missing witness instruction in Michigan

2016In making this determination, the reviewing court should focus on the nature of the error in light of the weight and strength of the untainted evidence. [People v Elston, 462 Mich 751, 766 ; 614 NW2d 595 (2000) (citations omitted).] In this case, assuming for the sake of analysis that the trial court clearly erred by finding that the prosecution had exercised due diligence in attempting to bring the witnesses to trial, and -3- further assuming that the court abused its discretion by refusing to give the missing witness instruction, defendant still has not shown that the trial court’s error was

2016In making this determination, the reviewing court should focus on the nature of the error in light of the weight and strength of the untainted evidence. [People v Elston, 462 Mich 751, 766 ; 614 NW2d 595 (2000) (citations omitted).] In this case, assuming for the sake of analysis that the trial court clearly erred by finding that the prosecution had exercised due diligence in attempting to bring the witnesses to trial, and -3- further assuming that the court abused its discretion by refusing to give the missing witness instruction, defendant still has not shown that the trial court’s error was

2017The missing-witness instruction should be given if the prosecutor “fails to secure the presence at trial of a listed witness who has not been properly excused.” People v Perez, 469 Mich 415, 420 ; 670 NW2d 655 (2003). 1 Defendant’s reliance on cases such as People v Dye, 431 Mich 58 ; 427 NW2d 501 (1988), and People v Bean, 457 Mich 677 ; 580 NW2d 390 (1998), is misplaced.

2017The missing-witness instruction should be given if the prosecutor “fails to secure the presence at trial of a listed witness who has not been properly excused.” People v Perez, 469 Mich 415, 420 ; 670 NW2d 655 (2003). 1 Defendant’s reliance on cases such as People v Dye, 431 Mich 58 ; 427 NW2d 501 (1988), and People v Bean, 457 Mich 677 ; 580 NW2d 390 (1998), is misplaced.

2017We review de novo questions of constitutional law, including whether a criminal defendant was denied his right to confront the witnesses against him, People v Pipes, 475 Mich 267, 274 ; 715 NW2d 290 (2006), and whether a defendant was afforded due process, People v Stokes, 312 Mich App 181, 189 ; 877 NW2d 752 (2015).

2017We review de novo questions of constitutional law, including whether a criminal defendant was denied his right to confront the witnesses against him, People v Pipes, 475 Mich 267, 274 ; 715 NW2d 290 (2006), and whether a defendant was afforded due process, People v Stokes, 312 Mich App 181, 189 ; 877 NW2d 752 (2015).

2017People v Carter, 462 Mich 206, 215-216 ; 612 NW2d 144 (2000).

2017People v Carter, 462 Mich 206, 215-216 ; 612 NW2d 144 (2000).

2017“Jurors are presumed to follow their instructions, and instructions are presumed to cure most errors.” People v Abraham, 256 Mich App 265, 279 ; 662 NW2d 836 (2003).

2017“Jurors are presumed to follow their instructions, and instructions are presumed to cure most errors.” People v Abraham, 256 Mich App 265, 279 ; 662 NW2d 836 (2003).

2017We review de novo questions of constitutional law, including whether a criminal defendant was denied his right to confront the witnesses against him, People v Pipes, 475 Mich 267, 274 ; 715 NW2d 290 (2006), and whether a defendant was afforded due process, People v Stokes, 312 Mich App 181, 189 ; 877 NW2d 752 (2015).

2017We review de novo questions of constitutional law, including whether a criminal defendant was denied his right to confront the witnesses against him, People v Pipes, 475 Mich 267, 274 ; 715 NW2d 290 (2006), and whether a defendant was afforded due process, People v Stokes, 312 Mich App 181, 189 ; 877 NW2d 752 (2015).

2017The missing-witness instruction should be given if the prosecutor “fails to secure the presence at trial of a listed witness who has not been properly excused.” People v Perez, 469 Mich 415, 420 ; 670 NW2d 655 (2003). 1 Defendant’s reliance on cases such as People v Dye, 431 Mich 58 ; 427 NW2d 501 (1988), and People v Bean, 457 Mich 677 ; 580 NW2d 390 (1998), is misplaced.

2017The missing-witness instruction should be given if the prosecutor “fails to secure the presence at trial of a listed witness who has not been properly excused.” People v Perez, 469 Mich 415, 420 ; 670 NW2d 655 (2003). 1 Defendant’s reliance on cases such as People v Dye, 431 Mich 58 ; 427 NW2d 501 (1988), and People v Bean, 457 Mich 677 ; 580 NW2d 390 (1998), is misplaced.

2025“A trial court abuses its discretion when it selects an outcome that does not fall within the range of reasonable and principled outcomes.” People v Yost, 278 Mich App 341, 353 ; 749 NW2d 753 (2008).

2025“A trial court abuses its discretion when it selects an outcome that does not fall within the range of reasonable and principled outcomes.” People v Yost, 278 Mich App 341, 353 ; 749 NW2d 753 (2008).

2025Defendant relies on People v James, 184 Mich App 457 ; 458 NW2d 911 (1990), vacated on other grounds 347 Mich 988 (1991), to argue that the prosecutor’s waiting until the day of trial to attempt to arrange for a witness’s presence counsels against finding the witness unavailable.

2025Defendant relies on People v James, 184 Mich App 457 ; 458 NW2d 911 (1990), vacated on other grounds 347 Mich 988 (1991), to argue that the prosecutor’s waiting until the day of trial to attempt to arrange for a witness’s presence counsels against finding the witness unavailable.

2025After hearing arguments on the matter, the court declined to give the instruction, explaining that, “based on what the Court has heard through both the OIC as well as the indications and comments of the witness herself, I think the People did make reasonable efforts.” -4- A defendant has the right to “a properly instructed jury.” People v Mills, 450 Mich 61, 80 ; 537 NW2d 909 (1995).

2025After hearing arguments on the matter, the court declined to give the instruction, explaining that, “based on what the Court has heard through both the OIC as well as the indications and comments of the witness herself, I think the People did make reasonable efforts.” -4- A defendant has the right to “a properly instructed jury.” People v Mills, 450 Mich 61, 80 ; 537 NW2d 909 (1995).

2024In resolving defendant’s challenge to the trial court’s ruling on that matter, “[w]e review de novo as a matter of law whether the police entrapped a defendant, but the trial court’s specific findings of fact are reviewed for clear error.” People v Vansickle, 303 Mich App 111, 114 ; 842 NW2d 289 (2013).

2024In resolving defendant’s challenge to the trial court’s ruling on that matter, “[w]e review de novo as a matter of law whether the police entrapped a defendant, but the trial court’s specific findings of fact are reviewed for clear error.” People v Vansickle, 303 Mich App 111, 114 ; 842 NW2d 289 (2013).

2024See People v Eccles, 260 Mich App 379, 391 ; 677 NW2d 76 (2004). 2 CJI2d 5.12 was the predecessor to M Crim JI 5.12. -3- Even assuming that defendant is correct and the trial court should have given the missing- witness instruction, its refusal to do so constitutes reversible error only if “after an examination of the entire cause, it shall affirmatively appear that it is more probable than not that the error was outcome determinative.” People v Cornell, 466 Mich 335, 364 ; 646 NW2d 127 (2002) (quotation marks and citation omitted).

2024See People v Eccles, 260 Mich App 379, 391 ; 677 NW2d 76 (2004). 2 CJI2d 5.12 was the predecessor to M Crim JI 5.12. -3- Even assuming that defendant is correct and the trial court should have given the missing- witness instruction, its refusal to do so constitutes reversible error only if “after an examination of the entire cause, it shall affirmatively appear that it is more probable than not that the error was outcome determinative.” People v Cornell, 466 Mich 335, 364 ; 646 NW2d 127 (2002) (quotation marks and citation omitted).

2022See Snider, 239 Mich App at 422 ; People v Cross, 202 Mich App 138, 148 ; 508 NW2d 144 (1993).

2022See Snider, 239 Mich App at 422 ; People v Cross, 202 Mich App 138, 148 ; 508 NW2d 144 (1993).

2022A court abuses its discretion when its decision is “outside the range of principled outcomes.” Watkins, 491 Mich at 467 .

2020The count of assault with intent to murder and one count of felonious assault were dismissed before trial. 3 People v Ginther, 390 Mich 436 ; 212 NW2d 922 (1973). 4 People v Allen, unpublished order of the Court of Appeals, entered June 24, 2019 (Docket No. 342999). -2- At the Ginther hearing, Dr. Craig Hicks, an emergency medicine physician at McLaren Hospital, testified that he had treated the victim for her injuries related to the assault.

2020The count of assault with intent to murder and one count of felonious assault were dismissed before trial. 3 People v Ginther, 390 Mich 436 ; 212 NW2d 922 (1973). 4 People v Allen, unpublished order of the Court of Appeals, entered June 24, 2019 (Docket No. 342999). -2- At the Ginther hearing, Dr. Craig Hicks, an emergency medicine physician at McLaren Hospital, testified that he had treated the victim for her injuries related to the assault.

2020“Uttering and publishing consists of three elements: (1) knowledge on the part of the defendant that the instrument was false; (2) an intent to defraud; and (3) presentation of the forged instrument for payment.” People v Hawkins, 245 Mich App 439, 457 ; 628 NW2d 105 (2001) (citation and internal quotation marks omitted).

2020“Uttering and publishing consists of three elements: (1) knowledge on the part of the defendant that the instrument was false; (2) an intent to defraud; and (3) presentation of the forged instrument for payment.” People v Hawkins, 245 Mich App 439, 457 ; 628 NW2d 105 (2001) (citation and internal quotation marks omitted).