Opinion
Docket No. 77-930.
Decided January 10, 1980. Leave to appeal denied, 409 Mich. 880.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Robert J. Sheiko, Assistant Prosecuting Attorney, for the people.
Derrick A. Carter, Assistant State Appellate Defender, for defendant on appeal.
Defendant was convicted of carrying a concealed weapon contrary to MCL 750.227; MSA 28.424, and was sentenced to 2-1/2 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, 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, MCL 767.40; MSA 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, 634, on remand, a prosecutor must explain why he failed to endorse and produce a particular witness. Normally, a trial court will then determine 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. See People v Hernandez, 84 Mich. App. 1, 17; 269 N.W.2d 322 (1978), People v King, 50 Mich. App. 487, 491; 213 N.W.2d 597 (1973).
This analysis corresponds to the order of inquiry as established in People v Pearson, 404 Mich. 698; 273 N.W.2d 856 (1979), which was handed down by the Supreme Court after the evidentiary hearing was conducted in the instant case. Initially, the court must ascertain whether the prosecution has been duly diligent in producing the res gestae witness. If a lack of due diligence is found, then the court must determine if the defendant was prejudiced by the prosecution's failure to produce the witness at trial. Pearson, supra, 722-723. Under this standard too, we feel that defendant must be accorded a new trial.
We conclude that manifest injustice resulted at trial when witness Cooper was not produced. Only two officers testified against the defendant and neither could offer direct proof of his guilt. Although defendant proffered the testimony of a friend who stated that defendant was not carrying a gun at the arrest scene, defendant's case would have been far more credible if supported by the corroborative testimony of the disinterested witness Cooper.
The fact that the prosecution failed even to endorse Cooper on the information as a res gestae witness highlights the negligence with which the state conducted this case. Insufficient effort was expended to locate Cooper, despite the full spectrum of resources available to the prosecution. The prosecution must now bear the consequences of its inattention.
Reversed and remanded for a new trial.