Admission of preliminary exam testimony; Witness unavailability; MRE 804(a)(4); “Emotional distress”; Cross-examination; Fair trial; Witness’s invocation of the right against self-incrimination; Directed verdict; Sufficient evidence of AWIGBH & AWIGBH by strangulation

The court found that the trial court erred by concluding the victim (J) was unavailable as a witness but defendant failed to show the error was outcome-determinative. He also was not “deprived of a fair trial or his constitutional right to confrontation.” Finally, the trial court did not err by denying his motion for directed verdict. He was convicted of AWIGBH and AWIGBH by strangulation. Defendant challenged “the trial court’s determination that [J] was an unavailable witness and the admission of” her preliminary exam testimony. He argued “that the trial court’s rulings deprived him of his right to confront the witness.” The trial court found that J’s “attempted invocation of the Fifth Amendment, her refusal to testify, and her obvious emotional distress satisfied MRE 804.” Thus, it “declared her an unavailable witness.” But there was “no evidence that [J] was actually unavailable at trial. The trial court found that [J] was in emotional distress, but explicitly stated that it did not believe that her distress rose to the level of mental infirmity or mental illness under MRE 804. While mental infirmity or mental illness may justify declaring a witness unavailable under MRE 804(a)(4), ‘emotional distress’ alone is not one of the criteria for a finding of unavailability. More importantly, [J] did not ultimately refuse to testify.” A comparison of her preliminary exam “testimony and her testimony at trial reveals that her testimony remained largely consistent.” Thus, the trial court erred by finding that J was unavailable as a witness. But defendant failed to show that the “events gave rise to a violation of his constitutional right to confrontation.” The court found that he “was not deprived of the opportunity to undermine the allegations against him, nor was he deprived of an opportunity to impeach” J’s credibility. It concluded that despite the trial court’s evidentiary error, given the testimony provided by J, “including defense counsel’s cross-examination of her, as well as the other, very substantial evidence of defendant’s guilt that was presented at trial and untainted by any such error, defendant has not shown that ‘it is more probable than not that the error was outcome-determinative.’” Thus, reversal was not required. He next argued “that he was denied a fair trial by [J’s] mistaken invocation of the Fifth Amendment right against self-incrimination.” The court found that “there was no evidence that the prosecution called [J] as a witness knowing that she would invoke the Fifth Amendment.” Also, her “invocation of the right did not deprive defendant’s right to cross-examine her, as [J] was thoroughly cross-examined by defense counsel. And although it is not a determining factor, we note that [J] did not have a valid claim of privilege pursuant to the Fifth Amendment. She erroneously claimed the privilege because she did not want to testify. The trial court informed [J] that she did not have the right to claim the privilege and must testify.” Thus, her “mistaken claim of privilege did not constitute evidentiary error, nor was defendant deprived of a fair trial or his constitutional right to confrontation.” Affirmed.