            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     December 17, 2019
               Plaintiff-Appellee,

v                                                                    No. 343233
                                                                     Wayne Circuit Court
TONY JUNIOR HARRIS,                                                  LC No. 17-009752-01-FH

               Defendant-Appellant.


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

PER CURIAM.

       Defendant, Tony Harris, appeals as of right his jury trial convictions of intimidating a
witness, MCL 750.122, and obstruction of justice, MCL 750.505. For the reasons stated in this
opinion, we vacate his convictions.

                                        I. BASIC FACTS

        In September 2017, Harris was arrested and charged with felonious assault, felon in
possession of a firearm, and possession of a firearm during the commission of a felony. The
basis for the charges was an allegation by Safar Mann that, while Safar was working at a liquor
store, Harris pointed a gun at him. Harris was arraigned on the charges, and the court entered a
no-contact order prohibiting Harris from directly or indirectly contacting Safar.

        Harris, however, made “probably, ten, twelve” telephone calls from jail to multiple
individuals. Harris testified that in the “majority” of the calls, he referenced Safar, and he
admitted that he wanted someone—“[i]t didn’t matter who”—to talk with Safar. In the calls,
which were played for the jury, Harris directed various people to talk to Safar at the liquor store.
Of particular note, Harris made the following statements:

       [To unidentified woman] I just need [my son Deanthony] to go out, when he
       make it to the neighborhood to ask [Safar] why he is doing this.

                                              * * *



                                                -1-
       [To Deanthony] When you get to Southwest, man I need you to go in that store
       and ask [Safar] why is he doing this. [Safar] trying to say I pulled a gun out on
       him and pistol whipped him.

                                             * * *

       [To Harris’s son Tavion] As soon as you get to the neighborhood, I need you to
       ask [Safar] why he doin’ this to me man. [Safar] at the liquor store.

                                             * * *

       [To Tavion] Don’t forget what I said, man. You got to get on [Safar’s] head. Ask
       that nigga . . . nigga you act like you like us, nigga why you tryin’ to get my
       daddy like this, dog.

                                             * * *

       [To Deanthony] D, when you get out there man I want you to go holla at [Safar].
       Don’t disrespect me.

        On October 11, 2017, the date set for the preliminary examination on the September
charges, Safar did not appear and the charges were dismissed. The officer in charge of the case
called Safar, who explained his absence. Subsequently, Safar elaborated in a written statement
his reasons for not appearing at the preliminary examination. Thereafter, Harris was charged in
the present case, and was bound over after a preliminary examination was held. Safar did not
testify at the preliminary examination, and the trial court determined that Safar’s statements to
the police detective were inadmissible hearsay. After the preliminary examination in this case,
the prosecution filed a motion to admit Safar’s statements under MRE 804(b)(6). The trial court
took the motion under advisement and, before trial, ruled that Safar’s statements were
admissible. Thereafter, at trial, a police detective testified that Safar told him that he did not
appear at the October 2017 preliminary examination in the prior case because a few days before
the examination a man came to the liquor store and told him that if he went to court he would not
be coming back and because the day before the examination two different men came to the store
and threatened his life if he went to court.

       The jury convicted Harris as charged. This appeal follows.

                             II. ADMISSIBILITY OF EVIDENCE

                                 A. STANDARD OF REVIEW

        Harris argues that the trial court abused its discretion by admitting Safar’s hearsay
statements explaining why he did not appear at the September 2017 preliminary examination.
Challenges to the trial court’s decision to admit evidence are reviewed for an abuse of discretion.
People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). A court abuses its discretion when
it chooses a result that is outside the range of reasonable and principled outcomes. People v Orr,
275 Mich App 587, 588-589; 739 NW2d 385 (2007). “A trial court necessarily abuses its


                                                -2-
direction when it makes an error of law.” People v Franklin, 500 Mich 92, 100; 894 NW2d 561
(2017) (quotation marks and citation omitted).

                                         B. ANALYSIS

        Safar’s statements are hearsay because they are out-of-court statements “offered in
evidence to prove the truth of the matter asserted.” See MRE 801(c). Generally, hearsay is
inadmissible. MRE 802. Here, the prosecution sought to admit Safar’s hearsay statements under
MRE 804(b)(6), which provides that if a declarant is unavailable “the hearsay rule” does not
preclude admission of “[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 order to admit hearsay under MRE 804(b)(6), the prosecution must prove by a
preponderance of the evidence: “(1) that the defendant engaged in or encouraged wrongdoing,
(2) that the wrongdoing was intended to procure the declarant’s unavailability, and (3) that the
wrongdoing did procure the unavailability.” People v Jones, 270 Mich App 208, 217; 714
NW2d 362 (2006) (quotation marks, citation, and brackets omitted). These requirements pertain
specifically to the language in MRE 804(b)(6), however. They do not excuse the prosecution
from its obligation to also establish the witness is “unavailable” as contemplated by MRE 804(a).

       MRE 804(a) provides:

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

               (1) is exempted by ruling of the court on the ground of privilege from
       testifying concerning the subject matter of the declarant’s statement; or

              (2) persists in refusing to testify concerning the subject matter of the
       declarant’s statement despite an order of the court to do so; or

              (3) has a lack of memory of the subject matter of the declarant’s
       statement; or

              (4) is unable to be present or to testify at the hearing because of death or
       then existing physical or mental illness or infirmity; or

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

               A declarant is not unavailable as a witness if exemption, refusal, claim of
       lack of memory, inability, or absence is due to the procurement or wrongdoing of
       the proponent of a statement for the purpose of preventing the witness from
       attending or testifying.

On appeal, the prosecution suggests that Safar was unavailable under subsection (2) or
subsection (5). But there is nothing in the record to support a finding that Safar persisted in
refusing to testify “despite an order of the court to do so,” because there is, in fact, no evidence

                                                -3-
that Safar was subpoenaed to testify at Harris’s trial in the present case. Accordingly, Safar was
not unavailable as contemplated under MRE 804(a)(2).

        Further, there is insufficient support in the record to show that Safar was unavailable to
testify under MRE 804(a)(5). Whether a witness is unavailable for the purposes of MRE
804(a)(5) depends on whether the prosecution has 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)
(emphasis added). “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.” Id.

        In this case, after becoming aware in October 2017 that Safar did not wish to testify
against Harris in the September 2017 case (as reflected by his refusal to appear for the
preliminary examination and his subsequent explanation that he did not appear because he was
threatened), the prosecution presumed that Safar’s unwillingness to testify would continue in the
present case. In line with that assumption, on its January 17, 2018 witness list and its February
1, 2018 amended witness list, the prosecution indicated that it did not intend to produce Safar as
a witness at the trial. Further, there is nothing in the record indicating that Safar was
subpoenaed. Instead, in its argument on appeal, the prosecution suggests that because it made
diligent efforts to procure Safar’s attendance and testimony at the October 2017 preliminary
examination in a related, but separate criminal prosecution, it had no obligation to exercise due
diligence to procure Safar’s testimony for the trial in this case. The prosecution also insists that
subpoenaing Safar for trial in this case “would be a fool’s errand” because there is nothing to
indicate that Harris had “withdrawn his threats of retaliation.”

         In support of its argument, the prosecution directs this Court to People v Garay, 320
Mich App 29; 903 NW2d 883 (2017), holding application for leave to appeal in abeyance 924
NW2d 590 (Mich, 2019). In Garay, “two juvenile sisters” received several threats after they
testified at the defendant’s preliminary examination. Id. at 34. After the father of the two sisters
refused to allow them to testify at the defendant’s trial, the trial court declared the sisters
unavailable as witnesses under MRE 804(a)(5) and admitted their preliminary-examination
testimonies under MRE 804. Id. at 34-35. This Court affirmed the trial court’s decision to admit
the sisters’ preliminary-exanimation testimonies because their father refused to allow them to
testify out of his fear for their safety and refused “to respond to the trial court’s attempts to
contact” the sisters. Id. at 36-37. In doing so, this Court recognized that the prosecution had
subpoenaed the sisters and made numerous attempts to contact them and their father. Id.
Further, at one point, the father and his daughters appeared at trial, but quickly left and refused to
return. Id. at 36. Yet, as detailed above, in this case the prosecution made no effort to procure
Safar’s availability at Harris’s trial.

        Thus, notwithstanding that the sisters and Safar were both threatened, the attempts to
procure the threatened witnesses for trial is not comparable. Garray, therefore, does not support
the prosecution’s argument in this case. And, on this record, Safar could not be unavailable
under MRE 804(a)(5) because there is no evidence that the prosecution made a diligent good-
faith effort to procure Safar’s testimony for the trial.



                                                 -4-
         We note that the trial court’s finding of “unavailability” pertained solely to Safar’s
“unavailability” at the October 2017 preliminary examination. The court failed to analyze
whether that unavailability continued to Harris’s trial on subsequently issued charges. However,
as is clear from MRE 804(a)(5), the declarant must be “absent from the hearing.” Consequently,
the mere fact that Safar was absent from a prior hearing in a related but separate case does not
mean that he is automatically absent from “the” hearing where the hearsay statement is being
introduced, i.e., the trial held in this case. In that regard, we are unpersuaded by the
prosecution’s argument that we cannot “divorce” the proceedings in this case from the
September 2017 case. The proceedings are, by their nature, separate legal proceedings. We also
explicitly reject the prosecution’s suggestion that it can satisfy its obligation to exercise due
diligence in one prosecution by subpoenaing a witness in a related, but separate criminal
prosecution. The rules of evidence contemplate that the witness must be unavailable for “the”
hearing where the hearsay statement will be introduced.

        Having determined that the trial court abused its discretion, we turn to whether Harris has
met his burden of showing that, “ ‘after an examination of the entire cause, it shall affirmatively
appear’ that it is more probable than not that the error was outcome determinative.” Lukity, 460
Mich at 495-496, quoting MCL 769.26. In evaluating whether the error was outcome
determinative, this Court must focus “on the nature of the error and assesses its effect in light of
the weight and strength of the untainted evidence.” People v Smith, 456 Mich 543, 555; 581
NW2d 654 (1998) (quotation marks and citation omitted). “An error is deemed to have been
'outcome determinative’ if it undermined the reliability of the verdict.” People v Elston, 462
Mich 751, 766; 614 NW2d 595 (2000) (opinion by KELLY, J.). While MCL 769.26 does not
require actual innocence, “it should be viewed as a legislative directive to presume the validity of
verdicts and to reverse only with respect to those errors that affirmatively appear to undermine
the reliability of the verdict.” People v Mateo, 453 Mich 203, 211; 551 NW2d 891 (1996).
Accordingly, reversal is only required if the error was prejudicial. Id. at 215. “That inquiry
focuses on the nature of the error and assesses its effect in light of the weight and strength of the
untainted evidence.” Id.

        Here, the untainted evidence was sufficient to allow the jury to find Harris guilty.
Specifically, at his arraignment, Harris was ordered to have no direct or indirect contact with
Safar. He wholly disregarded that order and directed multiple individuals to contact Safar
regarding the case. In one instance, he told the witness to “get on [Safar’s] head.” Although
Harris contended that the reference was slang for “[g]o talk to him,” the jury was free to infer a
more nefarious meaning behind the words, including that Harris was directing that someone beat
up Safar. Harris’s mother made actual contact with Safar. The contact was severe enough that
Safar threatened to call the police to compel her to leave. The jail calls occurred in close
proximity to the date scheduled for the preliminary examination. Finally, the untainted evidence
reflects that Safar did not appear at the preliminary examination. Based on this evidence, the
jury could infer that Harris called numerous people to contact Safar in order to discourage Safar
from testifying at the preliminary examination.

       However, although there was sufficient evidence, the most compelling evidence that
Harris directed individuals to discourage Safar from testifying at trial is the improperly admitted
hearsay evidence. Safar told a police detective that three people came to his place of work and
warned him not to go to court or he would not return. He told the detective that because of the

                                                -5-
threats to his life, he did not testify at the preliminary examination. In the prosecution’s closing
argument, the prosecutor relied heavily on the hearsay evidence, stating:

              Ladies and gentlemen, we don’t, nor will we know what Mr. Safar would,
       or would not say, because he never came to court to testify.

               We don’t know.

              The reason we don’t know is, and as he told you in his own words,
       because he felt fear for his family.

               Because he told you, in his statement, that a few people had came up to his
       job, told him, if you go to court, you won’t come back.

             Don’t go to court if you want to feel safe when you leave your place of
       employment.

                                               * * *

               Second, that the defendant threatened or tried to intimidate.

               After that, you’ll get the definition of threatened.

              But tried to intimidate, as I just said, numerous people would come to you,
       and you’re in your place of employment, and you’re just trying to do your job,
       and there’s people comin’ up, telling you not to go. Not to go to court. You
       won’t be safe. You’re not gonna be safe. Don’t do it.

               That’s intimidation.

                                               * * *

               You heard the calls.

               You heard the statement.

               It’s not Rocket Science.

The prosecutor also referenced Safar’s statements during rebuttal argument. In particular, the
prosecutor argued that the jury could determine that Safar’s statements—that he was threatened
at work—were truthful because they were corroborated by the jail calls where Harris directed
people to go to Safar’s place of work.

       The prosecution’s arguments relied so heavily upon Safar’s statements because Safar’s
statements were compelling and substantially prejudicial to Harris’s case. The statements
provided a direct link between Harris’s actions—directing people to go to Safar’s place of
work—and Safar’s decision to not show up at the preliminary examination. Without Safar’s
statements, the chain of interferences needed to draw a link between Harris’s jail calls and
Safar’s absence was—although sufficient—significantly weaker. In sum, based on an
                                                 -6-
examination of the whole record, we conclude that the error in this case was outcome
determinative and was not harmless. Accordingly, we vacate Harris’s convictions.1

         Vacated.

                                                             /s/ Jane M. Beckering
                                                             /s/ Stephen L. Borrello
                                                             /s/ Michael J. Kelly




1
    Given our resolution, we decline to address Harris’s double-jeopardy argument.
        However, we note that nothing in our opinion should be construed as preventing the
prosecution from again seeking admission of Safar’s hearsay statement under MRE 804(b)(6).
However, in doing so, the prosecution must establish that Safar is, in fact, unavailable to testify
at the hearing where the hearsay evidence is to be admitted. See MRE 804(a).


                                                -7-
