                            STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    November 29, 2016
                 Plaintiff-Appellee,

v                                                                   No. 327623
                                                                    Oakland Circuit Court
SAMUEL DREALL CASTON,                                               LC No. 2014-252958-FH

                 Defendant-Appellant.


Before: M. J. KELLY, P.J., and MURRAY and BORRELLO, JJ.

PER CURIAM.

       Defendant appeals as of right his bench trial convictions of felonious assault, MCL
750.82, domestic violence, MCL 750.812, and possession of marijuana, second offense, MCL
333.7403(2)(d); MCL 333.7413(2). Defendant was sentenced, as a fourth habitual offender,
MCL 769.12, to 2 to 15 years’ imprisonment for the felonious assault conviction, 163 days’ jail
for the possession of marijuana conviction, and 93 days’ jail for the domestic violence
conviction. For the reasons set forth in this opinion, we affirm the convictions and sentences of
defendant.

                                        I. BACKGROUND

        This appeal arises from an incident which occurred between defendant and his then
girlfriend, LaShawna Hubbard, at an apartment complex in Oak Park, Michigan. At 9:00 p.m.
that evening, a resident of the apartment complex heard an altercation between a man and a
woman outside of her apartment, prompting the resident to telephone the police. When Oak Park
Public Safety officer Anthony Carignan first arrived at the apartment complex he heard Hubbard
screaming, “[h]e just assaulted me.” Hubbard was seen running from a silver Mercedes, and as
the vehicle attempted to drive out of the parking lot of the apartment building, Officer Carignan
positioned his police vehicle at a slant so the Mercedes could not leave the parking lot. When
ordered by Officer Carignan to keep his hands on the steering wheel of the Mercedes, defendant
screamed out, “[m]y hands are right here mother f****** n****.”1 Describing defendant as
“belligerent and argumentative and yelling[,]” Officer Carignan also noted that Hubbard was


1
    A DVD from Officer Carignan’s patrol car was admitted into evidence and played during trial.


                                                -1-
“very upset and distraught and screaming.” When Oak Park Public Safety officer Donald
Hoffman arrived at the apartment complex, Hubbard told him that she and defendant had had an
altercation, and according to Officer Hoffman, Hubbard gave the following recitation of the
relevant events:

               She told me that [defendant] came over to [his] sister’s house – his sister’s
       house to pick her up. [Defendant] was carrying a baseball bat with him, a
       miniature baseball bat and she didn’t want to go with him. Instead of getting
       assaulted she decided that she would just go with [defendant] and she told me that
       she got in the car, they drove around to one of the side parking lots, he hit her
       with an open-hand, so slapped her in the face, and then after that she told me that
       she – he specifically told her he was going in to the parking lot to fight her. So,
       they pulled into a parking lot nearby where he struck her again with a closed fist
       this time and then he open-hand – slapped her again actually, there was a couple
       times where he hit her and then he got out of the car, exited the car with the
       baseball in – bat in hand, and when he went up to swing at her she said that she
       lifted her right leg up like to kind of block the strike of the baseball bat and he hit
       her twice with the baseball bat in her right leg. Then [defendant] – I guess he saw
       the police lights and sirens and threw the baseball bat. She exited the car and he
       got in the car and took off and that’s when she ran into the field and that’s when I
       arrived.

        Officers retrieved Hubbard’s cellphone that defendant had taken from her as well as the
baseball bat defendant allegedly wielded during the assault. Photographs of Hubbard and more
specifically, her knee, were admitted into evidence at trial with testimony from Officer Hoffman
noting that Hubbard incurred “slight bruising” to her knee but that he did not see any “obvious
injuries[ ]” to her face. Officer Hoffman also recalled that Hubbard told him that she was scared
for her life and that she had not wanted to go anywhere with defendant.

       When Officer Carignan performed a consent search of defendant’s vehicle following
defendant’s arrest, the search yielded two bags of suspected marijuana which subsequent testing
confirmed to be marijuana. Defendant told Officer Carignan that he and Hubbard had argued,
but defendant denied assaulting Hubbard. In a later statement to police, defendant reiterated that
he did not assault Hubbard, denied possessing the baseball bat, but he did admit to possessing
marijuana. At the close of the prosecution’s case, the prosecutor requested that the trial court
admit Hubbard’s preliminary examination testimony pursuant to MRE 804(b)(1) and MRE
804(b)(6) as Hubbard was an unavailable witness as contemplated by MRE 804(a)(5).
Following defense counsel’s responding arguments, the trial court ultimately determined that
Hubbard’s preliminary examination testimony would be admitted into evidence.

       Following the close of proofs, the trial court issued a ruling from the bench holding, in
pertinent part:

              The Court has –recognizes and finds beyond a reasonable doubt that the
       victim and the defendant had a dating relationship or a romantic relationship.
       And, the Court finds from the testimony of the victim that there was a fight going
       on between the two of them over a phone, over suspected cheating, and that the

                                                -2-
       defendant did put the victim in fear. She felt threatened. Whether he actually
       pulled her into the car or she walked on her own, it was clear that the defendant’s
       sister did not want them to remain. And, it was clear from the victim’s testimony
       that she didn’t want to have a scene out front of the defendant’s sister’s home, so
       she did get into the car. And, then the Court did find based on the testimony of
       the victim and the officers that the defendant did pull over into a different spot,
       got out of the car, and with a bat intentionally struck the victim two times in the
       legs. And, yes the injury wasn’t terribly serious but it could have been if the
       police had not been called.

                                              * * *

                  The Court also finds very – it weighs heavily on the Court that the victim,
       the testimony was, that she was slightly over five feet. The Court takes judicial
       notice that the defendant is larger than five feet. So, she was in a vulnerable
       position to feel threatened by the size of the defendant and knowing that he had a
       bat. . . .

       Defendant was sentenced as indicated supra. This appeal then ensued.

                                         II. ANALYSIS

        On appeal, defendant first argues that trial court erred in admitting the preliminary
examination testimony of the complainant pursuant to MRE 804(b)(1). He further argues that as
a direct result thereof, his Sixth Amendment right to confront the witnesses against him at trial
was violated.

        “To preserve an evidentiary issue for review, a party opposing the admission of evidence
must object at trial and specify the same ground for objection that it asserts on appeal.” People v
Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001) (citations omitted); MRE 103(a)(1).
“[A]n objection based on one ground at trial is insufficient to preserve an appellate attack based
on a different ground.” People v Bulmer, 256 Mich App 33, 35; 662 NW2d 117 (2003) (citation
omitted). Notably, defense counsel did not challenge at trial the admission of Hubbard’s
preliminary examination testimony on the grounds that the prosecution had not met the due
diligence threshold of MRE 804(a)(5) in demonstrating that Hubbard was an unavailable
witness. Defense counsel also did not assert that defendant was being denied his constitutional
right to confront the witnesses against him at trial. Accordingly, these issues were not properly
preserved for appellate review.

       Where defendant challenges on appeal that the prosecution did not meet the threshold
showing of due diligence of MRE 804(a)(5) in establishing that Hubbard was an unavailable
witness, this unpreserved claim of evidentiary error is reviewed for plain error affecting a
defendant’s substantial rights. People v Chelmicki, 305 Mich App 58, 62; 850 NW2d 612
(2014); Bulmer, 256 Mich App at 35, citing People v Carines, 460 Mich 750, 763, 774; 597
NW2d 130 (1999).




                                                -3-
       Turning first to the issue of whether Hubbard was an unavailable witness, MRE 804
governs situations involving unavailable witnesses, as well as providing the exception to the
hearsay rule on that basis.2 MRE 804 provides, in pertinent part, as follows:

       (a) Definition of Unavailability.       “Unavailability as a witness” includes
       situations in which the declarant—

                                             * * *

       (5) is absent from the hearing and the proponent of a statement has been unable
       to procure the declarant’s attendance (or in the case of a hearsay exception under
       subdivision (b)(2), (3), or (4), the declarant’s attendance or testimony) by process
       or other reasonable means, and in a criminal case, due diligence is shown.

       (b) Hearsay Exceptions. The following are not excluded by the hearsay rule if
       the declarant is unavailable as a witness:

       (1) Former Testimony. Testimony given as a witness at another hearing of the
       same or a different proceeding, if the party against whom the testimony is now
       offered, or, in a civil action or proceeding, a predecessor in interest, had an
       opportunity and similar motive to develop the testimony by direct, cross, or
       redirect examination. [Emphasis added.]

       The issue presented by defendant on appeal is whether the prosecution made a showing
of due diligence in attempting to procure Hubbard’s attendance at defendant’s trial. MRE
804(a)(5). In evaluating whether a witness is unavailable as contemplated by MRE 804(a)(5),
the guiding standard is “that the prosecution must have made a diligent good-faith effort in its
attempt to locate a witness for trial.” People v Bean, 457 Mich 677, 684; 580 NW2d 390 (1998).

               The test is one of reasonableness and depends on the facts and
       circumstances of each case, i.e., whether diligent good-faith efforts were made to
       procure the testimony, not whether more stringent efforts would have produced it.
       Barber v Page, 390 US 719, 724-725; 88 S Ct 1318; 20 L Ed 2d 255 (1968);
       [People v Dye, 431 Mich 58, 67, 83; 427 NW2d 501 (1988)]. The trial court’s
       determination will not be disturbed on appeal unless a clear abuse of discretion is
       shown. Dye at 83, 93, (ARCHER, J., concurring); People v McIntosh, 389 Mich
       82, 87; 204 NW2d 135 (1973); People v Starr, 89 Mich App 342, 345; 280 NW2d
       519 (1979). [Bean, 457 Mich at 684.]




2
  Pursuant to MRE 801, “ ‘hearsay’ is a statement, other than the one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the matter
asserted.” Hearsay may not be admitted at trial except as provided by the Michigan Rules of
Evidence. MRE 802.


                                               -4-
        When trial first commenced, the assistant prosecutor informed the trial court that she was
expecting Hubbard’s attendance, however she later stated her intention to seek introduction of
Hubbard’s preliminary examination testimony if Hubbard did not appear. When it became
obvious that Hubbard would not appear to testify at trial, the assistant prosecutor then informed
the trial court that “[a] breakdown in communication” had taken place between the police, the
prosecution and Hubbard. The assistant prosecutor argued that this breakdown occurred because
defendant made several telephone calls to Hubbard from jail. The prosecutor also stated that she
planned to introduce the preliminary examination transcript under MRE 804(b)(1) and (6). At
that point in the trial, the judge asked the prosecutor to call Hubbard on the telephone and to tell
Hubbard that her appearance in court was required. After the prosecutor and defense counsel
presented opening statements, Detective Devon Benson informed the trial court that he was
unable to reach Hubbard by way of telephone, in part, because her voicemail box was full. The
trial court gave the prosecution authority for a material witness warrant if Hubbard was
uncooperative, and police detectives were dispatched to Hubbard’s residence and her place of
employment to look for her, the efforts of which were unsuccessful. The trial court ultimately
determined that the prosecution and the police exercised due diligence in attempting to secure
Hubbard’s attendance at trial, and allowed the admission of the preliminary examination
transcript.

         The record reveals that Detective Benson met with Hubbard well in advance of trial, and
personally served her with a subpoena. While the prosecutor represented to the trial court that
Hubbard cancelled a March 19, 2015 meeting with the prosecutor and the police, expressing
misgivings about testifying at trial after defendant apologized to her, the record is also clear that
the prosecutor informed Hubbard that her attendance in court to testify would be required, and
that Hubbard agreed to reschedule a subsequent meeting. Detective Benson attempted to contact
Hubbard several times after the March 19, 2015 meeting was cancelled, to no avail, and his
attempts to receive a call back were not successful because he could not leave a voicemail on
Hubbard’s voicemail box that was full. Of particular note is the prosecutor’s representation to
the trial court, and Detective Benson’s testimony, that at no point did Hubbard inform either the
prosecutor or Detective Benson that she did not intend to appear at trial. The record also reflects
that on the day of trial, the trial court cooperated with the prosecutor and the police to undertake
every effort to secure Hubbard’s presence at trial by contacting her by way of telephone, having
police officers visit her place of employment and her residence, and visiting Danielle Caston’s
apartment, where Hubbard had been staying on the evening of the assault on November 17,
2014.

       On the issue of whether the prosecution exercised due diligence in securing the testimony
of Hubbard, this Court reviews the record to determine whether good-faith, diligent efforts were
undertaken to secure Hubbard’s testimony at trial. On appeal, defendant argues that our
Supreme Court’s decisions in Dye and Bean control our decision on this issue.3



3
 In his brief on appeal, defendant points to the Michigan Supreme Court’s decisions in Dye and
Bean as support for his position, where the Court concluded in both cases that the prosecution
had not exercised due diligence in an effort to secure the presence of prosecution witnesses at

                                                -5-
        We concur with defendant that we are bound by the decisions in Dye and Bean, however,
we find the basis of both decisions to be significantly different from the facts presented to the
trial court in this case. Unlike in Dye, there is nothing in this record to suggest that the police
and prosecution’s efforts were belated, incomplete, or deficient. Perhaps the most important
distinguishing factor between Hubbard’s absence at trial and that of the witnesses in Dye and
Bean, is that up until the day of trial, the prosecution and the police were both under the
reasonable belief that Hubbard planned to attend and testify at this trial. While Hubbard had
expressed a reluctance to testify, she had also agreed to reschedule a meeting with the police and
the prosecution to discuss her testimony at defendant’s upcoming trial, and as of the date of trial,
Detective Benson and the prosecutor anticipated her attendance. Accordingly, it would have
been premature for additional steps to be undertaken in advance of trial where Hubbard was
expected to appear at trial. Indeed, the facts of this case confirm that the trial court properly
concluded that the prosecution and police had acted with due diligence to secure Hubbard’s
attendance at trial, and her preliminary examination testimony was correctly admitted pursuant to

trial. In Dye, 431 Mich at 67 (opinion by LEVIN, J.) the Court emphasized that the determination
of whether there was “a diligent, good-faith effort to produce missing witnesses” is a
consideration that will depend on the specific facts of each case. The prosecution in Dye was
aware that three witnesses had left Michigan following the defendant’s mistrial, and that they
had reason to go into hiding. Id. at 76. In Dye, the Michigan Supreme Court concluded that the
prosecution’s attempts to locate the witnesses out of state following the defendant’s first trial
amounted to “[s]ubsequent belated and incomplete efforts . . . .” Id. Specifically, the Court
concluded in that case that the prosecution did not act in a timely fashion to ascertain the
whereabouts of the three witnesses, and relied on local police authorities in three different states
to help locate them, but was “tardy” in providing sufficient information to the local police, and
did not follow up as necessary. Id. Notably, the prosecution had waited two months following
the defendant’s mistrial to attempt to locate the witnesses, even knowing that the date of the
defendant’s retrial was rapidly approaching. Id. at 67.

         In Bean, 457 Mich at 689, 680-681, one of the prosecution witnesses was not produced at
trial, and his preliminary examination testimony was admitted. The police in Bean had contacted
the witness’s grandmother, whose telephone was disconnected, but had not made further efforts
to locate the grandmother, such as ascertaining the address of her home and visiting there. Id. at
687, 689. While becoming aware that the witness and his mother had moved to the Washington,
D.C., area, the police did not contact any agencies in Detroit or Washington, D.C. in an effort to
find the witness’s mother in Detroit or Washington, D.C. Id. at 686, 687, 689. Instead, the
police repeatedly returned to the witness’s vacant home in Detroit. Id. at 689. The police did not
attempt to ascertain the address of the witness’s mother, did not check with the postal service to
determine if a change of address had been filed, and did not check with the Michigan
Department of Corrections to see if the witness was incarcerated. Id. at 687-688. The Bean
Court compared the efforts made by police in that case to those of the police in Dye, noting that
“significant effort” was made to locate the witnesses in Dye in foreign jurisdictions, as well as
the extensive efforts that were taken locally, in Michigan, to ascertain the whereabouts of the
witnesses. Id.




                                                -6-
MRE 804(b)(1). Accordingly, on these facts, we cannot conclude as our Supreme Court did in
Dye and Bean that the trial court abused its discretion in finding that the prosecution used due
diligence to secure Hubbard’s testimony.

        In response to defendant’s argument that his Sixth Amendment right to confront the
witnesses against him was violated, the prosecution also argues that Hubbard’s preliminary
examination testimony was properly admitted where defendant engaged in conduct that resulted
in Hubbard being unavailable for trial. The exception to the hearsay rule that the prosecution is
referring to is MRE 804(b)(6), which provides, in pertinent part, as follows:

       (b) Hearsay Exceptions. The following are not excluded by the hearsay rule if
       the declarant is unavailable as a witness:

       (6) Statement by Declarant Made Unavailable by Opponent. A statement offered
       against a party that has engaged in or encouraged wrongdoing that was intended
       to, and did, procure the unavailability of the declarant as a witness.

        In People v Burns, 494 Mich 104, 110; 832 NW2d 738 (2013) our Supreme Court
observed that “[a] defendant can forfeit his right to exclude hearsay by his own wrongdoing.”
The rule that emanated from Burns is commonly referred to as “the forfeiture-by-wrongdoing
rule[ ]” and is ‘based on the maxim that ‘no one should be permitted to take advantage of his
wrong.’” Id. at 111 (footnote omitted), quoting Giles v California, 554 US 353, 359; 128 S Ct
2678; 171 L Ed 2d 488 (2008).

               The forfeiture doctrine not only provides a basis for an exception to the
       rule against hearsay; it is also an exception to a defendant’s constitutional
       confrontation right. Insofar as it applies to the Sixth Amendment, however, the
       forfeiture doctrine requires that the defendant must have specifically intended that
       his wrongdoing would render the witness unavailable to testify.

                                             * * *

              To admit evidence under MRE 804(b)(6), the prosecution must show by a
       preponderance of the evidence that: (1) the defendant engaged in or encouraged
       wrongdoing; (2) the wrongdoing was intended to procure the declarant’s
       unavailability; and (3) the wrongdoing did procure the unavailability. [Burns, 494
       Mich at 111, 115 (footnotes and citation omitted).]

The Burns Court cited with approval this Court’s holding in People v Jones, 270 Mich App 208,
217; 714 NW2d 362 (2006), that for MRE 804(b)(6) to apply, the prosecution must establish that
the defendant acted with specific intent, and that the defendant “ ‘engaged in or encouraged
wrongdoing that was intended to, and did, procure the unavailability of the declarant as a
witness.’ ” Burns, 494 Mich at 113 (footnote omitted), quoting MRE 804(b)(6). The
preponderance of the evidence standard will apply, and the trial court acts as the fact-finder in
determining questions of fact that are preliminary to determining the admissibility of evidence.
Burns, 494 Mich at 115, 117 n 39; MRE 104(a).



                                               -7-
        In this case, the prosecution presented taped telephone conversations between defendant
and the complaining witness while defendant was lodged in jail awaiting trial. Having reviewed
each of the conversations that the trial court heard, we conclude that these conversations prove,
by a preponderance of the evidence that defendant “ ‘engaged in or encouraged wrongdoing that
was intended to, and did, procure the unavailability of the declarant as a witness.’ ” Burns, 494
Mich at 113. Specifically, the conversations reveal that defendant threatened Hubbard’s life on
more than one occasion, threatening to kill her at her place of employment, and stating that he
did not care who saw him kill her. In one conversation, defendant, in an angry, aggressive and
confrontational tone also questioned Hubbard about why she testified against him at the
preliminary examination. In the last telephone call that the trial court heard, defendant’s
demeanor is noticeably different. During the telephone call he encourages Hubbard to “stay
away” from the court proceedings, and subsequently inquires of Hubbard “did they subpoena
you?” At one point, defendant is heard stating, “don’t worry about it then, just don’t show up.”
Later in the call, defendant tells Hubbard, “be careful” and “remember this date” referring to the
March 23, 2015 trial date, confirming that Hubbard knows the date after she recites it back to
him verbally. Defendant also informs Hubbard that “we need to get me . . . out [of] this,”
referring to the trial court proceedings, and tells her, “lots of guys, [if] their girls don’t show up,
it’s over with.”

       Finally, to the extent that defendant asserts that his Sixth Amendment right to confront
the witnesses against him was violated when Hubbard’s preliminary examination testimony was
admitted, the Burns Court clearly stated that the forfeiture doctrine is an exception to the rule
against hearsay, and likewise is an exception “to a defendant’s constitutional confrontation
right.” Burns, 494 Mich at 111. In this case, the record clearly supports the trial court’s
conclusion that defendant intended that his threatening and manipulative calls to Hubbard would
render her unavailable to testify at trial. Id. at 111, citing Giles, 554 US at 359-360.
Accordingly, defendant is not entitled to relief.

       Affirmed.



                                                               /s/ Michael J. Kelly
                                                               /s/ Christopher M. Murray
                                                               /s/ Stephen L. Borrello




                                                 -8-
