Order Michigan Supreme Court
Lansing, Michigan
April 5, 2017 Stephen J. Markman,
Chief Justice
154784 Robert P. Young, Jr.
Brian K. Zahra
Bridget M. McCormack
David F. Viviano
Richard H. Bernstein
PEOPLE OF THE STATE OF MICHIGAN, Joan L. Larsen,
Plaintiff-Appellee, Justices
v SC: 154784
COA: 333084
Wayne CC: 16-001056-FC
BRANDON OSCARLEROY BENSON,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the October 12, 2016
order of the Court of Appeals is considered. Pursuant to MCR 7.305(H)(1), in lieu of
granting leave to appeal, we VACATE that part of the Court of Appeals order holding
that the investigative subpoena testimony of Bre’Ascia Dixon and Sierra Lattimore was
properly admitted under MRE 801, and we REMAND this case to that court for
reconsideration of the issue. The Court of Appeals erred in its analysis of MRE
801(d)(1)(A) by considering whether the witnesses were unavailable, rather than whether
their prior statements were inconsistent. The unavailability of a witness is relevant for
admission under MRE 804, not MRE 801. In all other respects, leave to appeal is
DENIED.
We do not retain jurisdiction.
I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
April 5, 2017
t0329
Clerk