Sixth Amendment right of confrontation; Admission of preliminary exam testimony; Unavailable witness; MRE 804(a)(5); People v Bean; Due diligence; Motive in cross-examining at the preliminary exam; Ineffective assistance of counsel; Failure to communicate a plea offer; Remand for a Ginther hearing; Law Enforcement Information Network (LEIN)

The court held that defendant’s right of confrontation was not violated by the admission of the victim’s preliminary exam testimony. But it remanded to the trial court for a Ginther hearing as to his claim that defense counsel was ineffective for failing to communicate a plea offer. Defendant was convicted of mayhem, discharge of a firearm in a building, felony-firearm, FIP, felonious assault, and domestic violence arising from an incident between him and his mother (B). He challenged the admission of B’s preliminary exam testimony at trial. The record showed several people tried to locate B “to serve a subpoena in person, via phone and email, and even through other family members, on multiple occasions.” An investigator with the prosecutor’s office testified that he ran B’s “name through the LEIN and Secretary of State network to confirm her contact information and called the phone number listed on the police report” as well as emailed her, “but she never answered.” He went to her home three times “to try to serve her, but no one answered the door.” The court agreed with the trial court that the testimony showed due diligence was exercised in trying to obtain B as a trial witness. Further, admitting her preliminary exam testimony did not violate defendant’s right of confrontation “because defense counsel had the same motive when cross-examining” B at the preliminary exam as he would have had at trial. As to the ineffective assistance claim, the record reflected a factual dispute between defendant and defense counsel. It was unclear whether any plea offer was communicated to defendant before trial. Defense counsel’s explanation of what happened contradicted defendant’s but was “equally confusing.” The court noted that it seemed defendant “would have accepted a plea offer but it is not clear if one was communicated.”