People v. Kent

Defendant was convicted, after jury trial, of 1st-degree murder. Conviction was reversed on direct appeal and remanded for new trial, based on improper admission of Facebook evidence. After closing arguments in 2nd trial, jury found Defendant guilty of 1st-degree murder and that he personally discharged a firearm that proximately caused victim's death. Witness Wesley, age 13 on date of murder, the only eyewitness to the shooting, testified at 1st trial that he witnesses the shooting and saw the shooting at the park earlier that evening. Although evidence was sufficient to support conviction, Defendant is entitled to a new trial because court committed reversible error in admitting Wesley's testimony from the 1st trial. Court abused its discretion in ruling that Wesley was an unavailable witness under Rule 804(a)(5).  State's proffer was unsupported by affidavit or sworn testimony, State did not establish the number of attempts to serve Wesley, never advised court as to any additional attempts at service, and never asserted that further attempts to serve him would be futile and instead stated that it would continue such attempts. Record reflects no efforts by State to procure Wesley's attendance by other reasonable means. Court erred in granting State's motion in limine to admit Wesley's testimony from 1st trial. (McLAREN and JORGENSEN, concurring.)