People v. Perez - Case Law

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
Chief Justice Justices

Opinion
Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
___________________________________________________________________________________________________________________________

FILED NOVEMBER 4, 2003

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 123748

ANGEL LUIS PEREZ, SR.,

Defendant-Appellant.

_______________________________

PER CURIAM

Defendant appealed his conviction for criminal sexual

conduct in the second degree, alleging that the circuit

court should have given the missing-witness instruction,

CJI2d 5.12.1 The Court of Appeals properly affirmed

defendant’s conviction. In doing so, however, it

1
The jury instruction states that “______ is a missing
witness whose appearance was the responsibility of the
prosecution. You may infer that this witness’s testimony
would have been unfavorable to the prosecution’s case.”
incorrectly stated that this jury instruction never needs

to be given. We write to correct that misstatement.

I. BACKGROUND

Defendant was arrested in 1997 and charged with four

counts of first-degree criminal sexual conduct, MCL

750.520b. A jury subsequently found him guilty of four

counts of a lesser offense, second-degree criminal sexual

conduct, MCL 750.520c, but the Court of Appeals reversed

these convictions and remanded for a new trial.2

Following the remand to the circuit court, the

prosecuting attorney prepared to try defendant on four

counts of the reduced offense. The prosecutor obtained the

trial court’s consent to add Dr. Eledwina Dy as a witness

and to call her to testify at trial. Dr. Dy had examined

the thirteen-year-old victim and would testify that she

found evidence of sexual penetration.

The trial date was adjourned once because Dr. Dy was

in the Philippines and unavailable to testify. As the

rescheduled date approached, the prosecutor confirmed that

Dr. Dy was still out of the country. The prosecutor told

defendant this before trial and stated that he did not

2
Unpublished opinion per curiam, issued February 18,
2000 (Docket No. 214190).

intend to request a second adjournment. Likewise,

defendant did not request an adjournment.

As a result, the trial proceeded without Dr. Dy’s

testimony. Before the case was submitted to the jury,

defendant asked the trial court to read CJI2d 5.12, which

would instruct the jury that the prosecutor was responsible

for securing Dr. Dy’s appearance and that it could infer

that her testimony would be adverse to the prosecution’s

case. The trial court denied this request. Defendant was

subsequently convicted by the jury of one count of CSC-II,

and acquitted on the other three counts.

On appeal, defendant argued, inter alia, that the

trial court erred in denying his request for the missing-

witness instruction. The Court of Appeals rejected this

argument.3 It pointed out that defendant failed to address

how the prosecutor could have forced the witness to return

to the United States from a foreign country and also noted

that it did not appear that the witness would have offered

testimony helpful to defendant. 255 Mich App 707.

Further, the Court of Appeals added that, in light of the

1986 amendments of MCL 767.40a and this Court’s opinion in

People v Burwick, 450 Mich 281; 537 NW2d 813 (1995), it did

“not believe that CJI2d 5.12 remains a viable instruction.”

255 Mich App 708. For these reasons, the Court concluded

that the trial court did not err in declining to give the

missing-witness instruction.

Defendant now seeks leave to appeal to this Court.

II. STANDARD OF REVIEW

Questions of law, including questions of the

applicability of jury instructions, are reviewed de novo.

People v Gonzalez, 468 Mich 636, 641; 664 NW2d 159 (2003).

III. ANALYSIS

The 1986 amendments of MCL 767.40a altered a

prosecutor’s duty to produce witnesses at trial. Before

1986, the statute plainly imposed on a prosecutor the duty

to list all res gestae witnesses on the information and to

produce them at trial. People v Koonce, 466 Mich 515, 520;

648 NW2d 153 (2002). When the prosecutor did not satisfy

this statutory obligation, the missing-witness instruction

was available to address the situation.

The Legislature amended the statute in 1986.4 With the

amendments, the Legislature replaced the prosecutor’s duty

3
255 Mich App 703; 662 NW2d 446 (2003).

4
As amended in 1986, MCL 767.40a states:

(1) 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.

(2) The prosecuting attorney shall be under
a continuing duty to disclose the names of any
further res gestae witnesses as they become
known.

(3) Not less than 30 days before trial, the
prosecuting attorney shall send to the defendant
or his or her attorney a list of the witnesses
the prosecuting attorney intends to produce at
trial.

(4) The prosecuting attorney may add or
delete from the list of witnesses he or she
intends to call at trial any time upon leave of
the court and for good cause shown or by
stipulation of the parties.

(5) 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.

(6) Any party may within the discretion of
the court impeach or cross-examine any witnesses
as though the witness had been called by another
party.

to produce res gestae witnesses with “an obligation to

provide notice of known witnesses and reasonable assistance

to locate witnesses on defendant’s request.” Burwick, 450

Mich 289. As we summarized in Burwick:

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 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. [Id. (emphasis added).]

This change in the scope of the prosecutor’s duty to

produce witnesses at trial gave rise to questions about the

continued viability of CJI2d 5.12.5 The Court of Appeals

examined the amended statute and our analysis of that

statute in Burwick, and concluded that CJI2d 5.12 had

outlived its usefulness. 255 Mich App 708.

While we agree with the Court of Appeals that the

trial court did not err in rejecting defendant’s request

for CJI2d 5.12 in this case, we do not agree with the

Court’s broader conclusion that there remains “no

justification” for such an instruction. 255 Mich App 710.

5
For example, the “Use Note” following CJI2d 5.12
notes that it “is unclear what impact the 1986 amendments
to the res gestae rule will have on this instruction.”

Nothing in MCL 767.40a or Burwick forecloses the

possibility of a situation arising in which it would be

appropriate to read this instruction.

For example, MCL 767.40a(4) permits a prosecutor to

add or delete from the list of trial witnesses only “upon

leave of the court and for good cause shown or by

stipulation of the parties.” Accordingly, CJI2d 5.12 may

be appropriate if a prosecutor fails to secure the presence

at trial of a listed witness who has not been properly

excused. Likewise, MCL 767.40a(5) requires the prosecutor

to provide the defendant, upon request, “reasonable

assistance, including investigative assistance, as may be

necessary to locate and serve process upon a witness.”

Accordingly, if a prosecutor falls short of providing such

assistance, it might be appropriate to instruct a jury that

the missing witness would have been unfavorable to the

prosecution. There may be other occasions that warrant the

jury instruction; in every instance, the propriety of

reading CJI2d 5.12 will depend on the specific facts of

that case.

IV. CONCLUSION

For this reason, we affirm that part of the Court of

Appeals opinion holding that the trial court did not err in

omitting CJI2d 5.12, but vacate that part of the opinion
7

holding that there is no justification for the continued

viability of this jury instruction. In all other respects,

leave to appeal is denied. MCR 7.302(G)(1).

Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman