supra,
People,
pp
vWellar
where the Court said:
witnesses,
compelled
may
"The fact that he is
to call these
when he
always
frankness,
him,
disposed
not
them
find
entitles
it
when
appears necessary,
press
searching questions: Regina
them with
v
Ball,
[1839];Regina Chapman,
[1838],By
8 C & P 745
v
8 & P 558
C
means,
by laying
jury, they
quite
this
and
the
all
facts before the
are
likely
get
impeach
as
the
as if
truth
he were allowed to
the
disappoint
Any intelligent jury
readily
witnesses who
him.
will
dis-
compelled
cover whether a witness whom the
has been
adverse,
bias,
proper
call is fair or
any
single eyewitness,
and can make all
allowance for
other influence which
affect his credit. If there
is but
impeached,
yet
danger
he could not be
of
and
quite
great,
falsehood
than where
need
him,
against
as
and
chances of its
less
correction much
two,
are
there
and both
such
are called. And if
a witness
prosecution,
not
impeach
be called
cannot
the defense
him,
and
finding
must either call
and run the
of
risk
him
or,
them,
him,
they
prejudiced by
if
fail to call
be
argument
they
prove
power,
have omitted to
what
in their
they
and must have done so because
out
dared not call
the facts.
practice,
is no
There
permitted
his
way
fairness
such a
and a
should not
responsible
shortcomings
resort to it. He
for the
witnesses,
responsible
any
and he is
obstacle thrown in the
eliciting
all the facts.”
Deitz,
Similarly,
People
Connor,
supra;
People
supra.
see
v
cf.
v
Blazenzitz,
675, 678-679;
The Court declared in
v
(1920):
II Lindsay were con Pearson Willie Pearson first-degree murder.10 victed of victim, Kidd, the lived and James Willie Pearson lobby shot Kidd was in the same motel. shortly testimony that before There was motel. man a third con- shot the Pearsons and he was jewelry Lindsay took him in his room. fronted money men, all him. The three from Willie took girlfriend armed, his down Kidd and then marched attempted lobby. to have into the Kidd the stairs shot. and was clerk call desk killing not in claimed that The defense robbery. perpetration The articles taken of a previously Willie been stolen from from Kidd had Pearson; property. retrieving they merely his were money gave said Kidd remaining property them another location. was at they group While started for that location. were *30 crossing lobby motel, man ran the another street, Kidd and shot him. in from the tussled with allegedly Raymond in Collins, third man the By to the names of the the indorse murderers. failure of produce Eugene the sented, Operhall a at as witnesses and to them Vincent and homicide, trial, question pre- being a serious this case Eugene upon Vincent the fact remains that this record shooting. Operhall leaving following the the These and men were the leave saw men bank alleged persons known who saw the murderers building, they to the were the first see them after the bank place shooting, they the did at a different time and than observed them Eugene opportunity R. And had an witness Bert Vincent. Vincent alleged length. to at The failure to observe one of the murders arm’s irregularity. produce It is these witnesses is not a mere indorse right positive law. Such invasions the the defendant under invasion of a substantial might very harmful in cases where not be facts, employ the counsel to discover defendants the means defense, prepare the unfortu- but it would be otherwise with and to nate of crime, helpless poor subjected if to the whim accused of and the officers, evidence, suppression on less than to conviction (Citations omitted.) the truth.” 10 750.316; MCL MSA 28.548. People 735 v Pearson Dissenting Opinion Levin, J. charged room, Kidd’s degree was arrested with first- preliminary murder. At Collins’ examina- girlfriend tion, him Kidd’s identified as third charge man and he over. was bound The was subsequently investiga- dismissed because further tion convinced authorities that Collins could not have the scene of the been crime.
At Pearsons moved that Collins be gestae prosecu- a res indorsed as required produce responded tion him. An officer persons three other who in were also Kidd’s present, room said that Collins was not and that investigation further had confirmed he was at Selfridge judge Air Force Base. The ruled that Collins not a res was witness.
The Pearsons contend that
obliged
pros
Collins because one of the
principal
ecution’s
witnesses said he was there.
prosecution responds
judge correctly
that the
disputed question
determined the
of whether Col
and,
lins was the third
moreover,
man
the third
accomplice and,
reason,
man was an
for that
required
produced.11
reply
to be
Pearsons
"accomplice exception”
cannot
invoked
be
prosecutor,
cause
effect,
determined that
accomplice
Collins
not an
when he dismissed
charge.
agree
We
with the Pearsons that the
erred
resolving
question
the arrested
11
people
required
The well-established rule is that
are not
accomplices.
indorse or
witnesses who are
See
People McCullough,
25, 34;
(1890); People
v
81 Mich
Ill (com- Wynn, Berry Earl Willie In the case of brother) appears, plainant’s had, it beaten his Riley. Wynn, girlfriend, James Jeanette former brother), person (Riley’s and another went Moore to the Berry A entered first. short home. Moore Wynn with a rifle which dis- time later entered charged. charged
Wynn with intent with assault of assault with commit murder13 and convicted intent great bodily murder.14 to do harm less than Raymond appears may one there have been more than It Raymond may A Collins have been in the room and Collins. may, wrong Raymond Be the there as the it Collins. that as have arrested placed placed at the scene him Collins third armed man. 750.83; MCL MSA 28.278. 750.84; MCL MSA 28.279. *32 v Pearson Dissenting Opinion by Levin, J. Wynn’s prosecu- At ordered the produced. Moore, tor to but he was not Berry Riley years. Earl had lived with for five complained She had and, Earl had beaten her day alleged by Wynn earlier assault hearing regarding occurred, there was a court alleged beating.
Wynn testified that he had been friends with Riley years preceding for ten the incident and had seeing Berry been her after Earl moved out of her they home, but did not have a romantic relation- ship. Berry, Wynn Earl who learned that seeing Riley, going get” Wynn. told her he was "to purpose Berry The of the visit to the home was to Wynn Riley inform Earl that were not roman- tically involved. prosecutor produced eyewitnesses:
The five complainant, family, other members of his and his girlfriend. tendency of their Berry that Moore entered the home and asked to speak Berrys. Barry to one of the Earl was not at Berrys home.15Two of the and Moore talked Wynn bedroom. ran and, into the home as leaving three were bedroom, ordered the com plainant halt, then aimed and fired at him.
Wynn suggested testified it that was Moore who go Berry "straighten things that he home to agreed go out” and take a rifle with him. He but asked that Moore enter first. Moore and Earl Berry were friends and it was decided that it spoke would if better Moore first to Earl. When they Berry Wynn home, reached the and the third man remained in the car and Moore entered. A Wynn later, few minutes heard screams and the "they jumping” third Wynn man said are Moore. 15Wynn acquainted Berrys, was not with the and would not have Berry sight. known Earl Opinion Dissenting Levin, J. into home. He saw grabbed rifle ran them, He toward and Moore. ran Berrys the two In them halt. gun, and told raising discharged. third process gun accidentally the home. subsequently man entered of Wynn’s the motion judge granted When during Moore and counsel the trial indorse him, *33 the prosecutor produce the to ordered appear; prosecu him him to the located and asked said tor that the said that Moore he said officers A was not served and the subpoena would appear. prosecutor produce made no further efforts to the The that had judge prosecutor him.16 found produce to Moore and diligence failed to show witnesses, man, whose including other third He production had also ordered.17 ad judge morning case next so that journed the until produce could or show due prosecutor them further not any The did make diligence. his case. He and rested to Moore produce effort had nevertheless, closing Moore that argued, Earl Wynn Berry: to kill with conspired that to create a went to house "Now James Moore diversion, point to gentlemen. ladies and He went there get family so that out Earl or involved go They into house and kill Earl. defendant could together.” were it was "at jury
The judge instructed to draw the if Moore had liberty” inference produce duty imposed The on witness is prosecution, judge. importance not the It therefore is of no prosecutor suggested the might issued bench warrant as the he exchange. apparently in an heated Appeals justified The Court of that a trial concluded new produce on account of the failure the other No issue in witnesses. regard presented appeal to this on the Court. People v Pearson Dissenting Opinion by Levin, J.
been his would have been "unfavorable” to the people. Moore
Manifestly, and third man were res gestae witnesses and obliged exert due them.
There was no substantial difference between the testimony of the people’s witnesses Wynn. The issue was whether the shot was intentional or accidental. people’s witnesses were four Ber- rys an intimate of one of them. There was "bad blood” between the Berrys Wynn be- cause of Jeanette Riley.
Moore and the third man accompanied who Wynn to the Berry home could provided evidence regarding the purpose of the visit and Wynn’s expressed intent.18 Moore was standing about two feet front of and to the side of the complainant fired, when the shot was and may have been the only person who had an unblocked view of the incident. failure to Moore cannot be justified
on ground that he was an accomplice if for no *34 other reason than because when the issue of his non-production was prosecutor raised the did not claim that he accomplice. was an prosecutor’s The failure to advance that claim is consistent with Wynn’s testimony and the actions of the officers called to the scene who arrested Wynn and re leased Moore upon statements from the Berrys that he was not involved.19 18 which, fact, "The circumstances part in led to the assault were a gestae, jury of the res show what mind and p them, which the were entitled to have before to act, animo, was the quo real nature of the state of intention, with People, supra, which it was done.” Maher v (emphasis original). 225 19 Wynn cooperate also asserts that did not production of Moore. Under the circumstance that had him, non-cooperation located following argumenta- the asserted exchange germane. tive between counsel is not 404 Mich Dissenting Opinion Levin, J. and the trial could have been
Moore no justifica- there was found that judge correctly tion for the to do so. failure in lieu of prosecutor,
It to the open was not requiring production rule with the complying witnesses, accept an instruction missing would infer that jury may A instruc people. jury testify unfavorably adequate not an inference is permissible tion on a Indeed, the instruc substitute for a live witness. despite due where, tion is intended for the case diligence, A produced.20 the witness cannot option calling a res prosecutor does an adverse accepting jury or of gestae witness inference. regarding permissible instruction pre- had In the instant case the strong through sented a case family. Wynn alone complainant’s members of accidental support theory had testified in of his gun. nothing had discharge This, coupled with his gain producing Moore. argu- him jury willful refusal and his ment, position suspect. renders his this case reversing of Appeals
The order of the Court for a new trial Wynn’s remanding conviction and there is is sustained. We would hold that because lack of due prosecution’s reason to believe instruction, proposed jury A note to the standard criminal "Fail- (CJI 5:2:14), ure to Produce Res Gestae states: Witnesses” diligence, “If the evidence is insufficient due then this establish instruction will not cure the error. The issue should be submitted to the to warrant jury only establishing when there are sufficient facts jury’s being diligence, as an able to establish due judge’s making Michigan Criminal alternative the decision.” 1 (Ann Legal Jury Continuing Educa- Instructions Arbor: Institute of tion), p 5-67. (1931), Gibson, 476; People See v 235 NW Serra, supra, people had exercised v where the Court found that *35 diligence giving jury instruction and found no error in a similar in that situation. v Pearson by Dissenting Opinion Levin, J. purposeful, post-remand was before a Wynn trial, or a new should have an depose opportunity prosecutors to all officers and questioned Moore, who there shall produced any be statements made Moore and of such records interviews. The produce Moore; should exert his best efforts to Wynn opportunity depose an should afforded him.
IV delivery John J. Schwartz was convicted of heroin.21 Michigan
A State Police officer testified he purchased Schwartz, heroin from he whom had "Igor” informant, been introduced an Don Cager. Cager present throughout the transac- entrapment. tion. Schwartz claimed Cager indorsed on information but not trooper at trial. The said that he had last Cager seen day about six months before trial.22 On the looking began
before he him for day instant case. On he he testified made a trip Cager’s Algo second nac, last known address Michigan. spoke No one was home. He to young people officer several on the restaurants, bars, street. He went to two two pool hall and a fire station. The that a ruled "good Cager. faith” effort had made been to locate Appeals saying reversed, Court prosecution seriously record sought "fails show that present discover the witness’s weeks after "saw” infers that he 21 MCL The officer was asked whether he had done "people 335.341(l)(a); Cager spoke I dealing dope was indorsed to other MSA 18.1070(41)(l)(a). informants with as [sic]”. a witness. in an effort to He said prosecutor, "anything” locate "yes”, on in the five Cager. appeal, he *36 698 404 Mich 742 Opinion by Dissenting Levin, J. have dissenting A would
whereabouts”.23 circumstances, because, under affirmed excusing not "his discretion” judge had abused Cager.24 the failure to that while the officer "could contend people leads more”, specific he had no have because done checked no leads "his sources he provided and the diligent”. efforts were subpoe to duty
It is "the of "use such for indorsed witnesses nas issued” to present at hand have them other means produce all res burden to positive trial”.25 "[T]he to imposed upon people gestae witnesses from false accusations protect defendant [People presumption his of innocence. preserve v] Harris, 531; 549 Eugene Mich 204 NW2d App [43 Kayne, 268 186; Mich 255 (1972)]; People v NW (1934). essence, In of res obligation 758 of is derivative a defendant’s production right to a trial and his right constitutional fair his proof guilt beyond of prosecutorial demand 'diligence’ For these reasons reasonable doubt. it literally dictionary says what means Webster’s painstaking application means: devoted and see Hurd an undertaking.”26 Similarly, accomplish supra. v People, persons obliged inquire
The officer was thus Cager’s who He did not might know whereabouts. so; attempt by inquir- do did to locate him he not members, ing parents, neigh- other family his bors, friends, or or employers male female former governmental authorities.
23 (1975). Schwartz, 188, 193; People v App 62 Mich 517 233 NW2d 24 Id., p 195. 25 Vorce, 75, (1927); People 78-79; v Van 5 See 240 215 NW McIntosh, also, People supra; see, 82; Zabijak, People v v 389 Mich (1973). 204 NW2d Johnson, 224, App 230-231; v 214 NW2d (1974). People v Pearson Dissenting Opinion by Levin, J.
Although Cager the officer had last seen about six months before scheduled trial date and the last known address was at least 50 miles from the place day trial, he waited until the before trial begin efforts to him. He to that went apparently Cager’s parents. address, the home of thought Cager’s one No was at home. He said he parents worked, but made no effort to locate them attempt telephone or later. He did check neighbors. Cager’s parents Inquiry with neighbors *37 produce likely
was far more informa regarding inquiry tion his whereabouts than at pool restaurants, bars, hall, two two a or a fire Cager why station. The reasons are limitless particular day not at establishments on the and develop time the officer entered and did not leads inquiry why establishments,27 from at such and a casually officer encountered on a or street28 youths knowledge a few random would no Although Cager his whereabouts. awas narcotics drug informant, centers, not officer did check hospitals, jails or courts. agree Appeals
We
with the Court of
judge
focusing
good
erred in
on the
faith.
officer’s
question
The
is whether
exerted
diligence.
Appeals correctly
The Court of
con-
cluded that this was not a
that was
doubtful case
judge’s
resolved
the trial
exercise of discretion.
timely inquiry,
any
The failure to make
in-
quiry
persons living
Cag-
address,
of other
at the
parents, neighbors,
er’s
or
friends and
authori-
might
ties who
have information
about his
supports
pros-
whereabouts,
its conclusion that the
inadequate.
ecution’s efforts were
scope
inquiry
record
does
indicate the
at the
nature or
establishments.
28The record indicates that
the officer
encountered
asked
so
Cager
jail.
whether
was in
V question there must be We turn post-trial hearing, required such as was Peo- a Wynn ple supra, Robinson, such as in cases v where, there in the course Schwartz prosecution’s regarding failure was a finding, produce at trial or on and a appeal, were insufficient. that the efforts supra, p 634, Robinson, this Court declared:
In opinion published, a appeals "In this filed after desiring or new trial because a defendant reversal a an indorsed witness produce failure to shall, an unindorsed or filing appeal, move the trial his brief on before new shall court trial. The or, as why he the witness explain cannot be, produce him why he did not indorse and case hearing, If at the trial. the witness regarding knowledge his he shall examined denied, If shall his crime. new trial be state reasons.” Wynn Appeals in both Court of inapplicable because,
Schwartz declared Robinson *38 case, there been a hear- contrast with had ing during trial in the instant cases: already prosecu- the trial court has heard the "[S]ince explanations wanting, tion’s and found them a remand pur- evidentiary hearing for an no useful would serve 636, 641; pose.” People v 231 Wynn, App 60 Mich (1975). NW2d 269 evidentiary and hearing "Since an would be futile engender delay, it Peo- would needless is not ordered.” Schwartz, 188, ple 194; App v 233 NW2d (1975). agree Appeals where with the Court of We People v Pearson Dissenting Opinion by Levin, J. diligence explored issue of due has been at the require trial, Robinson does a motion for a not hearing precedent new trial a as a condition raising appeal. unduly the issue on It would delay appellate process require burden and post-trial hearing in such a where question trial cases judge has, on the due after diligence, already ruling ruled, a more often which appeal. not than will be affirmed on purpose hearing, however, of a Robinson two-fold. It not to determine the for reason produce a failure to indorse or a failure to but also to determine whether prejudiced by been defendant has
non-production of the witness. Heretofore, reversal for and remand a new trial appellate was automatic whenever an court found that discharge did not exert obligation gestae
of its a res given oppor witness.29The was not tunity showing missing that the testi witness’s mony example, inculpatory, would, for have been possibly or that he could not have been example, because, he was dead. concerning alleged Robinson,
In the issue failure a res witness had preserved appeared been been an at the trial and to have
afterthought, proverbial appellate parachute. separate post-conviction To substantial ap- res claims from those which are mere pellate stalking required horses we that thereafter 29See, e.g., People Germaine, supra; Vorce, People supra; v v Van People Zabijak, supra; O’Dell, People App 87; v v 158 NW2d (1968). People, supra; People, People Kayne, In supra; Maher v v Hurd v supra Tann, supra, v the issue whether was the omitted part was, gestae. This found Court it and reversed and remanded for a new trial. People, supra, People Deitz, supra, In Wellar v v the issue was obliged to call the witness. This Court was, found that he and reversed and remanded for new trial. *39 Mich 698 Opinion by Dissenting Levin, J. filed in such a case before motion be post-trial a assigned appeal. the issue be on may persuaded While we are even in a case where opportunity, should have an trial, at the preserved by objection the issue was prejudiced by was not the defendant show witness, signifi- there is a produce, failure to difference, securing prosecutorial in terms of cant rule, between a the res compliance with at the trial duly preserved case where the issue is time it raised for the first level and one where Therefore, undermining on to avoid appeal. indorsement long-established requiring rule of res wit- diligence production the nature nesses, circumscribe carefully we would hearing. post-remand inquiry such a is raised at non-production Where the issue of or on appeal and it is determined at trial trial diligence, did not exert due should be post-remand hearing at a question prejudice whether the defendant suffered trial, missing not whether witness’s bring about a different may subsequent at a trial in terms of whether question result. To frame the finding at a there be a different verdict or not new trial would mean that if the witness could trial, there would be no new would thus for its lack of reward the diligence, and would create a incentive positive post-re- locate and the witness question mand trial. If the new at a new there a different result may be hear- prosecutor might post-remand seek a with a on an officer’s ing prevailing simply view locate and recital of his unsuccessful efforts to who authorities produce the witness. Prosecutorial are not do not exert due before the trial *40 People v Pearson by Dissenting Opinion Levin, J. greater likely to exert efforts on unless remand advantage avoiding there is some to a new them — doing trial —in so. prosecutor If the establishes that the witness produced possibly could not the have been at trial possible testimony or his would have been of no defendant, to assistance the then the defendant prejudiced was not the trial trial at and a new is required.30 not assessing testimony
In the whether witness’s might possibly defendant, have assisted the it should be borne in mind that the defendant was jury appraisal, appraisal, judge’s entitled to not a testimony. of the of worthiness the witness’s It is again pertinent non-appearance that the witness’s prosecution’s the trial attributable the discharge obligation failure to its the witness. question by whether the evidence adduced hearing might post-remand
the witness at the possibly have the the assisted defendant at trial generally depend appraisal will an on might possibly his evidence have contributed to a result more the favorable to defendant. The wit- testimony consequently ness’s in must considered be light other evidence the trial adduced at by and defense. The focus inquiry, perti- primarily however, be should on nency at the witness’s adduced post-remand hearing. jury’s invading To avoid province determining credibility of wit- weight evidence, nesses and the consid- prose- eration of the other evidence adduced applied only post-remand hearing This test to be at a after finding by appellate there has been a trial or court prosecutor diligence. failed exercise due Whether adequate has exerted efforts to a res at trial shall continue be determined under the due standard. 404 Dissenting Opinion Levin, J. limited to should be or defense at trial cution and should such other evidence nature of weight quality or of its extend to consideration testimony. comparison the witness’s relation or produced post- for a If the witness cannot (unless establishes remand possibly have could not further the witness trial), the conviction must be been at the knowing way of is no reversed because there given might possibly have whether at the trial he testimony Requir- to the defendant. of assistance encourage ing will a new trial such case *41 (Wynn) prosecutors Moore like to locate witnesses (Schwartz) produce Cager them a and to at post-remand hearing avoid a new trial. which argument that is the can be made there While point no a new where the witness cannot to trial testimony trial at the second —the persuaded duplicate the are that will first31—we securing satisfactory means of there is no other compliance obligation by prosecution its the with produce Retrial of the to all res witnesses. appellate relatively an re few cases where court diligence is verses of a failure to exert due because prosecu price securing compliance by tion with the res rule in the thousands speedy other cases where the fair and administra depends compliance justice tion of with that on rule. nothing
We add to burden of by dispositions rulings cases; our it is in these repeating a worth reversal remand for granted ground new trial the verdict Where a on evidence, contrary great testimony weight at may duplicate second the first. That has never trial the judge’s power negate thought grant been' ground, a new trial on to, effect, he direct nor is authorized on that account (1976). Johnson, 686; People v verdict. Cf. 246 NW2d People v Pearson Dissenting Opinion Levin, J. remedy new trial has been automatic past failure the witness without post-remand opportunity for a to show prejudiced that the was not at the defendant trial. VI supra, p Robinson, 634, In the Court also de- clared: disposition abey- "The final of this cause is held in ance. If the trial finds that a new trial is re-
quired, this Court will enter an order consistent with transcript, findings not, that determination. If supplemental the trial court and the briefs of the parties will be considered this Court and a final disposition of the entire matter thereafter will be made.” procedure followed,
A in effect, similar shall be appellate whenever court an reverses a defend- ant’s conviction and orders a trial new on the ground discharge that the failed to its obligation a witness. If the post-remand hearing, party seeks a either is enti- appellate tled to tion. of an review adverse determina- days order, Within of the trial court’s *42 aggrieved party by filing such seek review a appellate statement The to that effect with the court. transcript, judge’s findings statement of and supplemental reasons, court, order of the trial promptly, briefs shall be forwarded within the by appellate time court, directed to that court disposition for its review and of the matter. We concur in the affirmance of the decision of Appeals Wynn Schwartz, the Court of prosecutor’s subject trial, remand right a new days, seek, within 30 a on 404 by Levin, J. Opinion Dissenting the fail- by prejudiced the defendant the witness. ure to
VII in Pearson. remaining issues address We should judge that contend Pearsons because of mistrial motion for a granted have Pear- charging Willie actions prosecutor’s two subpoenaing perjury and girlfriend with son’s placing room and in Kidd’s were persons who at her witnesses appear as bond to them under it not that does conclude charge. that We trial on deprived thereby the Pearsons were that appear trial at the adhered girlfriend a fair trial. corrobo- testimony examination preliminary her a stran- testimony Pearson’s rating Lindsay Kidd; did not she and shot lobby into the ger burst Since the two testimony. exculpatory change her placed under subpoenaed or not were witnesses at the Pearsons’ had testified they until after bond their to believe no reason there deci- prosecutor’s influenced subpoena or to girlfriend charge sions reason to any is there under bond. Nor place them girl- decisions Kidd’s that but for those believe damaging prelimi- changed have her friend would testimony. examination nary innuendo further contend The Pearsons girl- of Pearson’s questioning the prosecutor’s inconsistent given had earlier friend was that she sug- reinforced improperly he testimony which he as through paper sheets of flipping gestively might questions. While propounded this from pursuing stopped earlier dealt and answers questions inquiry, form of the Pearsons were subsidiary issue and with thereby prejudiced. *43 v Pearson Dissenting Opinion by Levin, J.
doNor we find in merit the contention that the prosecutor departed from the in record his summa closing argu tion. Defense counsel had stated Raymond ment that Collins was bound over for charge trial and that the officer in of the case had charges. argued then moved to dismiss those He girlfriend that since Kidd’s had testified under jury oath that Collins was the third man the could prosecution infer that the that, did not believe her and by say verdict, its it should "why you expect do us to?” In those circum stances, the was within the bounds of permissible argumentative response asking jury police infer, rather, that "the and the prosecution know that he wasn’t the man”. We argument hasten to add that if the same had been guilt, "you advanced in may i.e., terms of a defendant’s police infer that the and the know guilty”, question that the defendant a different presented.32 would be judge jury instructed the on the defense’s
theory.
completed
It was not until after he
his
instructions that he was asked to instruct
if
jurors
killing
lobby
concluded that
robbery
was not a "continuation” of a
in Kidd’s
they
room
could not convict the Pearsons of first-
degree murder. When this instruction was re-
quested,
given
said that if it were to be
necessary
degrees
it would be
to instruct on lesser
murder,
which would be inconsistent with de-
prosecution’s
buttressed,
theory
was not
the defense was not
deprecated by
argumentative
response
police
prose-
cutor knew that Collins was not the third man in
If
Kidd’s room.
Pearsons had named
allegedly
lobby
the third man who
entered the
argument
made,
and shot
e.g., you
Kidd and a
similar
had been
infer that
know
the man named
Kidd,
lobby
Pearsons did not enter
and shoot
a different
question
presented.
would also be
See ABA Standards
for Criminal
Relating
(Approved Draft, 1971),
Justice
to the Prosecution Function
5.8(b);
7-106(0(3).
Responsibility,
Code
§
of Professional
DR
The convictions the Pearsons are remanded Wynn The cases of and Schwartz for new trials. in all three is affirmed Appeals Court
cases. Williams, J.,
Kavanagh, C.J., concurred Levin, J. with