                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 16, 2017
               Plaintiff-Appellee,

v                                                                  No. 329973
                                                                   Wayne Circuit Court
CEDRIC RAYNARD JOYCE,                                              LC No. 15-001327-01-FC

               Defendant-Appellant.


Before: MARKEY, P.J., and WILDER and SWARTZLE, JJ.

PER CURIAM.

        Defendant appeals as of right his bench trial conviction of first-degree premeditated
murder, MCL 750.316(1)(a). The trial court sentenced defendant to life in prison without the
possibility of parole. We affirm.

                 I. BACKGROUND FACTS AND PROCEDURAL HISTORY

         This appeal arises out of the fatal stabbing of Glenn Roosevelt Hutson in the early
morning hours of December 30, 2014, in a home in Detroit, Michigan. At trial, four
eyewitnesses testified that defendant, known by his street name of “Bill Blast,” or “Blast,”
stabbed Hutson multiple times in an upstairs bedroom, as well as at the bottom of the stairs on
the first floor.

       During the prosecution’s case-in-chief, the trial court conducted a due diligence hearing
regarding the whereabouts of missing eyewitness Kesdeisha Turner, who had testified previously
at the preliminary examination in this case. Detroit Police Department Detective Jarmiare
McEntire testified at this hearing regarding his efforts to locate Turner. After hearing arguments
from both parties, the trial judge found that Turner was legally unavailable to testify under MRE
804(a)(5). Finding that defense counsel had previously had the opportunity to cross-examine
Turner at the preliminary examination, the trial court admitted Turner’s preliminary examination
testimony as evidence at trial, pursuant to MRE 804(b)(1).

       On appeal, defendant challenges the admission of this evidence, arguing that the
prosecution did not demonstrate due diligence in attempting to secure Turner’s presence at trial
and that the admission of Turner’s preliminary examination testimony violated his right to
confrontation under the Sixth Amendment. We disagree.

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        Defendant’s Sixth Amendment challenge correctly acknowledges that, when admitted in
evidence during defendant’s trial, Turner’s preliminary-examination testimony was hearsay.
Hearsay, generally defined as “a statement, other than the one made by the declarant when
testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted,”
MRE 801(c), is inadmissible at trial, unless it meets the requirements of an exception set forth in
the Michigan Rules of Evidence, MRE 802.

         MRE 801(b)(1)’s exception for former testimony provides that, when the trial court
properly declares a declarant unavailable to testify at trial, that declarant’s testimony “at another
hearing of the same or a different proceeding” is admissible, but only if “the party against whom
the testimony is now offered . . . had the opportunity and similar motive to develop the testimony
by direct, cross, or redirect examination.” A declarant is “unavailable,” inter alia, when the
declarant 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.” MRE 804(a)(5). In other words, whether a declarant is
unavailable is determined by whether the prosecution has used due diligence in attempting to
procure that declarant for trial. People v Bean, 457 Mich 677, 684; 580 NW2d 390 (1998). The
test for whether the prosecution has used due diligence “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.

       At the due-diligence hearing, Detective McEntire testified that he took charge of this case
in April, 2015 and was given a trial subpoena for Turner. Thereafter, Detective McEntire
painstakingly searched for Turner. Detective McEntire called the phone number Turner gave
during her police interview; however, Turner did not return the call. Next, Detective McEntire
went by the address Turner provided and spoke with Turner’s aunt, who advised him that she
had not seen Turner in some time and, in fact, rarely spoke with her. Detective McEntire next
checked local hospitals and morgues, but could not find Turner. Detective McEntire utilized the
Law Enforcement Information Network (LEIN) network, but was not able to locate any warrants
for Turner, or find her in custody. Eventually, unnamed members of Turner’s family told
Detective McEntire that she may have gone to seek treatment for substance abuse. Based on this
information, Detective McEntire reached out to several area hospitals, local women’s shelters,
and “other facilities” to determine whether they were treating Turner. Referring to patient
privacy laws, none of these facilities would confirm or deny that Turner was under their care.
Detective McEntire obtained a warrant and a witness detainer order for Turner’s arrest, but was
ultimately unable to locate Turner.

        We agree with the trial court that this record adequately shows that the prosecution
exercised due diligence in attempting to locate Turner for trial. Although defendant argues that
the police should have requested more help from the prosecution or the trial court when several
health facilities refused to disclose whether they were treating Turner, the trial court did issue a
warrant for Turner’s arrest and a witness detainer order. Beyond these measures, neither the trial
court nor the prosecution could have provided much more assistance.

      Defendant also argues that the police should have reached out to DHHS to ascertain
whether Turner was receiving public assistance to pay for any substance abuse treatment that she
was receiving. Although, in theory, it was possible for Detective McEntire to reach out to

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DHHS, the prosecution need not have done everything possible to locate Turner, but only those
steps reasonably calculated to procure Turner for trial. On appeal, defendant has provided this
Court with no explanation from which we may conclude that contacting DHHS was a reasonable
step towards procuring Turner’s testimony at trial. Indeed, defendant cites no record evidence
indicating that Turner was likely to be on public assistance or that DHHS somehow held
information about her possible substance abuse treatment. Therefore, in light of the steps taken
by Detective McEntire to locate Turner, based on the information he had, we conclude that he
acted diligently in his attempts to locate her and that the trial court properly found Turner to be
unavailable, pursuant to MRE 804(a)(5).

        As noted above, the prior testimony of a now unavailable witness may be admitted at trial
if the former testimony was “given as a witness at another hearing of the same or a different
proceeding” and “the party against whom the testimony is now offered . . . had an opportunity
and similar motive to develop the testimony by direct, cross, or redirect examination.” MRE
804(b)(1). “Whether a party had a similar motive to develop the testimony depends on the
similarity of the issues for which the testimony was presented at each proceeding.” People v
Farquharson, 274 Mich App 268, 275; 731 NW3d 797 (2007).

        Turner’s prior testimony was given at defendant’s preliminary examination hearing, and
therefore satisfies the requirement in MRE 804(b)(1) that the prior testimony come from a
hearing of the same or different proceeding. At the preliminary examination, defense counsel
had the opportunity to cross-examine Turner, and did cross-examine Turner, regarding her
substance abuse on the night in question, her memory of the incident, what defendant had been
wearing and any distinguishing characteristics that defendant had. Defense counsel was not cut
off, or limited in any way, during his cross-examination of Turner at the preliminary
examination. At trial, defense counsel similarly cross-examined the prosecution’s other
witnesses regarding their memory of the night, their substance abuse issues, how those issues
affected their memory of the incident, their relationship or familiarity with defendant, and any
distinguishing characteristics defendant had. This record confirms that defendant had an
opportunity and similar motives to develop Turner’s testimony.

        Given this record, we conclude that the trial court did not err by admitting Turner’s
preliminary examination testimony at trial pursuant to MRE 804(b)(1). Properly admitted under
MRE 804(b)(1), this testimony does not run afoul of defendant’s right to confrontation under the
Sixth Amendment. People v Garland, 286 Mich App 1, 7; 777 NW2d 732 (2009) (stating that
“[f]ormer testimony is admissible at trial under both MRE 804(b)(1) and the Confrontation
Clause as long as the witness is unavailable for trial and was subject to cross-examination during
the prior testimony.”).

      Defendant next argues that he was unconstitutionally deprived of the effective assistance
of counsel where defense counsel failed to object to his warrantless arrest. We disagree.
Because defendant did not request a Ginther1 hearing or move for a new trial, our “review of this


1
    People v Ginther, 390 Mich 436, 443-444; 212 NW2d 922 (1973).


                                                -3-
issue is limited to mistakes apparent on the appellate record.” People v Davis, 250 Mich App
357, 368; 649 NW2d 94. “If the record does not contain sufficient detail to support defendant’s
ineffective assistance claim, then he has effectively waived the issue.” Id.

        Under the Sixth Amendment to the United States Constitution, “[i]n all criminal
prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his
defence.”2 The right to counsel plays a crucial role in the Sixth Amendment’s guarantee of a fair
trial by ensuring that the defendant has access to the “skill and knowledge” necessary to respond
to the charges against him or her. Strickland v Washington, 466 US 668, 685; 104 S Ct 2052; 80
L Ed 2d 674 (1984). “The right to counsel also encompasses the right to the effective assistance
of counsel.” People v Pubrat, 451 Mich 589, 594; 548 NW2d 595 (1996). See also Strickland,
466 US at 686.

       An appellate court is required to reverse a defendant’s conviction when defense “counsel
made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment.” Strickland, 466 US at 687. A defendant requesting
reversal of an otherwise valid conviction bears the burden of proving “(1) the performance of his
counsel was below an objective standard of reasonableness under prevailing professional norms
and (2) a reasonable probability exists that, in the absence of counsel’s unprofessional errors, the
outcome of the proceedings would have been different.” People v Sabin (On Second Remand),
242 Mich App 656, 659; 620 NW2d 19 (2000).

        On appeal, defendant argues that defense counsel should have contested the validity of
the defendant’s arrest by moving to suppress evidence recovered from defendant during his
arrest. Defendant correctly points out that, at the time of his arrest, a magistrate had yet to sign a
warrant for his arrest. Nonetheless, we conclude that defendant’s arrest was valid, despite the
unsigned warrant.

        “A police officer may arrest a person without a warrant if he or she has reasonable cause
to believe that a felony has been committed and that the particular person committed it.” People
v Cohen, 294 Mich App 70, 74; 816 NW2d 474 (2011), citing MCL 764.15(1)(d). “Probable
cause to arrest exists where the facts and circumstances within an officer’s knowledge and of
which he has reasonably trustworthy information are sufficient in themselves to warrant a man of
reasonable caution in the belief that an offense has been or is being committed.” Cohen, 294
Mich App at 75 (internal quotation marks and citation omitted). “This probable cause standard is
a practical, nontechnical conception judged from the totality of the circumstances before the
arresting officers.” Id. (internal quotation marks and citation omitted).

       In this case, the police had probable cause to arrest defendant. Several eyewitnesses gave
statements to detectives regarding what had happened, and who had done it. Each of the witness



2
  See also Const 1963, art 1, § 20. Our Constitution’s guarantee of the right to counsel is
coextensive with that guaranteed by the federal Sixth Amendment. People v Pickens, 446 Mich
298, 302; 521 NW2d 797 (1994).


                                                 -4-
statements identified Hutson’s attacker by the street name, “Bill Blast,” and provided a similar
physical description, specifically that the suspect had a visible eye impairment, as does
defendant. Detective Raby testified that he used public databases and police databases, targeting
the area where the murder took place, to identify defendant as “Bill Blast.” Detective Raby
testified that two eyewitnesses to the murder identified defendant as “Bill Blast” from a
photograph. Thus, based on the totality of the circumstances, the police had probable cause to
identify defendant as the individual who had murdered Hutson.

        Because probable cause existed to arrest defendant for Hutson’s murder, defendant’s
arrest was constitutionally valid and any motion to suppress evidence from that arrest would
have been futile. Counsel is not ineffective for failing to make a futile motion. Sabin, 242 Mich
App at 660.

        Affirmed.



                                                           /s/ Jane E. Markey
                                                           /s/ Kurtis T. Wilder
                                                           /s/ Brock A. Swartzle




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