Endorsed witness; MCL 767.40a; Ineffective assistance of counsel; Failure to request a hearing to determine due diligence; Hearsay statements; MRE 803(3) & (4); Right to confrontation

The court held that the “trial court did not commit plain error by failing to conduct a due diligence hearing regarding the prosecution’s efforts to produce” one of the victims (S) “as a witness at trial. Any error by defense counsel by not objecting to the absence of [S] was effectively harmless given its occurrence in a bench trial and the presumption a trial court knows the applicable law regarding a missing witness instruction, which the record bore out” here. Also, defendant was “not entitled to a new trial or a due diligence hearing. Any error by the trial court in admitting [S’s] statements under MRE 803(3) or the nurse’s statements under MRE 803(4) was harmless. There was no plain error affecting defendant’s substantial rights to confront the witnesses against him.” He was convicted of AWIM and felony-firearm. Defendant contended, among other things, that “the trial court failed to conduct a hearing to determine whether the prosecution exercised due diligence to produce [S], an endorsed witness, denying him a fair trial and depriving him of due process.” The court found that even “presuming there was a violation of MCL 767.40a for the failure to hold a due diligence hearing to determine the prosecution’s efforts in producing [S], defendant ‘must show that he was prejudiced by noncompliance with the statute’ to warrant a reversal.” He could not show any prejudice. On the contrary, he “was the beneficiary of the missing witness instruction when the prosecution failed to produce” S. Defendant’s claim that S’s “testimony would be favorable to his defense is mere speculation and unsupported by any evidence.” He did not show “that the failure to hold a due diligence hearing concerning the prosecution’s efforts in producing [S] affected his bench trial verdict.” Further, contrary to his claim, “the trial court did not base his convictions solely on the testimony of” the other victim (H), defendant, and defendant’s son and codefendant, “but also on the video and audio exhibits, as well as the ballistics evidence.” The record evidence supported the trial court’s verdict. “Defendant was not denied a fair trial or deprived of due process under” the federal or state constitution. Also, he was not denied the effective assistance of counsel. The court held that “even assuming defense counsel’s performance fell below an objective standard of reasonableness when he did not request a due diligence hearing, defendant has not shown he was prejudiced or a different result would have been reasonably probable.” Affirmed.