Summary
reversing the Court of Appeals' determination that the defendant was entitled to a new trial notwithstanding his failure to satisfy his burden at a Ginther hearing
Summary of this case from People v. FrisonOpinion
SC: 156161 COA: 331594
10-19-2018
PEOPLE of the State of Michigan, Plaintiff-Appellant/ Cross-Appellee, v. Wilbert Joseph MCKEEVER, Defendant-Appellee/ Cross-Appellant.
Order
On October 10, 2018, the Court heard oral argument on the application for leave to appeal the May 25, 2017 judgment of the Court of Appeals and the application for leave to appeal as cross-appellant. On order of the Court, the applications are again considered. MCR 7.305(H)(1). In lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals and we REINSTATE the defendant’s conviction and sentence. Assuming, without deciding, that either the trial court or trial defense counsel was responsible for the failure of a witness to appear on the defendant’s behalf, it was still incumbent upon the defendant, as the appellant, to establish at the evidentiary hearing that the witness would provide materially favorable testimony on retrial. See People v. Pickens , 446 Mich. 298, 327, 521 N.W.2d 797 (1994) ; People v. Ginther , 390 Mich. 436, 442-443, 212 N.W.2d 922 (1973). The defendant failed to produce the witness or otherwise establish that her anticipated testimony would be materially favorable.