PEOPLE OF MI V EDWARD D WASHINGTON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 20, 2002
Plaintiff-Appellant,
V
No. 238049
Wayne Circuit Court
LC No. 01-008438
EDWARD D. WASHINGTON,
Defendant-Appellee.
Before: Griffin, P.J., and White and Murray, JJ.
PER CURIAM.
The prosecution appeals as of right the trial court’s order dismissing the charges of
possession of a firearm by a felon, MCL 750.224f, felonious assault, MCL 750.82, malicious
destruction of property over $1,000 but less than $20,000, MCL 750.377a(1)(b)(i), and
possession of a firearm during the commission of a felony, MCL 750.227b,1 because the
complainant (defendant’s brother-in-law) and the complainant’s mother failed to appear for trial
despite having been subpoenaed. We reverse and remand.
At the preliminary examination, the complainant, Dwight Tyson, testified that on July 9,
2001, defendant was arguing with Tyson’s wife (defendant’s sister) and subsequently put a gun
to Tyson’s head and threatened to shoot him. Defendant then allegedly used the handgun to
strike and break several windows of the complainant’s car. Tyson was estranged from his wife
at the time, and she was living with defendant and his mother at the location where the alleged
incident occurred. The complainant’s mother, Isabella Tyson, testified that she was the owner of
the car in question. The parties stipulated that the damage to the car exceeded $1,000.
Defendant was bound over for trial, but on the date scheduled for the trial, neither Dwight
Tyson nor Isabella Tyson appeared, even though both had been subpoenaed. The prosecutor
asked that a continuance be granted and that bench warrants be issued for these two witnesses or,
in the alternative, that the court declare the two witnesses unavailable and permit the prosecution
to read their prior recorded testimony from the preliminary examination into the record in lieu of
live testimony. In response, defense counsel objected and requested that the trial court dismiss
1
The prosecutor also gave notice that defendant was subject to penalty as a fourth habitual
offender.
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the charges. The court granted the defense motion, noting that the witnesses had not appeared as
required by the subpoenas. The court subsequently entered an order dismissing the case without
prejudice.
On appeal, the prosecution, citing People v Anterio Williams, 244 Mich App 249; 625
NW2d 132 (2001), argues that the trial court abused its discretion in refusing the prosecutor’s
requests for either a continuance to obtain a bench warrant to bring the subpoenaed witnesses to
court or, alternatively, to use the preliminary examination transcript of their testimony and go
forward with the trial. We agree.
In Williams, supra at 254-255, we stated:
Here, despite the victim’s failure to appear on the trial date, the prosecutor
arguably had a viable basis to proceed by showing that the victim was an
unavailable witness. MRE 804(a)(5); MCL 768.26; MSA 28.1049. Rather than
dismiss the charges, the trial court should have proceeded to make a
determination whether the prosecution had shown due diligence in attempting to
procure the victim’s attendance at trial. MRE 804(a)(5); People v Bean, 457
Mich 677, 684; 580 NW2d 390 (1998). If due diligence were shown, the victim’s
testimony from the preliminary examination or the evidentiary hearing could have
been utilized at trial if defendant “had an opportunity and similar motive to
develop the testimony by direct, cross, or redirect examination.” MRE 804(b)(1).
Because the trial court erred in dismissing the charges against defendant, and as a
result failed to undertake the appropriate analysis to determine whether the
victim’s former testimony could be utilized in her stead, we must reverse.
In the present case, we also conclude that the trial court abused its discretion in
dismissing the case without undertaking the appropriate analysis of the circumstances for the
nonappearance of the witnesses.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Richard Allen Griffin
/s/ Christopher M. Murray
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