Video interview; Discovery violations; People v Banks; Harmless error; Expert testimony; Daubert v Merrell Dow Pharm, Inc; People v Muhammad; MRE 702; Prejudice & relevance; MRE 401-403; Ineffective assistance of counsel; Failure to object to statements as to delayed disclosures

The court concluded that “the trial court abused its discretion when it allowed the video into evidence because it had not been timely disclosed to defendant; however, the error was harmless.” The trial court did not abuse its discretion when it admitted an expert’s testimony about the pathophysiological effects of strangulation under Daubert and MRE 702. Finally, defendant was not denied the effective assistance of counsel. He was convicted of second-degree child abuse and AWIGBH by strangulation or suffocation. He argued “the trial court violated his due-process rights when it allowed the prosecution to present portions of the video of his police interview after the defense had rested, despite the fact that the prosecution failed to produce a copy of the video to defendant until after the first day of trial, and the trial court’s remedy was insufficient to address this violation.” The court held that “the discrepancy between the video and defendant’s trial testimony was not relevant to prove any of the prosecution’s theories of the case; rather, it was used solely as impeachment on an issue that was not an element of any of the charges brought against defendant.” As such, it found “that the trial court abused its discretion by allowing the prosecution to introduce the video as evidence.” It next turned to the question “of whether the trial court’s error, in allowing production of the evidence, was harmless.” Based on the record, the court was not persuaded that it was “more probable than not that the trial court’s error in admitting the video clips was outcome determinative, i.e., we do not believe the admission of that evidence undermined the reliability of the verdict because, even without the subject video, the weight and strength of the evidence supporting the charges against defendant at trial was overwhelming.” It found that after “considering all of the evidence in its totality, including the testimony of defendant’s wife,” the two child victims, and other witnesses, including two experts, “as well as various admissions made by defendant during his testimony at trial, it would not be reasonable to hold that the outcome would have been different had the trial court refused to admit the 56 seconds worth of video into evidence.” Affirmed.