                          STATE OF MICHIGAN

                           COURT OF APPEALS



In re JAWAN SPEARS, Minor.


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   December 23, 2014
               Petitioner-Appellee,

v                                                                  No. 317712
                                                                   Wayne Circuit Court
JAWAN SPEARS,                                                      Juvenile Division
                                                                   LC No. 10-496968-DL
               Respondent-Appellant.


Before: O’CONNELL, P.J., and BORRELLO and GLEICHER, JJ.

PER CURIAM.

       A jury found respondent responsible for three counts of armed robbery, MCL 750.529,
and a violation of Detroit City Ordinance, § 33-3-1, for violating curfew. The jury found
respondent not responsible for one count of possession of a firearm during the commission of a
felony (felony-firearm), MCL 750.227b. The court ordered intensive in-home probation.
Respondent appeals as of right. For the reasons set forth in this opinion, we affirm.

                           I. FACTS & PROCEDURAL HISTORY

        Respondent’s adjudications arise out of the events that occurred in the early morning
hours of February 9, 2013. At 1:00 a.m. that morning, Deon Thomas parked his van on the side
of the street across from his father’s house located on Lauder Street in Detroit. Deon was at his
father’s house to pick up his brother, Marvin Thomas. Deon parked the van and went inside the
house to get Marvin. After about 10 minutes, Deon came out of the house and sat in the driver’s
seat of the van waiting for Marvin.

        Marvin came out of the house and began loading a futon mattress into the rear driver’s
side door of the van. Deon was sitting in the driver’s seat of the van, Deon’s girlfriend, Whitney
Reynolds, was in the front passenger seat of the van, and Deon’s three year old nephew, Dalin,
was in the back passenger seat in a car seat.

      While Marvin was loading the futon mattress, Deon heard “yelling” and “some sort of
argument” to his left. Deon then saw respondent pointing a revolver at Marvin. Respondent told
Marvin, “give me all your money.” Respondent then hit Marvin on the top of his head with the
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gun. Thinking that a robbery was occurring, Deon rolled down the window to the van and
reached his hand into his pocket to grab some money. Deon did not want to pull out all the
money he had in his pocket, so he “pull[ed] a few bills off the top” and gave respondent the
money. After giving respondent the money, another man standing behind respondent yelled,
“Take him out the car.” At that point, respondent opened the driver-side van door, pointed the
gun at Deon, and respondent took the remaining money out of Deon’s right pocket.

       After reaching into Deon’s pocket, respondent walked around to the other side of the van,
opened the van door, pointed the gun at Reynolds and dumped the contents of Reynolds’s purse
on the ground. As respondent was dumping the contents of Reynolds’s purse, Marvin ran to that
side of the van and “lunged” for respondent’s gun. Deon was running behind Marvin when
Marvin “lunged” for the gun. A tussle then ensued between Deon, Marvin, respondent and the
other man. During the tussle, Marvin was hit by the other person with a “wheel lock” on his
forearm. The gun was dropped during the tussle and Deon and Marvin restrained respondent.

        At some point during the tussle, Reynolds honked the car horn in order to get Marvin’s
father to come out of his house. Reynolds then ran onto the porch of the home and banged on
the windows and door of the house, screaming for help. When the other man saw Marvin’s
father come to the front door, he got into a car that was parked nearby and drove away.

       Deon and Marvin held respondent down on the ground, and then Marvin placed
respondent in a headlock and moved him to the porch of the house of Marvin’s father. Marvin’s
father called the police. Marvin kept his arms wrapped around respondent until the police
arrived about 10 to 15 minutes later. Once the police arrived, Marvin was transported to a
hospital and subsequently received staples in his head.

        Respondent was adjudicated as a minor. Before the delinquency jury trial, the
prosecution endorsed Detroit Police Officer Waldis Johnson pursuant to MCL 767.40a(3). On
the third and final day of trial, the prosecution informed the court that Officer Johnson had failed
to appear at court that morning, explaining as follows:

                I had [ ] Officer Waldis Johnson served yesterday, personally served by
       our investigative team. He was at home in Belville. He is a witness that I would
       really like to call. He was one of the Respondents on the scene, and I think he has
       some viable information to contribute in speaking with him. He did call me back.
       I had to make attempts to get in touch with him over the last couple weeks. As
       we’ve discussed multiple times off the record, apparently his wife had a
       miscarriage approximately three weeks ago. He has not been back to work in that
       time, which incidentally coincides with the time I was trying to get in touch. I did
       not have an earlier subpoena, but did get the one he was personally served with
       approximately 3:00 yesterday. He understood, he got the subpoena and
       remembered the date and intended to come in. It is now about ten minutes to ten
       at this point. I anticipate that he will show up. I don’t have any information
       about whether or not he will. I made a phone call to the number I have for him,
       it’s a cell phone, and that went straight to voice mail. I did leave a voice mail, but
       I haven’t gotten anything back. But if he does show up, I anticipate . . . he has
       some information about some statements that the young man made. I don’t

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       intent[sic]to bring that testimony out myself. I’m not sure it’s particularly
       probative, but beyond that . . . is to request that the Court bar [defense counsel]
       from trying to elicit any of that testimony regarding what [respondent] said.

       Defense counsel responded as follows:

               First, your Honor, if the officer does not show up, because the officer is
       germane to out [sic] theory of the case, to the theory this was a fight and not a
       robbery—and we do believe that’s the testimony that the officer would provide to
       the Court and to the jury-would be germane to my client’s defense, so if the
       officer does not show up, I would move for the case to be dismissed with
       prejudice. My client is entitled to a fair trial. We have – I don’t know if he’s a
       reluctant witness or not, but for him to not be here would deprive my client of an
       adequate defense in regards to having his necessary witness present. If the Court
       does not dismiss the case with prejudice, I would certainly be calling the officer,
       if the officer shows up, your Honor, to elicit statements that were made by my
       client to the officer during an investigation. . . .

               My client made some statements to him by direct questioning from the
       officer, and I would certainly like the jury to hear the statements made by my
       client to the officer because again, it goes to our theory of our case. It goes to our
       defense, it goes to the hearsay exception as to my client’s state of mind regarding
       this incident as opposed to how he saw—how he viewed the incident. . . .

        The trial court denied defense counsel’s request to dismiss the case, stating “I’m not sure
I understand this motion you’re making regarding statements made by [respondent] to the
officer.” The trial proceeded and Officer Johnson did not appear to testify. The trial court did
not provide a missing witness instruction. Respondent was adjudicated as set forth above and he
appeals as of right.

                                         II. ANALYSIS

       Respondent first contends that he was denied a fair trial because the prosecutor failed to
exercise due diligence to produce Officer Johnson.

        At trial, defense counsel essentially objected to the prosecution’s failure to produce
Officer Johnson when counsel asked the court to dismiss the case upon learning of the officer’s
absence. Therefore, we will consider this aspect of respondent’s appeal preserved for our
review. People v Grant, 445 Mich 535, 546; 520 NW2d 123 (1994). “[A] preserved,
nonconstitutional error is not a ground for reversal unless after an examination of the entire
cause, it shall affirmatively appear that it is more probable than not that the error was outcome
determinative.” People v Lukity, 460 Mich 484, 496; 596 NW2d 607 (1999).

       Respondent contends that Officer Johnson was a res gestae witness that was required to
be identified and produced at trial because he was on the prosecution’s witness list. “A res
gestae witness is a person who witnesses some event in the continuum of a criminal transaction
and whose testimony will aid in developing a full disclosure of the facts.” People v O’Quinn,
185 Mich App 40, 44; 460 NW2d 264 (1990), overruled in part on other grounds People v
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Koonce, 466 Mich 515; 648 NW2d 153 (2002). In this case, Officer Johnson was a responding
officer. He did not witness any part of the criminal transaction. The criminal transaction was
completed at the time police arrived at the Thomas household where respondent was being held.
Thus, contrary to respondent’s contention on appeal, Officer Johnson was not a res gestae
witness. To the extent that respondent contends that he was prejudiced because Officer Johnson
was a listed witness who did not appear at trial, this argument lacks merit.

       MCL 767.40a governs a prosecutor’s duties with respect to witnesses and it provides in
relevant part as follows:

               (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 the 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 at any time upon leave of the court and for good
       cause shown or by stipulation of the parties. [Emphasis added.]

         In this case, the prosecutor listed Officer Johnson as a witness who would be called at
trial in accord with MCL 767.40a(3). The prosecutor was entitled to remove Officer Johnson
from its witness list “at any time” “upon leave of the court for good cause shown.” MCL
767.40a(4). “The inability of the prosecution to locate a witness listed on the prosecution’s
witness list after the exercise of due diligence constitutes good cause to strike the witness from
the list.” People v Canales, 243 Mich App 571, 577; 624 NW2d 439 (2000). Here, the
prosecution exercised due diligence in attempting to produce Officer Johnson. The officer was
apparently on a leave of absence from work; the prosecutor personally called the officer during
the “last couple weeks” before trial. The prosecutor indicated that he spoke with the officer
before trial. When the officer did not appear at trial, the prosecutor had the officer personally
served with a subpoena and the officer indicated that he understood and intended to appear at
trial. When the officer was not at the court the following morning, the prosecutor again
attempted to call the officer and he left a voice mail. For some reason, the officer failed to
appear at trial. These circumstances indicate that the prosecutor made a good-faith effort to
produce the officer at trial. The prosecutor contacted the officer before trial and spoke with him.
When the officer did not appear at court as planned, the prosecutor had the officer served with a
subpoena delivered at the officer’s home, and the prosecutor again called the officer on the third
and final day of trial to no avail. In doing so, the prosecutor exercised due diligence in
attempting to locate the witness and the officer’s failure to appear at trial amounted to good
cause to strike him from the witness list. MCL 767.40a(4); Canales, 243 Mich App at 577.


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        Moreover, even if respondent was able to show that the prosecutor did not exercise due
diligence, respondent cannot show that “it is more probable than not that the error was outcome
determinative.” Lukity, 460 Mich at 496. At trial, defense counsel indicated that he planned to
have Officer Johnson testify about the statements that respondent made during a police
interview. However, this testimony would have amounted to inadmissible hearsay under MRE
801(c). Here, respondent was not seeking to offer the statements against the party who made the
statements, which was himself, but rather sought to use the statements to bolster his own
credibility. Thus, the statements were not admissible under MRE 801(d)(2). Furthermore,
contrary to defense counsel’s argument at trial, the statements respondent made to Officer
Johnson were not admissible under MRE 803(3), to show respondent’s state of mind. That
exception does not cover statements “of memory or belief to prove the fact remembered or
believed . . . .” MRE 803(3). Thus, contrary to trial counsel’s argument, respondent’s
statements were not admissible to show how respondent “viewed this incident.”

       In short, there was good cause to strike Officer Johnson from the witness list and
respondent cannot otherwise show how the officer’s absence prejudiced his defense where the
testimony that he planned to elicit from the officer was barred under the hearsay rules.

        Respondent also contends that the trial court should have held a due diligence hearing
pursuant to People v Pearson, 404 Mich 698; 273 NW2d 856 (1979), after the prosecution failed
to produce Officer Johnson. This argument lacks merit. First, Pearson is no longer good law.
See People v Cook, 266 Mich App 290, 295; 702 NW2d 613 (2005). Second, as discussed
above, the prosecutor did exercise due diligence in attempting to produce Officer Johnson and
there was no need to hold a hearing where there was good cause to strike the witness from the
witness list. Third, and finally, a hearing was not necessary where, as discussed above,
respondent could not have used the officer’s testimony as a vehicle to introduce his own out of
court statements as he planned to do at trial.

         Next, respondent argues that the trial court erred in failing to provide a missing witness
instruction. Respondent waived this issue for review when trial counsel affirmatively approved
the court’s instructions on the record. See People v Kowalski, 489 Mich 488, 503; 803 NW2d
200 (2011) (an explicit approval of an instruction constitutes waiver). Moreover, even if we
were to consider this issue, given that there was good cause to strike the witness from the witness
list, the missing-witness instruction was not warranted. See People v Snider, 239 Mich App 393,
422-423; 608 NW2d 502 (2000) (the missing witness instruction is not warranted where the
prosecution exercises due diligence and the court excuses production of the witness).

        Finally, respondent contends that trial counsel rendered ineffective assistance of counsel
when he failed to demand a due diligence hearing pursuant to Pearson, 404 Mich at 698, and
failed to object to the court’s omission of the missing witness instruction. However, as discussed
above, neither the hearing nor the instruction were warranted in this case. Accordingly,
respondent’s claims of ineffective assistance of counsel fail. See People v Eisen, 296 Mich App
326, 329; 820 NW2d 229 (2012) (counsel is not ineffective for failing to raise a futile objection
or advance a meritless position).




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Affirmed.

                  /s/ Peter D. O’Connell
                  /s/ Stephen L. Borrello
                  /s/ Elizabeth L. Gleicher




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