State v. Marks

*982Sweeney, J.

The trial court granted Michael Marks’ motion for a new trial following his conviction for first degree theft. The court justified this discretionary ruling on two grounds. First, after talking to the jury informally following the trial, it concluded the jury was confused over whether a missing witness instruction applied to an absent State witness or an absent defense witness. The court had given Mr. Marks’ proposed missing witness instruction. Second, a witness called by the State did not appear as scheduled. The State then sought a day-long continuance to find the witness. Mr.…