PEOPLE OF MI V LORENZO JBRONE BAK
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 16, 2002
Plaintiff-Appellee,
v
No. 232387
Oakland Circuit Court
LC No. 2000-171424-FH
LORENZO JBRONE BAK,
Defendant-Appellant.
Before: Murray, P.J., and Fitzgerald and O’Connell, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of armed robbery, MCL 750.529, and
was sentenced as an habitual offender, second offense, MCL 769.10, to a prison term of seven to
twenty years. Defendant appeals as of right. We affirm.
Defendant first argues that he was denied a fair trial and the right to the effective
assistance of counsel when defense counsel confirmed outside the presence of the jury that a
defense witness had given false testimony. Specifically, defendant first asserts that the off-therecord discussion outside defendant’s presence regarding the truthfulness of the witness’
statement that she had talked to defense counsel before the day of trial and the appropriate
remedial measure to be taken to correct the false statement violated his right to be present at trial.
See MCL 768.3. We disagree.
An in-chambers conference to discuss matters of procedure or law attended by his
counsel to which the defendant raises no objections does not violate the defendant’s right to be
present during his trial and does not constitute reversible error. People v Baskin, 145 Mich App
526, 544-545; 378 NW2d 535 (1985). Here, the off-the-record discussion was tantamount to an
in-chambers conference. Defendant raised no objection to being removed from the courtroom,
and defendant’s substantial rights were not affected by the discussion regarding the appropriate
remedial measure to be taken to inform the jury of the false testimony.
With respect to the off-the-record discussion, defendant also argues that defense
counsel’s acknowledgement to the court that the witness’ testimony that she talked to defense
counsel before the day of trial was false and the subsequent instruction to the jury that the
witness’ testimony in this regard was untrue denied him the effective assistance of counsel and
the right to confront witnesses against him. We disagree. Both the witness and defense counsel
acknowledged that the witness did not in fact talk to defense counsel about the facts of the case
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before the day of trial. Thus, defense counsel had an obligation to take remedial measures to
correct false testimony that he knew to be false. MRPC 3.3. The instruction given by the court
explained that Welch’s testimony that she had previously spoken to defense counsel regarding
what she testified to at trial was either the result of confusion or of “not being truthful.”
Defendant has not established that the instruction to the jury, which was supported by undisputed
facts, constituted plain error affecting defendant’s substantial rights.
Defendant next contends that the trial court erred by finding a prosecution witness
unavailable under MRE 804 and allowing the witness’ preliminary examination testimony to be
read to the jury. Although defendant objected to the use of the witness’ preliminary examination
testimony, defendant did not offer a specific objection. A defendant must challenge the
admission of evidence on the same ground specified at trial, People v Furman, 158 Mich App
302, 329-330; 404 NW2d 246 (1987) and, therefore, this issue is unpreserved.
Our Supreme Court has stated that, to avoid forfeiture of an issue under the plain error
rule, three requirements must be met: 1) the error must have occurred, 2) the error was plain,
i.e., clear and obvious, and 3) the plain error affected substantial rights. People v Carines, 460
Mich 750, 763; 597 NW2d 130 (1999). The third requirement generally requires a showing of
prejudice, i.e., that the error affected the outcome of the proceedings, and it is the defendant who
bears the burden of persuasion with respect to prejudice. Id. Moreover, once a defendant
satisfies these three requirements, an appellate court must exercise its discretion in deciding
whether to reverse. Reversal is warranted only when the plain, forfeited error resulted in the
conviction of an actually innocent defendant or where an error “seriously affect[ed] the fairness,
integrity, or public reputation of judicial proceedings” independent of the defendant’s innocence.
Id. Therefore, this Court must first review the record to determine whether any error occurred.
Under MRE 804(b)(1), the prosecution may present at trial the transcribed testimony of a
witness at the preliminary examination if the witness is unavailable pursuant to MRE 804(a)(5),
which provides:
“Unavailability as a witness” includes situations in which the declarant –
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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.
Whether due diligence is demonstrated depends on the facts and circumstances of each case.
People v Bean, 457 Mich 677, 684; 580 NW2d 390 (1998). Due diligence requires the
prosecutor to make good faith efforts to locate witnesses and secure their testimony, regardless
of whether greater efforts would have been successful. Id. at 684. When the declarant is
unavailable and due diligence has been shown, the declarant’s former testimony is admissible if
the adverse party had a similar motive or opportunity to cross-examine or otherwise develop the
declarant’s former testimony. MRE 804(b)(1).
Here, the prosecution noted at the beginning of trial that the trial would last less than a
day and that one of its three witnesses had telephoned the court indicating that her car was stuck
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in the snow and she was having difficulty getting to court because of the severe snowstorm. The
prosecutor sent a detective to the witness’ house, but by the time the detective arrived the witness
had apparently attempted to get to court through other means. The prosecutor noted that the
witness was subpoenaed and was in court for jury selection on a previous day. The trial court
concluded that the witness was unavailable for the one-day trial and that the witness’ prior
recorded testimony could be admitted. Under the circumstances presented, we find no abuse of
discretion in the trial court’s finding that the witness was unavailable to testify. People v Bean,
457 Mich 677, 684; 580 NW2d 390 (1998).
Defendant also contends that he was denied a fair trial by the improper prosecutorial
comments. Defendant did not object to the allegedly improper comments. Unpreserved issues
are reviewed for plain error that affected substantial rights. People v Rodriguez, ___ Mich App
___; ___ NW2d ___ (Docket No. 208445, rel’d 4/26/02), slip op p 10. We have reviewed the
allegedly improper comments and conclude that the comments were either not improper or could
have been cured by a timely objection. People v Kelly, 231 Mich App 627, 638; 588 NW2d 480
(1998). Thus, we find no plain error affecting substantial rights.
Last, defendant argues that the cumulative effect of the errors alleged previously denied
him a fair trial. Having found no error of consequence, we disagree. People v Daoust, 228 Mich
App 1, 16; 577 NW2d 179 (1998).
Affirmed.
/s/ Christopher M. Murray
/s/ E. Thomas Fitzgerald
/s/ Peter D. O’Connell
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