Search warrants; “Probable cause”; MCL 780.653; People v Waclawski; Witness unavailability; Former testimony; MRE 804(b)(1); People v Bean; Ineffective assistance of counsel; Hearsay; MRE 801(d)(2)(E); People v Martin

The court held that the trial court properly denied defendant’s motions to suppress and properly admitted an unavailable witness’s preliminary-exam testimony. Further, he was not deprived of the effective assistance of counsel. He was convicted of first-degree premeditated murder, AWIM, carrying a dangerous weapon with unlawful intent, and felony-firearm arising from a fatal shooting outside a party store. The prosecution’s evidence included surveillance footage, social-media and phone-record evidence obtained by warrant, and the preliminary-exam testimony of witness-M. M described seeing the mother of defendant’s children (H) in a black Cadillac with an armed man shortly before the shooting. On appeal, the court held that the warrants for defendant’s Facebook, Instagram, and phone records were supported by probable cause because the detective independently corroborated the anonymous tips through surveillance footage, social-media review, and follow-up investigation, which created “a fair probability that evidence of a crime would be found” in them. It next held that defendant failed to show the affidavits contained false or reckless statements, noting the detective said only that the person in the video “resembled” defendant. The court also held that M was properly deemed unavailable because the prosecution exercised due diligence by locating him in Georgia, subpoenaing him, arranging travel, and continuing efforts after he absconded. It further held that admission of his former testimony did not violate confrontation rights because defendant had a prior opportunity and similar motive to cross-examine him. Finally, the court held that counsel was not ineffective because H’s statements to M were admissible under the co-conspirator rule, and the detective’s testimony about the anonymous tips did not introduce implied testimonial hearsay. Affirmed.