Motion for a new trial; People v Budzyn; Ineffective assistance of counsel; Evidentiary issues; Other acts evidence; MRE 404(b)(1); Relevant evidence; MRE 401; Consecutive sentences

The court held that the trial court did not abuse its discretion in denying defendant’s “motion for a new trial or evidentiary hearing, sustaining the prosecutor’s objections, or imposing consecutive sentences. Additionally, his trial counsel was not ineffective for not raising a futile objection.” Defendant was found guilty of CSC I, II, III, and IV. He then moved for a new trial and evidentiary hearing, claiming that “the jury was introduced to improper, extraneous messages in support of the victims.” The trial court denied his motion and sentenced him to consecutive sentences. On appeal, he argued, among other things, that “the trial court abused its discretion for not granting him a new trial, or at least an evidentiary hearing, based on” messages displayed on parked cars in the courthouse parking lot. As to the first Budzyn factor, although “defendant argued that there were witnesses who saw the cars before the jury arrived, and the prosecutor argued that the jury was required to be in the courthouse before the cars even arrived in the parking lot, there was no evidence admitted or proffered by which the trial court could make a determination.” As to the second Budzyn factor, even assuming “that the jury was exposed to the messages, there [was] nothing to support that the messages created a real and substantial effect on the jury’s verdict. The messages merely stated that the owner of the vehicle believed the victims, and the messages did not contain information that was case-specific over which the jury was to deliberate. And, even assuming that a juror would make the connection to the case, the messages were not sensationalist or likely to excite the passions or overwhelm a juror’s rational judgment. The messages did not, in short, create a real and substantial possibility of affecting the jury’s verdict.” The court noted that for “the first time on appeal, defendant attached new affidavits to his brief on appeal to further explain when witnesses saw the messages on the cars. Importantly, these affidavits were not submitted to the trial court during the hearing, and most were signed after defendant” filed his appeal. The court held that even though it “does not consider new evidence on appeal unless justice requires it,” the affidavits were not dispositive of the Budzyn factors, and were “not particularly helpful to the resolution of this issue, because the affidavits still d[id] not definitively show that the jury was confronted with the messages on the cars. They only state[d] that the jury may have been able to see them if they arrived in the parking lot at a certain time.” Affirmed.