Motion for a new trial; Right of confrontation; Admission of forensic evidence; Smith v Arizona; Video testimony; Other acts evidence; MRE 404(b)(1); People v VanderVliet; Ineffective assistance of counsel; Trial strategy; Failure to make a futile objection; Prejudice; Motion for a mistrial; Unanimity instruction; People v Gadomski

The court vacated the portion of the trial court’s order as to defendant’s argument that “the absence of testimony from the laboratory scientists who tested the DNA samples and prepared the DNA profiles denied him the right to confrontation, and that trial counsel was ineffective for failure to object on these grounds[.]” It remanded for the trial court to “determine whether this evidence constitutes testimonial evidence and whether defendant was denied his confrontational rights.” But it affirmed in all other respects, finding the trial court did not err by (1) admitting other acts evidence, (2) denying his motion for a mistrial, or (3) failing to give a specific unanimity instruction. And it found he was not denied the effective assistance of counsel as to any other issue. Defendant was convicted of CSC I and kidnapping for forcing the complainant into an abandoned house and sexually assaulting her. On appeal, he first argued that the admission of DNA profile evidence violated his right of confrontation, presumably because he could not confront the individuals who “did the testing and prepared the DNA profiles.” The court found remand as to this issue was “necessary for the trial court to determine whether” the forensic company’s “data was testimonial in nature and to complete the Confrontation Clause analysis under the newly-provided framework in Smith.” The testimonial “nature of the evidence is not properly before this Court at this time given” uncertainties as to what was included in the “raw data” referred to by the parties. As to his claim of ineffective assistance of counsel, it found he could not meet his burden “to prove that counsel’s performance was deficient or that he was prejudiced by counsel’s failure to object.” He also could not meet his burden to prove counsel was ineffective for failing to demand that several witnesses appearing by two-way video technology testify in person. It next rejected defendant’s claim that the trial court erred by admitting other acts evidence of a 1991 sexual assault with DNA evidence implicating him. “The evidence was offered for a noncharacter purpose. It was relevant to establishing an element to the charged offense and probative of the ultimate issues. [And it] supported the reasonable inference that defendant intended to force a young woman to engage in unconsented sex by employing a strikingly similar plan, scheme, or system to commit the sexual assault.” As to the trial court’s denial of his motion for a mistrial at the close of the prosecution’s proofs, “because the bodily fluids tested were genuine, any break in the chain of custody was not fatal to the admission of the challenged evidence.” Finally, in light Gadomski, “a specific-unanimity instruction was not warranted in this case.”