V.J. BRENNAN, P.J.
Defendant Debra Smith was convicted by a jury of second-degree murder, MCLA 750.317; MSA 28.549, as a result of the shooting death of Jack Firestein. She was sentenced to a term of 7-1/2 to 20 years in prison and now appeals.
Defendant first contends that the prosecution failed to show the due diligence necessary to excuse the nonproduction of a res gestae witness.
It is true that as a general rule the prosecution has an obligation to produce all res gestae witnesses for examination at trial. People v Bersine, 48 Mich. App. 295; 210 N.W.2d 501 (1973), People v Phillips, 37 Mich. App. 242; 194 N.W.2d 501 (1971), People v Dickinson, 2 Mich. App. 646; 141 N.W.2d 360 (1966). However, one of the well-recognized exceptions to this general rule is that the prosecution may be excused from such a duty upon a showing of due diligence in the search for such witnesses. People v Bersine, supra, People v Russell, 27 Mich. App. 654; 183 N.W.2d 845 (1970), People v Lewis, 25 Mich. App. 132; 181 N.W.2d 79 (1970), People v Gibson, 253 Mich. 476; 235 N.W. 225 (1931). The question of due diligence is a matter within the discretion of the trial court and will be overturned on appeal only where a clear abuse of discretion is shown. People v Bersine, supra, People v Russell, supra, People v Garcia, 39 Mich. App. 45; 197 N.W.2d 287 (1972).
In the present case, at trial the prosecutor detailed the efforts made to find the witness. The record reveals that a considerable effort had been made in an attempt to locate the witness, but that her whereabouts was still unknown. After hearing all the testimony relating to this matter, the trial court excused the prosecution from producing the witness finding that the prosecution had made a diligent effort in trying to locate her. After carefully reviewing the record, we are of the opinion that the trial court did not abuse its discretion in excusing the prosecution from producing the witness on the ground of due diligence.
Defendant next claims that the prosecution's failure to endorse and produce two alleged witnesses was reversible error. We disagree.
It is the clear trend of appellate authority in our state that every failure to endorse a res gestae witness and that every failure to exercise due diligence to produce an endorsed witness does not require reversal. People v Cornell Harris, 56 Mich. App. 267; 224 N.W.2d 57 (1974), People v James, 51 Mich. App. 777; 216 N.W.2d 473 (1974), People v Robinson, 390 Mich. 629; 213 N.W.2d 106 (1973), People v Romano, 35 Mich. App. 135; 192 N.W.2d 271 (1971). In our opinion the failure of the prosecution to endorse and produce the witnesses in question was harmless error, not requiring reversal.
Finally, defendant claims that her conviction must be reversed because the trial court erroneously concluded that defendant's confession was voluntary. Defendant argues that the confession was obtained in violation of the Miranda rule.
Miranda v Arizona, 384 U.S. 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
According to People v Robinson, 386 Mich. 551; 194 N.W.2d 709 (1972), we are required to examine the entire record and make an independent determination on the question of voluntariness. See also People v Inman, 54 Mich. App. 5, 7-8; 220 N.W.2d 165 (1974), and People v Mosley, 51 Mich. App. 105, 106-107; 214 N.W.2d 564 (1974). Reversal of the trial court's finding of fact may occur where, after reviewing the entire record, we are left with the definite and firm conviction that a mistake was committed by the trial judge. People v McGillen #1, 392 Mich. 251; 220 N.W.2d 677 (1974).
Our review of the record in the present case reveals that this 22-year-old defendant was arrested by Detroit police officers at approximately 1:45 p.m. on February 12, 1973. At approximately 3:50 p.m., three Highland Park police officers began questioning defendant concerning her possible involvement in the death of Jack Firestein. She did not have an attorney present. Later that evening, at approximately 9 p.m., defendant was questioned again without an attorney present. Both of these statements were recorded by the Highland Park police.
Prior to trial, defense counsel moved to have the statements suppressed from evidence. A Walker hearing was held to determine the voluntariness of the statements. At the hearing defendant took the stand and testified that before the interrogation began she was advised of her constitutional rights, that she asked the officers whether an attorney could be appointed if she wanted one, and that the officers replied that she could not get an attorney at that time, but that she would get one when she went to court, which she was told would be in a couple of days. Defendant then testified that she decided to go ahead and talk to the officers. Detective Keliher, one of the officers who was present when defendant was questioned, testified at the Walker hearing and stated that the defendant never requested an attorney.
People v Walker (On Rehearing), 374 Mich. 331; 132 N.W.2d 87 (1965).
After considering the evidence presented, the trial court found that defendant had been advised of her rights and that the statements were made voluntarily. The statements were subsequently admitted into evidence at trial.
In Miranda v Arizona, 384 U.S. 436, 444-445; 86 S Ct 1602, 1612; 16 L Ed 2d 694, 706-707 (1966), the United States Supreme Court held that once a person has been taken into custody:
"Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning."
Defendant claims that it was not made clear to her that a lawyer would be appointed if she wanted one. Our examination of the Walker hearing transcript discloses that not only were the Miranda rights and warnings read to her but that each right was explained to her before she began to make her statement. While it is true that the defendant only has a ninth-grade education, it should be pointed out that the trial judge, after observing her conduct, specifically observed that the defendant was an intelligent person. The transcript of the Walker hearing makes clear that defendant knew she had a right to an attorney, appointed or otherwise, and that she elected to make a statement without one. More important in this regard, however, is the transcript of a tape recording which was made of the entire interrogation process, including the giving of the Miranda warnings, the interrogation by the police officers and defendant's confession. This transcript, which was examined and admitted into evidence by the trial judge, clearly supports the trial court's ruling.
During the Walker hearing the defendant took the stand and related her account of what occurred at the time she was advised that she could have a lawyer present during any questioning. Her version of the advice that was given differed substantially from that of the police officers. After completely reviewing the testimony contained in the Walker hearing transcript, as well as examining the tape-recording transcript, we can readily see why the court chose to believe the police officers rather than the defendant. On this record we are unable to say that the trial judge erred in determining that defendant's statements were voluntarily made and admissible. We therefore refuse to reverse defendant's conviction on this ground.
Finally, we have carefully considered defendant's remaining assignments of error. A review of the record persuades us that no error warranting or requiring reversal of defendant's conviction has been disclosed. Decisional discussion is, therefore, unnecessary.
Affirmed.
CARLAND, J., concurred.