People v. Fulton

Per Curiam.

On June 12, 1979, defendant was convicted of armed robbery. He appealed to this Court claiming the trial judge erred when he failed to rule on defendant’s motion to require the production of Thomas Ferguson, a res gestae witness. This Court retained jurisdiction and remanded the case for a Robinson¹ hearing which was held on April 13 and April 14, 1981. At the hearing, the trial judge found that the prosecution did not use due diligence in trying to. find the res gestae witness. However, the trial judge did not order a new trial because he found that the defendant had not been prejudiced by the prosecution’s failure to produce the witness. We now consider whether the trial court complied with the requirements of Robinson, supra, and People v Pearson, 404 Mich 698; 273 NW2d 856 (1979).

In Robinson, supra, 634, the Supreme Court required that a defendant, seeking reversal of his conviction based upon the prosecution’s failure to produce a res gestae witness, move for a new trial. The Court also required that the prosecutor produce or explain its failure to produce the res gestae witness. Id., 634. Finally, the Court required that the trial judge state his reasons for denying a new trial. In Pearson, supra, 722-723, 725, the Court established precise guidelines for a Robinson hearing when it wrote:

"The third type of case is the typical Robinson scenario. There, the issue of a possible missing res gestae witness is not raised during the course of trial. We would still require the issues to be raised in a Robinson hearing in order to perfect them for appeal. However, we would refine the procedure to require that the trial court reach all the issues necessary to dispose of the case. In summary, and consistent with our earlier analysis, 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.

"At either a post-remand hearing or a Robinson hearing, we would have the trial court assess whether the defendant actually suffered any prejudice and fashion appropriate remedies. The burden should be on the prosecution to establish that its failure to exercise due diligence in the production of a res gestae witness did not adversely affect the defendant’s right to a fair trial (i.e., the defendant is presumed prejudiced until the contrary is established). If the prosecution can establish that the missing testimony would have been of no assistance to the defendant, that it merely constitutes cumulative evidence, that its absence constitutes harmless error or that the witness could not have been produced at trial, then this burden has been met and the conviction should be affirmed.” (Footnotes omitted.)

In this case, the prosecution admits that Ferguson was a res gestae witness making it unnecessary for the trial judge to rule on the point. During the Robinson hearing, the prosecution failed to produce Ferguson claiming he could not be found. Pursuant to the procedure established in Pearson, supra, the judge ruled that the prosecution failed to use due diligence in its attempts to produce the witness. Following this ruling, the court found that defendant was not prejudiced by the prosecutor’s failure to produce Ferguson because the testimony at trial proved Fulton’s guilt beyond a reasonable doubt. After reviewing the trial transcript, we agree. Defendant’s conviction is affirmed.

If the question of prejudice is the factual one to be determined by the trial court as acknowledged by the dissent, we find no reason in this record to substitute our judgment for the judgment of the trial judge who, in his own words, "thought about it a long time”. He further stated:

"We don’t know what that witness would have testified to and I confess to that, I don’t know what the witness would have said, but as the prosecutor pointed out, if he had said Mr. Fulton wasn’t even there, I feel that under the facts and circumstances, I would have convicted him anyway, or if he said Mr. Fulton was there, but he did not participate, I still feel that I would have convicted Mr. Fulton on the testimony that was produced by the prosecution.”

We find nothing in this record to undermine the finding of the trial judge. If speculation were to be indulged as an offset against the trial court’s findings, then of course almost anything is conceivable. However, in that event the presumption established under People v Pearson, supra, would be an irrebuttable presumption and the question of prejudice could never be reached by the trial court. We think the intent of Pearson is otherwise.

Affirmed.

1 People v Robinson, 390 Mich 629; 213 NW2d 106 (1973).