PEOPLE OF MI V JEFFREY NORRIS OUELLETTE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 26, 2001
Plaintiff-Appellee,
v
No. 223853
Cheboygan Circuit Court
LC No. 99-002074-FH
JEFFREY NORRIS OUELLETTE,
Defendant-Appellant.
Before: Whitbeck, P.J., and Neff and Hoekstra, JJ.
MEMORANDUM.
Defendant was convicted by a jury of operating a motor vehicle while under the influence
of intoxicating liquor, third offense, MCL 257.625(1), and driving on a suspended license,
second offense, MCL 257.904(1)(a). He appeals as of right, and we affirm. This appeal is being
decided without oral argument pursuant to MCR 7.214(E).
On appeal, defendant argues that the trial court abused its discretion in permitting the
prosecution to add Sgt. Larry Miller to its witness list shortly before trial. Pursuant to MCL
767.40a(3), the prosecutor is required to send to the defendant, not less than thirty days before
trial, a list of the witnesses the prosecutor intends to produce at trial. However, MCL 767.40a(4)
allows a prosecutor to add or delete from the witness list at any time upon leave of the court and
for good cause shown. A trial court’s decision to allow a late endorsement of a witness is
reviewed for an abuse of discretion. People v Burwick, 450 Mich 281, 292; 537 NW2d 813
(1995). No error requiring reversal will be found absent a showing that defendant was
prejudiced. People v Williams, 188 Mich App 54, 58-59; 469 NW2d 4 (1991).
We need not reach the issue whether good cause was established for late endorsement of
the witness in this case. Even if we were to conclude that the trial court abused its discretion in
finding good cause to allow Sgt. Miller to testify, reversal is not required because defendant has
not demonstrated the requisite prejudice. People v Hana, 447 Mich 325, 358 n 10; 524 NW2d
682 (1994); Williams, supra.
Defendant claims prejudice from Sgt. Miller’s surprise testimony that defendant stated
that he had been riding alone. While it is true that Sgt. Miller did not tell the investigating
officers about defendant’s alleged statement and it was not included in the police report provided
to the defense, defendant was not deprived of a fair trial. First, defense counsel had the
opportunity to cross-examine Sgt. Miller regarding defendant’s alleged statement and Sgt.
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Miller’s failure to inform the troopers of the statement. See People v Umerska, 94 Mich App
799, 804; 289 NW2d 858 (1980). Second, there is no evidence of bad faith on the part of the
prosecution or Sgt. Miller regarding his testimony. Finally, although the prosecution did not
have direct evidence, other than Sgt. Miller’s testimony, of defendant’s operation of the
motorcycle, there was sufficient circumstantial evidence to allow a reasonable trier of fact to
infer such operation. Thus, if there was error, it was harmless.
Affirmed.
/s/ William C. Whitbeck
/s/ Janet T. Neff
/s/ Joel P. Hoekstra
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