Hearsay; Statements offered to show the effect on the listener; Commands distinguished from assertions; Present sense impression hearsay exception; MRE 803(1); People v Chelmicki; Excited utterance exception; MRE 803(2); Text messages; Ineffective assistance of counsel; Failure to make a futile objection; Other acts evidence; MCL 768.27b; MRE 403; MCL 768.27; Testimony about cell phone locational information; Lay witness opinion testimony; MRE 701; Cumulative error; Results of a forensic search of defendant’s cell phone; Affidavit in support of the search warrant; People v Hughes (On Remand); Probable cause

Concluding that the challenged out-of-court statements by the victim either were not hearsay or fell under an exception, the court held that the trial court did not admit inadmissible hearsay and defense counsel was not ineffective for failing to object. Further, the trial court did not abuse its discretion in admitting other acts evidence from two of defendant’s former girlfriends, or testimony by a police officer about cell phone locational information. In addition, while “a reasonably cautious person could not have concluded that there was a substantial basis for finding a fair probability that evidence of the crime would be found on defendant’s cell phone[,]” any error in admitting the phone’s search history was harmless. Thus, the court affirmed his first-degree murder conviction. The victim was his wife. Three of the challenged utterances “were offered to show that a quarrel occurred and likely had an effect on defendant rather than to prove the truth of the matters asserted,” and thus, were not hearsay. Further, “the victim’s directives to defendant to refrain from buying cigarettes and to pack his bags and leave were commands rather than assertions, and therefore were not statements under MRE 801(a), and” not hearsay. The second group of challenged utterances were admissible under MRE 803(1) and (2). The victim’s statements to a witness (J) “described the encounter she just had with defendant outside the home, the statements were the victim’s perceptions of the encounter, and the statements were made to [J] immediately upon the victim entering the home after [J] heard the victim and defendant arguing outside.” Thus, they qualified as present sense impressions. They also qualified as excited utterances. According to J, “the victim appeared shaken, and the statements arose from and were related to the encounter between the victim and defendant that [J] had just overheard outside the home.” Further, the victim’s text messages to defendant “asserting that the marriage was over, that she did not want to reunite with defendant, and that the police were on the way were not offered to prove that the marriage was over or that the police were on the way, but” rather to show that they “were continuing to quarrel and that defendant might have believed that the victim was ending the relationship and had called the police, thus” revealing a motive for him to shoot her.