-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED November 29, 2016

v No. 327623
Oakland Circuit Court SAMUEL DREALL CASTON, LC No. 2014-252958-FH

Defendant-Appellant.

Before: M. J. K ELLY , P.J., and M URRAY and B ORRELLO , JJ.

P ER C URIAM

.

Defendant appeals as of right h is bench trial convictions of f elonious assault, MCL 750.82, domestic violence, MCL 750.812, and possession of marij uana, second offense, MCL 333.7403(2)(d); MCL 333.7413(2). Defendant was sentenced, as a fourth habitual offender, MCL 769.12, to 2 to 15 years’ impri sonment for the felonious as sault conviction, 163 days’ jail for the possession of marijuana conviction, and 93 days’ jail f or the domestic violence
conviction. For the reasons set forth in this opinion, we affi rm the convictions and sentences of
defendant.

I. BACKGROUND

This appeal arises from an incident which occurred between def endant and his then girlfriend, LaShawna Hubbard, at an apartment complex in Oak Pa rk, Michigan. At 9:00 p.m. that evening, a resident of the apartment complex heard an alte rcation between a man and a woman outside of her apartment, p rompting the resident to telep hone the police. When Oak Park Public Safety officer Anthony Carignan first arrived at the apa rtment complex he heard Hubbard screaming, “[h]e just assaulted me.” Hubbard was seen running from a silver Mercedes, and as the vehicle attempted to drive out of the parking lot of the ap artment building, Officer Carignan positioned his police vehicle at a slant so the Mercedes could not leave the parking lot. When ordered by Officer Carignan to keep his hands on the steering w heel of the Mercedes, defendant screamed out, “[m]y hands are right here mother f****** n****.” 1 Describing defendant as “belligerent and argumentative a nd yelling[,]” Officer Carignanalso noted that Hubbard was

1 A DVD from Officer Carignan’s patrol car was admitted into evi dence and played during trial.-2- “very upset and distraught and screaming.” When Oak Park Publi c Safety officer Donald Hoffman arrived at the apartment complex, Hubbard told him that she and defendant had had an altercation, and according to Off icer Hoffman, Hubbard gave the following recitation of the
relevant events:

She told me that [defendant] came over to [his] sister’s house – his sister’s house to pick her up. [Defendant] was carrying a baseball bat with him, a miniature baseball bat and she didn’t want to go with him. Ins tead of getting assaulted she decided that she would just go with [defendant] a nd she told me that she got in the car, they drove around to one of the side parkin g lots, he hit her with an open-hand, so slapped her in the face, and then after t hat she told me that she – he specifically told her he was going in to the parking l ot to fight her. So, they pulled into a parking lot nearby where he struck her again with a closed fist this time and then he open-hand – slapped her again actually, t here was a couple times where he hit her and then he got out of the car, exited t he car with the baseball in – bat in hand, and when he went up to swing at her she said that she lifted her right leg up like to kind of block the strike of the baseball bat and he hit
her twice with the baseball bat in her right leg. Then [defend ant] – I guess he saw the police lights and sirens and threw the baseball bat. She e xited the car and he got in the car and took off and that’s when she ran into the fi eld and that’s when I
arrived.

Officers retrieved Hubbard’s ce llphone that defendant had take n from her as well as the baseball bat defendant allegedly wielded during the assault. P hotographs of Hubbard and more specifically, her knee, were admitted into evidence at trial wi th testimony from Officer Hoffman noting that Hubbard incurred “sli ght bruising” to her knee but that he did not see any “obvious injuries[ ]” to her face. Officer Hoffman also recalled that H ubbard told him that she was scared
for her life and that she had not wanted to go anywhere with de fendant.

When Officer Carignan performed a consent search of defendant’ s vehicle following defendant’s arrest, the search yielded two bags of suspected ma rijuana which subsequent testing confirmed to be marijuana. Defendant told Officer Carignan tha t he and Hubbard had argued, but defendant denied assaulting Hubbard. In a later statement to police, defendant reiterated that he did not assault Hubbard, denied possessing the baseball bat, but he did admit to possessing marijuana. At the close of the prosecution’s case, the prosecu tor requested that the trial court admit Hubbard’s preliminary examination testimony pursuant to M RE 804(b)(1) and MRE 804(b)(6) as Hubbard was an unavailable witness as contemplated by MRE 804(a)(5). Following defense counsel’s responding arguments, the trial cou rt ultimately determined that Hubbard’s preliminary examination testimony would be admitted i nto evidence.

Following the close of proofs, the trial court issued a ruling from the bench holding, in pertinent part:

The Court has –recognizes and finds beyond a reasonable doubt that the
victim and the defendant had a d ating relationship or a romanti c relationship. And, the Court finds from the testimony of the victim that ther e was a fight going on between the two of them over a phone, over suspected cheatin g, and that the-3- defendant did put the victim in fear. She felt threatened. Wh ether he actually pulled her into the car or she walked on her own, it was clear that the defendant’s sister did not want them to remain. And, it was clear from the victim’s testimony
that she didn’t want to have a scene out front of the defendant ’s sister’s home, so she did get into the car. And, then the Court did find based o n the testimony of the victim and the officers that the defendant did pull over in to a different spot, got out of the car, and with a b at intentionally struck the vic tim two times in the legs. And, yes the injury wasn’ t terribly serious but it could have been if the police had not been called.

* * *

The Court also finds very – it weighs heavily on the Court tha t the victim, the testimony was, that she was slightly over five feet. The C ourt takes judicial notice that the defendant is larger than five feet. So, she wa s in a vulnerable position to feel threatened by the size of the defendant and kn owing that he had a
bat. . . .

Defendant was sentenced as indicated supra

. This appeal then ensued.

II. ANALYSIS

On appeal, defendant first argue s that trial court erred in ad mitting the preliminary examination testimony of the complainant pursuant to MRE 804(b) (1). He further argues that as a direct result thereof, his Sixth Amendment right to confront the witnesses against him at trial
was violated.

“To preserve an evidentiary i ssue for review, a party opposing the admission of evidence must object at trial and specify the same ground for objection that it asserts on appeal

. ” People v

Aldrich , 246 Mich App 101, 113; 631 NW2d 67 (2001) (citations omitted) ; MRE 103(a)(1). “[A]n objection based on one ground at trial is insufficient to preserve an appellate attack based on a different ground.” People v Bulmer , 256 Mich App 33, 35; 662 NW2d 117 (2003) (citation omitted). Notably, defense counsel did not challenge at trial the admission of Hubbard’s preliminary examination testimony on the grounds that the prose cution had not met the due diligence threshold of MRE 804(a)(5) in demonstrating that Hubb ard was an unavailable
witness. Defense counsel also did not assert that defendant wa s being denied his constitutional right to confront the witnesses ag ainst him at trial. Accordin gly, these issues were not properly preserved for appellate review.

Where defendant challenges on ap peal that the prosecution did not meet the threshold showing of due diligence of MRE 804(a)(5) in establishing that Hubbard was an unavailable witness, this unpreserved claim of evidentiary e rror is reviewe d for plain error affecting a defendant’s substantial rights. People v Chelmicki , 305 Mich App 58, 62; 850 NW2d 612 (2014); Bulmer , 256 Mich App at 35, citing People v Carines , 460 Mich 750, 763, 774; 597 NW2d 130 (1999).-4- Turning first to the issue of whether Hubbard was an unavailab le witness, MRE 804 governs situations involving unava ilable witnesses, as well as providing the ex ception to the hearsay rule on that basis. 2 MRE 804 provides, in pertinent part, as follows:

(a) Definition of Unavailability . “Unavailability as a witness” includes
situations in whic h the declarant—

* * *

(5) is absent from the hearing and the proponent of a statemen t has been unable to procure the declarant’s attendance (or in the case of a hear say exception under subdivision (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or other reasonable means, and in a criminal case, due diligence is shown

.

(b) Hearsay Exceptions . The following are not excluded by the hearsay rule if
the declarant is unavailable as a witness:

(1) Former Testimony . Testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the t estimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by dire ct, cross, or redirect examination. [Emphasis added.]

The issue presented by defendant on appeal is whether the pros ecution made a showing of due diligence in attempting to procure Hubbard’s attendance at defendant’s trial. MRE 804(a)(5). In evaluating whether a witness is unavailable as c ontemplated by MRE 804(a)(5), the guiding standard is “that th e prosecution must have made a diligent good-faith effort in its attempt to locate a witness for trial.” People v Bean , 457 Mich 677, 684; 580 NW2d 390 (1998).

The test is one of reasonablene ss and depends on the facts and circumstances of each case, i.e., whether diligent good-faith e fforts were made to procure the testimony, not whether more stringent efforts would have produced it. Barber v Page , 390 US 719, 724-725; 88 S Ct 1318; 20 L Ed 2d 255 (1968); [ People v Dye , 431 Mich 58, 67, 83; 427 NW2d 501 (1988)]. The trial court’s determination will not be disturbed on appeal unless a clear ab use of discretion is
shown. Dye at 83, 93, (A RCHER

, J., concurring); People v McIntosh , 389 Mich 82, 87; 204 NW2d 135 (1973); People v Starr , 89 Mich App 342, 345; 280 NW2d 519 (1979). [ Bean , 457 Mich at 684.]

2 Pursuant to MRE 801, “ ‘hearsay’ is a statement, other than th e one made by the declarant while testifying at the trial or hearing, offered in evidence t o prove the truth of the matter asserted.” Hearsay may not be admitted at trial except as prov ided by the Michigan Rules of
Evidence. MRE 802.-5- When trial first commenced, the assistant prosecutor informed the trial court that she was expecting Hubbard’s attendance, however she later stated her in tention to seek introduction of Hubbard’s preliminary examination testimony if Hubbard did not appear. When it became obvious that Hubbard would not app ear to testify at trial, the assistant prosecutor then informed the trial court that “[a] breakdown in communication” had taken place between the police, the prosecution and Hubbard. The assi stant prosecutor argued that this breakdown occurred because defendant made several telephone calls to Hubbard from jail. T he prosecutor also stated that she planned to introduce the preliminary examination transcript und er MRE 804(b)(1) and (6). At that point in the trial, the judge asked the prosecutor to call Hubbard on the telephone and to tell Hubbard that her appearance in c ourt was required. After the p rosecutor and defense counsel presented opening statements, Detective Devon Benson informed t he trial court that he was unable to reach Hubbard by way of telephone, in part, because h er voicemail box was full. The trial court gave the prosecution authority for a material witne ss warrant if Hubbard was uncooperative, and police detectiv es were dispatched to Hubbard ’s residence and her place of employment to look for her, the e fforts of which were unsuccess ful. The trial court ultimately determined that the prosecution and the police exercised due di ligence in attempting to secure Hubbard’s attendance at trial, and allowed the admission of the preliminary examination transcript.

The record reveals that Detective Benson met with Hubbard well in advance of trial, and personally served her with a subpoena. While the prosecutor re presented to the trial court that Hubbard cancelled a March 19, 2015 meeting with the prosecutor and the police, expressing misgivings about testifying at tri al after defendant apologized to her, the record is also clear that the prosecutor informed Hubbard that her attendance in court to testify would be required, and that Hubbard agreed to reschedule a subsequent meeting. Detect ive Benson attempted to contact Hubbard several times after the March 19, 2015 meeting was canc elled, to no avail, and his attempts to receive a call back were not successful because he could not leave a voicemail on Hubbard’s voicemail box that was full. Of particular note is t he prosecutor’s representation to the trial court, and Detective Benson’s testimony, that at no p oint did Hubbard inform either the prosecutor or Detective Benson that she did not intend to appea r at trial. The record also reflects that on the day of trial, the tr ial court cooperated with the p rosecutor and the police to undertake every effort to secure Hubbard’s presence at trial by contactin g her by way of telephone, having police officers visit her place of employment and her residence , and visiting Danielle Caston’s apartment, where Hubbard had been staying on the evening of the assault on November 17,

2014.

On the issue of whether the prosecution exercised due diligence in securing the testimony of Hubbard, this Court reviews the record to determine whether good-faith, diligent efforts were undertaken to secure Hubbard’s testimony at trial. On appeal, defendant argues that our Supreme Court’s decisions in Dye and Bean control our decision on this issue. 3

3 In his brief on appeal, defendant points to the Michigan Supre me Court’s decisions in Dye and

Bean as support for his position, where the Court concluded in both cases that the prosecution had not exercised due diligence in an effort to secure the pres ence of prosecution witnesses at-6- We concur with defendant that we are bound by the decisions in Dye and Bean , however, we find the basis of both decisions to be significantly differe nt from the facts presented to the
trial court in this case. Unlike in Dye , there is nothing in this record to suggest that the police and prosecution’s efforts were belated, incomplete, or deficien t. Perhaps the most important distinguishing factor between Hubb ard’s absence at trial and th at of the witnesses in Dye and

Bean , is that up until the day of trial, the prosecution and the po lice were both under the reasonable belief that Hubbard planned to attend and testify at this trial. While Hubbard had expressed a reluctance to testify, she had also agreed to resch edule a meeting with the police and the prosecution to discuss her t estimony at defendant’s upcomin g trial, and as of the date of trial, Detective Benson and the prosecut or anticipated her attendance. Accordingly, it would have been premature for additional steps to be undertaken in advance of trial where Hubbard was expected to appear at trial. Indeed, the facts of this case co nfirm that the trial court properly concluded that the prosecution and police had acted with due di ligence to secure Hubbard’s attendance at trial, and her pre liminary examination testimony was correctly admitted pursuant to

trial. In Dye , 431 Mich at 67 (opinion by L EVIN
, J.) the Court emphasized that the determination of whether there was “a diligent, good-faith effort to produce missing witnesses” is a consideration that will depend on the specific facts of each ca se. The prosecution in Dye was aware that three witnesses had left Michigan following the defe ndant’s mistrial, and that they had reason to go into hiding. Id . at 76. In Dye , the Michigan Supreme Court concluded that the prosecution’s attempts to locate the witnesses out of state fol lowing the defendant’s first trial amounted to “[s]ubsequent belated and incomplete efforts . . . .” Id. Specifically, the Court concluded in that case that the prosecution did not act in a ti mely fashion to ascertain the whereabouts of the three witnesses, and relied on local police authorities in three different states to help locate them, but was “tardy” in providing sufficient in formation to the local police, and did not follow up as necessary. Id . Notably, the prosecution had waited two months following the defendant’s mistrial to attempt to locate the witnesses, ev en knowing that the date of the
defendant’s retrial was rapidly approaching. Id . at 67.

In Bean , 457 Mich at 689, 680-681, one of the prosecution witnesses wa s not produced at trial, and his preliminary examination testimony was admitted. The police in Bean had contacted the witness’s grandmother, whos e telephone was disconnected, bu t had not made further efforts to locate the grandmother, such as ascertaining the address of her home and visiting there. Id . at 687, 689. While becoming aware that the witness and his mother had moved to the Washington, D.C., area, the police did not c ontact any agencies in Detroit or Washington, D.C. in an effort to find the witness’s mother in Detroit or Washington, D.C. Id . at 686, 687, 689. Instead, the police repeatedly returned to the witness’s vacant home in Detr oit. Id . at 689. The police did not attempt to ascertain the address of the witness’s mother, did n ot check with the postal service to determine if a change of address had been filed, and did not ch eck with the Michigan Department of Corrections to see if the witness was incarcerate d. Id . at 687-688. The Bean Court compared the efforts made by police in that case to those of the police in Dye , noting that “significant effort” was made to locate the witnesses in Dye in foreign jurisdictions, as well as the extensive efforts that were taken locally, in Michigan, to ascertain the whereabouts of the
witnesses. Id

.-7- MRE 804(b)(1). Accordingly, on these facts, we cannot conclude as our Supreme Court did in Dye and Bean that the trial court abused its discretion in finding that the prosecution used due diligence to secure Hubbard’s testimony.

In response to defendant’s argum ent that his Sixth Amendment r ight to confront the witnesses against him was violat ed, the prosecution also argues that Hubbard’s preliminary examination testimony was properly admitted where defendant eng aged in conduct that resulted in Hubbard being unavailable for trial. The exception to the h earsay rule that the prosecution is referring to is MRE 804(b)(6), whi ch provides, in pertinent par t, as follows:

(b) Hearsay Exceptions . The following are not excluded by the hearsay rule if
the declarant is unavailable as a witness:

(6) Statement by Declarant Made Unavailable by Opponent . A statement offered against a party that has engage d in or encouraged wrongdoing th at was intended to, and did, procure the unavailab ility of the declarant as a w itness.

In People v Burns , 494 Mich 104, 110; 832 NW2d 738 (2013) our Supreme Court observed that “[a] defendant can forfeit his right to exclude h earsay by his own wrongdoing.”
The rule that emanated from Burns is commonly referred to as “the forfeiture-by-wrongdoing rule[ ]” and is ‘based on the maxim that ‘no one should be perm itted to take advantage of his wrong.’” Id . at 111 (footnote omitted), quoting Giles v California , 554 US 353, 359; 128 S Ct 2678; 171 L Ed 2d 488 (2008).

The forfeiture doctrine not only provides a basis for an excep tion to the rule against hearsay; it is also an exception to a defendant’s constitutional confrontation right. Insofar a s it applies to the Sixth Amendm ent, however, the forfeiture doctrine requires that the defendant must have speci fically intended that his wrongdoing would render the w itness unavailable to testify.

* * *

To admit evidence under MRE 804(b)(6), the prosecution must sh ow by a preponderance of the evidence that: (1) the defendant engaged i n or encouraged wrongdoing; (2) the wrongdoing was intended to procure the decl arant’s unavailability; and (3) the wrongdoi ng did procure the unavaila bility. [ Burns , 494 Mich at 111, 115 (footnotes a nd citation omitted).]

The Burns Court cited with approval this Court’s holding in People v Jones , 270 Mich App 208, 217; 714 NW2d 362 (2006), that for MRE 804(b)(6) to apply, the prosecution must establish that the defendant acted with specific intent, and that the defendan t “ ‘engaged in or encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant as a
witness.’ ” Burns , 494 Mich at 113 (footnote omitted), quoting MRE 804(b)(6). T he preponderance of the evidence standard will apply, and the tria l court acts as the fact-finder in determining questions of fact that are preliminary to determini ng the admissibility of evidence.

Burns , 494 Mich at 115, 117 n 39; MRE 104(a).-8- In this case, the prosecution presented taped telephone conver sations between defendant and the complaining witness while defendant was lodged in jail awaiting trial. Having reviewed each of the conversations that the trial court heard, we conclu de that these conversations prove, by a preponderance of the eviden ce that defendant “ ‘engaged in or encouraged wrongdoing that

was intended to, and did, procure the unavailability of the declarant as a witness.’ ” Burns , 494 Mich at 113. Specifically, the conversations reveal that defen dant threatened Hubbard’s life on more than one occasion, threatenin g to kill her at her place of employment, and stating that he did not care who saw him kill her. In one conversation, defend ant, in an angry, aggressive and confrontational tone also quest ioned Hubbard about why she test ified against him at the preliminary examination. In the last telephone call that the t rial court heard, defendant’s demeanor is noticeably different. During the telephone call he encourages Hubbard to “stay away” from the court proceedings, and subsequently inquires of Hubbard “did they subpoena you?” At one point, defendant is heard stating, “don’t worry a bout it then, just don’t show up.” Later in the call, defendant tells Hubbard, “be careful” and “r emember this date” referring to the March 23, 2015 trial date, confirming that Hubbard knows the da te after she recites it back to him verbally. Defendant also informs Hubbard that “we need to get me . . . out [of] this,” referring to the trial court proceedings, and tells her, “lots of guys, [if] their girls don’t show up,
it’s over with.”

Finally, to the extent that defendant asserts that his Sixth A mendment right to confront the witnesses against him was vi olated when Hubbard’s prelimina ry examination testimony was admitted, the Burns Court clearly stated that the forfeiture doctrine is an except ion to the rule against hearsay, and likewise is an exception “to a defendant’s constitutional confrontation right.” Burns , 494 Mich at 111. In this case, the record clearly supports t he trial court’s
conclusion that defendant intende d that his threatening and man ipulative calls to Hubbard would render her unavailable to testify at trial. Id . at 111, citing Giles , 554 US at 359-360. Accordingly, defendant is not entitled to relief.

Affirmed.

/s/ Michael J. Kelly /s/ Christopher M. Murray /s/ Stephen L. Borrello