Opinion
368741
11-29-2023
People of Michigan v. Danielle Foster
LC No. 21-020280-FH
Michael J. Kelly Presiding Judge, Stephen L. Borrello, Brock A. Swartzle Judges
ORDER
The motion for immediate consideration is GRANTED. The motion for stay pending appeal is DENIED.
Borrello, J., Defendant filed an application for interlocutory appeal, together with a motion for immediate consideration and a motion for a stay of proceedings on November 27, 2023 contesting the admissibility of a 9-1-1- call in her upcoming trial. Although the adverse ruling occurred in August and defendant has failed to explain why she took no action until November 27, less than a week before trial was scheduled, MCR 6.126 clearly states in relevant part: "Where the court makes a decision on the admissibility of evidence.and the defendant files an interlocutory application for leave to appeal seeking to reverse that decision, the court shall stay proceedings pending resolution of the application in the Court of Appeals, unless the court makes findings that the evidence is clearly cumulative or that the appeal is frivolous..." The trial court's stated reason for denial of the stay was that it was untimely, hence, the trial court erred in not applying MCR 6.126. I would therefore GRANT the motion for immediate consideration and GRANT the motion for STAY in accord with MCR 6.126. I would reserve the issue of whether defendant or her counsel, or both, should be held accountable for what appears at this juncture to have been dilatory conduct in waiting until a week before trial to file their appeal.