People v. Schwartz

• Decision Date: 23 June 1975
• Docket Number: No. 1,Docket No. 18615,1
• Citation: 233 N.W.2d 517,62 Mich.App. 188
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John J. SCHWARTZ, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 517

233 N.W.2d 517

62 Mich.App. 188

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John J. SCHWARTZ, Defendant-Appellant.

Docket No. 18615.

Court of Appeals of Michigan, Division No. 1.

June 23, 1975.

Released for Publication Oct. 6, 1975.

Theodore B. Sallen, Detroit (Alvin C. Sallen, Detroit, of counsel), for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., John C. Mouradian, Asst. Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and KELLY and O'HARA, ^* JJ.

KELLY, Judge.

Defendant was charged with and convicted of delivering heroin, M.C.L.A. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a). He was sentenced to a prison term of 4 to 20 years and appeals.

Michigan State Police Officer Gerald Kotajarvi was the only witness to the transaction that testified. He said that on September 19, 1972, he went to defendant's home in the City of Detroit. He was accompanied and introduced by Don Cager, an informant who had arranged the meeting. Prior to this date, Officer Kotajarvi and defendant were not acquainted with each other.

Defendant asked the officer what he wanted. The officer said 'a spoon' (a quantity of narcotics). Defendant said he didn't have any at his home. The three men thereupon left in Kotajarvi's car for the area of Theodore and St. Aubin in Detroit. Defendant entered a building and returned, saying he needed $25. He then went back in the building and eventually gave Mr. Kotajarvi six 'nickel' ($5) bags of a substance that contained 1 to 1 1/2 percent heroin.

Defendant did not testify on his own behalf. He interposed the defense of entrapment.

On appeal, defendant claims that the trial court erred by instructing the jury on the subjective test of entrapment. It is claimed that the judge should have given defendant's requested instruction setting forth the objective test of entrapment.

The jury verdict was returned on May 3, 1973. On September 18, 1973, the Michigan Supreme Court decided People v. Turner, 390 Mich. 7, 210 N.W.2d 336 (1973). Turner adopted the objective test of entrapment for courts of this state. The question thus presented is whether Turner is to be applied retroactively. That precise question was faced in People v. Auer, 393 Mich. 667, 227 N.W.2d 528 (1975), where the court held that the objective standard of entrapment applied only to police conduct arising after the decisional date of Turner. Trial defense counsel is to be commended for his foresight in requesting an instruction that complied with what, four months later, became the law of this state. Nonetheless, the trial court correctly instructed the jury on the prevailing rule of law.

Defendant also claims that the trial court erred in excusing the nonproduction of Don Cager. The people admit that Mr. Cager was a res gestae witness who was indorsed and who the prosecutor attempted to produce. This Court said in the factually similar case of People v. Koehler, 54 Mich.App. 624, 639, 221 N.W.2d 398, 406 (1974):

'If ever there were a case where the prosecution's failure to produce a res gestae witness at trial court result in a 'possible miscarriage of justice', this is it. Because defendant admitted delivery of heroin and LSD to Officer Huston, his only hope for acquittal rested on the defense of entrapment. Concerning that defense, what witness could be more vital than the informant who served as the liaison between police and the defendant? Certainly Mrs. Stevens' testimony would have been crucial and perhaps decisive during the jury's deliberations with respect to the question of entrapment.'

The people claim that they were excused from producing the witness because they made an adequate showing of due diligence in attempting to produce the witness. This state has long recognized that the prosecutor's duty has been discharged upon a showing of due diligence. People v. Gibson, 253 Mich. 476, 235 N.W. 225 (1931), People v. Kern, 6 Mich.App. 406, 149 N.W.2d 216 (1967), People v. Johnson, 51 Mich.App. 224, 214 N.W.2d 713 (1974).

During the course of the trial, a hearing was held on the question of due diligence. Officer Kotajarvi testified as to the nature of the prosecutorial efforts to secure the attendance of the witness informant.

According to the officer-witness, he and the prosecuting attorney were informed at the examination of defendant's desire that Cager be produced. The first attempt to find Cager occurred the Monday preceding trial. Kotajarvi went to Cager's last known address in Algonac. He knocked on the door and got no answer, so he went to the boat house behind Cager's home. When this proved fruitless, the officer went to a local pool hall and a fire hall and looked in a few local restaurants. The same routine was repeated during the course of the trial on May 2, 1973; this time, he talked to a few young people on the street where Cager had lived. The jury verdict was May 3rd.

No attempt was made to talk to Cager's parents because the officer thought, but was not sure, that they both worked. No attempt was made to check jails or hospitals. The officer did not check any courts or talk to Cager's friends and associates. No apparent attempt was made to ascertain whether Cager had moved.

In People v. Johnson, supra, this Court noted that, '* * * '(due) diligence' means literally what Webster's dictionary says it means: devoted and painstaking application to accomplish an undertaking'. In the instant case, the trial court found that the prosecution had used 'good faith' in attempting to produce Cager. See People v. Harris, 43 Mich.App. 531, 537, 204 N.W.2d 549, 553 (1972). We find that the trial court incorrectly equated good faith with due diligence.

Significantly, no serious attempts to locate Cager were made between the time of the arrest and the time of defendant's trial. Even then, the prosecution failed to follow the most promising leads, I.e., Cager's parents, friends and neighbors. The evidence presented does not even satisfactorily show that Cager lived at the Algonac address. It fails to show that the prosecution seriously sought to discover the witness's present whereabouts, much less that the prosecution endeavored with diligence and in good faith to compel Mr. Cager's attendance. The efforts here made were less than those found inadequate in People v. Harris, supra, People...