PEOPLE OF MI V GORDON SPENCER LIBBY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 6, 1998
Plaintiff-Appellee,
v
No. 190087
Recorder’s Court
LC No. 88-006972-FC
GORDON SPENCER LIBBY,
Defendant-Appellant.
Before: Holbrook, Jr., P.J., and White and R.J. Danhof*, JJ.
PER CURIAM.
Following a second jury trial, defendant was convicted of second-degree murder, MCL
750.317; MSA 28.549, and assault with intent to do great bodily harm, MCL 750.84; MSA 28.279.
The convictions arose from defendant’s shooting of two men, one fatally. Defendant was sentenced to
serve prison terms of twenty to forty years for the murder conviction and three to ten years for the
assault conviction. He appeals as of right and we affirm.
Defendant first argues that he was denied a fair trial when the trial court ordered trial to
commence in the absence of three res gestae witnesses and without instructing the jury regarding the
missing witness instruction. We disagree. Defendant was granted a new trial after the prosecutor failed
to produce three endorsed res gestae witnesses at his first trial. The prosecutor, however, did not
endorse those witnesses for the second trial. Defendant concedes that the prosecutor is under a lesser
burden regarding res gestae witnesses following the amendment of MCL 767.40a; MSA 28.980(1),
see People v Burwick, 450 Mich 281; 537 NW2d 813 (1995), but argues nonetheless that the trial
court should have given the missing witness instruction as a judicial sanction for the prosecution’s failure
to provide reasonable assistance in locating and serving the witnesses. CJI2d 5.12. The missing
witness instruction provides for instructing jurors that the appearance of a missing witness “was the
responsibility of the prosecution,” and that they “may infer that this witness’s testimony would have been
unfavorable to the prosecution’s case.” The commentary to the instruction suggests that, in the CJI
Committee’s “best judgment,” the instruction provides an available remedy where the trial court finds
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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that the prosecution failed to provide reasonable assistance to the defense in locating and serving an
identified witness. CJI2d 5.12, commentary, p 5-29.
Here, the trial court did not find that the prosecution had failed to provide reasonable assistance
to the defense in locating and serving the three res gestae witnesses. Instead, following the testimony of
the investigating officer regarding the unsuccessful efforts that had been made to locate the witnesses,
the trial court ordered further specific lines of investigation. The investigator agreed to comply with
these orders. Accordingly, given that the trial court did not expressly conclude that the prosecution had
failed to provide reasonable assistance to the defense in locating and serving the witnesses, we find no
error by the trial court in ruling that CJI2d 5.12 was inapplicable under these facts.1
Defendant next argues that the prosecutor failed to exercise due diligence to produce one of the
victims of the assault, and that he was denied his right of confrontation when the trial court admitted the
victim’s testimony from defendant’s first trial. We find no merit to these arguments. This Court will not
overturn a trial court’s determination of due diligence absent clear error. People v Briseno, 211 Mich
App 11, 14; 535 NW2d 559 (1995). A finding is clearly erroneous if the reviewing court, based on the
entire evidence, is left with a definite and firm conviction that a mistake has been made. People v
Hatch, 156 Mich App 265, 267; 401 NW2d 334 (1986).
The prosecutor listed assault victim Joseph Hall as a witness he intended to call at the second
trial. When efforts to locate Hall before trial were unsuccessful, the prosecutor sought to admit Hall’s
testimony from defendant’s first trial. In clarifying the prosecution’s duties under the amended version of
MCL 767.40a; MSA 28.980(1), the Michigan Supreme Court recently noted that “[t]he prosecutor
has a constitutional obligation to . . . exercise due diligence before using prior testimony of a missing
witness.” Burwick, supra at 290, n 12. “The test for due diligence is one of reasonableness, i.e.,
whether diligent good-faith efforts were made to procure the testimony, not whether more stringent
efforts would have produced it.” People v James, 192 Mich App 568, 571; 481 NW2d 715 (1992).
According to testimony at the due diligence hearing, an officer executed a search warrant at
Hall’s girlfriend’s house where Hall allegedly lived. The officer found some tax records and some phone
bills in Hall’s name. Hall’s girlfriend was not cooperative, but indicated that she had not seen Hall in
over a year and that the phone bill was in his name because she had had financial difficulties. A few
days before trial, a former attorney for Hall indicated that Hall might be interested in having his
outstanding warrants dismissed in exchange for his testimony. The prosecutor would not offer a deal.
We agree with the trial court that Hall probably knew the police were looking for him and that he
intentionally did not want to be found. On this record, we hold that the trial court properly concluded
that the prosecution was duly diligent in attempting to secure Hall’s presence at the retrial, and that Hall
was “unavailable” pursuant to MRE 804(a)(5). See People v Watkins, 209 Mich App 1; 530 NW2d
111 (1995). Cf. People v Dye, 431 Mich 58, 68; 427 NW2d 501 (1988) (once the prosecution
learned of the defendant’s retrial date, its efforts to produce the res gestae witnesses were tardy and
incomplete). Where a witness is found to be unavailable for trial, the witness’ former testimony may be
used in lieu of the witness’ presence. MRE 804(b)(1). At defendant’s first trial, Hall testified under oath
and defendant had a full and fair opportunity to cross-examine him. Accordingly, we conclude that
defendant’s right of confrontation was not violated by the use of Hall’s prior testimony.
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In this context, defendant next argues that the prosecutor denied defendant a fair trial when he
read verbatim a paragraph from Hall’s prior testimony during his closing argument to the jury. We
disagree. The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial
trial. People v Legrone, 205 Mich App 77, 82; 517 NW2d 270 (1994). A prosecutor is free to
relate the facts adduced at trial to his theory of the case, and to argue the evidence and all reasonable
inferences arising from it to the jury. People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995).
He need not use the least prejudicial evidence available to establish a fact at issue, nor must he state the
inferences in the blandest possible terms. People v Fisher, 449 Mich 441, 452; 537 NW2d 577
(1995). The testimony which the prosecutor quoted during his closing argument was properly a part of
the evidence adduced at trial. We find no error in the prosecutor using the evidence in his closing
argument.
Next, defendant argues that the trial court’s decision, on the second day of trial, to excuse the
prosecutor from producing the medical examiner who examined the deceased victim’s body and allow
the prosecutor to substitute another medical examiner in his place constituted an abuse of discretion.
We disagree. A prosecutor may add or delete a witness from the witness list at any time upon leave of
the court for good cause shown. MCL 767.40a(4); MSA 28.980(1)(4). Contrary to defendant’s
argument, the prosecutor was not required to exercise due diligence in order to add or delete the
medical examiner from the witness list. Burwick, supra at 291; People v Wolford, 189 Mich App
478, 484; 473 NW2d 767 (1991). The prosecutor informed the court that the examiner who he
originally intended to call was unavailable for trial because he was on sabbatical in Thailand.
Defendant’s objection that the substitute medical examiner would not be able to testify about whether
the murder victim was possibly a drug addict was overruled by the trial court, which found the issue of
the victim’s possible drug use to be irrelevant to whether defendant committed murder. We find no
abuse of discretion by the trial court in permitting the substitution.
Defendant next argues that the prosecutor failed to lay a proper foundation for admission of past
recollection recorded evidence. Again, we disagree. The decision whether to admit evidence is within
the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.
Briseno, supra, 211 Mich App 14. Defendant claims that the prosecutor committed this error twice,
once with witness Kenney and once with witness Smith, who were both eyewitnesses to the crime. Our
review of the record indicates that the prosecutor properly impeached Kenney with her prior
inconsistent statement. MRE 613. Kenny initially testified that defendant did not say anything when he
shot the victims. The prosecutor then impeached Kenney with her prior statement to the police in which
she indicated that defendant said, “I hate Highway Men.” After the impeachment, Kenney changed her
trial testimony and indicated that defendant did say, “I hate Highway Men,” after he shot the victims.
The statement then became substantive evidence. The prosecutor’s follow-up question regarding what
tone of voice defendant used in making the statement was entirely proper.
With regard to Smith, the trial court did admit her prior statement to the police as substantive
evidence. We conclude from our review of the record that the prosecutor did lay a proper foundation
for admission of the statement as a past recollection recorded. Initially, the prosecutor attempted to
impeach Smith with her prior inconsistent statement. Smith then indicated that she really could not
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remember what defendant said at the time of the assault, so whatever she told the police immediately
after it occurred was probably correct. The prosecutor then established that the incident was fresh in
Smith’s mind when she gave her statement to the police, that her statement was accurate, that Smith had
a better memory of the incident at the time it happened than at the time of trial, and that Smith would
adopt the police statement as her own for purposes of trial. This foundation satisfied the requirements
of MRE 803(5), and Smith’s prior police statement was correctly read into the record as a past
recollection recorded.
Finally, defendant argues that his sentence of twenty to forty years for second-degree murder
was disproportionate because he was fifty-five years of age at the time of sentencing. We disagree.
Defendant’s sentence is presumed proportionate because it is within the recommended guidelines range.
People v Broden, 428 Mich 343, 354-355; 408 NW2d 789 (1987). This Court has found a sentence
to be proportional that left the defendant ineligible for parole until his early nineties. People v Weaver
(After Remand), 192 Mich App 231, 235; 480 NW2d 607 (1991). Accord People v Kelly, 213
Mich App 8, 12; 539 NW2d 538 (1995). Moreover, while defendant’s lack of a criminal record and
intoxication at the time of the offense were relevant factors to be considered by the sentencing court, we
find no abuse of discretion by the court in imposing a twenty-year minimum sentence.
Affirmed.
/s/ Donald E. Holbrook, Jr.
/s/ Helene N. White
/s/ Robert J. Danhof
1
To the extent defendant challenges the court’s implied finding that the prosecutor provided reasonable
assistance, we conclude that the court’s determination was not clearly erroneous.
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