People v. Schwartz , 62 Mich. App. 188 ( 1975 )

62 Mich. App. 188 (1975) 233 N.W.2d 517

PEOPLE
v.
SCHWARTZ

Docket No. 18615.

Michigan Court of Appeals.

Decided June 23, 1975.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training and Appeals, and John C. Mouradian, Assistant Prosecuting Attorney, for the people.

Theodore B. Sallen (Alvin C. Sallen, of counsel), for defendant.

Before: R.B. BURNS, P.J., and M.J. KELLY and O'HARA,^[*] JJ.

Leave to appeal granted, 395 Mich. 794.

M.J. KELLY, J.

Defendant was charged with and convicted of delivering heroin, MCLA 335.341(1)(a); MSA 18.1070(41)(1)(a). He was sentenced to a prison term of 4 to 20 years and appeals.

Michigan State Police Officer Gerald Kotajarvi was the only witness to the transaction that testified. He said that on September 19, 1972, he went to defendant's home in the City of Detroit. He was accompanied and introduced by Don Cager, an informant who had arranged the meeting. Prior to this date, Officer Kotajarvi and defendant were not acquainted with each other.

Defendant asked the officer what he wanted. The officer said "a spoon" (a quantity of narcotics). Defendant said he didn't have any at his home. The three men thereupon left in Kotajarvi's car for the area of Theodore and St. Aubin in Detroit. Defendant entered a building and returned, saying he needed $25. He then went back in the building and eventually gave Mr. Kotajarvi six "nickel" ($5) bags of a substance that contained 1 to 1-1/2 percent heroin.

Defendant did not testify on his own behalf. He interposed the defense of entrapment.

On appeal, defendant claims that the trial court erred by instructing the jury on the subjective test of entrapment. It is claimed that the judge should have given defendant's requested instruction setting forth the objective test of entrapment.

The jury verdict was returned on May 3, 1973. On September 18, 1973, the Michigan Supreme Court decided People v Turner, 390 Mich. 7; 210 NW2d 336 (1973). Turner adopted the objective test of entrapment for courts of this state. The question thus presented is whether Turner is to be applied retroactively. That precise question was faced in People v Auer, 393 Mich. 667; 227 NW2d 528 (1975), where the court held that the objective standard of entrapment applied only to police conduct arising after the decisional date of Turner. Trial defense counsel is to be commended for his foresight in requesting an instruction that complied with what, four months later, became the law of this state. Nonetheless, the trial court correctly instructed the jury on the prevailing rule of law.

Defendant also claims that the trial court erred in excusing the nonproduction of Don Cager. The people admit that Mr. Cager was a res gestae witness who was indorsed and who the prosecutor attempted to produce. This Court said in the factually similar case of People v Koehler, 54 Mich. App. 624, 639; 221 NW2d 398, 406 (1974):

"If ever there were a case where the prosecution's failure to produce a res gestae witness at trial could result in a `possible miscarriage of justice', this is it. Because defendant admitted delivery of heroin and LSD to Officer Huston, his only hope for acquittal rested on the defense of entrapment. Concerning that defense, what witness could be more vital than the informant who served as the liason between police and the defendant? Certainly Mrs. Stevens' testimony would have been crucial and perhaps decisive during the jury's deliberations with respect to the question of entrapment."

The people claim that they were excused from producing the witness because they made an adequate showing of due diligence in attempting to produce the witness. This state has long recognized that the prosecutor's duty has been discharged upon a showing of due diligence. People v Gibson, 253 Mich. 476; 235 N.W. 225 (1931), People v Kern, 6 Mich. App. 406; 149 NW2d 216 (1967), People v Johnson, 51 Mich. App. 224; 214 NW2d 713 (1974).

During the course of the trial, a hearing was held on the question of due diligence. Officer Kotajarvi testified as to the nature of the prosecutorial efforts to secure the attendance of the witness informant.

According to the officer-witness, he and the prosecuting attorney were informed at the examination of defendant's desire that Cager be produced. The first attempt to find Cager occurred the Monday preceding trial. Kotajarvi went to Cager's last known address in Algonac. He knocked on the door and got no answer, so he went to the boat house behind Cager's home. When this proved fruitless, the officer went to a local pool hall and a fire hall and looked in a few local restaurants. The same routine was repeated during the course of the trial on May 2, 1973; this time, he talked to a few young people on the street where Cager had lived. The jury verdict was May 3rd.

No attempt was made to talk to Cager's parents because the officer thought, but was not sure, that they both worked. No attempt was made to check jails or hospitals. The officer did not check any courts or talk to Cager's friends and associates. No apparent attempt was made to ascertain whether Cager had moved.

In People v Johnson, supra, this Court noted that, "* * * `[due] diligence' means literally what Webster's dictionary says it means: devoted and painstaking application to accomplish an undertaking". In the instant case, the trial court found that the prosecution had used "good faith" in attempting to produce Cager. See People v Eugene Harris, 43 Mich. App. 531, 537; 204 NW2d 549, 553 (1972). We find that the trial court incorrectly equated good faith with due diligence.

Significantly, no serious attempts to locate Cager were made between the time of the arrest and the time of defendant's trial. Even then, the prosecution failed to follow the most promising leads, i.e., Cager's parents, friends and neighbors. The evidence presented does not even satisfactorily show that Cager lived at the Algonac address. It fails to show that the prosecution seriously sought to discover the witness's present whereabouts, much less that the prosecution endeavored with diligence and in good faith to compel Mr. Cager's attendance. The efforts here made were less than those found inadequate in People v Harris, supra, People v Johnson, supra, and People v James, 51 Mich. App. 777; 216 NW2d 473 (1974). See also People v McIntosh, 389 Mich. 82; 204 NW2d 135 (1973), and People v Barker, 18 Mich. App. 544; 171 NW2d 574 (1969).

Concerning the appropriate remedy, defendant claims he is entitled to a new trial while the prosecution, citing People v Robinson, 390 Mich. 629; 213 NW2d 106 (1973), argues that remand for an evidentiary hearing is appropriate. In Robinson, an evidentiary hearing was ordered "[i]n order to prevent what might possibly be a useless new trial, but also in order to avoid a possible miscarriage of justice".

The Robinson remedy is inappropriate because there no evidentiary hearing had been conducted; here, one has. Consequently, this prosecution has had an opportunity to set forth its efforts; no such opportunity had been presented in Robinson. Here, a reviewing court has had the opportunity to assess the adequacy of the prosecutorial attempts; there was no such record presented for appeal in Robinson. In Robinson, it was claimed that the testimony of the missing witness would be cumulative; here, no such claim could persuasively be made. Since an evidentiary hearing would be futile and would engender needless delay, it is not ordered.

Reversed and remanded for a new trial.

R.B. BURNS, P.J., concurred.

O'HARA, J. (dissenting).

I respectfully dissent from my colleague's opinion as to the inadequacy of the efforts of the people to produce the informer witness in the instant case.

In Judge KELLY'S opinion it is stated that "[h]ere, a reviewing court has had the opportunity to assess the adequacy of the prosecutorial attempts" (to produce the res gestae witness). That is not the appropriate test to be applied in determining whether there was a sufficient showing of "due diligence" on the part of the state to excuse its failure to produce the witness at trial. More accurately the question may be stated as being whether the trial judge clearly abused his discretion in determining that there had been due diligence to secure the presence of the res gestae witness. People v Russell, 27 Mich. App. 654; 183 NW2d 845 (1970), People v Garcia, 39 Mich. App. 45; 197 NW2d 287 (1972).

My examination of the record indicates that the police officer unsuccessfully attempted to contact the informer witness on more than one occasion and that he checked, inter alia, the witness' residence and adjacent boathouse in addition to visiting the fire hall and several local business establishments. Admittedly, the record-supported search does not rise to the level of a full-scale manhunt. Nor, in my view, need the people make such an exhaustive search before the trial judge may, with good reason, make a permissible finding of due diligence.

In finality, I simply cannot say that the trial judge clearly abused his discretion in excusing the people from their burden of producing the res gestae witness under the circumstances herein.

I vote to affirm.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.