Opinion
Docket No. 78-3129.
Decided November 6, 1979.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, and Robert Sheiko, Assistant Prosecuting Attorney, for the people.
Robert E. Slameka, for defendant.
Before: N.J. KAUFMAN, P.J., and R.M. MAHER and D.C. RILEY, JJ.
The defendant appeals as of right from his jury conviction of second-degree murder, MCL 750.317; MSA 28.549. The defendant was sentenced to life imprisonment.
The defendant and the decedent, Gloria Clark, lived together for about 1-1/2 years. On the night in question, neighbors testified that Ms. Clark and the defendant, who had been drinking, were having a loud and protracted argument. The defendant threatened to kill Ms. Clark in the presence of several other persons. He attempted to purchase a gun from another resident of the building. Neighbors summoned the police in the early morning hours because they heard a scream and a gun shot from the apartment. The defendant was sitting on a couch in the living room and denied that there had been a gun shot. The police officers left. Several hours later, Mr. Sims, the manager of the apartment building, called the police. The decedent was found lying on the floor in the bedroom, and there was no sign of a forcible entry. The cause of death was strangulation. The defendant was arrested at the apartment of a friend.
The defendant's first issue involves the trial court's denial of a motion to suppress the admission of evidence of defendant's prior conviction for manslaughter. The trial court's denial of the motion was erroneous for two reasons. First, it did not adhere to the guidelines announced in People v Crawford, 83 Mich. App. 35, 39; 268 N.W.2d 275 (1978). The prior manslaughter conviction was so closely related to the charged offense of second-degree murder that the prejudicial effect of its admission outweighed its probative value. Furthermore, the defendant had a more recent conviction for larceny by conversion over $100 by which he could have been impeached.
The second reason involves MRE 609(b), which states that if more than 10 years have elapsed from the date of the conviction or the release of the witness from confinement, whichever is later, that conviction is inadmissible for the purpose of impeachment. The defendant herein was released from prison for the manslaughter conviction in 1967. The trial in question took place in 1978. Therefore, evidence of the conviction was stale and inadmissible under the rule.
This was not a case of harmless error, since the defendant did not testify at the trial. See, People v Denny, 86 Mich. App. 40; 272 N.W.2d 332 (1978). The conviction must be reversed and a new trial ordered.
Mr. Sims, the manager of the apartment building, testified at the preliminary examination. He stated that, on the morning in question, the defendant telephoned him and admitted that he had killed Ms. Clark. Mr. Sims was an endorsed res gestae witness, but was not produced at the trial. Before the trial, Mr. Sims was served by sliding a subpoena under his door. This did not satisfy the personal service requirement of GCR 1963, 105.1. See also, GCR 1963, 506.5. On the second day of the trial, Mr. Sims was properly served via personal in-hand delivery. When Mr. Sims still did not appear, a police officer talked with some neighbors, contacted Mr. Sims' relative in the hospital, and looked for Mr. Sims in various bars on Mack Avenue which he was known to frequent. Mr. Sims had not moved from his listed address and was seen there by his daughter at approximately 6 a.m. on the day the police officer sought to find him.
The trial judge found that the prosecutor exercised due diligence and excused the production of Ronald Sims. Furthermore, the trial court admitted into evidence Mr. Sims' testimony at the preliminary hearing.
It is the prosecutor's duty to produce all res gestae witnesses at trial. MCL 767.40; MSA 28.980. The duty of the prosecution to produce a res gestae witness is excused under certain circumstances, including a showing that due diligence was used in attempting to produce the witness. People v Buero, 59 Mich. App. 670, 674; 229 N.W.2d 880 (1975), People v McPherson, 84 Mich. App. 81, 85; 269 N.W.2d 313 (1978). The level of diligence required by the prosecution is "devoted and painstaking application to accomplish the undertaking". People v McPherson, supra.
The efforts expended by the prosecution herein were insufficient to constitute due diligence. See also, People v Eugene Harris, 43 Mich. App. 531; 204 N.W.2d 549 (1972), People v Hendrix, 81 Mich. App. 33, 35; 264 N.W.2d 108 (1978). The trial court abused its discretion in finding that due diligence was exercised in this case.
There is no need to remand this case for a hearing to determine whether the nonproduction of Mr. Sims was prejudicial, as required in People v Pearson, 404 Mich. 698; 273 N.W.2d 856 (1979). Prejudice to the defendant is apparent from the record, since Mr. Sims' damaging testimony at the preliminary examination was admitted erroneously. See People v Nieto, 33 Mich. App. 535; 190 N.W.2d 579 (1971), People v Williams #2, 45 Mich. App. 630, 637; 207 N.W.2d 180 (1973). At the new trial, the prosecutor must either produce Mr. Sims or demonstrate that due diligence was exercised.
The defendant contends that the prosecutor violated the rule announced in People v Bobo, 390 Mich. 355; 212 N.W.2d 190 (1973), because he elicited testimony from a police officer that he had informed the defendant of his right to remain silent. There was no direct reference to defendant's silence at the time of his arrest.
We find that this was at most harmless error. See People v Robinson, 386 Mich. 551; 194 N.W.2d 709 (1972). However, on retrial, the trial court should follow the rule stated in People v Jablonski, 38 Mich. App. 33, 38; 195 N.W.2d 777 (1972):
"It would appear that the better rule is that there is absolutely no probative value in eliciting that the defendants were informed of their rights unless the prosecutor intends to offer a confession or statement made by the defendants. Since there is a potential prejudicial effect even from the mere mention of the rights statement, even in the absence of testimony that the defendant wished to exercise those rights, such statements should be excluded."
The defendant's final issue concerning a sua sponte jury instruction on intoxication is without merit.
Reversed and remanded for a new trial.