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Michigan Supreme Court 

Lansing, Michigan 48909 

C hief Justice Justices 

Maura D. Corrigan	 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

Stephen J. Markman 

FILED JULY 9, 2002
 

PEOPLE OF THE STATE OF MICHIGAN,
 

Plaintiff-Appellee,
 

v	 No. 117527
 

LYMAN GENE KOONCE,
 

Defendant-Appellant.
 

PER CURIAM
 

After a jury trial, defendant was convicted of possession
 

with intent to deliver less than 50 grams of cocaine.1 On
 

appeal, defendant argued, among other things, that the trial
 

court erred by denying his motion to dismiss, or,
 

alternatively, that the trial court erred by failing to give
 

a “missing witness” instruction on the basis of the
 

prosecution’s failure to produce a witness. The Court of
 

Appeals rejected that argument and affirmed on authority of
 

People v O’Quinn, 185 Mich App 40; 460 NW2d 264 (1990),
 

1 MCL 333.7401(2)(a)(iv).
 
holding that, while the prosecution is obligated to provide a
 

defendant with reasonable assistance in locating and serving
 

process upon witnesses, that duty does not apply to a witness
 

who is also an accomplice. We overrule the Court of Appeals
 

holding in O’Quinn to the extent that it applied an exception
 

to the reasonable assistance requirement found in MCL
 

767.40a(5), and remand this case to the Court of Appeals for
 

reconsideration in light of this opinion.
 

I
 

In November 1995, police raided a motel room where
 

defendant was living. The police officers testified they
 

found defendant in the room, along with Antoine Ennis. Ennis
 

was allegedly smoking crack cocaine at the time. The police
 

discovered approximately nine grams of cocaine behind a
 

dresser. Ennis was found to be carrying a note that had
 

defendant’s name and pager number, along with the motel’s
 

address and telephone number. It was the prosecution’s theory
 

that Ennis, an out-of-state resident, had used this
 

information to seek out defendant and purchase the cocaine
 

that he was smoking at the time of the raid. Defendant
 

testified that he knew nothing about the cocaine in his room
 

and that it was merely a coincidence that Ennis was present
 

when the police executed the raid.
 

Defendant was convicted as charged of possession with
 

intent to deliver less than 50 grams of cocaine. As required
 

1
 
by MCL 767.40a(1),2 the prosecutor listed Ennis on the
 

information as a res gestae witness. The prosecutor also told
 

defendant of Ennis’ last-known address: a location in
 

Baltimore, Maryland. By so doing, he felt he had complied
 

with MCL 767.40a(5), which requires, in part, that upon
 

request the prosecutor assist the defendant in locating and
 

serving process on the witness.3 At the beginning of trial,
 

defense counsel argued that the prosecutor had not met the
 

assistance requirement of MCL 767.40a(5). Relying on O’Quinn,
 

the prosecutor argued that, while greater assistance might
 

have been required with a nonaccomplice witness, because Ennis
 

was an accomplice the provision of Ennis’ address was
 

sufficient assistance to comply with the statute. The trial
 

2 MCL 767.40a(1) provides:
 

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.
 

3 MCL 767.40a(5) provides:
 

The prosecuting attorney or investigative law


enforcement agency shall provide to the defendant,


or defense counsel, upon request, reasonable
 

assistance, including investigative assistance, as


may be necessary to locate and serve process upon a


witness. The request for assistance shall be made


in writing by defendant or defense counsel not less


than 10 days before the trial of the case or at


such other time as the court directs. If the
 

prosecuting attorney objects to a request by the


defendant on the grounds that it is unreasonable,


the prosecuting attorney shall file a pretrial


motion before the court to hold a hearing to


determine the reasonableness of the request.
 

2
 
court, after concluding that Ennis was an accomplice, agreed
 

with the prosecutor and denied relief, relying on O’Quinn.
 

The Court of Appeals affirmed.4 Defendant has applied
 

for leave to appeal.
 

II
 

Issues of statutory interpretation are questions of law
 

that we review de novo. People v Webb, 458 Mich 265, 274; 580
 

NW2d 884 (1998). In reviewing whether MCL 767.40a(5) can
 

sustain the interpretation offered by O’Quinn, and now by the
 

current Court of Appeals panel, we begin with the well-known
 

rule that the goal of judicial interpretation of a statute is
 

to ascertain and give effect to the intent of the Legislature.
 

To do this, we first review the plain language of the statute
 

itself. If the language is clear, no further construction is
 

necessary or allowed to expand what the Legislature clearly
 

intended to cover. People v Morey, 461 Mich 325, 329-330; 603
 

NW2d 250 (1999). In considering this matter, the application
 

of this rule is dispositive.
 

III
 

Before the enactment of the statutory revision that we
 

consider herein, a prosecutor had a duty to present at trial
 

“all the witnesses present at the transaction.” See Hurd v
 

People, 25 Mich 405, 415-416 (1872). In keeping with this
 

general duty, 1859 PA 138, § 2 and its successor statutes
 

4
 Unpublished opinion per curiam, issued July 21, 2000


(Docket No. 210326).
 

3
 
 

required the prosecutor to list the names of all known
 

witnesses on the information and to supplement that list as
 

further witnesses become known.5 This listing requirement
 

served the function of alerting the defendant to the witnesses
 

the prosecution intended to present at trial.
 

Over time, this Court recognized a number of exceptions
 

to the statutory duty of the prosecutor to list all witnesses
 

on the information.6 The primary judicially identified
 

exception to this duty was that the prosecutor was not
 

required to list on the information, or call at trial, an
 

accomplice. People v Resh, 107 Mich 251, 253; 65 NW 99
 

5 Until 1986, the prosecutor’s duty to list witnesses on


the information was contained in MCL 767.40. The 1986
 

amendment shifted that requirement to MCL 767.40a(1) and (2).
 

6 A good explanation of the thinking of this Court on


this point is found in People v Raider, 256 Mich 131, 134-135;


239 NW 387 (1931), where we explained:
 

The rule that the prosecution must indorse and


call all the eyewitnesses to a crime of violence


who are available, except when they are numerous,


and those not called obviously would be merely


cumulative, . . . is too well established in this


State to need the citation of authorities. . . .
 

The purposes of the rule are to insure the


disclosure of the whole of the res gestae, to
 

protect the accused against the suppression of


testimony favorable to him, and to give him the


benefit of cross-examination. The rule is not
 

without exceptions. The wife of an accused need
 

not be called by the prosecution although her name


is indorsed on the information and he demands the
 

right to cross-examine her . . . ; nor need she be


indorsed as a witness . . . ; one charged as an


accessory need not be called by the people . . . ;


and a sister of the accused was required to be


called only because she was the fiancée of the


victim . . . . [Citations omitted.]
 

4
 
(1895); People v McCullough, 81 Mich 25, 34; 45 NW 515 (1890).
 

The development of this exception was not surprising because
 

of the inequity occasioned by forcing the prosecutor to call
 

a hostile accomplice, only to be bound by the accomplice’s
 

testimony under the doctrine that the party who calls a
 

witness vouches for that testimony. See People v White, 401
 

Mich 482, 508; 257 NW2d 912 (1977). Additional justification
 

for this exception was derived from the intuition that the
 

prosecutor should be relieved of the duty to produce a witness
 

who participated in the crime because such a witness could not
 

be compelled to testify anyway.7
 

The Legislature subsequently enacted 1941 PA 336 (MCL
 

767.40a), which provided that any res gestae witness could be
 

impeached by the prosecution,8 even while continuing to impose
 

on the prosecutor the duty to list all res gestae witnesses on
 

the information and produce them at trial. Left unaddressed
 

was the situation with accomplices, and thus, as this Court’s
 

decision in White, supra at 508-509, made clear, the
 

accomplice exception continued for res gestae witnesses. 


In 1986, the Legislature again amended MCL 767.40a. We
 

can discern, from our review of the amended statute, that the
 

amendments were made, at least in part, to resolve the last
 

vestige of the incongruity that had troubled previous
 

7 US Const, Am V and Const 1963, art 1, § 17.
 

8 The current statute preserves the prosecution’s right


to impeach any witness. MCL 767.40a(6).
 

5
 
Legislatures and courts by eliminating the prosecution’s duty
 

to endorse all res gestae witnesses and to produce all
 

endorsed witnesses. Thus, after the amendment, the prosecutor
 

has a duty to attach to the information a list of all
 

witnesses the prosecutor might call at trial and of all known
 

res gestae witnesses, to update the list as additional
 

witnesses became known, and to provide to the defendant a list
 

of witnesses the prosecution intended to call at trial. MCL
 

767.40a(1), (2), and (3). Further, to assist the defendant,
 

the prosecutor is now compelled to render reasonable
 

assistance in locating and serving process upon witnesses upon
 

request of the defendant.9 MCL 767.40a(5). In other words,
 

9 In People v Burwick, 450 Mich 281, 288-289; 537 NW2d


813 (1995), we discussed the 1986 amendment of MCL 767.40a and


explained:
 

The prosecutor's former obligation to use due


diligence to produce any individual who might have


any knowledge, favorable or unfavorable, to either


side, has been replaced by a scheme that 1)


contemplates notice at the time of filing of the


information of known witnesses who might be called


and all other known res gestae witnesses, 2)


imposes on the prosecution a continuing duty to


advise the defense of all res gestae witnesses as


they become known, and 3) directs that that list be


refined before trial to advise the defendant of the
 

witnesses the prosecutor intends to produce at


trial. The prosecutor's duty to produce res gestae


witnesses has been replaced with an obligation to


provide notice of known witnesses and reasonable


assistance to locate witnesses on defendant's 

request. 

The Legislature has thus eliminated the 

prosecutor's burden to locate, endorse, and produce


unknown persons who might be res gestae witnesses


and has addressed defense concerns to require the


prosecution to give initial and continuing notice
 

6
 
while the 1986 amendment retained the right of the prosecutor
 

to impeach res gestae witnesses and eliminated the requirement
 

that the prosecutor produce all endorsed witnesses, it added
 

the requirement that the prosecutor provide reasonable
 

assistance to the defendant, upon request, to secure the
 

presence of witnesses—regardless of the label applied to them
 

or whether they are listed on the information. 


IV
 

In spite of the statutory changes outlined above, when
 

the Court of Appeals in O’Quinn revisited this issue after the
 

1986 statutory amendment of MCL 767.40a, it continued to apply
 

the judicially made accomplice exception to excuse the
 

prosecution from its duty to comply with the statute. In
 

discussing this issue, the Court noted that, under the statute
 

in effect before the 1986 amendment, the prosecutor was
 

required to endorse and produce all res gestae witnesses and
 

further noted that there was a judicially created exception to
 

the production requirement when the res gestae witness was an
 

accomplice. Concluding that the rationale behind the
 

accomplice exception was still applicable to the current
 

statute, the Court held that there was no duty for the
 

prosecutor to provide reasonable assistance to a defendant in
 

locating and serving process upon an accomplice. Because this
 

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.
 

7
 
 

analysis miscomprehends the history cited above, as well as
 

the clear dictates of the 1986 statutory amendments, we
 

disagree.
 

There is no mention in the current statute concerning an
 

exception in the case of “accomplice witnesses.” The language
 

of subsection 5 clearly requires the prosecutor (on request)
 

to reasonably assist the defendant in locating and serving
 

process on a witness. Moreover, the statute does not
 

differentiate between accomplice witnesses and other
 

witnesses. Because the language is plain and unambiguous, it
 

is this reading that we give to the statute. Huggett v Dep’t
 

of Natural Resources, 464 Mich 711, 717; 629 NW2d 915 (2001).
 

Since § 40a(5) does not permit the prosecution to avoid its
 

statutory duty to provide “reasonable assistance” on the basis
 

that the listed witness is an accomplice, it must give
 

“reasonable assistance” without regard to the witness’
 

accomplice status.10
 

Because the prosecutor here only provided defendant with
 

an address in Baltimore, Maryland, we remand this matter to
 

the Court of Appeals to address whether the assistance offered
 

by the prosecutor amounted to “reasonable assistance . . . to
 

locate and serve process upon a witness” within the meaning of
 

the statute. 


10 Our explication of this statute should not be


understood as expressing a view on the issue of who is


responsible for calling such a witness at trial, or, indeed,


whether, because of privilege or some other testimonial bar,


such a person could be called at trial.
 

8
 
Accordingly, we overrule the O’Quinn holding that there
 

is an accomplice exception to MCL 767.40a(5), and remand this
 

matter to the Court of Appeals for reconsideration in light of
 

this opinion. This decision will apply to this case, to any
 

case pending on appeal in which this issue has been raised and
 

preserved, and to all future cases. People v Pasha, 466 Mich
 

__; __ NW2d __ (2002). We have examined defendant’s remaining
 

issues and find them to be without merit. MCR 7.302(F)(1).
 

We do not retain jurisdiction.
 

CORRIGAN, C.J., and CAVANAGH, WEAVER, KELLY, TAYLOR, YOUNG, and
 

MARKMAN, JJ., concurred.
 

9