Whether the victim was unavailable under MRE 804(a)(3); Admission of the victim’s preliminary examination (PE) testimony; People v. Duncan; The Confrontation Clause; “Plain error” review; People v. Carines; MRE 804(b)(1); People v. Garland; Crawford v. Washington; People v. Williams; MRE 804; People v. Meredith; Ohio v. Roberts; Self-defense jury instruction; People v. Heflin; MCL 780.972(2); People v. Hoskins; Right to present a defense; People v. Kurr; People v. Kowalski; Prosecutorial misconduct; Improperly shifting the burden of proof; People v. Fields; People v. McGhee; People v. Meissner; Right to remain silent; Abandoned issue; People v. Anderson; Assault with intent to do great bodily harm less than murder (AWIGBH)

The court held that since the victim was unavailable, and because the defendant had “both the ‘opportunity’ and a ‘similar motive’ to develop” her testimony, her PE testimony was admissible under MRE 804. Also, the Confrontation Clause was not violated and defendant did not show plain error. Further, the trial court did not abuse its discretion in determining that the self-defense jury instruction was inapplicable to the facts. Finally, since the evidence did not support a self-defense theory, and because there was no “instructional error,” he was not denied the constitutional right to present a defense. Defendant was convicted of unlawful imprisonment and AWIGBH. The case arose out of a visit between him and the victim (who had a child together), where the victim ended up being stabbed. At the time of trial, she testified that “she had no recall of the events. Thus, the trial court deemed her unavailable to testify under MRE 804” and allowed the prosecution to admit as evidence and play for the jury a DVD of her PE testimony. Defendant argued that the trial court erred in finding that the victim was unavailable under MRE 804 and in admitting her PE testimony. The prosecutor, defense counsel, and the trial court questioned the victim and she “repeatedly maintained that she could not remember the incident or her previous testimony.” Further, she testified that “she stopped taking prescription medicine, which apparently caused her to not remember the events surrounding the incident” or the PE. The victim had “a lack of memory of the subject matter of the declarant’s statement,” which constitutes unavailability under MRE 804(a)(3). The court found defendant’s citation to Williams unpersuasive. “MRE 804 and binding caselaw do not require that the prosecutor try to refresh the witness’s memory with her previous testimony. The witness repeatedly maintained that she could not remember the events or her previous testimony.” Thus, she was unavailable under MRE 804(a)(3). Defendant had an opportunity to cross-examine her at his PE, and defense counsel did so. There was a similar motive to develop her testimony. Further, the Confrontation Clause was satisfied. The court found defendant’s argument premised on Roberts, which was overruled by Crawford, unpersuasive. Affirmed.