Opinion
Docket No. 107989.
Summary Disposition February 13, 1998.
Court of Appeals No. 190024.
In lieu of granting leave to appeal, the judgments of the Court of Appeals and Kalamazoo Circuit Court are reversed, and the case is remanded to the Kalamazoo Circuit Court for a new trial. MCR 7.302(F)(1). In light of the available information regarding a jurors failure to disclose important information, as recounted in the September 10, 1997, order of the Kalamazoo Circuit Court, the Supreme Court is persuaded that justice requires a new trial, If, however, the Kalamazoo Prosecuting Attorney is persuaded that the ends of justice would be better served, he may notify the Kalamazoo Circuit Court within twenty-one days of the date of this order that he has granted immunity to the juror and will subpoena the juror to testify at a hearing for reconsideration of the defendant's motion for new trial. In that event, our order of a new trial is set aside, and the Kalamazoo Circuit Court is instead to reconsider the defendant's motion for new trial. In either event, the question of bond is to be decided by the Kalamazoo Circuit Court. Jurisdiction is not retained.
I dissent from the Court's order that requires the prosecutor to grant the subpoenaed juror immunity or be forced to retry this case. Separation of powers is implicated. Prudence dictates avoiding the appearance of interference. I would deny the application for leave to appeal from the Court of Appeals affirmance on appeal and remand the order denying the motion for a new trial to the Court of Appeals for plenary review.
WEAVER, J.
I join in the statement of Justice BOYLE.
Reconsideration denied March 24, 1998.
BOYLE, J.
I would grant reconsideration and, on reconsideration, would grant leave to appeal.