Ineffective assistance of counsel; Failure to object to the admission of the video & transcript of defendant’s investigative subpoena interview; Hearsay; MRE 801(c); MRE 802; Unavailable declarant; MRE 804(b)(1); Principle that a witness who invokes his or her Fifth Amendment right not to testify is considered unavailable; People v. Meredith; People v. Farquharso

Holding that defendant’s claim of ineffective assistance of counsel based on counsel’s failure to object to the admission of the video and transcript of his investigative subpoena interview was meritless, the court affirmed. He correctly asserted that the video and transcript of his interview was not admissible pursuant to MRE 804(b)(1). He invoked his Fifth Amendment right not to testify. Thus, he was “unavailable” for purposes of MRE 804. And he testified pursuant to an investigative subpoena. The court has held that “testimony given at an investigative subpoena hearing qualifies as testimony given as a witness at another hearing of the same or a different proceeding . . . under MRE 804(b)(1).” But only if it has been "determined that ‘the party against whom the testimony is now offered . . . had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination,’ would the testimony be admissible pursuant to MRE 804(b)(1).” The court made no such determination; thus, that rule was inapplicable. The testimony in this case was offered against defendant, and he did not have “an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination.” The only one who questioned him “during the investigative subpoena interview was the prosecution, and the prosecution was the party admitting the interview into evidence at trial against defendant.” Moreover, he “had not yet been charged with any crime in connection to the events at issue. As a result, the investigative subpoena testimony would not be admissible under MRE 804(b)(1).” However, his “testimony was still otherwise admissible because his statements were not hearsay. MRE 801(d)(2)(A) provides that statements offered against an opposing party that are the opposing party’s own statements are, by definition, not hearsay.” Here, the prosecution admitted the video and transcript "into evidence at trial against defendant to establish that he perjured himself.” Thus, the statements he “made in the video are by definition not hearsay and were thus otherwise admissible.” Moreover, his “statements were admissible because the prosecution was not admitting the statements to prove the truth of the matter asserted.” The prosecution admitted his statements “in which he claimed that he did not shoot or touch a gun at the time of shooting not to prove the truth of what defendant asserted, but, rather, to prove that defendant had lied under oath.” Thus, they did not qualify as hearsay. Because his “investigative subpoena interview was admissible, any objection from defense counsel would have been futile or meritless.”