PEOPLE OF MI V LYMAN GENE KOONCE
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Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice
Justices
Maura D. Cor rigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
FILED JULY 9, 2002
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 117527
LYMAN GENE KOONCE,
Defendant-Appellant.
________________________________
PER CURIAM
After a jury trial, defendant was convicted of possession
with intent to deliver less than 50 grams of cocaine.1
On
appeal, defendant argued, among other things, that the trial
court
erred
by
denying
his
motion
to
dismiss,
or,
alternatively, that the trial court erred by failing to give
a
“missing
witness”
instruction
on
the
prosecution’s failure to produce a witness.
basis
of
the
The Court of
Appeals rejected that argument and affirmed on authority of
People v O’Quinn, 185 Mich App 40; 460 NW2d 264 (1990),
1
MCL 333.7401(2)(a)(iv).
holding that, while the prosecution is obligated to provide a
defendant with reasonable assistance in locating and serving
process upon witnesses, that duty does not apply to a witness
who is also an accomplice.
We overrule the Court of Appeals
holding in O’Quinn to the extent that it applied an exception
to
the
reasonable
assistance
requirement
found
in
MCL
767.40a(5), and remand this case to the Court of Appeals for
reconsideration in light of this opinion.
I
In November 1995, police raided a motel room where
defendant was living.
The police officers testified they
found defendant in the room, along with Antoine Ennis.
was allegedly smoking crack cocaine at the time.
discovered
dresser.
approximately
nine
grams
of
Ennis
The police
cocaine
behind
a
Ennis was found to be carrying a note that had
defendant’s name and pager number, along with the motel’s
address and telephone number. It was the prosecution’s theory
that
Ennis,
an
out-of-state
resident,
had
used
this
information to seek out defendant and purchase the cocaine
that he was smoking at the time of the raid.
Defendant
testified that he knew nothing about the cocaine in his room
and that it was merely a coincidence that Ennis was present
when the police executed the raid.
Defendant was convicted as charged of possession with
intent to deliver less than 50 grams of cocaine.
1
As required
by
MCL
767.40a(1),2
the
prosecutor
listed
Ennis
on
the
information as a res gestae witness. The prosecutor also told
defendant
of
Ennis’
Baltimore, Maryland.
last-known
address:
a
location
in
By so doing, he felt he had complied
with MCL 767.40a(5), which requires, in part, that upon
request the prosecutor assist the defendant in locating and
serving process on the witness.3
At the beginning of trial,
defense counsel argued that the prosecutor had not met the
assistance requirement of MCL 767.40a(5). Relying on O’Quinn,
the prosecutor argued that, while greater assistance might
have been required with a nonaccomplice witness, because Ennis
was
an
accomplice
the
provision
of
Ennis’
address
sufficient assistance to comply with the statute.
2
The trial
MCL 767.40a(1) provides:
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
enforcement officers.
3
MCL 767.40a(5) provides:
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.
2
was
court, after concluding that Ennis was an accomplice, agreed
with the prosecutor and denied relief, relying on O’Quinn.
The Court of Appeals affirmed.4
Defendant has applied
for leave to appeal.
II
Issues of statutory interpretation are questions of law
that we review de novo.
NW2d 884 (1998).
People v Webb, 458 Mich 265, 274; 580
In reviewing whether MCL 767.40a(5) can
sustain the interpretation offered by O’Quinn, and now by the
current Court of Appeals panel, we begin with the well-known
rule that the goal of judicial interpretation of a statute is
to ascertain and give effect to the intent of the Legislature.
To do this, we first review the plain language of the statute
itself.
If the language is clear, no further construction is
necessary or allowed to expand what the Legislature clearly
intended to cover. People v Morey, 461 Mich 325, 329-330; 603
NW2d 250 (1999).
In considering this matter, the application
of this rule is dispositive.
III
Before the enactment of the statutory revision that we
consider herein, a prosecutor had a duty to present at trial
“all the witnesses present at the transaction.”
People, 25 Mich 405, 415-416 (1872).
See Hurd v
In keeping with this
general duty, 1859 PA 138, § 2 and its successor statutes
4
Unpublished opinion per curiam, issued July 21, 2000
(Docket No. 210326).
3
required
the
prosecutor
to
list
the
names
of
all
known
witnesses on the information and to supplement that list as
further witnesses become known.5
This listing requirement
served the function of alerting the defendant to the witnesses
the prosecution intended to present at trial.
Over time, this Court recognized a number of exceptions
to the statutory duty of the prosecutor to list all witnesses
on
the
information.6
exception
to
this
duty
The
was
primary
that
judicially
the
identified
prosecutor
was
not
required to list on the information, or call at trial, an
accomplice.
People v Resh, 107 Mich 251, 253; 65 NW 99
5
Until 1986, the prosecutor’s duty to list witnesses on
the information was contained in MCL 767.40.
The 1986
amendment shifted that requirement to MCL 767.40a(1) and (2).
6
A good explanation of the thinking of this Court on
this point is found in People v Raider, 256 Mich 131, 134-135;
239 NW 387 (1931), where we explained:
The rule that the prosecution must indorse and
call all the eyewitnesses to a crime of violence
who are available, except when they are numerous,
and those not called obviously would be merely
cumulative, . . . is too well established in this
State to need the citation of authorities. . . .
The purposes of the rule are to insure the
disclosure of the whole of the res gestae, to
protect the accused against the suppression of
testimony favorable to him, and to give him the
benefit of cross-examination.
The rule is not
without exceptions.
The wife of an accused need
not be called by the prosecution although her name
is indorsed on the information and he demands the
right to cross-examine her . . . ; nor need she be
indorsed as a witness . . . ; one charged as an
accessory need not be called by the people . . . ;
and a sister of the accused was required to be
called only because she was the fiancée of the
victim . . . . [Citations omitted.]
4
(1895); People v McCullough, 81 Mich 25, 34; 45 NW 515 (1890).
The development of this exception was not surprising because
of the inequity occasioned by forcing the prosecutor to call
a hostile accomplice, only to be bound by the accomplice’s
testimony under the doctrine that the party who calls a
witness vouches for that testimony.
See People v White, 401
Mich 482, 508; 257 NW2d 912 (1977).
Additional justification
for this exception was derived from the intuition that the
prosecutor should be relieved of the duty to produce a witness
who participated in the crime because such a witness could not
be compelled to testify anyway.7
The Legislature subsequently enacted 1941 PA 336 (MCL
767.40a), which provided that any res gestae witness could be
impeached by the prosecution,8 even while continuing to impose
on the prosecutor the duty to list all res gestae witnesses on
the information and produce them at trial.
Left unaddressed
was the situation with accomplices, and thus, as this Court’s
decision
in
White,
supra
at
508-509,
made
clear,
the
accomplice exception continued for res gestae witnesses.
In 1986, the Legislature again amended MCL 767.40a.
We
can discern, from our review of the amended statute, that the
amendments were made, at least in part, to resolve the last
vestige
7
of
the
incongruity
that
had
troubled
previous
US Const, Am V and Const 1963, art 1, § 17.
8
The current statute preserves the prosecution’s right
to impeach any witness. MCL 767.40a(6).
5
Legislatures and courts by eliminating the prosecution’s duty
to
endorse
all
res
gestae
witnesses
and
to
produce
all
endorsed witnesses. Thus, after the amendment, the prosecutor
has a duty to attach to the information a list of all
witnesses the prosecutor might call at trial and of all known
res
gestae
witnesses,
to
update
the
list
as
additional
witnesses became known, and to provide to the defendant a list
of witnesses the prosecution intended to call at trial.
MCL
767.40a(1), (2), and (3).
Further, to assist the defendant,
the
compelled
prosecutor
is
now
to
render
reasonable
assistance in locating and serving process upon witnesses upon
request of the defendant.9
MCL 767.40a(5).
In other words,
9
In People v Burwick, 450 Mich 281, 288-289; 537 NW2d
813 (1995), we discussed the 1986 amendment of MCL 767.40a and
explained:
The prosecutor's former obligation to use due
diligence to produce any individual who might have
any knowledge, favorable or unfavorable, to either
side, has been replaced by a scheme that 1)
contemplates notice at the time of filing of the
information of known witnesses who might be called
and all other known res gestae witnesses, 2)
imposes on the prosecution a continuing duty to
advise the defense of all res gestae witnesses as
they become known, and 3) directs that that list be
refined before trial to advise the defendant of the
witnesses the prosecutor intends to produce at
trial. The prosecutor's duty to produce res gestae
witnesses has been replaced with an obligation to
provide notice of known witnesses and reasonable
assistance to locate witnesses on defendant's
request.
The Legislature has thus eliminated the
prosecutor's burden to locate, endorse, and produce
unknown persons who might be res gestae witnesses
and has addressed defense concerns to require the
prosecution to give initial and continuing notice
6
while the 1986 amendment retained the right of the prosecutor
to impeach res gestae witnesses and eliminated the requirement
that the prosecutor produce all endorsed witnesses, it added
the
requirement
that
the
prosecutor
provide
reasonable
assistance to the defendant, upon request, to secure the
presence of witnesses—regardless of the label applied to them
or whether they are listed on the information.
IV
In spite of the statutory changes outlined above, when
the Court of Appeals in O’Quinn revisited this issue after the
1986 statutory amendment of MCL 767.40a, it continued to apply
the
judicially
made
accomplice
exception
to
excuse
the
prosecution from its duty to comply with the statute.
In
discussing this issue, the Court noted that, under the statute
in effect before the 1986 amendment, the prosecutor was
required to endorse and produce all res gestae witnesses and
further noted that there was a judicially created exception to
the production requirement when the res gestae witness was an
accomplice.
Concluding
that
the
rationale
behind
the
accomplice exception was still applicable to the current
statute, the Court held that there was no duty for the
prosecutor to provide reasonable assistance to a defendant in
locating and serving process upon an accomplice. Because this
of all known res gestae witnesses, identify
witnesses the prosecutor intends to produce, and
provide law enforcement assistance to investigate
and produce witnesses the defense requests.
7
analysis miscomprehends the history cited above, as well as
the clear dictates of the 1986 statutory amendments, we
disagree.
There is no mention in the current statute concerning an
exception in the case of “accomplice witnesses.” The language
of subsection 5 clearly requires the prosecutor (on request)
to reasonably assist the defendant in locating and serving
process
on
a
differentiate
witnesses.
witness.
between
Moreover,
accomplice
the
statute
witnesses
does
and
not
other
Because the language is plain and unambiguous, it
is this reading that we give to the statute.
Huggett v Dep’t
of Natural Resources, 464 Mich 711, 717; 629 NW2d 915 (2001).
Since § 40a(5) does not permit the prosecution to avoid its
statutory duty to provide “reasonable assistance” on the basis
that
the
listed
“reasonable
witness
assistance”
is
an
without
accomplice,
regard
to
it
the
must
give
witness’
accomplice status.10
Because the prosecutor here only provided defendant with
an address in Baltimore, Maryland, we remand this matter to
the Court of Appeals to address whether the assistance offered
by the prosecutor amounted to “reasonable assistance . . . to
locate and serve process upon a witness” within the meaning of
the statute.
10
Our explication of this statute should not be
understood as expressing a view on the issue of who is
responsible for calling such a witness at trial, or, indeed,
whether, because of privilege or some other testimonial bar,
such a person could be called at trial.
8
Accordingly, we overrule the O’Quinn holding that there
is an accomplice exception to MCL 767.40a(5), and remand this
matter to the Court of Appeals for reconsideration in light of
this opinion.
This decision will apply to this case, to any
case pending on appeal in which this issue has been raised and
preserved, and to all future cases.
People v Pasha, 466 Mich
__; __ NW2d __ (2002). We have examined defendant’s remaining
issues and find them to be without merit.
MCR 7.302(F)(1).
We do not retain jurisdiction.
CORRIGAN , C.J., and CAVANAGH , WEAVER , KELLY , TAYLOR , YOUNG , and
MARKMAN , JJ., concurred.
9
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