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154566 - People v Devaun Laroy Lopez

The People of the State of Michigan,
Nathan J. Collison
(Appeal from Ct of Appeals)
(Saginaw – Jackson, D.)
Devaun Laroy Lopez,
Ronald D. Ambrose


A jury convicted defendant of first-degree murder and other offenses. Prior to trial, the prosecutor was concerned that a key witness would offer testimony at trial that differed from his testimony at the preliminary examination, and warned the witness that he could be sent to prison for life if he lied on the stand. The witness refused to testify and the trial court allowed the prosecutor to admit the witness’s preliminary examination testimony under MRE 804(b)(1) because the witness was unavailable under MRE 804(a)(1) or (2). On appeal, defendant argued that the prosecutor issued the warning to the witness, causing his unavailability, in order to introduce the witness’s preliminary examination testimony at trial. In a published opinion, the Court of Appeals reversed defendant’s convictions, agreeing with defendant’s argument and further observing that the preliminary examination testimony would be inadmissible if the witness refused to testify on retrial. The Supreme Court has directed oral argument on the prosecutor’s application for leave to appeal to address: (1) whether prior testimony is admissible under MRE 804(b)(1) where the proponent of the statement has caused the declarant to be unavailable under MRE 804(a), regardless of any intent by the proponent to cause unavailability; and, (2) if some form of intent is required, what standards should apply when determining whether the proponent’s actions were intended to cause the declarant to be unavailable.