People v. Brooks

• Decision Date: 10 January 1980
• Docket Number: Docket No. 77-930
• Citation: 292 N.W.2d 139,96 Mich.App. 96
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald BROOKS, Defendant-Appellant. 96 Mich.App. 96, 292 N.W.2d 139
• Court: Court of Appeal of Michigan — District of US

Page 139

292 N.W.2d 139

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald BROOKS, Defendant-Appellant.

Docket No. 77-930.

96 Mich.App. 96, 292 N.W.2d 139

Court of Appeals of Michigan.

Jan. 10, 1980.

Released for Publication May 28, 1980.

[96 MICHAPP 97] James R. Neuhard, Appellate Defender, Derrick A. Carter, Asst. Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, Appellate Chief Asst. Pros. Atty., Robert J. Sheiko, Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P. J., and RILEY and QUINNELL, ^* JJ.

PER CURIAM.

Defendant was convicted of carrying a concealed weapon contrary to M.C.L. § 750.227; M.S.A. § 28.424, and was sentenced to 21/2 to 5 years in prison on January 5, 1977. In an order dated February 14, 1978, this Court granted defendant's motion for an evidentiary hearing on plaintiff's failure to produce a res gestae witness, Derrick Cooper. Pursuant to this order, the trial court made factual findings from which we can conclude that the witness's nonproduction at trial impaired defendant's rights. Accordingly, we reverse.

At the time of defendant's arrest, Cooper told police that they had arrested the wrong man. He gave his driver's license to the police as identification,[96 MICHAPP 98] but the officers incorrectly recorded his address. The record discloses no efforts by police to locate this witness prior to trial, other than the dispatching of an officer to the wrong address and the checking of police files for a past record.

Defendant asserts that the failure to endorse and produce the alleged res gestae witness, Derrick Cooper, was reversible error. Persons present at the scene of a crime are presumed to be res gestae witnesses able to testify regarding their observations. People v. Abdo, 81 Mich.App. 635, 642-644, 265 N.W.2d 779 (1978); People v. Hicks, 63 Mich.App. 595, 597, 234 N.W.2d 720 (1975). Prosecutors are required to endorse all such persons' names on the information, M.C.L. § 767.40; M.S.A. § 28.980, and to produce these witnesses at trial. See People v. Hammack, 63 Mich.App. 87, 234 N.W.2d 415 (1975). However, if the prosecutor does not comply, it is the defendant's responsibility to move for a hearing during trial or for a new trial prior to seeking appellate review. People v. Robinson, 390 Mich. 629, 213 N.W.2d 106 (1973). The failure to move for either will normally foreclose this issue on appeal, People v. Pearson, 404 Mich. 698, 722, 273 N.W.2d 856 (1979), unless, absent review, manifest injustice will result. People v. Phillips, 75 Mich.App. 690, 694, 255 N.W.2d 733 (1977).

The instant defendant never moved for a hearing on the issue of Cooper's endorsement or production during or following trial. Thus, implicit in this Court's order for the post-trial hearing was a finding that, absent the evidentiary proceeding, manifest injustice would result.

According to the dictates of Robinson, supra, 390 Mich. at 634, 213 N.W.2d 106, on remand, a prosecutor must explain why he failed to endorse and produce a particular witness. Normally, a trial court will then determine [96 MICHAPP 99] whether these efforts meet the standard of "due diligence". See People v. Ebejer, 66 Mich.App. 333, 239 N.W.2d 604 (1976).

In the instant case, this determination has been reserved for this Court. Based on a careful review of the record, we conclude that the police did not exercise due diligence in locating Derrick Cooper prior to trial. After failing to find the address listed for that witness, the investigating officer neglected to make inquiries of neighbors, possible employers or the post office. Above all, no effort was made to check with the Secretary of State's office, although the police had first-hand knowledge that the witness had a driver's license. By contrast, after the hearing order from this Court, the police diligently investigated several leads to locate the witness and were ultimately successful. The officer's initial efforts fall far short of "due diligence" and cannot be excused. See People v. McIntosh, 389 Mich. 82, 204 N.W.2d 135 (1973); People v. Tees, 386 Mich. 483, 192 N.W.2d 241 (1971); People v. Starr, 89 Mich.App. 342, 280 N.W.2d 519 (1979); People v. Hunter, 48 Mich.App. 497, 210 N.W.2d 884 (1973).

Once the lack of due diligence is established, the court must determine if the defendant suffered manifest injustice based on the witness's nonproduction. See Phillips, supra. These deficiencies will entitle the defendant to a new trial. ¹ See People v, Hernandez, 84 Mich.App. 1, 17, 269 N.W.2d 322 [96 MICHAPP 100] (1978); People v. King, 50 Mich.App. 487, 491, 213 N.W.2d 597 (1973).

We conclude that manifest injustice resulted at trial when witness Cooper was not produced....