Admission of preliminary exam testimony; Unavailable witness; MRE 804(b)(1) & (a)(5); Due diligence; Distinguishing People v Bean & People v Dye; Relevance; Evidence of defendant’s statements to a witness; Evidence of defendant’s custodial status; Ineffective assistance of counsel; Failure to make a futile objection; Sufficiency of the evidence for a jury instruction on the lesser included offense of second-degree murder

The court held that the trial court did not err in ruling that a witness (B) was unavailable and admitting her preliminary exam testimony at trial. It also did not err in admitting portions of B’s testimony about defendant’s statements to her and about his custodial status, and his trial counsel was not ineffective for failing to make a futile objection. Finally, there was no error in giving a second-degree murder jury instruction because a rational view of the evidence supported it. Defendant was convicted of second-degree murder and felony-firearm. B was his girlfriend when the crimes were committed. He argued “the prosecution did not make diligent, good-faith efforts to produce” B at trial, relying on Bean and Dye. But the court found those cases factually distinguishable. There was no evidence here “that the prosecution had information that [B] had intended to leave this state or that she had, in fact, left” the state. While a detective (F) “acknowledged that he did not stay in close touch with [B] before trial, he testified that [B] assured him that she would appear and testify at defendant’s trial. [F] testified that he initially did a workup to find any information that would aid him in locating [B]. He went to five addresses, called four phone numbers associated with [B], and” tried unsuccessfully to contact her through her email and social media accounts. F also found B’s mother’s address. “He contacted the leasing office and spoke to neighbors, who denied seeing [B].” In addition, F monitored B’s “Bridge Card activity from the three months before trial to see if he could ‘catch a pattern of grocery stores or gas stations’ frequented by” B but was unsuccessful. Unlike in Bean, there was no evidence that F had information as to B’s possible or likely whereabouts “and simply failed to follow leads that could have led him to locate her. He also spoke to the prosecutor regarding a detainer, which the trial court issued shortly before trial.” The court rejected defendant’s suggestion that “due diligence was not exercised because [F] did not check hospitals and homeless shelters or contact any government assistance programs in his attempt to locate” B. The court also found defendant’s “statements to [B] about ‘having his back’ were relevant because they” showed his attempt to influence B’s “willingness to testify against him and were suggestive of his consciousness of guilt.” Affirmed.