Unavailable victim; Due diligence; MRE 804(b)(1) & (a)(5); People v Bean; Admission of preliminary exam testimony; Great weight of the evidence; People v Lacalamita

The court held that the prosecution exercised due diligence to locate the unavailable victim, that admission of the victim’s preliminary exam testimony was proper, and that the bench-trial verdict was not against the great weight of the evidence. Defendant was convicted of unarmed robbery and receiving and concealing stolen property arising from a daytime street robbery outside a jewelry store. The victim did not appear for trial, and the trial court admitted her preliminary exam testimony after finding due diligence by the prosecution. On appeal, the court stated former testimony is admissible where the witness is unavailable and was subject to cross-examination. The test for unavailability under MRE 804 requires “a diligent good-faith effort” and is “one of reasonableness,” not whether more stringent efforts could have succeeded. The record showed officers and the prosecutor attempted service at the last known address, mailed subpoena materials, called repeatedly, checked jail, hospital, and medical examiner sources, searched law enforcement and Secretary of State databases, involved a victim advocate, sent multiple letters, and promptly investigated a possible alternate address when it surfaced. The court distinguished Bean because there the prosecution failed to follow a known lead while here there was no known location beyond the last verified address. It found these efforts supported the trial court’s due diligence finding, and because defense counsel cross-examined the victim at the preliminary exam, confrontation was satisfied. Turning to the great-weight claim, the court explained a verdict is against the great weight of the evidence only where evidence “preponderates so heavily against the verdict” that allowing it to stand would be a miscarriage of justice, and that circumstantial evidence may be sufficient and is often strong. Even aside from the victim’s testimony, witnesses described the suspect as a black male in black clothing on a bicycle, police located defendant within minutes and a short distance away, and an officer found the victim’s stolen cross in defendant’s pocket. The victim accepted it when returned, supporting the inference defendant was the perpetrator. Affirmed.