Present sense impression hearsay exception (MRE 803(3)); Victim’s state of mind; People v Smelley; People v Moorer; People v Fisher; Harmless error; Aiding & abetting; Intent; Aiding & abetting jury instruction; Sufficiency of the evidence; Second-degree murder; Ineffective assistance of counsel; Failure to object to vouching testimony; Relevance; Prejudice; Failure to challenge rebuttal testimony & to employ an expert; Distinguishing People v Ackley; Request for a Ginther hearing & appointment of an expert to testify at the hearing; Sentencing; Scoring of OVs 1 & 9; MCL 777.31(1)(a) & (2)(a)-(b); MCL 777.39(1)(c) & (2)(a)

While out-of-court statements by the victim were not admissible under MRE 803(3), the court held that their erroneous admission was not outcome-determinative and did not entitle defendant to a new trial. Further, the trial court did not abuse its discretion in giving an aiding and abetting jury instruction, and there was sufficient evidence that he had the necessary intent to support his second-degree murder conviction as an aider and abettor. The court found that defense counsel was ineffective for failing to object to improper vouching testimony, but defendant could not show prejudice. It rejected his other ineffective assistance of counsel claim and found that the trial court did not abuse its discretion in denying his request for a Ginther hearing and appointment of an expert. It also upheld the scoring of OVs 1 and 9 at 25 and 10 points, respectively. Thus, it affirmed his conviction and his 30 to 60-year sentence. To the extent the victim’s statements were admitted to show his state of mind, they “bore only a tenuous connection to the real issues, but carried with them a substantial danger of unfair prejudice for what they implied about defendant’s state of mind.” But reversal was unwarranted because they were not outcome-determinative. The thrust of the testimony of the witness (S) who testified about them was not “that the victim was fearful of defendant, but that [S] herself was fearful.” Defendant did not assert that S “should have been barred from testifying about her own, personal experiences with” him on the day of the crime. Further, he testified that he drove the shooter (J) to the crime scene, that he fled the scene, “and that he drove [J] to safety afterwards. Despite being aware that police would undoubtedly desire to question him, rather than go to the police, defendant made plans for the vehicle he drove to and from the scene to be delivered to his girlfriend, and waited for the police to find him. Defendant then repeatedly lied about whether he drove the vehicle and whether he was present at” the crime scene. While defense counsel should have objected to some of an officer’s (H) testimony, defendant could not “show that, but for the admission of [H’s] statement, there was a reasonable probability that the result” would have been different. H was one of many witnesses, and the statement “was only tangentially related to” the purpose of his testimony.