Order                                                                                        Michigan Supreme Court
                                                                                                   Lansing, Michigan

  April 5, 2017                                                                                        Stephen J. Markman,
                                                                                                                 Chief Justice

  154784                                                                                               Robert P. Young, Jr.
                                                                                                            Brian K. Zahra
                                                                                                    Bridget M. McCormack
                                                                                                          David F. Viviano
                                                                                                      Richard H. Bernstein
  PEOPLE OF THE STATE OF MICHIGAN,                                                                          Joan L. Larsen,
            Plaintiff-Appellee,                                                                                       Justices

  v                                                                 SC: 154784
                                                                    COA: 333084
                                                                    Wayne CC: 16-001056-FC
  BRANDON OSCARLEROY BENSON,
          Defendant-Appellant.

  _________________________________________/

         On order of the Court, the application for leave to appeal the October 12, 2016
  order of the Court of Appeals is considered. Pursuant to MCR 7.305(H)(1), in lieu of
  granting leave to appeal, we VACATE that part of the Court of Appeals order holding
  that the investigative subpoena testimony of Bre’Ascia Dixon and Sierra Lattimore was
  properly admitted under MRE 801, and we REMAND this case to that court for
  reconsideration of the issue. The Court of Appeals erred in its analysis of MRE
  801(d)(1)(A) by considering whether the witnesses were unavailable, rather than whether
  their prior statements were inconsistent. The unavailability of a witness is relevant for
  admission under MRE 804, not MRE 801. In all other respects, leave to appeal is
  DENIED.

        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 5, 2017
           t0329
                                                                               Clerk
