PEOPLE OF MI V WILLIAM WHITEAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
December 18, 1998
Oakland Circuit Court
LC No. 97-152990 FH
Before: Doctoroff, P.J., and Sawyer and Fitzgerald, JJ.
Defendant was charged with larceny in a building, MCL 750.360; MSA 28.592. The
prosecution appeals as of right the trial court’s order of dismissal. We reverse the trial court’s order of
dismissal and remand for further proceedings.
On the date set for trial in this case, before the seating of a jury, the prosecution informed the
court that the complainant was unavailable to testify due to a mental or physical illness or infirmity, as
defined in MRE 804(a)(4), and asked that it be allowed to introduce the complainant’s preliminary
examination testimony at trial under MRE 804(b)(1). The court found that the complainant’s
preliminary examination testimony was not admissible because the prosecution did not meet its burden
of showing the unavailability of the complainant as required under MRE 804(b)(1) and because the
prosecution did not exercise due diligence in attempting to obtain the complainant’s presence at trial.
On defendant’s motion, the court dismissed the case without prejudice.
The prosecution first argues that the court erred in requiring due diligence by the prosecution in
attempting to procure the complainant’s presence at trial. We agree. Under MRE 804(a)(4), when a
witness is unavailable due to mental or physical illness, a showing of due diligence in attempting to
produce the witness is not required. People v Gross, 123 Mich App 467, 470; 332 NW2d 576
The prosecution also argues that the court erred in concluding, without conducting an
evidentiary hearing, that the prosecution had failed to meet its burden of proving the unavailability of the
complainant, and, therefore, finding that the complainant’s preliminary examination testimony was
Pursuant to MRE 804(a)(4), a declarant is “unavailable” if he or she “is unable to be present or
to testify at the hearing because of death or then existing physical or mental illness or infirmity.” On the
date set for trial, the prosecutor indicated that the complainant was unavailable to testify at that time
because of illness. A detective testified that the manager of the nursing home where the complainant
lived indicated that the complainant was unable to testify as a result of her mental condition. Contrary to
the trial court’s determination, the prosecution sufficiently called into question the complainant’s
availability to testify and, under these circumstances, the trial court erred by failing to hold an evidentiary
hearing to determine whether, in fact, the complainant was unavailable to testify.
The prosecution argues next that the court erred in dismissing its case based on the absence of
the complaining witness. The prosecution contends that it had sufficient evidence aside from the
testimony of the complainant to prove its case, and that in dismissing its case without regard for whether
the prosecution wished to proceed, the court infringed on the prosecutor’s charging decision, thereby
violating the separation of powers doctrine.
A trial court does not have authority over discharge of the prosecutor’s duties except to the
extent that the prosecutor’s actions are unconstitutional, illegal, or ultra vires. People v Morrow, 214
Mich App 158, 161; 542 NW2d 324 (1995). The record in this case does not suggest that the trial
court determined that the prosecution’s actions were unconstitutional, illegal, or ultra vires. Moreover,
the court did not entertain any arguments with regard to whether the absence of the complainant
warranted dismissal, nor did it state that without the complainant’s testimony there was no longer
probable cause to prosecute defendant. Under these circumstances, the trial court improperly
dismissed the case without ascertaining whether the prosecution wished to proceed without the
testimony of the complainant.
Reversed and remanded.
/s/ Martin M. Doctoroff
/s/ David H. Sawyer
/s/ E. Thomas Fitzgerald