Right to present a defense; Claim that a witness was rendered unavailable by threats of prosecution; MRE 804(a); People v Lopez; Exercise of a witness’s right to remain silent; People v Meredith; Intimidation; People v Reed (Unpub); Comparing People v Bassage; Protective measures when a potential witness “is intimately connected with the criminal episode”; People v Poma; Waiver; Ineffective assistance of counsel; Failure to argue a statement was substantively admissible under MRE 804(b)(3); People v Washington; Trial court ex parte communications with the jury; MCR 2.513(B); People v France; Administrative matters; Sentencing; Reasonableness & proportionality challenge to a within-guidelines sentence; Scoring of OVs 3 & 19

The court rejected defendant’s claim that the prosecution rendered a potential witness (F) unavailable by threatening to charge him with perjury and lying to an officer, and that this deprived defendant of his right to present a defense. It also held that defense counsel was not ineffective for failing to argue that F’s statement to a defense investigator was substantively admissible under MRE 804(b)(3). Further, defendant was not entitled to a new trial based on his claim that the trial court engaged in ex parte communications with the jury. Finally, it found that his within-guidelines sentence for second-degree murder was reasonable and proportionate, and that OVs 3 and 19 were properly scored. He was also convicted of felony-firearm, and was sentenced to 25 to 50 years for the murder conviction. Related to F, defendant asserted that reversible error occurred because the prosecution “relied on intimidation tactics that occurred in” Reed. But the court found that the factual circumstances here did “not reflect a calculated effort and threats by the prosecutor to prevent [F] from testifying at trial and to obtain the admission of his preliminary examination testimony instead.” The prosecution had that testimony “and it did not disclose that the victim had or brandished a gun during the altercation with defendant in the parking lot. However, the Thursday before a Monday trial date, the prosecutor received from defense counsel [F’s] statement now reflecting that the victim had a weapon.” As a result, “the prosecutor expressed concern to the trial court that [F] was changing his testimony, could possibly be subjecting himself to criminal liability for perjury and lying to a police officer, and should meet with an attorney to advise him.” The court concluded that the “prosecutor’s actions were consistent with Michigan caselaw.” It held that “the trial court and the prosecutor complied with the appropriate procedure when apprised that a witness may commit perjury.” As to defendant’s ineffective assistance claim, the only factor favoring the admission of F’s statement to the investigator as substantive evidence was that it was voluntarily given. The court also concluded that “the trial court did not engage in ex parte communications with a deliberating jury” and that its communication “only pertained to administrative matters.” Affirmed.