People v. Koonce - Case Law

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh

Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

____________________________________________________________________________________________________________________________

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 basis of the

prosecution’s failure to produce a witness. 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.

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. Ennis

was allegedly smoking crack cocaine at the time. The police

discovered approximately nine grams of cocaine behind a

dresser. 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. 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’ last-known address: a location in

Baltimore, Maryland. 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 was

sufficient assistance to comply with the statute. The trial

2
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.

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.

Issues of statutory interpretation are questions of law

that we review de novo. People v Webb, 458 Mich 265, 274; 580

NW2d 884 (1998). 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.” See Hurd v

People, 25 Mich 405, 415-416 (1872). In keeping with this

general duty, 1859 PA 138, § 2 and its successor statutes

Unpublished opinion per curiam, issued July 21, 2000

(Docket No. 210326).

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 The primary judicially identified

exception to this duty was that the 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.]

(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 of the incongruity that had troubled previous

7
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).

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 prosecutor is now compelled 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

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.

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.

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 witness. Moreover, the statute does not

differentiate between accomplice witnesses and other

witnesses. 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 witness is an accomplice, it must give

“reasonable assistance” without regard to the 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.

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.