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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED March 24, 2016

v No. 324886 Wayne Circuit Court BRANDON WATERMAN, LC No. 14-007377-FC

Defendant-Appellant.

Before: K. F. K ELLY , P.J., and F ORT H OOD and B ORRELLO , JJ.

P ER C URIAM

.

A jury convicted defendant of two counts of assault with inten t to commit murder, MCL 750.83, carrying a dangerous weapon w ith unlawful intent, MCL 7 50.226, and possession of a firearm during the commission of a felony MCL 750.227b. The tr ial court sentenced defendant to concurrent prison terms of 100 to 240 months each for the as sault convictions, and 30 to 60 months for the carrying a dangerous weapon conviction, to be se rved consecutive to a two-year term of imprisonment for the felony-firearm conviction. Defend ant appeals as of right. For the
reasons set forth in th is opinion, we affirm.

Defendant was convicted of assaulting John Martines and Palar Maclin with a firearm in their Detroit neighborhood on May 5, 2014. The prosecutor pres ented evidence that defendant and his associate, Jose Quinones, summoned Martines from his ca r and confronted him about accusing the two men of being involved in a neighborhood robber y. Ultimately, defendant opened fire on Martines and Maclin as they were entering Martin es’ car, shattering the rear window. Defendant fired additional shots, and Maclin was shot in the hand before Martines managed to drive away. The defens e denied that defendant was t he shooter.

On appeal, defendant argues that the trial court abused its di scretion in finding that the prosecution exercised due diligen ce to secure Maclin’s presence at trial, which led to the improper use of Maclin’s prelim inary examination testimony. We disagree.

MRE 804(b)(1) permits a court to introduce a witness’s former testimony given at a prior hearing if the witness is unavailable for trial and the party a gainst whom the testimony is offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. A witness is unavailable to testify if the witnes s “is absent from the hearing and the proponent of a statement has been unable to procure the [wi tness’s] attendance . . . by process or other reasonable means, and in a criminal case, due diligenc e is shown.” MRE 804(a)(5). In-2- determining whether due diligence has been shown, a prosecutor’ s efforts to secure a witness must be considered in light of “the facts and circumstances of [the] case.” People v Bean , 457 Mich 677, 684; 580 NW2d 390 (1998). The test, being one of rea sonableness, is “whether diligent good-faith efforts were made to procure the testimony, not whether more stringent efforts would have produced it.” Id. ; see also People v James (After Remand) , 192 Mich App 568, 571; 481 NW2d 715 (1992). A trial court’s decision regard ing whether due diligence was exercised to produce a witness is reviewed for an abuse of disc retion. Bean

, 457 Mich at 684.
“A trial court abuses its discretion when its decision falls ou tside the range of reasonable and principled outcomes.” People v Duncan , 494 Mich 713, 722-723; 835 NW2d 399 (2013).

The record discloses that the prosecutor had been aware of Mac lin’s location throughout the proceedings. He successfully procured Maclin’s testimony f or defendant’s preliminary examination, which occurred less than two months before defenda nt’s trial. Maclin also testified at the related trial of defendant’s father only weeks before de fendant’s trial. For defendant’s trial, Maclin was personally served with a subpoena within two weeks of trial, accepted service of the subpoena, and signed a notice of receipt. The prosecuto r spoke to Maclin by phone less than a week before trial. The prosecutor also arranged for a c ab to transport both Maclin and
another witness to c ourt for trial.

The record supports the prosecutor’s declaration that he fully expected Maclin to come to court in compliance with the subpoena. When Maclin did not app ear, the prosecutor called her, using the same phone number that was active less than a week ea rlier, but the phone had been
disconnected. After the trial c ourt signed a witness detainer for Maclin, the prosecutor contacted a police lieutenant and a speci al operations officer, which res ulted in two separate units deploying people to search for Ma clin. The trial court found t hat “it’s clear she is trying to avoid coming to Court.” Due diligence is the attempt to do everythin g reasonable, not everything possible, to obtain the presence of the witness for trial. People v Cummings , 171 Mich App 577, 585; 430 NW2d 790 (1988). Under these circumstances, the trial court did not err in finding that the prosecutor made reasonable efforts to secure Maclin’s atten dance. Accordingly, the trial
court did not abuse its discretio n in finding that Maclin was u navailable and, therefore, permitting the use of her preliminary examination testimony.

Affirmed.

/s/ Kirsten Frank Kelly
/s/ Karen M. Fort Hood /s/ Stephen L. Borrello