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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UNPUBLISHED 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. KELLY, P.J., and MURRAY and BORRELLO, JJ. 

PER CURIAM. 

 Defendant appeals as of right his bench trial convictions of felonious assault, MCL 

750.82, domestic violence, MCL 750.812, and possession of marijuana, 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’ imprisonment for the felonious assault conviction, 163 days’ jail 

for the possession of marijuana conviction, and 93 days’ jail for the domestic violence 

conviction. For the reasons set forth in this opinion, we affirm the convictions and sentences of 

defendant. 

I. BACKGROUND 

 This appeal arises from an incident which occurred between defendant and his then 

girlfriend, LaShawna Hubbard, at an apartment complex in Oak Park, Michigan. At 9:00 p.m. 

that evening, a resident of the apartment complex heard an altercation between a man and a 

woman outside of her apartment, prompting the resident to telephone the police. When Oak Park 

Public Safety officer Anthony Carignan first arrived at the apartment 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 apartment 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 wheel of the Mercedes, defendant 

screamed out, “[m]y hands are right here mother f****** n****.”1

 Describing defendant as 

“belligerent and argumentative and yelling[,]” Officer Carignan also noted that Hubbard was 

 

1

 A DVD from Officer Carignan’s patrol car was admitted into evidence and played during trial. 
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“very upset and distraught and screaming.” When Oak Park Public Safety officer Donald 

Hoffman arrived at the apartment complex, Hubbard told him that she and defendant had had an 

altercation, and according to Officer 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. Instead of getting 

assaulted she decided that she would just go with [defendant] and she told me that 

she got in the car, they drove around to one of the side parking lots, he hit her 

with an open-hand, so slapped her in the face, and then after that she told me that 

she – he specifically told her he was going in to the parking lot 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, there was a couple 

times where he hit her and then he got out of the car, exited the 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 [defendant] – I guess he saw 

the police lights and sirens and threw the baseball bat. She exited the car and he 

got in the car and took off and that’s when she ran into the field and that’s when I 

arrived. 

 Officers retrieved Hubbard’s cellphone that defendant had taken from her as well as the 

baseball bat defendant allegedly wielded during the assault. Photographs of Hubbard and more 

specifically, her knee, were admitted into evidence at trial with testimony from Officer Hoffman 

noting that Hubbard incurred “slight bruising” to her knee but that he did not see any “obvious 

injuries[ ]” to her face. Officer Hoffman also recalled that Hubbard told him that she was scared 

for her life and that she had not wanted to go anywhere with defendant. 

 When Officer Carignan performed a consent search of defendant’s vehicle following 

defendant’s arrest, the search yielded two bags of suspected marijuana which subsequent testing 

confirmed to be marijuana. Defendant told Officer Carignan that 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 prosecutor requested that the trial court 

admit Hubbard’s preliminary examination testimony pursuant to MRE 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 court ultimately determined that 

Hubbard’s preliminary examination testimony would be admitted into 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 dating relationship or a romantic relationship. 

And, the Court finds from the testimony of the victim that there was a fight going 

on between the two of them over a phone, over suspected cheating, and that the 
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defendant did put the victim in fear. She felt threatened. Whether 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 on the testimony of 

the victim and the officers that the defendant did pull over into a different spot, 

got out of the car, and with a bat intentionally struck the victim 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 that the victim, 

the testimony was, that she was slightly over five feet. The Court takes judicial 

notice that the defendant is larger than five feet. So, she was in a vulnerable 

position to feel threatened by the size of the defendant and knowing that he had a 

bat. . . . 

 Defendant was sentenced as indicated supra. This appeal then ensued. 

II. ANALYSIS 

 On appeal, defendant first argues that trial court erred in admitting 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 issue 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 prosecution had not met the due 

diligence threshold of MRE 804(a)(5) in demonstrating that Hubbard was an unavailable 

witness. Defense counsel also did not assert that defendant was being denied his constitutional 

right to confront the witnesses against him at trial. Accordingly, these issues were not properly 

preserved for appellate review. 

 Where defendant challenges on appeal 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 error is reviewed 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). 
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 Turning first to the issue of whether Hubbard was an unavailable witness, MRE 804 

governs situations involving unavailable witnesses, as well as providing the exception 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 which the declarant— 

* * * 

(5) is absent from the hearing and the proponent of a statement has been unable 

to procure the declarant’s attendance (or in the case of a hearsay 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 testimony 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 direct, cross, or 

redirect examination. [Emphasis added.] 

 The issue presented by defendant on appeal is whether the prosecution 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 contemplated by MRE 804(a)(5), 

the guiding standard is “that the 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 reasonableness and depends on the facts and

circumstances of each case, i.e., whether diligent good-faith efforts 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 abuse of discretion is 

shown. Dye at 83, 93, (ARCHER, 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.] 

 

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 Pursuant to MRE 801, “ ‘hearsay’ is a statement, other than the one made by the declarant 

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter 

asserted.” Hearsay may not be admitted at trial except as provided by the Michigan Rules of 

Evidence. MRE 802. 
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 When trial first commenced, the assistant prosecutor informed the trial court that she was 

expecting Hubbard’s attendance, however she later stated her intention to seek introduction of 

Hubbard’s preliminary examination testimony if Hubbard did not appear. When it became 

obvious that Hubbard would not appear 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 assistant prosecutor argued that this breakdown occurred because 

defendant made several telephone calls to Hubbard from jail. The prosecutor also stated that she 

planned to introduce the preliminary examination transcript under 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 court was required. After the prosecutor and defense counsel 

presented opening statements, Detective Devon Benson informed the trial court that he was 

unable to reach Hubbard by way of telephone, in part, because her voicemail box was full. The 

trial court gave the prosecution authority for a material witness warrant if Hubbard was 

uncooperative, and police detectives were dispatched to Hubbard’s residence and her place of 

employment to look for her, the efforts of which were unsuccessful. The trial court ultimately 

determined that the prosecution and the police exercised due diligence 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 represented to the trial court that 

Hubbard cancelled a March 19, 2015 meeting with the prosecutor and the police, expressing 

misgivings about testifying at trial 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. Detective Benson attempted to contact 

Hubbard several times after the March 19, 2015 meeting was cancelled, 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 the prosecutor’s representation to 

the trial court, and Detective Benson’s testimony, that at no point did Hubbard inform either the 

prosecutor or Detective Benson that she did not intend to appear at trial. The record also reflects 

that on the day of trial, the trial court cooperated with the prosecutor and the police to undertake 

every effort to secure Hubbard’s presence at trial by contacting 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 Supreme 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 presence of prosecution witnesses at 
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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 different 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 deficient. Perhaps the most important 

distinguishing factor between Hubbard’s absence at trial and that of the witnesses in Dye and 

Bean, is that up until the day of trial, the prosecution and the police 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 reschedule a meeting with the police and 

the prosecution to discuss her testimony at defendant’s upcoming trial, and as of the date of trial, 

Detective Benson and the prosecutor 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 confirm that the trial court properly 

concluded that the prosecution and police had acted with due diligence to secure Hubbard’s 

attendance at trial, and her preliminary examination testimony was correctly admitted pursuant to 

trial. In Dye, 431 Mich at 67 (opinion by LEVIN, 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 case. The prosecution in Dye was 

aware that three witnesses had left Michigan following the defendant’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 following 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 timely 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 information 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, even 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 was not produced at 

trial, and his preliminary examination testimony was admitted. The police in Bean had contacted 

the witness’s grandmother, whose telephone was disconnected, but 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 contact 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 Detroit. Id. at 689. The police did not 

attempt to ascertain the address of the witness’s mother, did not check with the postal service to 

determine if a change of address had been filed, and did not check with the Michigan 

Department of Corrections to see if the witness was incarcerated. 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. 
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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 argument that his Sixth Amendment right to confront the 

witnesses against him was violated, the prosecution also argues that Hubbard’s preliminary 

examination testimony was properly admitted where defendant engaged in conduct that resulted 

in Hubbard being unavailable for trial. The exception to the hearsay rule that the prosecution is 

referring to is MRE 804(b)(6), which provides, in pertinent part, 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 engaged in or encouraged wrongdoing that was intended 

to, and did, procure the unavailability of the declarant as a witness. 

 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 hearsay 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 permitted 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 exception to the 

rule against hearsay; it is also an exception to a defendant’s constitutional 

confrontation right. Insofar as it applies to the Sixth Amendment, however, the 

forfeiture doctrine requires that the defendant must have specifically intended that 

his wrongdoing would render the witness unavailable to testify. 

* * * 

 To admit evidence under MRE 804(b)(6), the prosecution must show by a 

preponderance of the evidence that: (1) the defendant engaged in or encouraged 

wrongdoing; (2) the wrongdoing was intended to procure the declarant’s 

unavailability; and (3) the wrongdoing did procure the unavailability. [Burns, 494 

Mich at 111, 115 (footnotes and 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 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 (footnote omitted), quoting MRE 804(b)(6). The 

preponderance of the evidence standard will apply, and the trial court acts as the fact-finder in 

determining questions of fact that are preliminary to determining the admissibility of evidence. 

Burns, 494 Mich at 115, 117 n 39; MRE 104(a). 
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 In this case, the prosecution presented taped telephone conversations 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 conclude that these conversations prove, 

by a preponderance of the evidence 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 defendant threatened Hubbard’s life on 

more than one occasion, threatening to kill her at her place of employment, and stating that he 

did not care who saw him kill her. In one conversation, defendant, in an angry, aggressive and 

confrontational tone also questioned Hubbard about why she testified against him at the 

preliminary examination. In the last telephone call that the trial 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 about it then, just don’t show up.” 

Later in the call, defendant tells Hubbard, “be careful” and “remember this date” referring to the 

March 23, 2015 trial date, confirming that Hubbard knows the date 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 Amendment right to confront 

the witnesses against him was violated when Hubbard’s preliminary examination testimony was 

admitted, the Burns Court clearly stated that the forfeiture doctrine is an exception 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 the trial court’s 

conclusion that defendant intended that his threatening and manipulative 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