PEOPLE OF MI V ROBERT LEE THOMAS MCGRUDER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 3, 2009
Plaintiff-Appellant,
v
No. 278130
Wayne Circuit Court
LC No. 07-005368-01
ROBERT LEE THOMAS MCGRUDER,
Defendant-Appellee.
Before: Donofrio, P.J., and K. F. Kelly and Beckering, JJ.
PER CURIAM.
The prosecutor appeals as of right from an order of dismissal entered after the trial court
denied the prosecution’s motion for a continuance. We reverse and remand for further
proceedings.
Defendant was charged with possession with intent to deliver marijuana, MCL
333.7401(2)(d)(iii), carrying a concealed weapon, MCL 750.227, felon in possession of a
firearm, MCL 750.224f, and possession of a firearm during the commission of a felony, MCL
750.227b. On the day scheduled for trial, May 10, 2007, the prosecutor requested a continuance.
He informed the trial court that at 4:00 p.m. the day before trial, he learned that Officer Thomas
Rogers, the sole witness at defendant’s preliminary examination, had been shot in the knee while
chasing a criminal suspect on April 29, 2007. According to the prosecutor, Rogers’ kneecap was
severely damaged and medical reports indicated that it could take six to eight weeks to recover.
The prosecutor noted that a subpoena had been sent to the officer, and he had thought everyone
would be present at trial.
The trial court stated that it believed the prosecutor’s representation that he was unaware
of the situation until 4:00 p.m. the prior day, but stated:
However, this really did happen 11 days or 12 days ago, whatever, and
there was no reason why you couldn’t have -- they couldn’t have called you.
So, first of all, I don’t think there is good cause because this should have
been brought up earlier. And, second of all, I’m not allowed to adjourn any trial
on the day of trial no matter what, according to our chief judge.
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The trial court granted the prosecutor’s request to ask the presiding judge for an adjournment.1
The presiding judge stated that he lacked authority to grant the request, but that if he had been
the trial judge, he would have granted the prosecutor’s request.2 The parties returned to the trial
court and advised the court of the presiding judge’s ruling. The trial court entered an order
denying the motion for adjournment “for the reason that adjournments are not allowed [on] the
day of trial.” The presiding judge also entered an order denying the motion to adjourn. The trial
court then granted the prosecutor’s motion to dismiss the case without prejudice.
This Court reviews for an abuse of discretion a trial court’s decision whether to grant a
continuance. People v Jackson, 467 Mich 272, 276; 650 NW2d 665 (2002). “A motion or
stipulation for a continuance must be based on good cause.” Id., citing MCR 2.503(B)(1). MCR
2.503(C) governs where, as here, the adjournment is sought on the basis of unavailability of a
witness. MCR 2.503(C)(2) states that “[a]n 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.”
The prosecution argues that the trial court disregarded the court rule standards by holding
that an adjournment on the day of trial was prohibited, rather than discretionary. According to
the prosecution, the court’s failure to exercise its discretion was an abuse of discretion. The
prosecution further contends that the requirements for granting a continuance were established
because the officer’s testimony was material and more diligent efforts to produce the officer
would not have succeeded. The prosecution also asserts that the perceived tardiness of the
request does not diminish the good cause that was shown.
Defendant agrees that the witness’s testimony was material, but contends that the
prosecution did not establish that diligent efforts were made to produce the officer for trial.
According to defendant, although the prosecutor did not become aware of the situation until late
in the afternoon of the day before trial, “efforts could and should have been made. . .
immediately to have the officer, the only witness in the trial, appear.”
We agree with the prosecution that the trial court’s belief that it was prohibited from
granting an adjournment on the day of trial requires reversal. The trial court was required to
make its decision based on the standards in the court rules. The court’s failure to exercise its
1
Although reference is made in the transcripts and defendant’s brief to the chief judge, the
matter was brought before Presiding Judge Edward Ewell, Jr.
2
Third Circuit LCR 6.100(C) states, in part: “No trial of a criminal case shall be adjourned
except by the presiding judge for good cause shown upon motion of the party seeking the
adjournment or by the Presiding Judge for good cause.” Local Administrative Order 2007-02,
which was in effect at the time the trial court addressed this issue, states, in part: “The Presiding
Judge shall consider a motion for an adjournment on the day of the trial only after the assigned
judge has approved the adjournment.” AO 2007-02, ¶ 21 (emphasis added). These rules appear
to contradict each other, or at least leave some confusion, as to whether the assigned judge has
the authority to initially approve an adjournment. We need not address this conflict, however, as
we find a failure to exercise discretion by whichever judge was responsible for the adjournment
decision.
-2-
discretion, when properly asked to do so, is itself an abuse of discretion. See People v Stafford,
434 Mich 125, 134 n 4; 450 NW2d 559 (1990).
Upholding the denial of the continuance because the prosecutor did not make sufficient
efforts to produce the officer in this circumstance would be contrary to Jackson, supra. In that
case, a lay witness was served with a subpoena and appeared to be cooperative, but failed to
appear at court on the day of trial. His mother informed the police that she had not had contact
with him since he left the state two weeks before trial. The trial court reasoned that the
prosecution had not exercised due diligence because it had not made any effort to produce the
witness other than serving the subpoena. The Supreme Court disagreed:
The police here successfully served the subpoena. [The witness] 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. [Id., at 279.]
In the present case, the officer had been subpoenaed, and the prosecutor reasonably
expected his cooperation and attendance at trial, which was thwarted when the officer was shot
and injured in the line of duty. Defendant does not state what efforts to produce the officer
should have been made, but as stated in Jackson, supra, the prosecution is not required to
monitor subpoenaed witnesses whose cooperation is not in question to ensure their attendance at
trial.
For these reasons, we reverse the trial court’s order denying the prosecutor’s motion for
an adjournment and dismissing the case, and remand for further proceedings.
Reversed and remanded. We do not retain jurisdiction.
/s/ Pat M. Donofrio
/s/ Kirsten Frank Kelly
/s/ Jane M. Beckering
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