Prosecution witness rules in criminal cases

Under MCL 767.40a, the prosecution’s burden is “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.” People v Long, 246 Mich App 582, 585 (2001). “‘[T]he purpose of the ‘listing’ requirement is merely to notify the defendant of the witness’ existence and res gestae status.’”  People v Gadomski, 232 Mich App 24, 36 (1998), quoting People v Calhoun, 178 Mich App 517, 523 (1989). “Therefore, if the defendant knew of the res gestae witness in any event, the prosecutor’s failure to list the witness would be harmless error.” Calhoun, 178 Mich App at 523.

Defendant argues that the trial court erred by allowing the prosecutor to call as witnesses that were not listed on the information. “A trial court’s decision to permit or deny the late endorsement of a witness is reviewed for an abuse of discretion.” People v Yost, 278 Mich App 341, 379 (2008). The prosecutor moved the trial court for the late endorsement of the two witnesses after trial began. Because of the late request, the prosecutor could not amend the witness list without leave of the court for good cause shown or by stipulation of the parties. MCL 767.40a(4). The trial court found good cause to permit one witness’ testimony because the prosecutor intended to call him to rebut a defense raised during defense counsel’s opening argument. Both the prosecutor and the trial court were surprised by the defense raised by counsel. A trial court has good cause to permit the late endorsement of a witness to rebut a surprise defense. See People v Kulick, 209 Mich App 258, 265 (1995), remanded for reconsideration on other grounds 449 Mich 851 (1995). Accordingly, the trial court did not abuse its discretion in finding good cause for the late endorsement of Cottrell. Yost, 278 Mich App at 379. The trial court also found good cause to allow the other witness to testify because he was available to both the prosecutor and defendant throughout the case and, therefore, should not have been a surprise to defendant. A trial court does not abuse its discretion in finding good cause to permit a witness to testify if the opposing party is not surprised by the endorsement.  See People v Callon, 256 Mich App 312, 326-327 (2003).  Were we to find error, defendant has not shown that the trial court’s ruling resulted in prejudice. Callon, 256 Mich App at 328. Defendant does not explain how he would have responded if he received earlier notice of the prosecutor’s intent to call these witnesses. Further, defense counsel refused the trial court’s offer of an adjournment to speak with the witnesses and, indeed, stated that she was familiar with what the witnesses would say. In People v Lobaito, 133 Mich App 547, 557 (1984), this Court recognized that, if counsel fails to request time to interview a witness, it tends to negate a claim of prejudice. Defendant has not established prejudice and is not entitled to relief on this ground. Callon, 256 Mich App at 328.