Ineffective assistance of counsel; Failure to retain a computer forensic expert; Failure to impeach witnesses; MRE 609(a); Failure to call a witness; Failure to make futile objections; Admission of preliminary exam testimony; MRE 804(b)(1); “Unavailable” witness; MRE 804(a)(5); “Due diligence”; Right of confrontation; Similar motive to examine a witness at the prior proceeding; People v Farquharson; Admission of a preliminary hearing testimony transcript; People v Page; Prosecutorial misconduct; Vouching; Reference to a plea agreement

The court rejected defendant’s ineffective assistance of counsel claims, concluding among other things that there was no indication testimony by a computer forensic expert would have aided the defense and that proposed impeachment of a witness would have been impermissible under MRE 609(a). It also held that the prosecution showed due diligence in trying to procure witness-W’s attendance at trial, and that admission of W’s preliminary exam testimony did not violate defendant’s right of confrontation. While the trial court erred in “failing to make a record of its ruling admitting” W’s preliminary exam testimony transcript into evidence, there was no error in providing it to the jury. Finally, defendant’s prosecutorial misconduct claims failed. He was convicted of first-degree felony murder and felony-firearm. He argued that an expert would have found “four corrupted and unplayable video files on [W’s] computer, and those files were crucial to the defense.” While he presented an affidavit from a forensic computer examiner, the court found that it clearly showed defendant’s argument was “speculative, and the corruption could be explained by a number of innocent misfortunes.” In addition, and importantly, there was “nothing to suggest any tampering of the videos actually played for the jury.” The court also noted there was “nothing to suggest that the corrupted videos might have been recoverable, nothing to suggest that any videos were deleted, and nothing to suggest that any potentially exonerating video evidence ever existed. Even if the corrupt videos had been edited, the editing was obviously unsuccessful, and it would not affect the reliability of the other surveillance videos that were admitted at trial, one of which showed defendant ransacking” the victim’s bedroom a short time after the murder. As to the admission of W’s preliminary exam testimony, the prosecution and police “engaged in extensive efforts to” procure W’s attendance at trial. Defendant essentially contended “they could have done more,” but this is not the standard. Further, apart from the fact defense counsel did not know about the corrupt video files at the time of the preliminary exam, counsel “had just as much interest in discrediting [W’s] reliability” at the preliminary exam as at trial. Nothing indicated those “files were of any significance, and [W] expressly denied altering the videos.” Affirmed.