            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   May 28, 2020
              Plaintiff-Appellee,

v                                                                  No. 346386
                                                                   Wayne Circuit Court
DEMARIO DAVONTE WILLIAMS,                                          LC No. 18-002181-01-FH

              Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                                  No. 346389
                                                                   Wayne Circuit Court
DEMARIO DAVONTE WILLIAMS,                                          LC No. 18-002185-01-FH

              Defendant-Appellant.


Before: BECKERING, P.J., and FORT HOOD and SHAPIRO, JJ.

PER CURIAM.

       In these consolidated cases,1 defendant, Demario Davonte Williams, appeals as of right his
bench trial convictions of felonious assault, MCL 750.82; second-offense domestic violence, MCL
750.81(4); and malicious destruction of property, MCL 750.377a(1)(b)(i) (Docket No. 346386)
and felonious assault, MCL 750.82; possession of a firearm during the commission of a felony
(felony-firearm), MCL 750.227b; and third-offense domestic violence, MCL 750.81(5) (Docket
No. 346389). Defendant argues that he is entitled to a new trial because the trial court erred by


1
 The cases were joined in the trial court and tried together. Defendant filed separate claims of
appeal, which this Court consolidated. People v Williams, unpublished order of the Court of
Appeals, entered December 5, 2018 (Docket Nos. 346386; 346389).


                                               -1-
admitting statements of an unavailable witness under MRE 804(b) without first holding a hearing
to determine if the prosecution had exercised due diligence in attempting to procure the unavailable
witness for trial. We affirm defendant’s convictions but remand for ministerial correction of
defendant’s judgement of sentence in Docket No. 346386.

                          I. RELEVANT FACTS AND PROCEEDINGS

         The complainant in the case underlying Docket No. 346386 is defendant’s former
girlfriend, KM. KM testified at trial that on February 11, 2018, she was at defendant’s home when
he became “agitated” because she was using her cellular telephone. Defendant “snatched” KM’s
cell phone, “threw it, and told [her] to stay off of it.” KM said she waited until defendant fell
asleep and then retrieved her cell phone. The next day, defendant was showing KM his wallet and
she saw his Michigan Department of Corrections (MDOC) card and realized he had lied to her
about his name. KM asked defendant why he lied, and she attempted to search his name on the
internet using her cell phone. Defendant “snatched” KM’s cell phone again and threatened to
break it. KM testified that defendant retrieved a gun, “pulled the clip out to show [her] that it was
full of bullets,” and pointed the gun at her head. Defendant eventually told KM to pack her things
and said he was taking her home. Instead of taking her home, defendant drove to a bus stop and
told KM to get out of the vehicle. Defendant rolled down the passenger window and threw KM’s
cell phone into the snow. KM’s mother picked her up and they went to the Detroit Police
Department to report the incident.

     The complainant in the case underlying Docket No. 346389 was defendant’s former girlfriend,
SB. SB did not appear at trial. At a pretrial hearing held on August 23, 2018, two weeks before
trial, the prosecutor informed the trial court that defendant had called SB six times from the Wayne
County Jail, and that defendant “is heard on the calls influencing her, telling her not to come to
court, telling her if they try to tell you that they are going to threaten you with a case if you don’t
follow through, don’t believe them.” The prosecutor also stated that defendant “is also heard on
these calls telling relatives, including his brother . . . his grandmother, and his mother, to use and
manipulate [SB] . . . to his advantage to get these cases dismissed.” The prosecutor argued that if
SB failed to appear at trial, she had “more than enough evidence for forfeiture by wrongdoing,”
and would move to admit SB’S preliminary examination transcript and the statements SB made to
the police.

        On September 10, 2018, the first day of trial, the prosecutor informed the trial court that
she had filed a motion to introduce SB’s preliminary examination testimony and statements to the
police on the basis of defendant’s forfeiture by wrongdoing. Since the pretrial hearing on August
23, 2018, the prosecutor had attempted to subpoena SB, but SB had successfully evaded service.
Further, SB wrote the trial court a letter “indicating that she is not going to testify.” The trial court
found that defendant called SB from jail on July 7, 2018, and stated, “I need you not to fold, you
hear me. And indicated that . . . law enforcement would threaten her if she didn’t go forward.” In
another telephone call, made presumably by defendant’s brother, defendant said that if SB said she
was going to drop the case, “I need you to eat that up, you feel me? I need, like even if you don’t
like her, you feel me? . . . Eat that . . . up you know, use her, manipulate her, you know what I’m
saying?” The court found by a preponderance of the evidence that defendant’s wrongdoing was
intended and caused SB not to appear at trial and granted the motion.



                                                  -2-
        According to her preliminary examination testimony, SB drove to defendant’s home on
January 18, 2018 to stay the night. The next morning, as SB was getting ready for work, defendant
saw text messages between SB and a male co-worker, became upset, “charged after [her],” and
“placed his hands around [her] throat.” SB stated that “[a]fterwards he began to punch me in my
nose twice; in my eye once; on my jaw once.” When SB attempted to leave, defendant started
“bludgeoning” her on her head and ear with the lock that held her car keys. When SB was able to
leave, she first went home, and then drove to St. Mary’s Hospital for medical attention.

                                            II. ANALYSIS

       Defendant argues on appeal that the trial court erred by admitting SB’s preliminary
examination testimony and statement to the police without first holding a due diligence hearing to
determine if SB was, in fact, unavailable. We disagree.

        As an initial matter, we note that defendant arguably waived this issue when his defense
attorney agreed that the trial court could admit SB’s preliminary examination testimony and
statements to the police into evidence at trial. Waiver is defined as “the intentional relinquishment
or abandonment of a known right.” People v Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011)
(citation omitted). “When defense counsel clearly expresses satisfaction with a trial court's
decision, counsel’s action will be deemed to constitute a waiver.” Id. On the first day of trial, the
prosecutor moved to admit SB’s preliminary examination transcript and statements she made to
the police because of forfeiture by defendant’s wrongdoing. In response, defense counsel stated,
“I have seen these jail calls, I have heard the jail calls, I have seen the transcript from the jail calls,
I can’t argue with that.” Because defense counsel “clearly expressed satisfaction,” with the
admission of SB’s preliminary examination testimony and statements made to the police, this issue
is waived for appellate review. Id.

         Even if we interpreted counsel’s statement of satisfaction as extending only to the
prosecution’s evidence that defendant had encouraged SB not to appear at trial, but not to whether
the prosecution had exercised due diligence in producing her for trial, defendant failed to preserve
the issue by objecting to admission of the evidence without a due diligence hearing. See People v
Grant, 445 Mich 535, 546; 520 NW2d 123 (1994). Generally, “[w]hen the issue is preserved, we
review a trial court’s decision to admit evidence for an abuse of discretion, but we review de novo
preliminary questions of law, such as whether a rule of evidence precludes admissibility.” People
v Chelmicki, 305 Mich App 58, 62; 850 NW2d 612 (2014). However, because the issue presented
has not been preserved for review, this Court must review the “unpreserved claim for plain error
affecting defendant’s substantial rights.” People v Roscoe, 303 Mich App 633, 648; 846 NW2d
402 (2014). “To avoid forfeiture under the plain error rule, three requirements must be met: 1)
error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error
affected substantial rights.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). To
show that a defendant’s substantial rights were affected, there must be “a showing of prejudice,
i.e., that the error affected the outcome of the lower court proceedings.” Id. As such, “[r]eversal
is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent
defendant or when an error seriously affected the fairness, integrity or public reputation of judicial
proceedings’ independent of the defendant’s innocence.” Id. (quotation marks and citations
omitted).



                                                   -3-
         “Hearsay is a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c). “Hearsay
is generally not admissible unless an exception to the rule applies.” People v Johnson, 315 Mich
App 163, 193; 889 NW2d 513 (2016). “MRE 804(b)(6) provides an exception to the hearsay rule
for a statement by a declarant made unavailable by the opponent.” People v Jones, 270 Mich App
208, 212; 714 NW2d 362 (2006). 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.” Id. (quotation marks and citation omitted).
A declarant is considered unavailable if 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). The test for
unavailability under MRE 804(a)(5) is that the proponent “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.” Id.

         Defendant does not challenge the trial court’s finding that defendant’s wrongdoing caused
SB’s unavailability at trial. Instead, defendant asserts that the trial court erred in admitting SB’s
preliminary examination testimony and statements to police without holding a due diligence
hearing to determine if the prosecution had exercised diligence in attempting to secure SB’s
appearance at trial. On the record before us, we cannot say that the trial court committed plain
error by admitting the subject evidence without holding a due diligence hearing.
         A prosecutor fails to show due diligence if his or her efforts to procure difficult-to-locate
witnesses are truly “tardy or incomplete,” People v Dye, 431 Mich 58, 62; 427 NW2d 501 (1988),
or when the prosecutor has waited until the first day of trial to locate a witness with whom he or
she has had no contact for years, People v James, 192 Mich App 568, 572; 481 NW2d 715 (1992).
Neither of these circumstances are present here. The prosecutor in the present case did not have
reason to believe that SB would become unavailable until shortly before trial. She had appeared
voluntarily and testified at the preliminary examination five months before trial, and she gave no
indication to the prosecutor that she did not intend to testify at trial. There were no signs that SB
would refuse to testify until approximately two weeks before trial.
         Once the prosecutor became aware that defendant was threatening SB, the prosecutor’s
efforts were neither “tardy nor incomplete” Dye, 431 Mich at 62, nor confined to the very last
minute, Jones, 192 Mich App at 572. Defendant started calling SB from jail on July 7, 2018,
encouraging her not to testify at trial. The prosecution pulled the call records from the jail and, at
the August 23, 2018 pretrial hearing, informed the trial court that it had recently learned that
defendant had been calling SB from jail “influencing her, telling her not to come to court, telling
her if they try to tell you that they are going to threaten you with a case if you don’t follow through,
don’t believe them.” The prosecutor informed the trial court that defendant “is also heard on these
calls telling relatives, including his brother . . . his grandmother, and his mother, to use and
manipulate [SB] . . . to his advantage to get these cases dismissed.” Subsequently, the officer in
charge of the case attempted to contact and subpoena SB, but, SB successfully evaded service. In
addition, SB sent the trial court a letter indicating her unwillingness to testify.




                                                  -4-
        Whether the prosecution made a “diligent good-faith effort” to secure a witness’s
appearance at trial depends on the facts and circumstances of each case. Bean, 457 Mich at 684.
Although the trial court did not hold a due diligence hearing, it is clear from the record that the
prosecutor kept the trial court apprised of the situation. In addition, the reasons for the witness’s
non-appearance are apparent from the record, as are the prosecutor’s efforts to secure her
appearance. Further, defendant has failed to suggest what other reasonable measures the
prosecution might have taken to secure SB’s appearance at trial. Under the circumstances, we do
not find that the trial court plainly erred by failing to hold a due diligence hearing.
        Upon review of this appeal we noticed that the judgment of sentence in Docket No. 346386
erroneously identifies defendant’s convictions as being derived from guilty pleas, rather than a
bench trial. We remand for the ministerial correction of the judgment of sentence.

       Convictions affirmed, case remanded for the ministerial correction of the judgment of
sentence in Docket No. 346386. We do not retain jurisdiction.


                                                              /s/ Jane M. Beckering
                                                              /s/ Karen M. Fort Hood
                                                              /s/ Douglas B. Shapiro




                                                -5-
