Discovery violation remedy; MCR 6.201(J); People v Elston; Missing witness instruction; M Crim JI 5.12; Due diligence; MCL 767.40a(3); People v Eccles; PSIR accuracy & striking disregarded information; MCL 771.14(6); People v Maben; Scoring of OV 7; MCL 777.37(1)(a); People v Walker; Departure sentence proportionality; People v Steanhouse; Sexual Assault Nurse Examiner (SANE)

The court held that: 1) the trial court did not abuse its discretion in curing the prosecution’s late disclosure of the strangulation assessment and photos by delaying the SANE nurse’s testimony, 2) the prosecutor exercised due diligence so a missing-witness instruction was unwarranted, 3) OV 7 was properly scored and the departure sentence was properly imposed, and 4) the PSIR must be corrected to strike an unsubstantiated allegation the trial court deemed irrelevant to sentencing. A jury convicted defendant of CSC I, AWIGBH or by strangulation, and second-offense domestic violence after evidence was presented that the victim was dragged by her hair to a basement, raped, beaten, and strangled. DNA testing on a vulvar swab was “11 sextillion times more likely” to include defendant as a contributor. Midtrial, the prosecutor disclosed a strangulation assessment and about 50 SANE photos the defense had not previously seen. The trial court found a discovery violation under MCR 6.201(J), and it moved the SANE testimony to Monday to give the defense the weekend to prepare. On appeal, the court explained late disclosure under the court rule is not itself a constitutional violation, suppression “is a severe remedy,” and the defendant must show actual prejudice. It held that the continuance remedy fell within the range of principled outcomes because the prosecutor turned over the material immediately upon discovering it, the defense already had the original SANE report and police injury photos, and the delay in the testimony provided time to prepare cross-examination. The court also affirmed denial of a missing-witness instruction related to another witness because due diligence requires “everything reasonable, but not everything possible,” and the prosecution’s efforts included database searches, multiple visits to the last known address, calling the witness’s father, and checking local jails and hospitals. The court agreed the trial court abused its discretion by refusing to strike from the PSIR a victim-impact sentence alleging that “other young women” reported being forced to have sex with defendant, because the trial court effectively found the allegation “not a matter of proof” and disregarded it, which entitled defendant to have it stricken under MCL 771.14(6). The court upheld scoring OV 7 at 50 points because dragging the victim by her hair down stairs, beating her during the assault, and the extensive bruising constituted “savagery or cruelty beyond even the ‘usual’ brutality of a crime[.]” It also upheld the 15-month upward departure from the top of his CSC I minimum guidelines range as proportionate where the trial court found the conduct “shockingly brutal” and defendant “too dangerous to be around.” Affirmed and remanded for PSIR correction.