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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ROY CLYDE SPARKS, Defendant-Appellant.

UNPUBLISHED July 22, 1997

No. 188878 Oakland Circuit Court LC No. 95-137330-FH

Before: Cavanagh, P.J., and Reilly and White, JJ. PER CURIAM. Following a jury trial, defendant was convicted of felonious assault, MCL 750.82; MSA 28.277. He was sentenced to two years' probation, including ninety days to be served in the Oakland County Jail. Defendant argues that he was denied his Sixth Amendment right to call witnesses, due process and a fair trial when the trial court allowed only one character witness to testify and limited the testimony of defendant's rebuttal witness, as a result of defense counsel's failure to file a detailed witness list in response to the prosecution's pretrial discovery request. Defendant also alleges ineffective assistance of counsel, prosecutorial misconduct, and evidentiary error. We remand for an evidentiary hearing on defendant's ineffective assistance of counsel claim, and otherwise affirm. I Defendant first argues that the trial court violated his Sixth Amendment right to call witnesses and denied him a fair trial by allowing only one character witness to testify and limiting the testimony of his rebuttal witness. Under the circumstances presented here, we disagree. Before trial began on July 24, 1995, the prosecution filed a request for discovery under MCR 6.201 on May 17, 1995, which requested "[t]he names and addresses of all lay and expert witnesses whom the defendant intends to call at trial." Defense counsel responded by letter dated June 30, 1995, which stated: The Defendant may call the following persons as witnesses in the captioned matter:

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1. Charles Stevens, nephew of the complainant, Susan Dodge. 2. Thelma Depew, current address unknown. 3. Numerous character and rebuttal witnesses. The issue of defendant's failure to adequately respond to the prosecution's pretrial discovery request for the names and addresses of all expert and lay witnesses arose twice, once at the start of trial,1 and again later the same day after the prosecution rested.2 On the morning trial began, the prosecution raised, in connection with a motion in limine addressing other issues, that defendant did not comply with a discovery request, and that the prosecutor thus had received no witness list or other notice. The trial court decided the motion on other grounds,3 and the discovery issue was not addressed until it arose again after the prosecution rested. After the close of the prosecution's case-in-chief, the trial court stated it would take a short afternoon recess. The jury was excused and the following colloquy occurred: THE COURT: Miss Madzia [assistant prosecuting attorney], you had something you want to put on the record? MS. MADZIA: Oh, we do, your Honor, actually. Thank you. I was not made aware of any witnesses the Defense might call. I have a Motion for Discovery signed January 1st, of this year [1995]. We can request that and I believe it was filed May 17th,4 and I didn't get a response back, so I am asking the Court to bar any witnesses other than the Defendant, based on the fact that there was no notice or knowledge to myself. MR. WILLIAMS [defense counsel]: Your Honor, I did send a letter dated June 30th, to Miss Madzia at the Prosecutor's Office stating that I would have --- one of my witnesses would be Charles Stevens, the nephew of the Complainant. And, I also named Thelma Depew, who I don't intend to call, and numerous character and rebuttal witnesses, who we wouldn't know until such time as trial. MS. MADZIA: I mean, I --THE COURT: (Interposing) Why wouldn't you know character witnesses, you should have known those instantly? MR. WILLIAMS: Well, it was a question of finding out who was going to be in town. THE COURT: Well, when did you send her that? MR. WILLIAMS: June 30th. -2

MS. MADZIA: Your Honor, I have no doubt that if Mr. Williams told me he send [sic] it, then he did send me it. I am not doubting his integrity at all. I believe it must have been lost. But, I think that as to character witnesses I should have been informed and I wouldn't have been, even if I would have received that. I have no problem with Mr. Stevens or Miss DePew. I mean, he can't be faulted for
something I didn't receive.
THE COURT: I agree. I agree with that.
MR. WILLIAMS: Is the Court saying I can't have the character witnesses?
THE COURT: Well, you didn't

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