Admission of an “unavailable” witness’s preliminary exam testimony; MRE 804(b) & 804(a)(4); Comparing People v Duncan & People v Haywood (Unpub); Right of confrontation; People v Garland; Other acts evidence; MCL 768.27b; People v Berklund; DNA evidence; Ineffective assistance of counsel; Prosecutorial error

The court held that the trial court properly ruled that victim-MM “was ‘unavailable’ within the meaning of” MRE 804(a)(4) and admitted MM’s preliminary exam testimony at trial under MRE 804(b). Further, other acts evidence was admissible under MCL 768.27b and DNA evidence was also admissible. And the court rejected defendant-Command’s ineffective assistance of counsel and prosecutorial error claims. He was convicted of CSC III. The court concluded that the record supported “the trial court’s factual determination that MM was unavailable because of a ‘then existing physical or mental illness or infirmity’ as stated in MRE 804(a)(4).” The court agreed “that MM’s illness or infirmity was both mental and physical and” rendered her unable to testify. “Command’s assertion that MM’s unavailability likely confused the jury and compromised its ability to make an informed decision is speculative and has no record support.” He further asserted “the trial court abused its discretion by allowing MM’s preliminary examination testimony to be read aloud and that doing so violated his right of confrontation. Because the trial court did not clearly err by finding MM unavailable under MRE 804(a)(4),” this argument failed. The record showed “that Command’s previous attorney was able to cross-examine MM at length during the preliminary examination before she suffered the medical episode that ended the proceeding that day. Defense counsel was also able to finish his cross-examination of MM on the second day of the preliminary examination and indicated that he had no further questions.” The court also rejected his challenges to the admission of other acts evidence involving his former girlfriend, A. “Command’s forced entry into her home and use of a weapon constitutes domestic violence under MCL 768.27b(6).” Further, she was “a ‘family or household member’ under the statute because she was previously in a dating relationship with Command and they have a child in common.” In addition, A's “testimony that Command entered her home without consent and grabbed a knife before forcing her to engage in sexual intercourse lent credibility to MM’s claim that he forced her to engage in sexual intercourse.” The court concluded that A’s “testimony was not merely marginally probative; rather, it was relevant to the very issue the jury was tasked with deciding—whether MM’s allegation was true.” Affirmed.