Prosecutorial error; Plain error review; Whether a missing witness jury instruction should have been given; Ineffective assistance of counsel; Failure to request a missing witness jury instruction; Cumulative error; Right of confrontation; Whether an error was outcome-determinative

The court rejected defendant’s claims of prosecutorial error and ineffective assistance of counsel. Further, it found that there was insufficient evidence for it “to determine whether a missing witness instruction should have been given.” Thus, there was no plain error in that regard. It also concluded it did not have to consider whether “challenged statements violated the Confrontation Clause because any alleged error was not outcome determinative.” Finally, it disagreed with defendant’s claim that he was denied a fair trial due to the cumulative effect of the errors he alleged on appeal. Thus, it affirmed his domestic violence and reckless driving convictions. The case arose from his “assault of the victim after she returned home to her apartment with her roommate, and defendant’s niece,” S. Defendant contended “the arresting officer’s testimony about [S’s] account violated his Sixth Amendment rights under the Confrontation Clause.” But the court noted that the “victim testified at length about defendant’s assault. While certain inconsistencies were noted for the jury, the victim was consistent that defendant had assaulted her. Thus, the jury was well within reason to find the victim’s testimony credible and convict defendant of domestic violence.” He next asserted the prosecution “erred by: (1) implying that [S] did not testify because of her relation to defendant, (2) stating that [S’s] account convinced the arresting officer that the victim’s allegations were true, and (3) generally using [S’s] account ‘as substantive evidence to corroborate and bolster the credibility of his complaining witness.’” Defendant further argued the trial court erred in refusing to give “a curative instruction or declare a mistrial as a result of the prosecutor’s errors.” The court disagreed in all respects. He did not show plain error as to the first two arguments, he abandoned the third argument, and as to the fourth, he never requested such relief. As to his cumulative error claim, all his “alleged errors pale in comparison to the victim’s own testimony, in which she consistently testified that defendant assaulted and choked her. While lacking, the evidence available on appeal demonstrates that a reasonable jury, even with a missing witness instruction or the omission of [S’s] account altogether, could find defendant guilty of domestic violence on the basis of the victim’s testimony.”