People v. Niswonger, Docket No. 77-1402

• Decision Date: 07 November 1978
• Docket Number: Docket No. 77-1402
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bruce C. NISWONGER, Defendant-Appellant. 87 Mich.App. 57, 273 N.W.2d 586
• Court: Court of Appeal of Michigan — District of US

Page 586

273 N.W.2d 586

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Bruce C. NISWONGER, Defendant-Appellant.

Docket No. 77-1402.

87 Mich.App. 57, 273 N.W.2d 586

Court of Appeals of Michigan.

Nov. 7, 1978.

Released for Publication Jan. 12, 1979.

[87 MICHAPP 57] Buth & Riley by George S. Buth, Grand Rapids, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., David H. Sawyer, Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and V. J. BRENNAN and ROBERT H. CAMPBELL, JJ.

[87 MICHAPP 58] PER CURIAM.

Defendant was convicted by a jury of unlawful delivery of a Schedule 3 controlled substance, contrary to M.C.L. § 335.341(1)(b); M.S.A. § 18.1070(41) (1)(b). Defendant was sentenced to a term of 90 days in the county jail and appeals as of right. On appeal, defendant claims that the trial judge erred reversibly in finding that the prosecutor had exercised due diligence in attempting to secure the presence of a res gestae witness at trial and in allowing that witness's testimony from defendant's preliminary examination to be introduced at trial.

The alleged delivery took place at defendant's home while Ms. Malone, a police informer, was present. Malone testified at defendant's preliminary examination but did not appear at trial. At trial, the prosecutor made a motion to admit Malone's preliminary examination testimony into evidence under M.C.L. § 768.26; M.S.A. § 28.1049, because she was unavailable for trial. After an evidentiary hearing, the trial judge found that the prosecutor had exercised due diligence in attempting to locate and produce the witness. Therefore, he allowed the preliminary examination testimony to be admitted at trial. Malone's testimony seriously incriminated the defendant. After trial, defendant made a motion for a new trial but did not list the nonproduction of this witness or the use of the preliminary examination testimony as a reason for his motion for a new trial.

The prosecutor argues that appellate review is precluded because defendant did not list this reason in his motion for a new trial as required by People v. Robinson, 390 Mich. 629, 213 N.W.2d 106 (1973). Although the facts in this case are distinguishable from the facts in Robinson, supra, we think that the policies behind the rule are applicable[87 MICHAPP 59] to this case. Therefore, we conclude that the rule announced in Robinson, supra, applies. The primary purpose of the Robinson rule is to prevent the ordering of what may be "useless" new trials, Robinson, supra, at 633, 213 N.W.2d 106, People v. Allen, 76 Mich.App. 585, 257 N.W.2d 263 (1977). At the hearing on the motion for a new trial, the prosecutor must either produce the witness or explain why he cannot produce her. If the witness is produced, the trial court can determine whether her testimony is cumulative and if it is cumulative, a new trial would not be required. If the witness cannot be produced even though the prosecutor exercised due diligence in attempting to locate and produce her, a new trial would not be required. The hearing on the motion for a new trial gives the trial judge an opportunity to resolve these issues and the issue of whether the prosecutor exercised due diligence in attempting to produce the witness for trial, and thereby possibly avoiding the ordering of what may be a useless new trial. The resolution of these issues at a hearing on a motion for a new trial would serve the same function in this case.

The first difference between Robinson, supra, and this case is that in this case, an evidentiary hearing was held at trial on the issue of the prosecutor's due diligence. While this hearing gives the trial judge an opportunity at trial to evaluate the prosecutor's efforts and does provide a record from which an appellate court could review those findings, the hearing does not fulfill all the purposes of a Robinson hearing, see Allen, supra, and cases cited therein. The hearing in this case did not give the trial judge an opportunity to consider any post-trial changes that may have possibly made the ordering of a new trial "useless", see Allen, supra.

[87 MICHAPP 60] The other difference between this case and Robinson, supra, is that in...