Court: Michigan Court of Appeals ( Unpublished Opinion )
Hearsay; Principle that hearsay is generally inadmissible; MRE 802; Unavailable witness exception; MRE 804(b)(6); People v. Jones; Whether the prosecution exercised due diligence in attempting to procure the witness’s attendance; MRE 804(a)(5); People v. Bean; People v. Dye; Right of confrontation; U.S. Const. amend. VI; Const. 1963, art. 1, § 20
The court held that the trial court did not err in admitting the victim’s out-of-court statements to police, and that defendant was not denied his right of confrontation. He was convicted of domestic assault against his former girlfriend and sentenced as a fourth-offense habitual offender to 5 to 15 years in prison. During the trial, the trial court granted the prosecution’s motion to admit the victim’s statements to police when she failed to appear. It found that defendant had encouraged the victim not to testify, and that the prosecution used due diligence to procure her attendance at trial. On appeal, the court rejected his argument that the trial court erred by admitting the victim’s out-of-court statements. It distinguished this case from Bean and Dye, which involved the prosecution’s insufficient efforts to find critical witnesses, noting that, here, the prosecution did not need to undertake extensive efforts to locate the victim because it knew where she lived and successfully served a subpoena on her three weeks before trial. As such, the trial court did not abuse its discretion by determining that the prosecution used due diligence to attempt to secure her attendance at trial and that she was unavailable when she did not appear. The court also rejected defendant's claim that the trial court erred by concluding that his wrongdoing caused the victim’s unavailability at trial, noting that he tried to call her 52 times over 8 days while he was in jail, reached her 6 times, talked about exchanging money and the victim not going to court, and how she could avoid service of a subpoena. She subsequently “did not appear at trial. Thus, the trial court did not abuse its discretion by attributing [her] failure to appear at trial to” the phone calls. Moreover, his efforts to keep her out of court did not distinguish between the types of court appearances. Finally, the court rejected his contention that the admission of her statements violated his right of confrontation. “By engaging in wrongdoing intended to make the [victim] unavailable for trial, [he] forfeited his right to confront her.” Affirmed.