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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v RONALD JOHN HUFF, Defendant-Appellant.

UNPUBLISHED November 12, 1999

No. 213571 Allegan Circuit Court LC No. 97-010463 FH

Before: Bandstra, C.J., and Markman and Meter, JJ. PER CURIAM. Defendant Ronald Huff, whose three-month-old daughter died of asphyxiation while she and defendant slept on a couch, appeals by right from his conviction by a jury of involuntary manslaughter, MCL 750.321; MSA 28.553. The trial court sentenced defendant to three to fifteen years' imprisonment. We affirm. Defendant claims that the trial court should have granted his motion for a new trial based on the allegedly improper exclusion at trial of a hearsay statement made by the baby's mother, Tina Cameron, to a friend. We review a trial court's decision regarding a motion for a new trial, as well as a trial court's decision regarding evidentiary matters, for an abuse of discretion. People v Gadomski, 232 Mich App 24, 28; 592 NW2d 75 (1998); People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998). An abuse of discretion exists when an unprejudiced person, considering the facts on which the trial court acted, could find no justification for the ruling. People v Ullah, 216 Mich App 669, 673; 550 NW2d 568 (1996). The statement defendant claims should have been admitted at trial was a statement by Cameron that before she left for work on the morning of the baby's death, she either placed the baby with defendant on the couch while defendant was sleeping or left for work after defendant, who had been drinking, had fallen asleep on the couch with the baby.1 Defendant admits that the statement constituted hearsay but claims that (1) because it tended to show that Cameron contributed to the baby's death, it should have been admitted as a statement against penal interest under MRE 804(b)(3), and (2) because the statement was particularly probative and trustworthy, it should have been admitted under the "catch all" hearsay exception found in MRE 804(b)(6). MRE 804(b)(3) and (6), however, apply only if the -1

declarant is "unavailable" as defined by MRE 804(a). "unavailable" under MRE 804(a)(1) and (3), which state:

Defendant claims that Cameron was

"Unavailability as a witness" includes situations in which the declarant

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