Opinion
Docket No. 46324.
Decided August 13, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy Scallen, Assistant Prosecuting Attorney, for the people.
Simmons Richards, for defendant on appeal.
On May 1, 1979, defendant was found guilty by a jury of armed robbery, contrary to MCL 750.529; MSA 28.797. He was sentenced to an imprisonment term of 10 to 15 years and now appeals as of right.
Defendant advances a plethora of arguments, only one of which we need address. He contends that the lower court wrongly submitted the issue of due diligence to the jury. We agree.
If a res gestae witness is not produced at trial, then it must be ascertained whether the prosecution exercised due diligence in its attempts to produce the witness. People v Brooks, 96 Mich. App. 96; 292 N.W.2d 139 (1980). In the past, this determination could be made by either the trial judge or the jury. See People v Ebejer, 66 Mich. App. 333; 239 N.W.2d 604 (1976), People v Yarborough, 61 Mich. App. 303; 232 N.W.2d 394 (1975), People v Eugene Harris, 43 Mich. App. 531; 204 N.W.2d 549 (1972). See also CJI 5:2:14. However, this dual approach was recently rejected by the Supreme Court in People v Willie Pearson, 404 Mich. 698; 273 N.W.2d 856 (1979). Because the jury normally does not disclose its findings, only the trial judge can make reviewable findings and conclusions on the issue of due diligence. Thus, it is error to submit the due diligence issue to the jury. Id. at 722, fn 6. Since Pearson was released several months prior to the instant trial, the trial judge erred by presenting this question to the jury.
Although this oversight would normally mandate reversal, this is not necessary here. Defendant did not object to the jury submission nor did he move for a court hearing on due diligence. The failure to preserve this issue will normally foreclose appellate consideration, Pearson, supra at 721-723, unless, absent review, manifest injustice will result. People v Phillips, 75 Mich. App. 690, 694; 255 N.W.2d 733 (1977). In light of the overwhelming evidence of defendant's guilt and the lack of any prejudice that resulted to defendant due to the submission, we conclude that no manifest injustice will occur if we do not reverse in this case.
Affirmed.