Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED SEPTEMBER 17, 2002
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 120300
WALTER JACKSON, JR.,
Defendant-Appellee.
________________________________
PER CURIAM
This case presents the question whether the trial court
properly denied the prosecutor’s request for a continuance
where a subpoenaed witness failed to appear on the date set
for trial. We hold that the trial court abused its discretion
in denying a continuance in the circumstances presented in
this case. We thus reverse the judgments of the Court of
Appeals and the trial court and remand the case to the trial
court for further proceedings consistent with this opinion.
I. Factual background and procedural posture
Defendant was charged with two counts of armed robbery,
MCL 750.529, and one count of possession of a firearm during
the commission of a felony, MCL 750.227b.1 A key prosecution
witness, Myron Dawson, failed to appear on the date set for
trial.2 When the police telephoned Dawson’s home, his mother
stated that Dawson had gone to Ohio two weeks earlier and that
she had not heard from him since then. The prosecution
thereafter moved to admit Dawson’s preliminary examination
testimony under MRE 804(a)(5), (b)(1).3 Defendant opposed the
1
The prosecution also notified defendant that he was
subject to an enhanced sentence as an habitual offender. MCL
769.11.
2
At the preliminary examination, Dawson testified that
he was present when the robbery occurred and had clearly seen
the defendant.
3
MRE 804(a) provides in relevant part:
“Unavailability as a witness” includes
situations in which the declarant—
* * *
(5) is absent from the hearing and the
proponent of a statement has been unable to procure
the declarant’s attendance . . . by process or
other reasonable means, and in a criminal case, due
diligence is shown.
MRE 804(b) provides in relevant part:
The following are not excluded by the hearsay
rule if the declarant is unavailable as a witness:
2
motion.
In connection with this motion, the court conducted a
hearing on whether the prosecution had exercised “due
diligence” in attempting to produce Dawson for trial.
Undisputed testimony reflected that Dawson had previously
cooperated with the prosecution by voluntarily furnishing a
statement to the police and testifying at defendant’s
preliminary examination. The police had served a subpoena on
Dawson one month before trial, and Dawson had given no
indication that he would not appear. The officer who served
the subpoena testified that Dawson was “somewhat scared,” but
that he accepted and signed for the subpoena and understood
his duty to appear.
The trial court found that Dawson’s failure to appear on
the date set for trial had caught the prosecution by surprise
and that, although Dawson had been somewhat scared when the
subpoena was served, he was no more nervous than other
witnesses. Despite these findings, the court found that the
prosecution had not exercised due diligence because it had
(1) Former Testimony. Testimony given as a
witness at another hearing of the same or a
different proceeding, if the party against whom the
testimony is now offered . . . had an opportunity
and similar motive to develop the testimony by
direct, cross, or redirect examination.
3
made no efforts to produce Dawson apart from serving the
subpoena. The court stated that in lieu of admitting the
preliminary examination testimony, it would give the
prosecution an opportunity to search for Dawson and would
issue a bench warrant for Dawson’s arrest.
In response to this prompting, the prosecution moved for
a continuance. Defendant opposed a continuance and moved to
dismiss. The court then asked the prosecution to state the
length of the continuance requested. An exchange followed:
Mr. McCreedy [Assistant Prosecutor]: I would
request a continuance of two weeks.
Of course, if the case is dismissed without
prejudice then that introduces an even longer
delays [sic] than would be to continued [sic],
because then we would have to start out, go back
and re-arrest him and have a new opportunity for
preliminary exam and bind over, arraignment, pre
trail [sic] etcetera so.
The Court: But presumably, if you find a new
witness, and you schedule a preliminary exam, then
to [sic] afford the defense attorney the
opportunity to question him. Now, that issue
should be dissolved [sic] should it have to come up
again. So then if you lose the witness the second
time around, you would have an opportunity to
develop more fully a record; am I correct?
Mr. McCreedy: Well, your Honor, I mean our
position would be that once this witness is
located, I mean, we are going to be asking for a
bench warrant today, we ask that he be held on that
warrant. I don’t think that losing him would be an
issue after he has been served and failed to appear
knowing that the trial would absolutely be held.
4
Following a side-bar discussion with the attorneys, the
court stated:
Even if the court were to afford a
continuance, we don’t know exactly how long we
would need in order to bring this matter back
before the Court. I don’t know of any reason based
in law or in fact, why this matter should be
continued when the witness has failed to appear. I
am going to dismiss the matter without prejudice as
to [defendant].
The prosecution filed a claim of appeal. The Court of
Appeals affirmed,4 opining that the prosecutor had not made a
diligent effort to produce Dawson. The Court of Appeals
further stated that the trial “court apparently did not
envision [the search for Dawson] taking two weeks and the
prosecutor did not request a shorter adjournment in the
alternative. Therefore, under the facts of this case, we
cannot find that the court abused its discretion.”
The prosecution has filed an application for leave to
appeal to this Court.
II. Standard of review
A trial court’s decision whether to grant a continuance
is reviewed for an abuse of discretion. MCR 2.503(D)(1) (“In
its discretion the court may grant an adjournment to promote
4
Unpublished memorandum opinion, issued October 9, 2001
(Docket No. 230421).
5
the cause of justice”) (emphasis supplied); People v Williams,
386 Mich 565; 194 NW2d 337 (1972); People v Hoaglin, 262 Mich
162; 247 NW 141 (1933).
III. Analysis
A motion or stipulation for a continuance must be based
on good cause. MCR 2.503(B)(1). MCR 2.503(C) governs the
granting of adjournments5 on the basis of the unavailability
of a witness or evidence:
(C) Absence of Witness or Evidence.
(1) A motion to adjourn a proceeding because
of the unavailability of a witness or evidence must
be made as soon as possible after ascertaining the
facts.
(2) An adjournment may be granted on the
ground of unavailability of a witness or evidence
only if the court finds that the evidence is
material and that diligent efforts have been made
to produce the witness or evidence.
(3) If the testimony or the evidence would be
admissible in the proceeding, and the adverse party
stipulates in writing or on the record that it is
to be considered as actually given in the
proceeding, there may be no adjournment unless the
court deems an adjournment necessary. [Emphasis
supplied.]
The trial court did not articulate clearly the basis for
5
Although our court rule uses the term “adjournment,”
the case law on this subject generally uses the word
“continuance.” We use the terms interchangeably in this
opinion.
6
its decision to deny a continuance. It did not discuss the
requirements of the court rule or explain precisely how the
prosecution had failed to satisfy those requirements. Despite
these failings, the court did make statements during the
proceedings that we presume formed the basis for its decision.
The court’s apparent reasoning, however, was “so palpably and
grossly violative of fact and logic,” Spalding v Spalding, 355
Mich 382, 384; 94 NW2d 810 (1959), that we conclude it abused
its discretion.
The court suggested that a dismissal without prejudice
would allow another preliminary examination to be held and
thus permit the defense to cross-examine Dawson in the event
that he failed again to appear for trial. This reasoning is
illogical. A preliminary examination had already been held,
and the defense had already cross-examined Dawson at that
proceeding. Under the prosecution’s approach, once Dawson was
apprehended, his testimony could have been obtained at trial
without a need to ensure his presence at further proceedings.
Under the trial court’s approach, however, two additional
proceedings requiring Dawson’s testimony would be needed,
i.e., another preliminary examination and then a trial.
The Court of Appeals articulated another possible basis
for the trial court’s decision. It stated that the trial
7
court “did not envision [the effort to produce Dawson] taking
two weeks and the prosecutor did not request a shorter
adjournment in the alternative.” The prosecution’s failure to
request a shorter adjournment, however, was not a valid reason
to deny a continuance altogether in this case. The trial
court denied the motion for a continuance without explaining
how or why the prosecution’s estimate of the time needed was
unacceptable. The prosecution had no opportunity to suggest
a different length of time.
The trial court also suggested that the prosecution
failed to make “diligent efforts” to produce Dawson, as
required by MCR 2.503(C)(2).6 Denial of a continuance is
appropriate where a party fails to demonstrate diligent
efforts to serve a subpoena. See McMillan v Larned, 41 Mich
521, 522; 2 NW 662 (1879) (“There must also be search or an
effort made to find the witness and serve the subpoena”);
People v Burby, 218 Mich 46; 187 NW 359 (1922); Hoaglin, supra
6
The court discussed “due diligence” primarily in the
context of the prosecution’s request to introduce Dawson’s
preliminary examination testimony. The court suggested at one
point, however, that the request for a continuance would
reopen the due diligence inquiry. Given the muddled state of
the record and the court’s failure to clearly articulate its
reasoning in ruling on the various motions, we conclude that
the court impliedly found a lack of “diligent efforts” when it
denied the request for a continuance.
8
at 168 (“The affidavit annexed to the motion [for a
continuance] did not show what efforts had been made to locate
the witness . . .”).
The police here successfully served the subpoena. Dawson
had previously cooperated with the police and prosecution, and
they had no reason to expect that his cooperation would not
continue. We do not know what further efforts the court could
have expected of the prosecution or police in these
circumstances. We do not require the prosecutor to assume
that every witness is a flight risk who must be monitored to
ensure his attendance at trial.
Accordingly, we hold that the trial court abused its
discretion in denying the request for a continuance.7 We
reverse the judgments of the trial court and the Court of
Appeals and remand the case to the trial court for further
7
The prosecutor represents that certain judges of the
Wayne Circuit Court Criminal Division regularly dismiss cases
on the date of trial because of the failure of subpoenaed
witnesses to appear, rather than granting a continuance and
issuing a bench warrant or permitting introduction of the
witness’ preliminary examination testimony. We do not know
whether docket-management considerations motivated the denial
of a continuance in this case. We take this opportunity to
remind the bench, however, that MCR 2.503 governs the decision
whether to grant a continuance, and that “the desire of the
trial courts to expedite court dockets is not a sufficient
reason to deny an otherwise proper request for a continuance.”
Williams, supra at 577.
9
proceedings consistent with this opinion.8
CORRIGAN , C.J., and WEAVER , TAYLOR , YOUNG , and MARKMAN , JJ.,
concurred.
CAVANAGH and KELLY , JJ., would not dispose of this case by
an opinion per curiam, but would deny leave to appeal.
8
The trial court did not expressly rule on the
prosecutor’s motion to admit Dawson’s preliminary examination
testimony. The prosecution is free, if necessary, to renew
that motion on remand. The record does not reflect whether
Dawson has been located.
10