Ineffective assistance of counsel; Confrontation clause; Distinguishing Hammon v Indiana; Right to a properly instructed jury; MCR 2.512(D)(2); MCR 2.513(N)(1); People v Rodriguez; M Crim JI 3.3; Sentencing; Scoring of OV 19 (interference with the administration of justice); MCL 777.49(c)

The court held that defendant was not denied the effective assistance of counsel and that the trial court did not err by assessing 10 points for OV 19. He was convicted of AWIM and felony-firearm in the nonfatal shooting of the victim. The trial court sentenced him to consecutive terms of 30 to 60 years for the former and 2 years for the latter. On appeal the court rejected his argument that defense counsel rendered ineffective assistance by failing to object to the admission of the child’s statement that he was the shooter, noting the evidence was not objectionable. It found Hammon "lends no support to defendant’s argument that a spontaneous description of a crime, not made in response to a question, becomes testimonial if the same information was given earlier in response to questions from a different police officer." While the court agreed with defendant that defense counsel erred by failing to ensure that the jury was instructed it could not draw adverse inferences from his decision not to testify, reversal was not warranted because he could not show that this error affected the outcome of the trial. "[T]here are three reasons why defendant cannot establish prejudice. First, the evidence against [him] was overwhelming." Second, defense counsel "discussed this issue at length with the venire during the jury selection process, explaining that defendant did not have to testify and that the jury could not hold his decision not to testify against him." Third, the "totality of the [trial] court’s instructions adequately apprised the jury of who bore the burden of proof and what the appropriate considerations were." Finally, the court rejected his claim that he was entitled to resentencing because the trial court erred in scoring OV 19 as the evidence supported an inference that he "attempted to evade police, threw his gun out the window to keep the police from finding it, and told the van’s driver not to give the police any information."