People v. Pearson, Docket Nos. 57147
| Citation | 273 N.W.2d 856,404 Mich. 698 |
| Decision Date | 08 January 1979 |
| Docket Number | 56977,57273,Docket Nos. 57147,Nos. 8-10,s. 8-10 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie PEARSON and Lindsay Pearson, Defendants-Appellants. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Willie WYNN, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. John J. SCHWARTZ, Defendant-Appellee. Calendar |
| Court | Supreme Court of Michigan |
Raymond P. Walsh, Detroit, for plaintiff-appellee.
Carl Ziemba, Detroit, for defendants-appellants.
We agree that the convictions of Willie and Lindsay Pearson should be affirmed. We also concur in the result that the convictions of Willie Wynn and John J. Schwartz should be reversed. In Schwartz, reversal is required because the prosecutor failed to exercise sufficient diligence in his attempts to produce Don Cager (one of two on-the-scene witnesses), regardless of the "good faith" on the part of the prosecution. Reversal in Wynn is predicated upon the prosecution's lack of diligence in attempting to produce Moore and its apparent disregard for its responsibility to present to the judge and jury the "whole transaction" of the alleged crime.
A separate opinion is necessary, however, to set forth the points of departure from Justice Levin's opinion. We do not agree that in all cases where there has been a hearing during the course of trial concerning the prosecution's obligation to produce a given res gestae witness and its diligence in the attempt, the defendant should be able to raise missing res gestae witness issues on appeal without first presenting them to the trial judge in a Robinson (post-trial) hearing. 1 As Justice Levin notes:
In cases where the trial judge has determined that the prosecution failed to exercise due diligence when attempting to produce a missing res gestae witness (E. g., Wynn ), the issues of the existence of prejudice (if any) and the appropriate remedy remain to be resolved. These issues should be raised in a post-trial hearing in order to perfect them for appeal. In cases where the trial court has ruled that a missing witness is not a res gestae witness or that the prosecution was sufficiently diligent in its efforts to produce (E. g., Schwartz ), a Robinson hearing would be superfluous and is not required prior to an appeal.
Furthermore, we are unable to accept our brother's standards for determining whether a defendant has been prejudiced by the prosecution's lack of due diligence. 2 While we agree that the defendant should be presumed prejudiced unless and until the prosecution overcomes this presumption, utilization of the standard "possible" (I. e., the witness could not "possibly" have been produced or his testimony would have been of no "possible" assistance to defendant) makes rebuttal of the presumption virtually impossible. Also, it could be read as eliminating the "cumulative evidence" and "harmless error" exceptions to the res gestae rule. Therefore, in Wynn and Schwartz, post-remand hearings and Robinson hearings, the determination of the existence of prejudice to the defendant as a result of a violation of the prosecution's obligation to indorse, produce and call all known res gestae witnesses should be in accordance with the standards delineated Infra.
John J. Schwartz was convicted of delivery of heroin. M.C.L. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a). The testimony establishes that the defendant delivered heroin to a police officer who had been introduced to the defendant by Don Cager, an informant. Cager was present during the transaction, but was not produced at trial. Consequently, Cager was clearly a missing res gestae witness. He was indorsed on the information. The defense was entrapment.
During the course of the trial, the defendant raised the issue of non- production. The prosecution recalled the police officer who had worked with Cager. The officer testified that the last time he had seen Cager was about six months prior to trial. In the interim, and particularly over the five weeks preceding trial, he had made several unsuccessful (vaguely described) attempts to find Cager regarding other matters. In preparation for the Schwartz trial (which was to begin the next day), the officer went to Cager's residence in Algonac, Michigan, spoke to several people on the street in Cager's age group, and spoke to a local police officer. He was unsuccessful in locating Cager. On the morning that he was recalled to the witness stand, the same officer had been sent out in search of Cager armed with a subpoena. The officer returned to Algonac and checked Cager's residence, a boathouse, a firehouse, a poolhall, two bars and two restaurants. The court ruled that these efforts constituted a "good faith" attempt to locate and produce Cager.
The Court of Appeals reversed on the grounds that the trial judge used the wrong standard (good faith versus due diligence) and that the prosecution did not exercise sufficient diligence in its attempts to produce Cager. 62 Mich.App. 188, 233 N.W.2d 517 (1975). We agree.
It is clear that the standard is one of due diligence and not good faith. 3 We also believe that the standard of due diligence was not met. Prior to trial there was no attempt to subpoena Cager, nor did anyone keep track of his whereabouts between defendant's arrest and trial. It was clear that Cager was a res gestae witness who would have to be produced. Consequently, a diligent attempt would have included serious pretrial efforts to locate and subpoena Cager.
We must agree with Justice Levin's assessment of the police officer's efforts during the two trips to Algonac. A thoughtful, serious attempt, even at that late date, would have included prior telephone inquiries (particularly in the evening) to Cager's residence, his parents, the local police, an inquiry of neighbors, etc. Of particular concern to this Court, however, is that no serious effort was made sufficiently in advance of trial to allow for the difficulties which occurred. Therefore, we agree that the defendant's conviction be vacated, but subject to the prosecution's right to seek relief in a post-remand hearing consistent with the procedures and standards set forth Infra.
Willie Wynn was convicted of assault with intent to do great bodily harm less than murder. M.C.L. § 750.84; M.S.A. § 28.279. The testimony establishes that Earl Berry had beaten Wynn's ex-girlfriend and threatened Wynn. James Moore (the girlfriend's brother), Wynn and an unknown third person went to the Berry family's home in an alleged attempt to straighten out matters and pacify Earl Berry. A rifle was brought along.
Moore entered the Berry house first. Earl Berry was not home so Moore spoke to Floyd and Armstead "Rudy" Berry (Earl's brothers) in a back bedroom. A few minutes later Wynn ran in the house with the rifle and a shot was fired, narrowly missing Rudy Berry.
Wynn was charged with assault with intent to commit murder. The key element of the proofs was Wynn's intent. Wynn testified that he entered the house with the rifle, that he saw Rudy Berry coming toward him, that he ordered Rudy to halt while raising the rifle and that the rifle Accidentally discharged. The prosecution's witnesses testified that Wynn Aimed and fired at Rudy. All parties agree that Moore was an eyewitness to the incident.
We cannot agree, however, with Justice Levin's characterization of the importance of Moore's testimony. It is stated:
"Moore was standing about two feet in front of and to the side of the complainant when the shot was fired, and may have been the only person who had an unblocked view of the incident."
Rudy Berry testified that Moore preceded him out of a back bedroom as Wynn ran in the front door with a rifle in his hands. Rudy Berry said that when he and Wynn saw each other they both stopped still and Wynn them aimed at him from a distance of 7 or 8 feet. Berry then said:
We understand this and other testimony to place Moore to one side of Rudy Berry when the shot was fired. (T, 73-74, 124, 138, 173, 189, 306-307.) Because the defendant's intent was the key issue, his actions before the shot were of paramount importance. Further, the evidence establishes that Floyd Berry and Doris Smith also had unobstructed views of the entire transaction. Floyd Berry, Doris Smith and Rudy Berry were produced and called by the prosecution.
Thus, we do not believe it is fair to depict Moore as the crucial eyewitness. However, given that the only witnesses produced by the prosecution were friends or relatives of the Berrys, it is fair to conclude that Moore may have provided a different picture of the event.
Moore was not indorsed prior to trial, but in response to a defense motion the court ordered Moore indorsed and produced during trial. The police located Moore and he said he would appear. No attempt to serve a subpoena was ever made. Moore did not come to court and the prosecution made no further efforts to produce him. The court found that this constituted a lack of due diligence and instructed the jury that it could infer Moore's testimony would have been unfavorable to the prosecution.
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Appendix E
...People v. Pearson (Mich.App.1975) 61 Mich.App. 366, 232 N.W.2d 408, 410 affd. in part and revd. in part in People v. Pearson (Mich.1979) 404 Mich. 698, 273 N.W.2d 856 [Michigan Court of Appeal refused to “place the stamp of judicial approval upon requiring prosecuting attorneys to delay for......