Prosecutorial error; People v. Dobek; People v. Brown; People v. Unger; People v. Watson; People v. Thomas; Ineffective assistance of counsel; People v. Heft; Failure to make a meritless argument; People v. Payne

The court held that the prosecution did not commit misconduct and counsel was not ineffective for failing to object to the alleged misconduct. However, the court remanded to the trial court for an evidentiary hearing and appropriate findings as to “whether defense counsel’s failure to investigate and present expert testimony at trial constituted ineffective assistance of counsel.” He was convicted of first-degree premeditated murder, assault with intent to commit murder (AWIM), felon in possession (FIP), and felony-firearm, second offense. The trial court sentenced him as a fourth-offense habitual offender to life in prison without parole for the first-degree murder conviction, 15 to 30 years for the AWIM conviction, 5 to 15 years for the FIP conviction, and a consecutive 5-year prison term for the felony-firearm conviction. On appeal, the court rejected his argument that he was denied a fair trial by the prosecutor’s improper comments and arguments and that defense counsel’s failure to object to those comments and arguments constituted ineffective assistance of counsel. It noted that the comments and arguments were not improper, and thus, any objection by defense counsel would have been futile. “Defense counsel’s failure to object to the prosecutor’s use of the term ‘forthright’ in her opening statement, use of the term ‘courageous’ in her closing argument, and argument that [defendant] terminated his cell phone service the same day he provided the phone number to the police was not ineffective because none of these instances involved improper conduct on the part of the prosecutor.” Affirmed in part and remanded. The court retained jurisdiction.