Right of confrontation; Testimonial evidence; Davis v Washington; Waiver; Ineffective assistance of counsel for failure to request a jury instruction on the lesser offense of voluntary manslaughter; MCL 768.32(1); MCL 780.972(1)(a); People v Mitchell; People v Pennington; Adequate provocation; Trial strategy; Sentencing; Scoring of OV 9 (number of victims); MCL 777.39(1)(c); People v Teike; Proximity; Right to be sentenced based on accurate information

The court held that defendant was not denied his right of confrontation or his right to the effective assistance of counsel, and the trial court did not err by assessing 10 points for OV 9. He was convicted of second-degree murder and felony-firearm for shooting and killing his sister’s (G) boyfriend (J). The trial court sentenced him to 45 to 70 years for the former and a consecutive 2 years for the latter. On appeal, the court rejected his argument that he was denied his right of confrontation when the trial court admitted G’s statements to a police officer on the day of the shooting. Defendant stipulated that G “made the statements recorded on the officer’s bodycam video. [He] thereby waived any claim of error resulting from the admission of the statements on that basis.” In addition, he had the opportunity to question G regarding the same information she stated to the officer on the day of the shooting. The court also rejected his claim that defense counsel provided ineffective assistance when she failed to request a jury instruction on the lesser offense of voluntary manslaughter. “Defense counsel’s choice not to request a voluntary manslaughter instruction . . . was strategic because a voluntary manslaughter defense would have required defendant to present evidence that he acted in the heat of passion rather than out of self-preservation.” Further, the facts “do not reasonably support the conclusion that defendant’s act was the product of adequate provocation.” Finally, the court rejected his contention that his sentencing guidelines were incorrectly scored because the trial court improperly assessed 10 points for OV 9, resulting in his sentence being based on inaccurate information. Immediately after shooting the victim “and while still holding the gun, defendant walked past MB, [J’s] teenage sister, who was hysterical, and told her that he would shoot her, too, if she was not quiet. Although MB did not suffer actual harm, defendant caused her to be in ‘close proximity to a physically threatening situation,’ and MB thereby qualified as a victim under OV 9.” Affirmed.