Opinion
Docket No. 62599.
Decided April 26, 1983.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and John A. Scavone, Assistant Prosecuting Attorney, for the people.
Joseph P. Zanglin, for defendant on appeal.
Before: T.M. BURNS, P.J., and R.M. MAHER and HOOD, JJ.
Defendant appeals as of right from a jury conviction of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). The trial judge sentenced defendant to 25 to 50 years in prison for the armed robbery and the mandatory two-year prison term for the felony-firearm.
Defendant was convicted for robbing a Church's Chicken Restaurant located on Woodward Avenue in Detroit. His defense was mistaken identity.
Defendant raises seven issues on appeal, two of which require reversal. Defendant first argues that his arrest was not supported by probable cause. Defendant preserved this question for appeal by raising it at a pretrial hearing.
An arrest is supported by probable cause if the facts available to the police officer at the moment of arrest would justify a fair-minded person of average intelligence in believing that the suspected person had committed a felony. We analyze each case in light of the particular facts confronting the arresting officer. People v Potter, 115 Mich. App. 125, 134-135; 320 N.W.2d 313 (1982); MCL 764.15; MSA 28.874.
We agree with the trial court's findings that defendant's arrest was supported by probable cause, although the question is close. The arresting officer observed defendant drive the suspected getaway vehicle and defendant's appearance was sufficiently similar to the robber's description to allow a reasonable person to conclude that defendant was the perpetrator of the robbery. We do not agree with defendant's argument that he was arrested solely for investigatory purposes.
Defendant next argues that the trial court clearly erred by finding that the prosecution exercised due diligence to obtain as trial witnesses several unnamed customers who were present during the robbery. Because of this ruling, the trial court refused to instruct the jury that they might infer that the missing witnesses would have testified favorably for defendant. CJI 5:2:14(3); People v Pearson, 404 Mich. 698, 722; 273 N.W.2d 856 (1979).
A prosecutor has the duty to produce and indorse all res gestae witnesses. MCL 767.40; MSA 28.980. One purpose of the rule is to protect the accused against the suppression of evidence that is favorable to that defendant. People v Tann, 326 Mich. 361, 367; 40 N.W.2d 184 (1949). The prosecution may be relieved of this duty by showing that the res gestae witnesses could not be produced despite an exercise of due diligence. Due diligence is the attempt to do everything reasonable, not everything possible, to obtain the presence of res gestae witnesses, People v Moreno, 112 Mich. App. 631, 637; 317 N.W.2d 201 (1981); People v Frazier, 95 Mich. App. 570, 576; 291 N.W.2d 125 (1980). This Court reverses a trial court's findings of due diligence only when we find clear error. Id.
In this case, we find that the trial court clearly erred by finding that the prosecution had exercised due diligence. On the contrary, the evidence produced during trial and at the hearing on this issue showed otherwise. The eyewitness employee who identified defendant as the robber testified that four or five customers were present in the restaurant during the holdup. However, the investigating police officer who arrived on the scene immediately after the robbery did not ask each customer for his or her name or interview those customers. Instead, the officer merely inquired whether anyone had observed anything. This action was not reasonably sufficient to constitute due diligence.
Because we find that the trial court clearly erred by finding that the prosecution was duly diligent, we vacate defendant's conviction. Pursuant to the procedure outlined in Pearson, supra, we allow the prosecution the opportunity to seek a post-remand hearing within 30 days, to rebut the presumption that defendant was prejudiced by the failure to produce the missing res gestae witnesses. That presumption of prejudice can be rebutted only if the prosecution proves that the witnesses could not have been produced at trial despite an exercise of due diligence, that the witnesses' testimonies would have been cumulatively unfavorable to defendant, or that the absence of those witnesses constituted harmless error. Pearson, p 725. Since we find reversal and a new trial required on another ground, the effect of such a hearing will not be determinative of whether a new trial should be had, but rather of whether the due-diligence question will be presented to the fact finder.
We also find reversal required because the prosecutor denied defendant a fair trial by improperly inflaming and prejudicing the jury in closing argument.
The prosecution has a duty to insure that the defendant has a fair trial. People v Williams, 114 Mich. App. 186, 198; 318 N.W.2d 671 (1982); People v Brocato, 17 Mich. App. 277, 290-291; 169 N.W.2d 483 (1969). While a prosecutor may vigorously argue the people's case based upon the evidence presented, People v Cowell, 44 Mich. App. 623, 629; 205 N.W.2d 600 (1973), a prosecutor must refrain from injecting unfounded or prejudicial innuendo into the proceedings. Brocato, supra, p 304; People v Bairefoot, 117 Mich. App. 225, 231; 323 N.W.2d 302 (1982).
In this case, the prosecutor attacked the credibility of the eyewitness who testified that defendant was not the perpetrator by accusing that witness of being an accessory or party to the crime. To do so, the prosecutor created inflammatory and prejudicial inferences that were not substantiated by the evidence. Indeed, in his closing argument the prosecutor tried, testified against and convicted that witness. While the prosecutor may call into question the credibility of even a res gestae witness, he must do so within the bounds of the evidence presented. MRE 607(2)(A); People v Viaene, 119 Mich. App. 690, 697-698; 326 N.W.2d 607 (1982). Although defendant did not object to this argument, we review it because we find it caused manifest injustice. People v Williams, supra, p 199. The outcome of the trial depended in large measure upon the jury's credibility determination regarding the two eyewitnesses.
We find no error in defendant's remaining arguments. The trial court properly exercised its discretion and weighed the relevant factors before admitting evidence of a prior conviction. MRE 609. Defendant's counsel performed at least as well as an ordinary attorney with training and skill in the criminal law and did not make serious mistakes that denied defendant a fair trial. People v Garcia, 398 Mich. 250, 264; 247 N.W.2d 547 (1976). Defendant's double jeopardy argument was rejected in Wayne County Prosecutor v Recorder's Court Judge (People v Alexander), 406 Mich. 374; 280 N.W.2d 793 (1979), dis sub nom Brintley v Michigan, 444 U.S. 948; 100 S Ct 418; 62 L Ed 2d 317 (1979).
Reversed and remanded. We retain jurisdiction only to review the post-remand hearing should the prosecution seek it.