Prosecutorial error; People v. Noble; People v. Brownridge (On Remand); Ineffective assistance of counsel; People v. Trakhtenberg; Strickland v. Washington; People v. Vaughn; Matters of trial strategy; People v. Ackley; People v. Petri; Decision not to object; People v. Unger; Failure to raise a futile objection; People v. Putman; Presumption that counsel’s advice that defendant not testify was sound trial strategy; People v. Tommolino

Rejecting defendant’s prosecutorial error and ineffective assistance of counsel claims, the court affirmed his felonious assault conviction. He hit the victim, a neighbor, “twice with a stick, causing injuries to his forearm, head, and eye. At trial, the victim testified that during the attack defendant said, ‘I’ve got you now, f***er,’ and ‘that’s for hitting my kid.’ Physical evidence corroborated the victim’s testimony, including the stick used in the attack and defendant’s shoes that were found at the scene. Defendant’s statements were also corroborated by photographic evidence taken at the scene of spray-painted derogatory remarks, directed at the victim, on items located outside defendant’s residence.” He argued on appeal that “the admission of evidence of the derogatory remarks against the victim, including testimony and photographs, violated the parties’ prior stipulation to limit the trial testimony to the events of the day of the alleged assault.” He also contended that it was prosecutorial error for the prosecution to offer this evidence. The court disagreed, concluding that there was “no indication that the evidence was not offered in good faith. Indeed, the prosecutor indicated that the evidence was being introduced to corroborate defendant’s statements.” In addition, it was not outcome-determinative because “ample evidence” existed for the jury to find him guilty beyond a reasonable doubt without it. The victim suffered “multiple severe injuries, including blindness, and law enforcement located pieces of the stick used to attack the victim and defendant’s shoes at and near the scene. Thus, the admission of this evidence was not plainly erroneous.” The court also held that defense counsel was not ineffective for failing to object to the evidence on the basis that it violated the stipulation, or because that defendant did not testify. Defense counsel referenced the derogatory remarks in closing argument to suggest a self-defense theory, and defendant failed to overcome the presumption that counsel’s advice not to testify was sound trial strategy.