PEOPLE OF MI V WILLIAM PHELPS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 1, 2002
Plaintiff-Appellant,
v
No. 234784
Wayne Circuit Court
LC No. 01-000520
WILLIAM PHELPS,
Defendant-Appellee.
Before: Cavanagh, P.J., and Neff and B. B. MacKenzie*, JJ.
PER CURIAM.
Defendant was charged with assault with intent to commit great bodily harm less than
murder, MCL 750.84. The prosecutor failed to produce the victim at trial, and after a due
diligence hearing, the court ruled that the victim’s prior recorded testimony from the preliminary
examination was inadmissible and entered an order of dismissal. The prosecution appeals as of
right. We affirm.
The prosecution’s only issue is that the trial court abused its discretion when it refused to
admit the victim’s preliminary examination testimony at trial and dismissed the charges against
defendant. We disagree. We review a trial court’s determination whether a witness is
unavailable for an abuse of discretion. People v Bean, 457 Mich 677, 684; 580 NW2d 390
(1998). An abuse of discretion exists when an unprejudiced person, considering the facts on
which the trial court acted, would say there was no justification or excuse for the ruling. People
v Gadomski, 232 Mich App 24, 32-33; 592 NW2d 75 (1998). The trial court’s factual finding
underlying its due diligence decision will not be reversed unless clearly erroneous. People v
Lawton, 196 Mich App 341, 348; 492 NW2d 810 (1992). A factual finding is clearly erroneous
if this Court is left with a definite and firm conviction that a mistake has been made. People v
Hatch, 156 Mich App 265, 267; 401 NW2d 344 (1986).
The prosecution contends that Cecilia Barkley, the alleged victim, was unavailable, and
that her preliminary examination testimony should have been found admissible. Under MRE
804(b)(1), the prosecution may present at trial the transcribed testimony of a witness from the
preliminary examination if the witness is “unavailable,” as defined by MRE 804(a)(5). MRE
804(a)(5) includes situations in which 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
* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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other reasonable means, and in a criminal case, due diligence is shown. Thus, the preliminary
examination testimony can be used as substantive evidence at trial only if the prosecution
exercised due diligence to produce the absent witness. Bean, supra at 682-683. Whether the
prosecution demonstrated a good-faith, diligent effort depends on the facts and circumstances of
each case. Bean, supra at 684. The test is one of reasonableness, not whether more stringent
efforts would have produced the testimony. Id.
In Bean, our Supreme Court concluded that the steps taken by the police did not
constitute due diligence because, although they went several times to the witness’s last known
address, the police did not attempt to follow up on a potential Detroit-area address when they had
been told he moved to Washington, D.C. Id. at 689. The police simply tried the same
unsuccessful sources repeatedly and made no effort to extend the search to the witness’s mother
or grandmother once they learned of the move.
In the present case, there were indications that Barkley would be difficult to find for trial
from the very beginning. At the preliminary examination, Barkley gave her address as
defendant’s. She was ordered to leave defendant’s residence, and the court requested that
someone inquire about her plans for a new address. Douglas Potts, a detective with the Highland
Park police and the officer in charge of the case, was present and responded on the record that
Barkley was free to go despite this obvious indicator that the prosecutor needed to maintain
contact with Barkley between the time of the preliminary examination and the commencement of
trial. Potts testified that, after the alleged assault, Barkley became “a very transient person . . .
[who] doesn’t seem to keep any permanent address.” Potts testified that he did speak to her
when she called him and he thought she knew about the trial date; however, there is no indication
in the record of whether he attempted to, or was able to, ascertain Barkley’s address. The last
time Potts spoke to Barkley was about 1½ months prior to the trial date. Potts made other
attempts after that to contact her to be assured she would attend the trial. Potts checked the
Wayne, Macomb, and Oakland County jails and could not find Barkley. He also called the
utilities, specifically MichCon, Detroit Edison, and Ameritech, but found no leads on Barkley’s
whereabouts. Potts contacted the Social Security Office. Social Security informed Potts that
Barkley did not receive SSI at that time, and that she received her last check in 1998. The
address that they had on file from 1998 for Barkley was the Drop Door Shelter. Potts stated that
Barkley was not there.
Potts was somehow aware of the existence of Barkley’s grandmother and her phone
number. However, the earliest contact Potts made with Barkley’s grandmother that is indicated
in the record was sometime after April 27, 2001, only six days before the beginning of the trial
on May 2, 2001. Barkley’s grandmother informed Potts that Barkley had been in Henry Ford
Hospital and had been recently discharged. Potts contacted Henry Ford Hospital and learned that
Barkley was discharged on April 27, 2001, and that the address Barkley used at the hospital was
defendant’s address. After learning that Barkley was still listing defendant’s address as her own,
Potts called defendant. Over the telephone, defendant denied that Barkley was residing with
him. Despite the fact that defendant would benefit if Barkley could not be found for trial, Potts
never went to the address. See Bean, supra at 685-688. Potts never physically checked to see if
Barkley was there, never watched the area to see if she was entering and exiting the residence,
and never asked neighbors if they had seen her around or had information on Barkley’s
whereabouts. Id.
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This Court is mindful that the test is one of reasonableness, and the focus is whether
diligent, good-faith efforts were made to procure the testimony, not whether more stringent
efforts would have produced it. Id. at 684. However, the efforts in the instant case do not even
reach those in Bean, supra, found insufficient to meet the requirement of due diligence.
Accordingly, we cannot conclude that the trial court abused its discretion in disallowing the use
of Barkley's preliminary examination testimony. Id. Furthermore, while it may be true that the
trial court was bothered by the fact that it believed Barkley was shirking her responsibility to
show up for trial, and possibly hid from the police to avoid service, the court made its
determination based on the efforts of the prosecution, and did not err.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Janet T. Neff
/s/ Barbara B. MacKenzie
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