PEOPLE OF MI V MIKE BAHRI
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 17, 2004
Plaintiff-Appellee,
v
No. 244229
Oakland Circuit Court
LC No. 01-182114-FH
MIKE BAHRI,
Defendant-Appellant.
Before: Schuette, P.J., and Meter and Owens, JJ.
MEMORANDUM.
Defendant appeals as of right his conviction of felonious assault, MCL 750.82, entered
after a jury trial. We affirm. This appeal is being decided without oral argument pursuant to
MCR 7.214(E).
A trial court may admit a witness’ prior testimony if the witness is unavailable for trial.
MRE 804(b)(1). A witness is unavailable if he is absent from the hearing and the proponent of
his statement has been unable to procure his attendance, notwithstanding the exercise of due
diligence. MRE 804(a)(5). Due diligence is the attempt to do everything that is reasonable, not
everything that is possible, to obtain the presence of a witness. People v Cummings, 171 Mich
App 577, 585; 430 NW2d 790 (1988). The focus is on whether diligent, good-faith efforts were
made to procure the testimony and not on whether more stringent efforts would have produced it.
People v Bean, 457 Mich 677, 684; 580 NW2d 390 (1998). Whether the prosecution exercised
due diligence depends on the facts of each case. Id. We review the trial court’s findings of fact
for clear error, People v Lawton, 196 Mich App 341, 348; 492 NW2d 810 (1992), and the
determination of due diligence for an abuse of discretion. Bean, supra at 684.
Defendant argues that the trial court abused its discretion by determining that the
prosecution exercised due diligence in attempting to locate the complainant, and that the use of
the complainant’s preliminary examination testimony at trial violated defendant’s constitutional
right to confront his accuser. US Const, Am VI; Const 1963, art 1, § 20. We disagree and
affirm. The complainant’s whereabouts were unknown before trial. The prosecution engaged in
extensive and protracted efforts to locate him in order to secure his presence at trial. The efforts
continued over several months and included contacting the complainant’s relatives and possible
place of employment, checking with hospitals, morgues, and jails, and contacting law
enforcement agencies, the Department of Corrections, various state agencies, and local utility
companies. Cf. People v James (After Remand), 192 Mich App 568, 571-572; 481 NW2d 715
-1-
(1992) (no effort made to locate witness until day of trial). Defendant identifies no other steps
the prosecution could have taken in an effort to locate the complainant. The trial court did not
clearly err in finding that the prosecution made diligent, good-faith efforts to locate the
complainant. Lawton, supra at 348. Defendant had the opportunity to cross-examine the
complainant at the preliminary examination. See People v Briseno, 211 Mich App 11, 14; 535
NW2d 559 (1995). The trial court did not abuse its discretion by concluding that the
complainant’s preliminary examination testimony was admissible at trial. Bean, supra at 684.
The testimony bore sufficient indicia of reliability, and its admission did not deprive defendant
of his constitutional right to confront his accuser. MRE 804(b)(1); People v Meredith, 459 Mich
62, 66-71; 586 NW2d 538 (1998).
Affirmed.
/s/ Bill Schuette
/s/ Patrick M. Meter
/s/ Donald S. Owens
-2-
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