Dismissal without prejudice due to prosecution discovery violations; MCR 6.201; Showing that a discovery violation was prejudicial; People v Dickinson; A trial court’s discretion to fashion a remedy

Holding that the trial court did not abuse its discretion in dismissing these consolidated cases without prejudice because this remedy “was a principled outcome based on the prosecutor’s discovery violations[,]” the court affirmed. It was undisputed that the prosecutor failed to provide defendant-Ewing’s “recorded statement to the defense. The former officer in charge indicated that the interview was very likely recorded, and the prosecutor failed to find out this information until trial was imminent, despite repeated requests for the evidence over a substantial period of time.” The prosecution also “failed to provide other evidence that appeared to be previously in its possession, including the audio recording of a conversation involving Ewing’s mother. These delays and oversights regarding the investigation reasonably caused the trial court to question whether the prosecutor failed to provide all of the available evidence in accordance with MCR 6.201. The prosecutor’s failure to identify, obtain, and disclose recordings and other evidence that were likely in the government’s possession at some point constituted discovery violations, and [they] prejudiced the defense.” The court noted that “the trial court has discretion to fashion a remedy to fit the” discovery violation. It was initially presented with three options, but the prosecution withdrew its motion for an adjournment. That left a jury instruction or dismissal. It found that the prosecutor’s instruction request “would not be sufficient for defendants to receive a fair trial, indicating that the actual prejudice to [them] from the discovery violations outweighed the effects of a jury instruction. Instead, [it] opted to grant defendants’ motion for dismissal.” Review of the record showed that the “rejection of an instruction in favor of dismissal was a principled outcome and not an abuse of discretion.” The court stressed that the “dismissals were without prejudice. They did not foreclose the prosecutor from seeking to refile charges against one or both defendants; if” this occurs, any discovery questions “can be taken up anew.” As to any statute of limitations issue, a murder charge “can be filed at any time. The lesser assault and felony-firearm charges must be brought within ten years and six years, respectively, without” considering any applicable tolling.