Other acts evidence regarding the sexual abuse of a minor; Waiver; Notice of intent to use other acts evidence; MCL 768.27a(1); People v Hawkins; Unfair prejudice; MRE 403; People v Pattison; Ineffective assistance of counsel; Failure to make a futile objection; Prosecutorial misconduct; Arguing reasonable inferences; Vouching; Sentencing; Life without parole (LWOP); Proportionality; Cruel or unusual punishment; People v Brown
The court held that the trial court did not err by admitting other acts evidence, that the prosecutor’s statements did not warrant reversal, and that defendant’s LWOP sentence was proportional and did not constitute cruel or unusual punishment. He was convicted of CSC I and II for sexually abusing the victim when she was about four years old. The trial court sentenced him as a second-offense habitual offender to 6 to 22½ years for each CSC II count, concurrent with a sentence of LWOP for CSC I. On appeal, the court rejected his argument that the trial court erroneously admitted other acts evidence because the prosecution never filed the required notice of intent to use such evidence under MCL 768.27a(1). As an initial matter, it found he waived any claim of evidentiary error as to the admitted “evidence because his trial counsel explicitly and unequivocally stated at trial that this evidence was something that jurors ‘absolutely . . . can consider.’” But his argument was meritless in any event. Here, as in Hawkins, defendant “provide[d] no argument of how he would have reacted or how this case would have proceeded differently without the error of notice he allege[d].” In addition, the evidence was properly admitted as his “three prior CSC convictions all involved similar conduct, the sexual assault of young female family members.” And the evidence was reliable. Further, because both of defendant’s claims were meritless, “his trial counsel was not ineffective for failing to object.” The court also rejected his contention that numerous instances of prosecutorial misconduct denied him a fair trial. “[W]hile the prosecutor made various troubling and improper statements, they do not warrant reversal when viewed in context. Further, any prejudice from these errors was cured by the trial court’s instructions to the jury.” Finally, the court rejected his argument that his LWOP sentence was disproportionate and constituted cruel or unusual punishment. His prior convictions “subjected him to the statutorily mandated sentence of [LWOP], which Brown previously ruled does not constitute cruel or unusual punishment under similar facts, and the trial court properly imposed such a sentence.” Moreover, he conclusively claimed “his statutorily mandated [LWOP] sentence was disproportionate without any substantive analysis of law or facts supporting this conclusion, and he thus has not met his burden to overcome the presumed proportionality of the sentence.” Affirmed.
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