Opinion
No. 121189 (72).
June 18, 2002.
COA: 225855, Calhoun CC: 84-002098-FC
On order of the Court, the application for leave to appeal from the February 26, 2002 decision of the Court of Appeals is considered and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we VACATE in part the judgment of the Court of Appeals and REMAND this case to the Calhoun Circuit Court. That court shall conduct an evidentiary hearing on the defendant's claim that material and exculpatory evidence was destroyed in bad faith by the prosecutor. The question of whether evidence was destroyed in bad faith is an issue to be decided by the trial judge. The Court of Appeals erred in directing that the issue be submitted to a jury. The hearing shall be conducted within 60 days of the issuance of this order. The trial court shall promptly file its findings of fact with the Clerk of this Court. See Arizona v Youngblood, 488 U.S. 51; 102 L.Ed.2d 281; reh den 488 U.S. 1051 (1989). The application for leave to appeal and the motion to strike otherwise remain under consideration.
We retain jurisdiction.
Kelly, J., would deny leave to appeal.