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Unpublished opinion per curiam, issued February 18,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).
2
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
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“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:
4
(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.
5
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.”
6
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
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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
8