Right to a speedy trial; Barker v Wingo factors; Admission of an “unavailable” witness’s preliminary exam testimony; MCL 768.26; MRE 804(b)(1); MRE 804(a)(5); Effect of the fact the witness later appeared; Hearsay; MRE 806; MRE 613; MRE 803(3); Ineffective assistance of counsel; Failure to make a meritless objection; Trial strategy

The court held that defendant did not establish plain error as to his speedy trial violation claim. Further, the trial court did not err in declaring a witness (S) unavailable and admitting her preliminary exam testimony. The court also rejected his hearsay challenges to the admission of several statements made by S, and his related ineffective assistance of counsel claim. Thus, it affirmed his convictions of felony murder, second-degree arson, mutilation of a human body, and torturing an animal. As to his speedy trial claim, the prosecution conceded that prejudice was presumed because the delay exceeded 18 months. Turning to the second Barker factor, “given the overwhelming record evidence indicating that the delay was caused by either COVID-19 or the defense, any minimal delay caused by the reassignment of the case from one judge to another is not sufficient to warrant weighing the reasons for the delay in favor of the defense.” The third factor also did not weigh in defendant’s favor. While he “raised other delay-related issues, he stated on the record at multiple hearings that he was waiving those challenges because he wanted to adjourn the matter for reasons related to one of his multiple lawyers’ failure to appear for trial and his withdrawal as counsel.” Finally, as to the fourth factor, the court held that he could not establish “he suffered prejudice to his defense.” He asserted “the delay caused the loss of [S’s] in-person testimony. Yet, . . . the prosecution expended considerable efforts to bring [S] to trial. And, although she was declared an unavailable witness on the second day of trial, she appeared on the third day” and the trial “court ordered that she be available to testify if the defense desired to call her as a witness. The defense ultimately chose not to do so.” As to her preliminary exam testimony, defendant contended “that due diligence must not have been exercised because [S] appeared on the third day of the trial.” But the court noted that this “did not render her available for trial on the day and time that she was compelled to appear.” And there was no indication “that she communicated to the prosecutor that she had unilaterally decided to arrive on the third day of trial instead of the second day.” As to her statements that defendant challenged as hearsay, the court held that they were admissible under MRE 806 and 613 or 803(3).