Admission of text messages; Hearsay; A party’s own statements; MRE 801(d)(2)(A); Waiver; Ineffective assistance of counsel

Noting that defendant’s text messages and statements did not constitute hearsay and were admissible under MRE 801(d)(2)(A), the court concluded that he waived any appellate challenge to the admission of all the text messages at issue. Further, even “assuming a hearsay violation and the absence of a waiver” as to the text messages, he could not show prejudice. The court also rejected his ineffective assistance of counsel claim. Defendant was convicted of first-degree premeditated murder, AWIM, felony-firearm, third-degree fleeing and eluding, and CCW. The case arose from the shooting death of R, with whom he lived. The text messages were between R and a co-worker, and between R and defendant. They established that R was involved romantically with her co-worker. They also showed that defendant knew of the relationship, that R and the co-worker knew he was aware of it, that he was trying to accept it but was struggling with it, and that he did not want it “thrown in his face at his home.” The court first held that the trial court did not err in “admitting defendant’s text messages or statements, and defense counsel was not ineffective for failing to raise a futile or meritless objection to the evidence.” The prosecution also admitted evidence of a phone call between defendant and a 911 operator, during which he “effectively spoke to the subject matter covered by the text messages.” He told the 911 operator that he had asked R for her cell phone, and “whether she had set up a date with” the co-worker. He stated that she had left with the cell phone and the children to take the children to the bus stop for school, and she “came back with a happy face, that defendant ‘was trying to be cool with’ [R] going on a date, that [R] was supposed to leave the relationship or affair at work and outside the home but failed to do so, that [R] could be found dead in the bathroom, and that defendant ‘just remember[ed] looking at the phone.’” There was also testimony by his friend showing “that defendant knew about the relationship between” R and her co-worker before her death. The court found that it was clear from the record defense counsel used the text messages in an effort to show defendant killed R “in the heat of passion under adequate provocation and without premeditation and deliberation.” Affirmed.