PEOPLE OF MI V ELIJAH COOKAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
May 5, 2005
Wayne Circuit Court
LC No. 01-000239
Official Reported Version
Before: Saad, P.J., and Fitzgerald and Smolenski, JJ.
The prosecution appeals the trial court's order that granted defendant an evidentiary
hearing pursuant to People v Pearson, 404 Mich 698, 715; 273 NW2d 856 (1979). Our Supreme
Court remanded this case to us to consider the question whether Pearson remains good law in
light of the 1986 amendment of MCL 767.40a.1 We hold that Pearson is no longer good law in
light of the statute, and, thus, we reverse.
MCL 767.40a, provides:
(1) The prosecuting attorney shall attach to the filed information a list of
all witnesses known to the prosecuting attorney who might be called at trial and
all res gestae witnesses known to the prosecuting attorney or investigating law
(2) The prosecuting attorney shall be under a continuing duty to disclose
the names of any further res gestae witnesses as they become known.
(3) Not less than 30 days before the trial, the prosecuting attorney shall
send to the defendant or his or her attorney a list of the witnesses the prosecuting
attorney intends to produce at trial.
(4) The prosecuting attorney may add or delete from the list of witnesses
he or she intends to call at trial at any time upon leave of the court and for good
cause shown or by stipulation of the parties.
The trial court convicted defendant on two counts of assault with intent to commit murder
and on one count each of possession of a firearm during the attempt or commission of a felony
and possession of a firearm by a convicted felon after a bench trial. The prosecution failed to
produce two witnesses who the prosecution listed on its witness list and does not appear to have
attempted to strike those witnesses from the list pursuant to MCL 767.40a(4). The trial court
concluded that the prosecution failed to exercise due diligence to produce the two witnesses2
and, further, took note of CJI2d 5.12,3 which allows a fact-finder to draw an inference that the
failure of the prosecution to produce res gestae witnesses means that the witnesses would have
presented testimony harmful to the prosecution's case.4
(5) The prosecuting attorney or investigative law enforcement agency
shall provide to the defendant, or defense counsel, upon request, reasonable
assistance, including investigative assistance, as may be necessary to locate and
serve process upon a witness. The request for assistance shall be made in writing
by defendant or defense counsel not less than 10 days before the trial of the case
or at such other time as the court directs. If the prosecuting attorney objects to a
request by the defendant on the grounds that it is unreasonable, the prosecuting
attorney shall file a pretrial motion before the court to hold a hearing to determine
the reasonableness of the request.
(6) Any party may within the discretion of the court impeach or crossexamine any witnesses as though the witness had been called by another party.
Here, the trial court conflated and confused case law that interpreted the abolished res gestae
witness rule, along with the related (and also abolished) due diligence rule. As we will discuss in
greater detail later, the prosecution has neither the obligation to produce at trial, nor the
obligation to call as a witness at trial, a res gestae witness. There are other rules of evidence,
court rules, constitutional obligations, statutes, and ethical rules that deal with the obligations
regarding the production of evidence, but MCL 767.40a imposes no duty to produce all res
CJI2d 5.12 reads:
[State name of witness] is a missing witness whose appearance was the
responsibility of the prosecution. You may infer that this witness's testimony
would have been unfavorable to the prosecution's case.
Because this case involved a bench trial, the instruction is inapplicable because the trial
court presumably does not need to instruct itself.
As we will discuss in greater detail later, the prosecution is no longer required to produce res
gestae witnesses at trial. See People v Burwick, 450 Mich 281, 287-290;537 NW2d 813 (1995).
However, if the prosecutor fails to call a listed witness and has failed to delete that witness from
its witness list, see MCL 767.40a(4), it may nonetheless be appropriate for the trial court to read
CJI2d 5.12. See People v Perez, 469 Mich 415, 420; 670 NW2d 655 (2003).
After trial, defendant filed a motion for an evidentiary hearing pursuant to Pearson, in
which case our Supreme Court held that where the prosecution fails to exercise due diligence to
produce res gestae witnesses, a posttrial evidentiary hearing should be held to determine the
existence, and extent, of prejudice, as well as an appropriate remedy. See Pearson, supra at 715.
The trial court wrongly asserted that the prosecution's failure to produce the witnesses
necessarily invited a negative inference. The trial court also opined that in a best-case scenario,
the witnesses might have testified that someone other than defendant committed the crimes.
However, the trial court further ruled that it found the other witnesses credible and convicted
defendant on the basis of their testimony. The trial court then inappropriately expressed its
"abiding distaste" for the "new statute,"5 but stated "[t]o the extent that there is the possibility
that [defendant] was wrongfully convicted, I think the Court ought to . . . require a hearing." The
hearing itself has been stayed pending the outcome of this appeal.
This Court initially denied the prosecutor's delayed application for leave to appeal, but
our Supreme Court, in lieu of granting leave to appeal, remanded to this Court for consideration,
as on leave granted, of the issue "whether the holding in Pearson [supra], that a postjudgment
evidentiary hearing is required when a prosecutor fails to produce an endorsed res gestae
witness, remains good law in light of the Legislature's amendment of MCL 767.40a." People v
Cook, 469 Mich 905 (2003).
Before it was amended in 1986, MCL 767.40a was interpreted to require the prosecution
to locate, list, and produce at trial all persons, known or unknown, who might be res gestae
witnesses. See People v Burwick, 450 Mich 281, 287-290;537 NW2d 813 (1995). Our Supreme
Court in Pearson held that where a trial court ruled that the prosecution failed to produce a res
gestae witness, and where the prosecution failed to exercise due diligence to locate the res gestae
witness, a posttrial hearing should be held to determine the extent of any prejudice and, where
necessary, an appropriate remedy for any prejudice caused by the prosecution's lack of due
diligence. Pearson, supra at 715. However, after the 1986 amendment of MCL 767.40a, our
Supreme Court held that the Legislature "eliminated the prosecutor's burden to locate, endorse,
and produce unknown persons who might be res gestae witnesses . . . ." Burwick, supra at 289;
see also People v Perez, 469 Mich 415; 670 NW2d 655 (2003). Instead, the prosecution must
notify a defendant of all known res gestae witnesses and all witnesses that the prosecution
intends to produce.6 Burwick, supra at 289. "The prosecutor's duty to produce witnesses has
In reality, the current statutory provisions came about as the result of a 1986 amendment.
The prosecuting attorney or investigative law enforcement agency
shall provide to the defendant, or defense counsel, upon request,
reasonable assistance, including investigative assistance, as may be
necessary to locate and serve process upon a witness. The request for
assistance shall be made in writing by defendant or defense counsel not
less than 10 days before the trial of the case or at such other time as the
court directs. If the prosecuting attorney objects to a request by the
been replaced with an obligation to provide notice of known witnesses and reasonable assistance
to locate witnesses on defendant's request." Id. (emphasis added).
Because Pearson mandated hearings for the prosecution's breach of a duty that has been
abolished in the amended MCL 767.40a, we hold, in answer to the question posed to us by our
Supreme Court, that Pearson is no longer good law.7 We further hold that an evidentiary hearing
is no longer required simply because the prosecution did not produce a res gestae witness.
Here, the trial court ordered a Pearson hearing. However, because we have already held
that such hearings are no longer required, and because the trial court, which was also the factfinder here, already determined on the record that defendant had not been prejudiced by the
prosecution's failure to call the two listed witnesses, we hold that the trial court erred when it
granted defendant's motion to a hearing pursuant to Pearson.
Reversed and remanded for further proceedings consistent with our opinion. We do not
/s/ Henry William Saad
/s/ E. Thomas Fitzgerald
/s/ Michael R. Smolenski
defendant on the grounds that it is unreasonable, the prosecuting attorney
shall file a pretrial motion before the court to hold a hearing to determine
the reasonableness of the request. [MCL 767.40a(5).]
We note that there may be times when such a hearing may be appropriate. For example, MCL
767.40a(5) does require the prosecution to provide reasonable assistance in locating witnesses
whose presence defendant specifically requests. A hearing of the type described by our Supreme
Court in Pearson might be appropriate if the prosecution is found to have breached this duty.