Motion to amend the witness list to add an expert & to adjourn the trial to give the prosecution time to prepare for the witness; MCR 6.201; People v Callon; Whether error was outcome determinative; Motion for a new trial; MCR 6.431(B); Newly discovered evidence; Hearsay; MRE 801(d)(1)(B); Department of Health & Human Services (DHHS)

The court held that while the trial court abused its discretion in denying defendant’s motion to amend his witness list to add his chiropractor, he was not entitled to appellate relief given the substantial evidence supporting his convictions. Further, the trial court did not abuse its discretion in denying his motion for a new trial based on late-provided police dash-cam footage. Finally, his statements to a neighbor were not admissible under MRE 801(d)(1)(B) and thus, were properly excluded. The court affirmed defendant’s convictions of felonious assault, threatening an employee of a family independence agency with physical harm, and assaulting, resisting, or obstructing a police officer. It noted that his “voluminous chiropractic records” were provided to the prosecution in discovery, and “defense counsel’s failure to include the chiropractor on the witness list was clearly inadvertent. A brief supplementary voir dire could have been conducted to test the jurors’ potential biases and an adjournment could have been granted to give the prosecution the opportunity to better prepare. There was no sound reason to deny” defendant the right to present the witness. But he could not show that the error was outcome determinative. The chiropractor’s explanations about defendant’s physical limitations “would not invalidate the substantial evidence supporting” his convictions. The court noted that he was “not convicted of assault or threatening DHHS employees because of his stance. His convictions were based on his threatening words and his use of a baseball bat and a minivan to frighten the workers. Moreover, VanBuskirk testified that he could not hear the troopers order him to raise his arms. Evidence that VanBuskirk could not physically raise his arms does not add support for that testimony. Even if the evidence was presented, VanBuskirk’s inability to raise his arms would not counter evidence that he wrestled with the troopers to avoid being handcuffed, requiring a trooper to deploy his taser.” The court further found that the trial court “should have recessed the trial to allow defense counsel to review the dash-cam footage when it was suddenly presented at trial, instead of excluding it.” However, the footage did “not contradict the most important facts underlying VanBuskirk’s two resisting and obstructing convictions” and had no bearing on the other charges.