Ineffective assistance of counsel claims against a standby attorney; People v Kevorkian; Untimely receipt of discovery material; Motion for a directed verdict; Jury voir dire; Prosecutorial misconduct; Authentication of email evidence; MRE 901 & 1002; Sentencing; Upward departure from the guidelines; Proportionality; Distinguishing People v Dixon-Bey

The court held that defendant failed to establish a valid claim for ineffective assistance of standby counsel and that there was no prosecutorial misconduct. It found no merit in his claims that he was not allowed to question everyone who was seated on his jury and that an e-mail admitted into evidence was not properly authenticated. Finally, he failed to show the trial court erred in departing upward from the guidelines in sentencing him. Thus, it affirmed his convictions of making a threat of terrorism, second-degree arson, and unlawful possession of a harmful device resulting in property damage, as well as his concurrent sentences of 10 to 20 years for the threat of terrorism conviction and 5 to 20 years for his other convictions. The court noted that in Kevorkian, it “explained that access to standby counsel can be described ‘as a matter of grace, but not as a matter of right.’” It further determined there that with “‘no constitutional right to an attorney, a defendant proceeding in propria persona has no basis to claim that the attorney must abide by constitutional standards.’” Defendant’s first standby counsel issue related to 10 voicemails the prosecution played at trial that defendant allegedly left on a victim’s phone. They were not played at the preliminary exam, “defendant did not know that they were going to be presented until four days before trial, and [he] did not have the opportunity to hear them until the morning of the trial . . . .” The prosecution did not send him the recordings (he was in jail while awaiting trial) “but they were provided to his standby counsel approximately one month before the trial.” While it was “clear that defendant should have been given these recordings sooner[,]” the court noted that he “did not have a right to receive this material from his standby counsel. The error here was made by the prosecutor, who should have sent the discovery directly to defendant rather than his standby counsel.” As to his claim based on standby counsel moving for a directed verdict of acquittal on the threats of terrorism charge, the court concluded “standby counsel did not concede guilt to any crimes, and the alleged concession of guilt did not take place in front of the jury.” As to his sentences, the trial “court’s detailed and thorough rationale for departing from the guidelines is entirely supported by the record” and this case was nothing like the one on which he relied, Dixon-Bey.