Ineffective assistance of counsel; Failure to move for a mistrial or take other actions due to a witness’s conduct; Challenges to a police expert witness; MRE 702; People v Kowalski; Qualifications; Failure to request a Daubert hearing; Failure to call a defense cell phone expert; Failure to raise a right of confrontation argument as to a cell phone provider’s certification; People v Nunley; United States v Yeley-Davis (10th Cir); Prejudice; Failure to request a voluntary manslaughter jury instruction & to object to the homicide instructions; Prosecutorial misconduct; Sentencing; Scoring of OV 3; Consideration of failure to admit guilt; People v Payne; Reasonableness challenge to a within-guidelines sentence; MCL 769.34(10); Cruel &/or unusual punishment; People v Bowling

Rejecting defendant’s ineffective assistance of counsel claims and finding no merit in his sentencing issues, the court affirmed his second-degree murder, FIP, and felony-firearm convictions and sentences. He was sentenced as a third-offense habitual offender to concurrent terms of 65 to 100 years for murder and 2 to 10 years for FIP, to be served consecutive to 5-year terms for his felony-firearm convictions. He argued, among other things, that defense counsel should have moved for a mistrial due to a witness’s (J) “inflammatory outburst” on the way to the witness stand. The court noted he appeared to overstate J’s conduct. J “did not make any statements to defendant, and his objectionable conduct of giving ‘an angry look’ was immediately halted.” Given that the trial court denied defense counsel’s motion to disqualify J, there was no reasonable probability it would have granted a motion for a mistrial. The court also rejected defendant’s claim that defense counsel’s challenges to a police expert witness (Q) were inadequate. It concluded that his claims did not sufficiently challenge Q’s “qualifications to render an opinion using cell phone records and towers to track locations.” The court also found that defendant’s speculation that a defense cell phone expert could have given “unspecified favorable testimony is insufficient to show that defense counsel’s failure to call an expert was objectively unreasonable, or” a reasonable probability there would have been a different outcome if one had been called. He also claimed defense counsel was ineffective for failing to raise a right of confrontation objection when the trial court admitted Sprint’s records, which “were accompanied by a declaration of authenticity from Sprint.” The court disagreed, concluding it was “evident that Sprint’s business records were created for the administration of its affairs as a cell phone provider and not for the purpose of establishing or proving a fact at trial. Further, the records in this case were properly authenticated, because it is undisputed that a declaration of authenticity accompanied” them. Thus, they were not testimonial and there was no Sixth Amendment violation. The court also upheld the 25-point score for OV 3, and rejected his claims that the trial court improperly considered his refusal to admit guilt and that his within-guidelines murder sentence was cruel and/or unusual punishment.