PEOPLE OF MI V JASON E SMITH
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 2, 1996
Plaintiff-Appellee,
v
No. 178427
LC No. 93-007903
DARON BEASLEY,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 178922
LC No. 93-007903
JASON E. SMITH,
Defendant-Appellant.
Before: Reilly, P.J., and Cavanagh, and R.C. Anderson,* JJ.
PER CURIAM.
Following a jury trial, defendants were convicted of second-degree murder, MCL 750.317;
MSA 28.549, for the drug-related slaying of Leroy Ashley. Defendant Smith was also convicted of
possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2).
Defendant Beasley was sentenced to six to twenty years of imprisonment for his murder conviction.
Defendant Smith was sentenced to a term of fifteen to thirty years for his murder conviction, to be
served after he completes a two year sentence for his felony-firearm conviction. Defendants’ respective
appeals of right were consolidated by this Court. We affirm.
* Circuit judge, sitting on the Court of Appeals by assignment.
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Tracey Butler was the prosecution’s sole eyewitness to the events underlying this case. At trial,
Butler testified that defendants and a companion were selling drugs to passing motorists, but departed
after Ashley, the local drug dealer, approached them while carrying a baseball bat. Fifteen minutes
later, Ashley was standing near the street and talking to a motorist when defendant Beasley approached
him from the sidewalk carrying a stick. Meanwhile, defendant Smith and a third man walked through a
vacant lot located next to a house at which Ashley, Butler, and other friends were having a barbecue.
Defendant Smith was carrying a long gun, and the third man, a handgun. Defendant Beasley shouted,
“shoot the motherfucker,” and shots rang out. Ashley died as a result of his wounds.
Defendant Beasley initially contends that he was denied a fair trial by numerous remarks of the
prosecutor during his closing and rebuttal arguments. Because defendant failed to object at trial, review
will be undertaken only if a miscarriage of justice would result from the failure to do so. People v
Gonzalez, 178 Mich App 526, 535; 444 NW2d 228 (1989). We find that no miscarriage of justice
would result from the failure to review this issue because the prosecutor’s remarks were either proper
or any prejudicial effect could have been cured by a timely objection and curative instruction. Id.
Next, we find that no manifest injustice would result from the failure to review defendant
Beasley’s unpreserved challenge to the trial court’s instruction regarding aiding and abetting as it related
to second-degree murder because the instructions were sufficient to protect defendant’s rights. People
v Van Dorsten, 441 Mich 540, 545; 494 NW2d 737 (1993); People v Caulley, 197 Mich App 177,
184; 494 NW2d 853 (1992). Further, the trial court did not abuse its discretion in providing written
instructions that were responsive to the jury’s request and were not misleading. People v Bonham,
182 Mich App 130, 134; 451 NW2d 530 (1989).. Moreover, the trial court did not err, and defense
counsel was not ineffective, in failing to review the written instructions copied by the court officer and
provided to the jury. The record reveals that the court officer complied with the trial court’s directive.
As such, error, if any, did not prejudice defendant. MCL 769.26; MSA 28.1096; People v Pickens,
446 Mich 298, 338; 521 NW2d 797 (1994).
Defendant Beasley also contends that he was denied the effective assistance of counsel by trial
counsel’s failure to object during the prosecutor’s closing argument and to the jury instructions. We
disagree. Upon review of defendant’s arguments and the record, we find that defendant was not denied
effective assistance of counsel because either the objections would have been futile or defendant was
not prejudiced by trial counsel’s error. People v Briseno, 211 Mich App 11, 17; 535 NW2d 559
(1995); People v Daniel, 207 Mich App 47, 59; 523 NW2d 830 (1994).
Defendant Beasley next asserts that the trial court erred in denying his motion for a directed
verdict, and the examining magistrate abused her discretion in binding him over on murder charges. We
disagree. Viewing the evidence in a light most favorable to the prosecution, the trial court properly
denied defendant’s motion for directed verdict because there was sufficient evidence from which a
rational trier of fact could find beyond a reasonable doubt that defendant aided and abetted defendant
Smith. People v Jolly, 442 Mich 458, 466; 502 NW2d 177 (1993). On the basis of Butler’s
testimony, the jury could infer that defendant approached Ashley for the purpose of distracting him so
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that defendant Smith could gain the element of surprise in his attack. From this evidence, a rational jury
could find that defendant Beasley intended to kill or acted with knowledge defendant Smith so intended,
and accordingly, find Beasley guilty as an aider and abettor. People v Partridge, 211 Mich App 239;
535 NW2d 251 (1995). Furthermore, because sufficient evidence was presented at trial, any error in
binding defendant over would be harmless. People v Meadows, 175 Mich App 355, 359; 437 NW2d
405 (1989).
Both defendants raise claims premised on the prosecutors’ failure to produce William Powell,
an endorsed res gestae witness. Both argue that the trial court erred in its finding that the prosecution
exercised due diligence in attempting to find him. Although the prosecutor is no longer required by
MCL 767.40a; MSA 28.980(1) to endorse and produce all res gestae witnesses, the prosecutor must
list such witnesses known at the time of the filing of the information and give notice of those that become
known before trial. People v Burwick, 450 Mich 281, 291; 537 NW2d 813 (1995). Upon leave of
the court and for good cause shown, the prosecutor may “at any time” delete a witness from the list of
witnesses the prosecutor intends to call at trial. MCL 767.40a; MSA 28.908(1)(4). Id .at 292.
Here, rather than finding “good cause”, the court found that the prosecutor exercised due
diligence1 in attempting to locate Powell. The record indicates that the police checked several
addresses, the jail, and the morgue. The day before the hearing regarding this issue, a police officer
drove witness Butler to different locations in a further effort to locate Powell. Because these efforts
satisfied the good cause requirement of the statute, as well as the due diligence standard, defendants are
not entitled to new trials. Furthermore, the trial court did not err in declining to instruct the jury that
Powell’s testimony would have been favorable to the defense. People v Paquette, 214 Mich App
336, 344; ___ NW2d ___ (1995).
Defendant Smith additionally contends that he was denied a fair trial by the prosecutor’s failure
to list, locate, and produce five res gestae witnesses. Defendant failed to preserve this issue because he
did not raise it in the lower court. People v Calhoun, 178 Mich App 517, 520; 444 NW2d 232
(1989). In any event, the prosecutor is not required to locate and produce res gestae witnesses. To the
extent that Smith is arguing that the prosecutor failed to give notice of these witnesses, we note that “the
purpose of the ‘listing’ requirement is merely to notify the defendant of the witness’ existence and res
gestae status.” Calhoun, supra at 523. If a defendant knew of the res gestae witness before trial, the
prosecutor’s failure to list the witness is harmless error. Id. In this case, the existence and status of
these witnesses was made known to defendants by the complaining witness’ testimony at the preliminary
examination. Thus, even if the prosecutor did not notify defendant Smith of the existence of these
witnesses before the preliminary examination, any error was harmless. Id.
Defendant Smith next argues that he was denied a fair trial by the prosecutor’s comments during
voir dire and closing argument. We find that no miscarriage of justice would result from the failure to
review this unpreserved issue because the prosecutor’s remarks were either proper or any prejudicial
effect could have been cured by a timely objection and curative instruction. Gonzalez, supra at 535.
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Defendant Smith’s remaining issues concern the jury instructions. Defendant contends that he
was denied a fair trial by (1) the trial court’s instruction regarding the number of witnesses produced by
both parties when he, in fact, presented no evidence, and (2) the trial court’s instruction regarding the
order of deliberations because it infringed on his right to be presumed innocent. By not objecting at
trial, defendant failed to preserve these issues, and therefore, relief will be granted only if necessary to
avoid manifest injustice. Van Dorsten, supra at 545. Here, we find that no manifest injustice would
result from the failure to review because, when taken as a whole, the instructions fairly presented the
issues to be tried and sufficiently protected defendant’s rights. Caulley, supra at 184.
Affirmed.
/s/ Maureen Pulte Reilly
/s/ Mark J. Cavanagh
/s/ Robert C. Anserson
1
“Before its amendment in 1986, MCL 767.40; MSA 28.980 was interpreted to require the
prosecutor to use due diligence to endorse and produce all res gestae witnesses.” Burwick, supra at
287.
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