                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   FOR PUBLICATION
                                                                   August 18, 2016
              Plaintiff-Appellee,                                  9:00 a.m.

v                                                                  No. 327208
                                                                   Saginaw Circuit Court
DEVAUN LAROY LOPEZ,                                                LC No. 14-040317-FC

              Defendant-Appellant.


Before: STEPHENS, P.J., and SERVITTO and GLEICHER, JJ.

PER CURIAM.

        The Due Process Clause of the Fourteenth Amendment affords an accused a
constitutional right to present witnesses in his own defense. Substantial government interference
with a defense witness’s choice to testify violates this right.

        Here, the interference involved a prosecution witness, Dennis Hoskins. Minutes after
Hoskins agreed to testify at Lopez’s trial, the prosecutor threatened Hoskins that deviation from
his preliminary examination testimony would result in prosecution for perjury and life
imprisonment on conviction. Hoskins subsequently invoked his Fifth Amendment privilege, and
his preliminary examination testimony was presented to the jury. The trial court acknowledged
that Hoskins refused to testify because he felt “threatened” by the prosecutor. Lopez contends
that because the prosecutor’s conduct procured Hoskins’ unavailability, the prosecutor was
precluded from relying on an exception to the hearsay rule, MRE 804(1), to support the
introduction of Hoskins’ former testimony.

       Our Supreme Court has forcefully condemned prosecutorial intimidation of witnesses,
People v Pena, 383 Mich 402; 175 NW2d 767 (1970), and so has this Court. People v McIntosh,
142 Mich App 314; 370 NW2d 337 (1985). No principled basis exists for distinguishing
between the intimidation of defense witnesses and the silencing of prosecution witnesses.
Because the prosecutor’s threat procured Hoskins’ unavailability, the trial court erred by
admitting Hoskins’ recorded testimony. We vacate and remand for a new trial.

                                                I

         Lopez and his codefendant, Jarriel Reed, stood trial for the shooting death of Terry
Johnson. Johnson was gunned down as he stood on a Saginaw sidewalk. He had just finished a
trip to a nearby market, accompanied on the walk by his mother, Diane Austin, and a friend.

                                               -1-
        Austin immediately deduced that Johnson’s ex-girlfriend, Dominique Williams, had fired
the fatal shots, as Johnson and Williams had engaged in “a real raging argument” earlier that day.
Following the argument, Williams had threatened to kill Johnson and brandished a knife to
validate her intentions. The police cleared Williams after interviewing her and conducting a
comprehensive investigation. The investigation unearthed several pieces of evidence tying
Lopez and Reed to the shooting.

         The investigating officers found fresh, spent .380 caliber shell casings approximately one
block from the scene. One officer recognized the casings as identical in caliber, color and brand
to those found near a drive-by shooting committed eight days earlier. The police suspected that
Hoskins had been the shooter in that case, accompanied by Reed and Lopez. Information
obtained from a resident in the neighborhood of Johnson’s shooting sharpened the focus on
Lopez. The witness reported seeing a man run down the sidewalk after the gunfire. During a
photo show-up she picked out Lopez as appearing “most like the runner,” but she could not make
a definitive identification. Adding to the data pointing to Reed’s involvement, a friend of his
told the police that Reed had admitted to killing Johnson, confessing: “I got the wrong one, but I
did it.”

        Dennis Hoskins supplied the core evidence tying Lopez to Johnson’s murder. During his
preliminary examination, Hoskins conceded that he faced a charge of assault with intent to
commit murder arising from the drive-by shooting, and that Lopez had testified against him
during the preliminary examination in that case. Several months after Johnson’s shooting,
Hoskins agreed to provide information to the police and prosecutor incriminating Reed and
Lopez. He testified that both had admitted to participating in Johnson’s murder, with Lopez
acting as the trigger-man. According to Hoskins, Reed initially believed that Johnson was a man
called “Zeke” who had shot and wounded Reed’s brother some years earlier. Hoskins claimed
that Reed and Lopez had openly discussed various details of Johnson’s killing, including that the
gun involved was a .380 caliber.

        One week before the joint trial of Reed and Lopez was scheduled to begin, the prosecutor
filed a motion to declare Hoskins “unavailable” as a witness and to admit his preliminary
examination testimony pursuant to MRE 804(b)(1). The motion was based on a voicemail the
prosecutor received from Hoskins’ attorney, Robert Dunn, advising that Hoskins was no longer
willing to testify.

        The Court considered the prosecutor’s motion on the day before trial. Hoskins asserted at
this hearing, “I wish to testify at trial.” A court officer then guided Hoskins from the courtroom.

       The following morning, before jury selection, the prosecutor referenced an issue that had
been discussed in chambers and off the record. He advised the court:

       [I]t was brought to my attention[] that as Mr. Hoskins was leaving the courtroom
       and after we had the hearing on the motion to declare him unavailable, that he
       made comments to [Lopez and Reed] to the effect that, “I’ve got you covered,
       bro.”




                                                -2-
The prosecutor explained that he had interpreted this statement to mean that Hoskins “may
intend to perjure himself during this trial, or give testimony that’s inconsistent with his testimony
at the preliminary examination.” Citing an unpublished opinion issued by this Court in 1997, the
prosecutor requested that the court summon Hoskins and advise him, outside the presence of the
jury, “of his Fifth Amendment right if he does intend to give perjured testimony, to make sure he
is aware of his rights, and then determine what if anything he decides to do at that point.”1

         The prosecutor then brought to the trial court’s attention that Reed’s counsel, Edwin
Johnson, III, had accused the prosecutor of “threatening or intimidating Mr. Hoskins during our
colloquy with him yesterday morning.” According to the prosecutor, attorney Johnson had been
the first to advise Hoskins that he could face perjury charges. The prosecutor continued:

       I did follow that up with I’m not going to threaten you, but we will - - we could
       possibly charge you with perjury if you do say something that’s inconsistent with
       what you testified to at the preliminary examination.

The prosecutor urged that this Court’s unpublished 1997 case supported that “if I did in fact, I
suppose, quote-unquote, threaten him, . . . the court says that’s not a threat. That’s just the
reality. If you do provide perjured testimony, you could in fact be charged with perjury.”

        Attorney Johnson took issue with the prosecutor’s reprise of the interaction. “It’s not just
that the prosecutor, in my view, threatened the witness,” Johnson urged, “but he also stated to the
witness that if he was convicted, he would be facing life in prison, which is a misstatement of the
law.”

        Lopez’s attorney interjected that he witnessed the interaction with Hoskins. He described
that the prosecutor

       did in fact tell the witness that he would be looking at life. And the manner in
       which [the prosecutor] spoke was not as he spoke here; it was more of a
       threatening, kind of an aggressive statement to this young man. It wasn’t just,
       well, these are your rights, young man. You know, just the tone of his voice, it
       sounded like a threat to me.

      One of the investigating officers was also in the room during the discussion with
Hoskins. She reported, “I didn’t hear any threats or anything. [The attorneys] spoke to Mr.
Hoskins just as they spoke to you . . . . I didn’t hear any threatening from either one of them.”

       The court noted that Hoskins consulted with his own attorney before agreeing to testify.
As neither Hoskins nor his counsel was present, the court indicated it would revisit the issue
outside the presence of the jury when Hoskins took the stand.



1
 The case referred to was People v Daniels, unpublished opinion of the Court of Appeals, issued
July 11, 1997 (Docket No. 184692).


                                                -3-
        Hoskins and his counsel, Dunn, were present on the third day of the trial. Attorney Dunn
indicated that he and Hoskins had discussed the issue further. The following colloquy ensued:

              Mr. Dunn. I believe at this point, after considering the matter again, he
       wishes to exercise his Constitutional right under the Fifth Amendment of the
       United States Constitution and refuse to answer questions which could subject
       him, possibly, to a charge of perjury if he were to answer them.

              The Court. Mr. Hoskins, did you hear and understand what [your
       attorney] has stated to the Court?

                The Witness. Yes. The prosecutor’s told me - - they threatened me with
       life in prison.

              The Court. Okay. With regard to your right to testify or not testify, do
       you wish to exercise your Fifth Amendment privilege and not testify at this time?

              The Witness. Yes, sir.

        After Hoskins was escorted from the courtroom, the prosecutor renewed his motion to
declare Hoskins unavailable and to admit his preliminary examination testimony pursuant to
MRE 804(b)(1). Reed’s counsel asked that “the record . . . reflect” that Hoskins had elected
against testifying because he had been threatened with life imprisonment if his testimony
differed from that given at the preliminary exam. Counsel requested that the jury be instructed
that it was the prosecutor’s duty to produce this witness who was rendered unavailable by the
prosecution itself, and that the jury could “infer that his testimony would have been damaging to
their case had he appeared.”

        Reed’s counsel also objected to the admission of the preliminary examination testimony
“because I can’t cross-examine a transcript” and “there was evidence produced after the
preliminary exam that would impeach his testimony during the preliminary exam.” But counsel
“reluctantly underst[oo]d that” the exam could be placed into evidence under the circumstances.
Lopez’s attorney further requested that the jury be advised of Hoskins’ recent conviction and the
court agreed.

       The court proceeded to play the recording of Hoskins’ preliminary examination
testimony into the record. No explanation was given to the jury at that time regarding this
procedure.

        The following day, the prosecutor called attorney Dunn to the stand. Reed’s counsel
elicited the following information:

              Q. And isn’t it true that [Hoskins] came in and put a statement on the
       record as it relates to whether he was going to testify in this trial or not?

              A. Just before the start of this trial, that’s correct.



                                                 -4-
              Q. And isn’t it true that, in his statement, he said that he was taking the
       Fifth Amendment?

              A. That’s right. He was exercising his constitutional right not to testify.

               Q. And isn’t it true that he unsolicited - - in an unsolicited manner added
       to that that the reason that he was taking the Fifth Amendment is because he felt
       he had been threatened by the prosecution with life imprisonment?

              A. Yes. I believe the prosecutor had told him that the penalty for perjury
       in a murder trial is up to life in prison, which is correct.

             Q. Mm-hmm. But the penalty for perjury in a preliminary exam of a
       murder trial is not life imprisonment; is it?

               A. No, it’s 15 years. I don’t know of anybody that would want to do 15
       years in a Michigan prison.

              Q. That wasn’t the question I asked you. I asked you, isn’t it true that
       wasn’t - - that the penalty for telling an untruth in a preliminary exam is not life
       imprisonment?

              A. I believe that’s correct.

              Q. And isn’t it true that his statement was that he wasn’t testifying
       because he felt as though the prosecution threatened him with life imprisonment?

              A. No, that was an add-on, as you say, unsolicited statement, was not in
       response to the question. He did not want to take the chance that possibly he
       could be charged with perjury and face up to life in prison, so he exercised his
       Fifth Amendment right.

              Q. Sir, is it not the truth that he sat on that stand, and in an unsolicited
       statement, under oath, stated that the reason he was taking the Fifth was because
       he felt threatened by the prosecutor, who had threatened him with life
       imprisonment? Isn’t that what he said?

              A. That’s not exactly what he said.

Lopez’s counsel then secured testimony that Hoskins had been charged with three counts of
assault with intent to murder, which came with a possible life sentence. Hoskins ultimately
pleaded to lesser counts of felonious assault, a four-year felony, Dunn testified.

        On redirect, the prosecutor presented Hoskins’ plea agreement in which he agreed to
testify against Lopez and Reed. The document gave Hoskins advance warning of the
consequences of perjury. The prosecutor also elicited that Hoskins did not tell Dunn that the
prosecutor had threatened him before taking the stand and invoking his Fifth Amendment
privilege.

                                               -5-
       On the final day of trial, Reed’s counsel moved to strike Hoskins’ testimony under MRE
804(a), which defines when a witness may be deemed unavailable. Counsel asserted that the
prosecutor caused Hoskins’ absence through his threats, vitiating the applicability of the MRE
804(b) hearsay exceptions.

       The prosecutor denied making any threats and reiterated that Reed’s counsel actually
broached the subject with Hoskins. The prosecutor emphasized attorney Dunn’s testimony
regarding Hoskins’ motivations. Moreover, the prosecutor argued that defense counsel had
ample opportunity to cross-examine Hoskins at the preliminary examination.

       The court ultimately ruled:

               Well, this is all very interesting and we’ve made a clear record of your
       positions. I’m going to deny the motion itself.

                The witness himself indicated he felt threatened; that’s why he wasn’t
       testifying. Mr. Dunn could say what he wanted to say, but I’m not going to take
       his testimony over the witness’s testimony himself.

       The jury subsequently convicted Lopez of first-degree premediated murder, conspiracy,
and several weapons-related charges. Lopez now appeals, challenging only the admission of
Hoskins’ preliminary examination testimony.

                                           II. ANALYSIS

       MRE 804(b)(1) excepts from the rule against hearsay a witness’s prior testimony given
under oath and subject to cross-examination by the opposing party if, as contemplated in MRE
804(a)(1), the witness is unavailable to testify because he or she has invoked a privilege. People
v Meredith, 459 Mich 62, 65-66; 586 NW2d 538 (1998). The admission of former testimony
tested by cross-examination generally comports with the requirements of the Confrontation
Clause. See People v Garland, 286 Mich App 1, 7; 777 NW2d 732 (2009). However, MRE
804(a) posits that “[a] declarant is not unavailable as a witness if” his or her refusal to testify “is
due to the procurement or wrongdoing of the proponent of a statement for the purpose of
preventing the witness from attending or testifying.” Lopez contends that Hoskins could not be
deemed unavailable because the prosecutor procured his absence by threatening him with a
charge of perjury and lifetime imprisonment.

        Lopez presents two closely interrelated arguments: that the prosecutor behaved wrongly
in “threatening” Hoskins with a perjury prosecution, and that the prosecutor “procured” Hoskins’
unavailability by virtue of the threats. We examine each in turn.

        In Webb v Texas, 409 US 95, 95-96; 93 S Ct 351; 34 L Ed 2d 330 (1972), the United
States Supreme Court reversed a defendant’s conviction based on the conduct of the trial judge,
who “on his own initiative, undertook to admonish” the sole defense witness that he would be
prosecuted for perjury if he took “the witness stand and lie[d] under oath.” The witness was
serving a prison sentence at the time. “It will also be held against you in the penitentiary when
you’re up for parole,” the judge declared, “and the Court wants you to thoroughly understand the
chances you’re taking by getting on that witness stand under oath.” Id. at 96.

                                                 -6-
       The Supreme Court observed that the judge had not only “gratuitously singled out this
one witness for a lengthy admonition on the dangers of perjury,” but had also

           implied that he expected [the witness] to lie, and went on to assure him that if he
          lied, he would be prosecuted and probably convicted for perjury, that the sentence
          for that conviction would be added on to his present sentence, and that the result
          would be to impair his chances for parole. [Id. at 97.]

This conduct “effectively drove that witness off the stand,” the Court held, “and thus deprived
the petitioner of due process of law under the Fourteenth Amendment.” Id. at 98.

         Our Supreme Court had confronted a somewhat analogous factual scenario two years
before Webb was decided, and reached essential the same conclusion. In Pena, 383 Mich 402,
the threat of perjury was made by a prosecutor rather than a judge. The prosecutor sent a letter to
three defense witnesses, on official stationary, that simply quoted verbatim the statute punishing
perjury.2 Defense counsel moved to dismiss the charges “on the ground that the prosecutor’s
‘letter’ violated the Fourteenth Amendment of the United States Constitution by intentionally
intimidating the defense witnesses.” Id. at 405. The trial court denied the motion. Two of the
witnesses subsequently testified for the defense, while one called as a prosecution witness
claimed to have forgotten her whereabouts at the relevant time. Id. at 407.

       Three justices of the Supreme Court determined that a new trial was required, pithily
observing:

                  The Constitutional right of a defendant to call witnesses in his defense
          mandates that they must be called without intimidation. The manner of testifying
          is often more persuasive than the testimony itself.



2
    The letters read:
          Dear Madam:

                 In the interests of justice I am quoting Michigan Statutes Annotated
          28.644, which provides as follows:

                  “Any person who, being lawfully required to depose truth in any
          proceeding in a court of justice, shall commit perjury shall be guilty of a felony,
          punishable, if such perjury was committed on the trial of an indictment for a
          capital crime, by imprisonment in the state prison for life, or any term of years,
          and if committed in any other case, by imprisonment in the state prison for not
          more than fifteen (15) years.”

          Very truly yours,
          G. E. Thick
          Assistant Prosecuting Attorney [Id. at 405.]

                                                  -7-
            A prosecutor may impeach a witness in court but he may not intimidate
       him—in or out of court.

Justices Adams and Brennan concurred, opining that they:

       would remand to the trial court for a determination by that court as to whether or
       not the prosecutor’s letter did intimidate the witnesses. If the court finds it did,
       the court should grant a new trial and the court’s efforts to undo the damage upon
       such retrial should appear of record. If the court finds that no intimidation took
       place, the court should so find, stating its reasons for the finding, and a new trial
       should be denied. [Id.]

Thus, a plurality of the Court held in Pena that the prosecutor’s conduct had been wrongfully
threatening, but that remand was required to determine whether the threats had actually
intimidated the witnesses.

       This Court weighed in on the subject in McIntosh, 142 Mich App 314. McIntosh focused
on the prosecution’s conduct regarding witness Beverly Alexander, who testified against the
defendant at his preliminary examination for charges of armed robbery, assault, and felony
murder. Id. at 322. Alexander subsequently informed the police “that she had changed her
mind and would refuse to testify at trial.” Id. at 323. Shortly thereafter the prosecutor charged
her with conspiracy to commit armed robbery and felony murder. Id. At McIntosh’s trial,
Alexander invoked the Fifth Amendment. Id. Over a defense objection, the court declared
Alexander unavailable and allowed the use of her preliminary examination testimony pursuant to
MRE 804(a)(2). “In so ruling,” this Court recounted, “the court placed the burden of proving
why Alexander was unavailable on defendant and refused to let the defense ask why she was
pleading the Fifth Amendment because the question was ‘irrelevant.’ ” Id.

          This Court framed the appellate question presented as: “May a prosecutor, as the
proponent of prior unrecorded testimony, induce the declarant to invoke her privilege against
self-incrimination and still satisfy the ‘unavailability’ requirements of both the Confrontation
Clause and MRE 804?” Id. at 324. We began our analysis by reciting the pertinent language of
MRE 804(a): “[a] declarant is not unavailable as a witness if his exemption, refusal, claim of
lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent
of his statement for the purpose of preventing the witness from attending or testifying.”
McIntosh, 142 Mich App at 324 (alteration in original). Given this language, we concluded that
“if the prosecution brought about Alexander’s failure to testify by prosecuting her with the intent
of preventing her testimony, Alexander was not ‘unavailable’ and the trial court erred in
admitting her preliminary examination testimony.” Id.

        The McIntosh Court then turned to case law centering on alleged violations of the
Confrontation Clause stemming from unintentional prosecutorial conduct resulting in a witness’s
unavailability. Id. at 325-326. In several of those cases, courts required the prosecutor to
demonstrate that the witness’s unavailability “[was] not chargeable to them.” Id. at 326
(citations omitted). This Court concluded that when the prosecution offers prior recorded
testimony based on a witness’s unavailability, “the burden is on the prosecution to establish that
the witness . . . is, in fact, ‘unavailable’ and that the prosecution has not, either intentionally or

                                                 -8-
negligently, contributed to making the witness unavailable.” Id. at 327. As to witness
Alexander, the Court held that because the trial court had “improperly placed the burden of
proving why Alexander was unavailable on defendant and precluded inquiry into why Alexander
was pleading the Fifth Amendment, we are unable to determine whether or not the prosecution
was intentionally or negligently responsible for Alexander’s becoming unavailable.” Id. The
Court remanded to the trial court for an evidentiary hearing at which the prosecution would bear
the burden of showing “that it was not intentionally or negligently responsible for Alexander’s
refusal to testify.” Id. at 328.

        In both Pena and McIntosh, the Courts ordered remands for the collection of evidence
regarding the cause of the unavailable witness’s refusal to appear. In the case before us, remand
for an evidentiary hearing is unnecessary, as the trial court has already made the requisite
finding. Based on Hoskins’ and the lawyers’ recapitulations of what occurred after Hoskins
indicated his willingness to testify, the trial court determined that Hoskins invoked the Fifth
Amendment because “he felt threatened; that’s why he wasn’t testifying.” And because the
prosecutor’s threats procured Hoskins’ unavailability, we hold that a new trial is required.

        We begin by addressing the prosecution’s argument that Hoskins was merely “advised”
of the possibility of prosecution for perjury and not “threatened” with such a charge. The record
refutes this characterization. Despite that Hoskins was represented by counsel, the prosecutor
not only invoked the specter of prosecution for perjury; he informed Hoskins that he risked
incarceration “for life” if convicted. The prosecutor’s statements exceeded mere advisement,
and crossed into the realm of threat and intimidation.

        While a prosecutor may inform a witness that false testimony may result in a perjury
charge, the circumstances surrounding the prosecutor’s intervention following Hoskins’
declaration demonstrate that the prosecutor went well beyond merely “advising.” Hoskins had
not yet offered any testimony, and whether he planned to recant his preliminary exam statements
or testify falsely was unknown. Moreover, this Court has emphasized that when a prosecutor
suspects that a witness may perjure himself,

       it is a better practice for the prosecutor to inform the court, in the appropriate
       case, out of the presence of the witness, of the possible need for a witness to be
       informed of his or her rights under the Fifth Amendment. The prosecutor should
       further state the basis for such request and the trial judge shall exercise his
       discretion in determining whether such warnings should issue. If the trial judge
       determines that such warnings are appropriate under the facts presented then the
       court shall inform the witness of his rights under the Fifth Amendment on the
       record out of the presence of the jury, if that be the case. [People v Callington,
       123 Mich App 301, 307; 333 NW2d 260 (1983).]

        Because Hoskins was represented by counsel, the prosecutor was under no obligation to
warn Hoskins of a risk of committing perjury. Nor did the situation merit a warning, particularly
as to the potential of life imprisonment, given that the prosecutor had only a hunch that Hoskins
would deviate from his preliminary examination statements. Regardless of the prosecutor’s
“tone of voice,” we find it difficult to justify the prosecutor’s “warning” given Pena’s
condemnation of a letter written in the most sterile of terms relaying precisely the same

                                               -9-
information. There, as here, the information was conveyed to coerce or intimidate rather than
merely to “inform.” In Pena, an evidentiary hearing was required because the record did not
reveal whether the witnesses were actually intimidated. Here, the trial court explicitly found that
Hoskins refused to testify because he felt “threatened,” obviating the need for additional fact
finding.

       We draw additional support for our conclusion from the New Jersey Supreme Court’s
opinion in State v Feaster, 184 NJ 235; 877 A2d 229 (2005). In Feaster, a “key” prosecution
witness scheduled to testify at defendant’s post-conviction relief hearing recanted his trial
testimony in an affidavit provided to the defendant’s attorney. Id. at 240. Before the witness
could testify, the prosecutor advised the witness’s attorney “that there would be ‘considerations’
if he testified consistent with his recantation statement.” Id. At the hearing, the witness
withdrew his affidavit and invoked his Fifth Amendment privilege. Id. The New Jersey
Supreme Court held that the prosecution had “substantially interfered” with the witness’s
decision to testify, violating the defendant’s state constitutional rights. Id.

        Feaster is instructive for several reasons. First, the prosecutor in that case, as here,
insisted that his warning of “considerations” did not amount to a “threat” and was not
“inappropriate.” Id. at 247. The New Jersey Supreme Court forcefully rejected the notion that
the prosecutor’s behavior was appropriate:

       The State has no affirmative duty to tell a witness, subpoenaed by the defense,
       that he could be prosecuted if his testimony is different from his previously sworn
       testimony and inconsistent with the State’s theory of the case. We do not find that
       such warnings by the State are a pre-condition to a perjury or false swearing
       prosecution. In other words, a witness does not have to be told that if he testifies
       falsely he will be subject to prosecution.

                                               * * *

       . . . Whether the threat of a perjury prosecution is delivered conversationally, in
       transparently coded language, or loudly, in pointedly brash language, the effect is
       likely to be the same on the witness, even if the conduit is his attorney. The
       message to [the witness] was clear enough. We accept for the purpose of this
       discussion that the . . . prosecutor acted in good faith. Even crediting the . . .
       prosecutor with the best possible motives, defendant nonetheless was deprived of
       his most essential witness at the . . . hearing.

       . . . [I]t is not the function of the State to save a defense witness from himself or to
       spare the court a supposed falsehood, at the expense of denying the court critical
       testimony. To the extent possible, the . . . court was entitled to the testimony of
       every witness. The State may think that it alone knows the truth, but it is for the
       court to decide the truth, after both sides have presented their cases. If falsehood
       is to be exposed, the State has a fair opportunity to do so on cross-examination.
       [Id. at 258-260.]

We find this reasoning compelling.

                                                -10-
        Second, the Feaster Court emphasized that the prosecutor’s “good faith” in expressing
the warning did not determine whether the words were coercive. Even if the motivations of the
prosecutor were pure, the Court reasoned, such a warning “does not advance the truth-seeking
function of a trial[.]” Id. at 261. “We have confidence that our courts and juries are capable of
detecting falsehoods with the aid of the adversarial process. The State can prosecute those who
commit perjury or false swearing; the State simply cannot threaten a defense witness to keep him
off the stand.” Id.

       We highlight that in the case before us, the prosecutor lacked any reasonable basis to
suspect that Hoskins would lie on the witness stand. The prosecutor himself did not hear
Hoskins state “I’ve got you covered, bro;” rather the prosecutor quoted some unknown person
who allegedly heard the statement (“[I]t was brought to my attention, that as Mr. Hoskins was
leaving the courtroom . . . that he made comments to Mr. Lopez and Mr. Reed to the effect that,
‘I’ve got you covered, bro.’ ”). This hearsay simply does not provide a sufficient basis for
suspecting that perjury was in the offing, or for issuing a perjury warning.

        MRE 804(a)(5) provides that a witness is not “unavailable” if the party’s absence “is due
to the procurement or wrongdoing of the proponent” of the testimony. We construe a rule of
evidence in the same manner as a court rule or statute. Waknin v Chamberlain, 467 Mich 329,
332; 653 NW2d 176 (2002). “In general, ‘or’ is a disjunctive term, indicating a choice between
two alternatives[.]” Paris Meadows, LLC v City of Kentwood, 287 Mich App 136, 148; 783
NW2d 133 (2010). Accordingly, the definition of “unavailability” set forth in MRE 804(5)
precludes a court from finding a witness unavailable if the witness’s absence is “due to” either
“the procurement” or the “wrongdoing” of the proponent of the testimony. Our decision rests on
the trial court’s finding that the perjury warning issued by the prosecutor procured Hoskins’
unavailability.

       Black’s Law Dictionary (10th ed), p 1401, defines “procurement” as “[t]he act of getting
or obtaining something or of bringing something about.” “Rule 804 provides that if the
unavailability was caused by the party offering the hearsay statement, the requirement of
unavailability will not be regarded as satisfied.” 4 Weinstein & Berger, Evidence, ¶ 804(a)[01], p
804-36.

         The trial court recognized that Hoskins refused to testify due to the prosecutor’s threat,
yet failed to connect its finding with the rule’s command that “procurement” of a witness’s
absence nullifies the witness’s unavailability. Because the prosecutor improperly silenced
Hoskins, the court was required to exclude Hoskins’ preliminary examination testimony in the
first instance, or to strike the testimony from the record thereafter. By admitting prior testimony
in clear violation of the evidentiary rules designed in part to protect a defendant’s right to
confront the witnesses against him, the trial court violated Lopez’s fundamental right to a fair
trial, abusing its evidentiary discretion. This error was far from harmless. The prosecutor
asserted during his closing argument, “what this case boils down to is the testimony of Denis
Hoskins[.]” Our review of the record confirms that aside from Hoskins’ testimony, the evidence
against Lopez was thin at best. The prosecutor correctly concluded in closing that “[I]t’s Mr.
Hoskins’ testimony that signs, seals, and delivers only one conclusion, and that’s that the
defendants who are sitting here today are guilty.” Therefore, we must vacate Lopez’s
convictions and sentences.

                                               -11-
      On retrial, Hoskins may elect to testify. If he maintains his silence, his preliminary
examination testimony may not be presented to the jury.

       We vacate Lopez’s convictions and sentences and remand for a new trial at the
prosecution’s discretion. We do not retain jurisdiction.



                                                        /s/ Cynthia Diane Stephens
                                                        /s/ Deborah A. Servitto
                                                        /s/ Elizabeth L. Gleicher




                                            -12-
