Police witness testimony as to video evidence; MRE 701; People v Fomby; People v Drossart; Ineffective assistance of counsel; Failure to challenge the validity of a cell phone search warrant; Failure to object to the admission of photos of the victims & stipulating to the admission; Specific unanimity instruction

The court concluded that defendant failed to establish the trial court abused its discretion when it admitted an officer’s testimony as to what was depicted in a video. Also, he was not denied the effective assistance of counsel, and his claim that the jury in his case was not required to render a unanimous verdict had no merit. He was convicted of first-degree premeditated murder, first-degree felony murder, fourth-degree arson, FIP, mutilation of a dead body, and felony-firearm. Defendant claimed the trial court erred in permitting a police witness (T) “to offer his interpretation about what was depicted in a video played for the jury.” The court held that T’s “testimony could help the jury discern the events depicted on the video.” Thus, it concluded that “the testimony was permissible under MRE 701.” As to whether the testimony invaded the province of the jury, defendant relied upon Drossart. But the court disagreed with his “position that an opinion that ‘went directly to the issue before the jury’ is the same as opining on” his guilt. Also, T’s “testimony did not invade the province of the jury if he was in a better position to see what the video depicted.” The court found that the “poor quality of the video weighed in favor of a ruling that [T’s] testimony was necessary,” and the fact he had repeatedly reviewed the “footage, including focusing on different aspects of the video as he re-watched it, put him in a better position than the jurors to see what the video depicted.” The court held that even “if the trial court abused its discretion in permitting the testimony, that error does not require reversal.” It was clear “the jury was focused on reaching their own conclusions based on their perceptions of the video, and not merely based on [T’s] testimony, when deciding on defendant’s guilt.” Thus, the court could not say that it was “more probable than not that the error, to the extent there was one, affected the outcome of the trial.” Affirmed.