People v. DeMeyers

• Decision Date: 09 May 1990
• Docket Number: Docket No. 105643
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marcus Rico DeMEYERS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 202

454 N.W.2d 202

183 Mich.App. 286

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marcus Rico DeMEYERS, Defendant-Appellant.

Docket No. 105643.

Court of Appeals of Michigan.

Submitted Dec. 5, 1989.

Decided April 16, 1990.

Released for publication May 9, 1990.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., G. Michael Hocking, Pros. Atty., and William M. Worden, Asst. Pros. Atty., for the People.

Douglas R. Mullkoff, Ann Arbor, for defendant-appellant on appeal.

Before BRENNAN, P.J., and MURPHY and CAVANAGH, JJ.

MURPHY, Judge.

After a jury trial, defendant was convicted and sentenced to a prison term of twenty to thirty years for armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. Defendant appeals as of right. We reverse.

Defendant's conviction arose out of the armed robbery of a Clark service station on Waverly Road in Eaton County on December 26, 1986.

Attached to the information charging defendant was a list of witnesses pursuant to M.C.L. Sec. 767.40a; M.S.A. Sec. 28.980(1). In addition to the investigating officers, only Dennis Zank, the clerk on duty during the robbery, and Ramiro Rodriguez, a customer present at the time, were named.

On May 11, 1987, after the jury was sworn, but before defendant's trial actually commenced, an evidentiary hearing was held to determine the propriety of the identification procedures used in the photographic lineups conducted before defendant's arrest. While testifying during the hearing, Zank mentioned a third man who had been present at the robbery scene.

The next day, pursuant to defense counsel's request for CJI 5:2:14, now CJI2d 5.12, the missing witness instruction, the trial court conducted an evidentiary hearing to determine whether the prosecution had exercised due diligence in its attempt to identify all res gestae witnesses. At this hearing, Zank explained that the unidentified witness was a regular customer at the Clark station who came in approximately every other day to purchase cigarettes. Although he did not know the man's name, Zank was able to describe the two vehicles regularly driven by the man. Zank also testified that he believed he had mentioned this witness' presence to the investigating officer on the night of the robbery. Furthermore, he was certain that he had told Detective O'Donnell about this witness at the time of the photographic lineups. Following Zank's testimony, the prosecutor conceded that the unidentified man was a res gestae witness. The trial court adjourned with the prosecutor's assurance that an effort would be made to locate the missing witness.

On May 13, 1987, a second hearing on the due diligence issue was held. At this time, both investigating officers testified that neither Zank nor Rodriguez had mentioned the third witness on the night of the robbery. However, Detective O'Donnell agreed that Zank had informed him about the missing witness at the time of the second photographic lineup on January 19, 1987. The detective said he had asked Zank to get the witness' name, address, and phone number the next time the man came into the store and to tell him that the police wanted to talk to him. At the next photographic lineup, Zank told O'Donnell that he was unable to acquire the information because the witness did not want to be involved. The detective then described his unsuccessful efforts to locate the missing witness following the previous day's hearing.

At the conclusion of the testimony, the trial court stated that it was unwilling to rule that there was a lack of due diligence by the investigating officers. However, this ruling appears to have been based more on the court's reluctance to read the missing witness instruction, CJI 5:2:14, now CJI2d 5.12, than on the diligence of the officers' efforts, which the trial court criticized. If the court determined that the prosecution exercised due diligence, then we believe the trial court's findings were clearly erroneous.

Under the present res gestae statute, M.C.L. Sec. 767.40a; M.S.A. Sec. 28.980(1) [Sec. 40a], the prosecutor has no affirmative duty to endorse and produce all res gestae witnesses. Consequently, there appears to be some question concerning whether the prosecution's duty to exercise due diligence to locate and produce res gestae witnesses has survived amendment of the former res gestae statute, M.C.L. Sec. 767.40; M.S.A. Sec. 28.980. See and compare People v. Gunnett, 182 Mich.App. 61, 451 N.W.2d 863 (1990), with People v. Calhoun, 178 Mich.App. 517, 522, 444 N.W.2d 232 (1989). However, even under the traditional due diligence standard, the prosecution was only required to do "everything reasonable, not everything possible" to identify, locate, and produce res gestae witnesses. People v. Cummings, 171 Mich.App. 577, 585, 430 N.W.2d 790 (1988).

Under the present statute, a list of all known witnesses who might be called at trial and all res gestae witnesses known to the prosecutor or investigating law enforcement officers must be attached to the information. Sec. 40a(1). Additionally, the prosecutor is charged with a continuing duty to disclose the identities of further res gestae witnesses as they become known and to provide reasonable assistance to locate witnesses upon request by the defendant. Sec. 40a(2), (5). We conclude that the amended res gestae statute continues to impose a duty on the prosecution, and the investigating law enforcement officers to exercise due diligence in discovering the identities of res gestae witnesses. See Gunnett, supra, 182 Mich.App. p. 67, 451 N.W.2d 863. To hold otherwise renders meaningless their continuing duty to disclose known witnesses as set forth in the statute.

It is clear that the prosecutor had no personal knowledge of the existence of this third eyewitness before Dennis Zank's testimony at the evidentiary hearing on the morning scheduled for defendant's trial. Furthermore, there is no question that the efforts made to locate the witness that afternoon were diligent and reasonable. Thus, the prosecution clearly provided the reasonable assistance to identify and locate required under Sec. 40a(5) once there was actual knowledge of the witness' existence.

However, this does not change the fact that Detective O'Donnell knew of the existence of this third witness as early as January 19, 1987. By mid-February, he also knew that Zank had been unable to ascertain the man's identity. Nevertheless, the detective took no further action to locate the witness in the ensuing three months before defendant's trial.

We note that this Court has excused failure to locate a witness whose identity was unknown when the only lead uncovered on his identification was "that an employee of the store stated that he might recognize this customer upon seeing him again but that he did not know the customer's identity or how to locate him." People v. Carter, 87 Mich.App. 778, 784-785, 276 N.W.2d 493 (1979). However, in the present case, Dennis Zank gave the investigating officer a great deal more information about the missing witness than a vague statement that "he might recognize" him.

We also recognize that the officer was only required to do "everything reasonable, not everything possible" to identify this witness. Cummings,supra, 171 Mich.App. p. 585, 430 N.W.2d 790. Nevertheless, regardless of whether a relaxed standard under M.C.L. Sec. 767.40a; M.S.A. Sec. 28.980(1) or the "due diligence" standard is applied to this case, we do not believe that everything reasonable was done to identify and locate this witness. See Gunnett, supra. Indeed, as noted by the trial court, a simple request to Dennis Zank to obtain the witness' license plate number could have led to his identification in the three months before defendant's trial and the addition of his name to the statutorily required list of res gestae witnesses. Under both the present statute and the traditional standard, the investigating officer's lack of diligence or reasonable effort must be imputed to the prosecution. See Sec. 40a(2); People v. Dye, 431 Mich. 58, 77, 427 N.W.2d 501 (1988), cert. den. sub. nom. Michigan v. Dye, --- U.S. ----, 109 S.Ct. 541, 102 L.Ed.2d 571 (1988).

However, defendant is not automatically entitled to a new trial with the addition of the missing witness instruction because the trial court erroneously decided the due diligence issue. Therefore, we remand for an evidentiary hearing to determine whether defendant was prejudiced by the absence of this witness at trial. People v. Pearson, 404 Mich. 698, 723, 273 N.W.2d 856 (1979). Because defendant is presumed to have been prejudiced, the prosecutor has the burden to show that the failure to exercise due diligence, or reasonableness, in identifying this witness did not adversely affect defendant's right to a fair trial. Id., p. 725, 273 N.W.2d 856. The prosecutor may produce this missing witness or otherwise show that the missing testimony would not have assisted defendant, would have merely constituted cumulative evidence, that its absence was harmless error, or that the witness could not have been produced at trial even if he had been listed. In that event, defendant's conviction should be affirmed. However, should the prosecutor fail to meet this burden, defendant is entitled to a new trial at which either the missing witness should be produced or CJI2d 5.12 should be read to the jury. Id., pp. 725-726, 273 N.W.2d 856.

Defendant also contends the trial court erroneously refused to suppress evidence of a precustodial photographic lineup which was conducted without counsel present to represent defendant, upon whom the investigation was clearly focused.

In the period from January 19 to February 5, 1987, five different photographic displays were shown to Dennis Zank. Only the last of these, on February 5, contained defendant's photograph. At that time, Zank identified defendant as the man who had robbed the Clark station. The next day, February 6, Detective...