Order                                                                                         Michigan Supreme Court
                                                                                                    Lansing, Michigan

  April 6, 2018                                                                                         Stephen J. Markman,
                                                                                                                  Chief Justice

  154566                                                                                                     Brian K. Zahra
                                                                                                     Bridget M. McCormack
  PEOPLE OF THE STATE OF MICHIGAN,                                                                         David F. Viviano
                                                                                                       Richard H. Bernstein
            Plaintiff-Appellant,                                                                            Kurtis T. Wilder
                                                                                                      Elizabeth T. Clement,
  v                                                                  SC: 154566                                        Justices
                                                                     COA: 327208
                                                                     Saginaw CC: 14-040317-FC
  DEVAUN LAROY LOPEZ,
           Defendant-Appellee.

  _________________________________________/

          On January 11, 2018, the Court heard oral argument on the application for leave to
  appeal the August 18, 2016 judgment of the Court of Appeals. On order of the Court, the
  application is again considered. MCR 7.305(H)(1). In lieu of granting leave to appeal,
  we REVERSE the judgment of the Court of Appeals. We understand the Court of
  Appeals as having decided the case on evidentiary grounds. MRE 804(a) provides, in
  relevant part, that “[a] declarant is not unavailable as a witness if exemption, refusal,
  claim of lack of memory, inability, or absence is due to the procurement or wrongdoing
  of the proponent of a statement for the purpose of preventing the witness from attending
  or testifying.” (Emphasis added). In finding error requiring a new trial, the Court of
  Appeals determined that the trial court record established that the prosecutor’s conduct
  procured the unavailability of the witness and could not be justified. But that is a factual
  determination that should first be decided by the trial court, and it fails to address the text
  of the rule. The plain language of the exception to “unavailability” under MRE 804(a)
  mandates that the court consider whether the conduct of the proponent of the statement
  was for the purpose of causing the declarant to be unavailable. The trial court found that
  the witness was unavailable because he felt threatened by the prosecutor, but did not
  consider whether the prosecutor intended to cause the declarant to refuse to testify when
  engaging in that conduct. We therefore REMAND this case to the Saginaw Circuit Court
  for a determination of whether the witness was unavailable due to the prosecutor’s
  procurement or wrongdoing for the purpose of preventing the witness from attending or
  testifying, consistent with MRE 804(a). We express no opinion on any constitutional
  issues that the defendant may have argued.

         We do not retain jurisdiction.



                            I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                      foregoing is a true and complete copy of the order entered at the direction of the Court.
                            April 6, 2018
           p0404
                                                                                Clerk
