Dismissal after a prosecution witness (a police officer) failed to appear for trial a third time; MCL 767.40a; People v. Everett; People v. Williams; MCR 2.503(C)(2); People v. Jackson

The court held that the trial court abused its discretion by dismissing the charges against the defendant when the prosecution was ready to proceed without the officer (J) who failed to appear for trial. If the trial court believed J was a vital witness, “an adjournment would have been the proper remedy.” Thus, the court reversed the order granting defendant’s motion to dismiss and remanded for further proceedings. The trial court’s ruling was based on two findings – that (1) J was a key witness who was vital to defendant’s case and (2) the trial had already been delayed by adjournments. The court noted that while the prosecution had a duty to produce J (an endorsed witness), her failure to appear did “not necessarily amount to a violation of MCL 767.40a.” The prosecution properly served her with “a subpoena and had no reason to expect that she would be unavailable for trial. The officer’s nephew was in a car accident on the trial date. This emergency continued to the next day, the adjourned trial date. The trial court understood the officer’s reason for failing to appear and did not fault” her. Even if her failure to appear constituted “a violation of MCL 767.40a, dismissing the charges against defendant when the prosecution is ready to proceed is an abuse of discretion.” The prosecution stated that it was ready to proceed without J’s testimony. “The trial court never found that there was insufficient evidence or that the prosecutor’s actions were illegal or unconstitutional.” Further, there would have been “no prejudice to defendant by allowing the case to proceed without” J because a detective’s (F) report “contained the victim’s inconsistent statements.” F was “also an endorsed witness, and his testimony could have served the same purpose as the missing officer’s, even though he was not the first officer on scene.” The court concluded that “an adverse inference instruction would have been a proper remedy to” J’s absence, particularly as to the use of the statements in the report. As to another adjournment, the court noted that the first one was related to defendant’s motion to quash and the second one was at his request.