People v. Hendrix

On Remand

Per Curiam.

Due to the complex path this case has taken through our court system, it is necessary to set forth a short judicial history of what has transpired to date.

Defendant was convicted of assault with intent to rob being armed, MCL 750.89; MSA 28.284, by a Detroit Recorder’s Court jury. At trial, the judge found no due diligence had been exercised by the prosecutor to produce a res gestae witness. The prosecutor admitted this fact to be true. Defendant appealed as of right on this res gestae issue.

This Court remanded for a "Robinson Hearing”. See People v Robinson, 390 Mich 629; 213 NW2d 106 (1973). The trial court was instructed to determine whether due diligence would still not have produced the missing witness, and whether the testimony of such witness would or would not have been cumulative.

At the Robinson hearing the trial court found that due diligence would not have produced the missing witness and that, in any event, her testimony would have been cumulative. Defendant appealed the decision to this Court. We reversed and remanded for a new trial. 81 Mich App 33; 264 NW2d 108 (1978). From our determination, plaintiff applied for leave to appeal to the Supreme Court.

The Supreme Court, in lieu of leave to appeal, vacated this Court’s judgment and remanded the matter here for reconsideration in light of People v Pearson, 404 Mich 698; 273 NW2d 856 (1979). 407 Mich 858 (1979). This opinion, then, represents our compliance with the Supreme Court order.

People v Pearson, supra at 723, sets out criteria for trial courts to follow in future Robinson hearings in order to "reach all the issues necessary to dispose of the case”. The order of inquiry should be as follows:

"1. The court shall ascertain whether the claimed missing person is a res gestae witness;

"2. If so, the prosecutor shall produce the witness or explain why the witness cannot be produced and why the witness was not indorsed and produced at trial;

"3. If the witness is not produced, the court shall determine whether the prosecution was duly diligent in its attempts to produce the witness;

"4. If a lack of due diligence is found or if the witness is produced, the court shall ascertain whether the defendant has been prejudiced by the failure to produce the witness at trial;

"5. If the defendant is found to be prejudiced the court shall fashion an appropriate remedy.”

After a careful examination of the record, we hold that the trial court’s actions satisfied the Pearson criteria, supra. Accordingly, we affirm and reinstate defendant’s conviction.

Affirmed.

D. E. Holbrook, J., did not participate.