Motion for a mistrial; People v Barker; Prosecutorial misconduct; Closing remarks explaining the role of circumstantial evidence; Mischaracterization of the evidence; Questioning of defendant & closing argument addressing defendant’s former girlfriend; MRE 404(a); Plain error; Sentencing; Scoring of 10 points for OVs 14 & 19

The court held that the trial court did not abuse its discretion in denying defendant’s motion for a mistrial, and he was not entitled to relief on his claims of prosecutorial misconduct. Finally, the trial court did not abuse its discretion by assessing 10 points each for OVs 14 and 19. He was convicted of possession with intent to deliver meth, conspiracy to possess with intent to deliver meth, and maintaining a drug house. He was sentenced as a fourth-offense habitual offender to serve 20 to 50 years for possession with intent to deliver and conspiracy, and 46 months to 15 years for maintaining a drug house. Defendant contended the trial court abused its discretion by denying his motion for a mistrial in light of prejudicial testimony from a police witness, S. The court found that there appeared “to be no dispute from defendant that the prosecution did not intentionally elicit the responses from [S], there was no request for a curative instruction, and the record clearly demonstrates that most of the volunteered remarks were unresponsive. In the first challenge to improper testimony, the prosecution merely asked [S] if defendant had previously stayed at the Timberline Lodge.” S replied, “I was involved with [the hotel manager] on prior occasions at which he had advised me that [defendant] had been there on a previous time and stayed there, and he explained to me that he believed that he was selling controlled substances from there.” The court held that the “initial portion was admissible and responsive, but the latter portion was not and was properly excluded by the trial court. Whether defendant had sold controlled substances from the Timberline Lodge was unresponsive to the prosecution’s question about whether” he previously stayed there. In the next challenged testimony, the prosecution asked S “if there were unique characteristics about” the vehicle in which defendant was a passenger that allowed it to be located in a store parking lot. Part of S’s answer included that he had been told defendant had a pulled a gun on someone. Because S’s “testimony involved unresponsive replies that were immediately stricken by the trial court and there was no indication that the prosecution encouraged the responses, defendant failed to demonstrate that the trial court abused its discretion by denying the motion for mistrial because the responses did not deprive him of a fair trial.” Lastly, S's testimony about “filed-down keys” did not warrant a mistrial under the circumstances. Affirmed.