Due process; Defendant’s appearance on a police interview video recording; People v Horton; Ineffective assistance of counsel; Testimony as to forensic interview protocols; People v Dunifin (Unpub); Other acts evidence; MCL 768.27a; MRE 403; People v Watkins

The court held that defendant did not show “that plain error occurred because of how he appeared on the video recording of his police interview, and he has failed to establish that his trial counsel was ineffective for not raising proper objections to the recording.” The court also rejected his challenges to the admission of testimony about forensic interview protocols and other acts testimony under MCL 768.27a. He was convicted by a jury of CSC I and II. After viewing the entire recording, in which defendant wore clothing provided by the jail, the court found that “at most there was a brief portion where writing on the back of the shirt might have been visible, as the attorneys acknowledged during the first trial.” For most of the recording, he was “shown primarily from the base of his neck up so any identifying information on his shirt is not visible. The trial court found, when ruling on defendant’s motion for a new trial, that the writing was not visible enough for the jury to conclude that it identified defendant as a jail inmate. If the jury saw a portion of the shirt defendant wore and believed that it contained writing identifying [him] as a jail inmate, under Horton,” there was no basis for granting him relief. The record did “not show that plain error occurred when there is no reason to believe that the jury would have known that defendant was wearing a jail uniform at the time of his interview.” Alternatively, he argued “that his counsel was ineffective for not objecting to the recording shown to the jury.” The court noted that defense “counsel likely did not object or raise this issue because he also agreed with defendant’s first attorney that the jury would not be able to view the writing on the back of the shirt that briefly appeared on the recording. For this reason, defendant has not shown that his counsel was ineffective for not objecting. An objection would have been futile on these facts.” The court added that even “if defense counsel had objected, it is apparent that the result would not have been affected when the trial court found nothing wrong with the recording as admitted. The [trial] court would not have ruled that the recording was inadmissible if defense counsel had objected.” Affirmed.