Prosecutorial error; Prosecutorial rebuttal & burden-shifting; People v Fyda; Curative instructions & no prejudice; People v Mahone; Sentencing; Within-guidelines sentencing & proportionality; People v Posey; Habitual-offender enhancement

The court held that although the prosecutor’s rebuttal improperly suggested defendant should have subpoenaed two witnesses, the error did not warrant relief as it was not outcome determinative. It also held that his within-guidelines sentences were reasonable. He was convicted of AWIM, AWIGBH, felony-firearm, CCW, and resisting arrest after he shot two victims and fled police. The trial court sentenced him as a fourth-offense habitual offender to 30-60 years for AWIM, and to shorter terms for the other convictions. On appeal, the court agreed with defendant that the prosecutor’s “why didn’t they subpoena” remarks were improper burden-shifting because “a prosecutor may not comment on the defendant’s failure to present evidence because it is an attempt to shift the burden of proof.” However, it found the error was not outcome-determinative in light of the evidence (victim identification, proximity and ammunition, flight, and defendant’s statements) and curative instructions reminding jurors that defendant need not prove anything and that arguments are not evidence. As for “the prosecutor’s remarks in rebuttal about defendant’s refusal to give the police a complete statement” those did not improperly shift the burden of proof. Finally, as to sentencing, defendant failed to rebut the presumption of reasonableness under Posey. The court emphasized the gravity of the offenses, his criminal history, and the absence of unusual mitigating circumstances sufficient to overcome proportionality. Affirmed.