Prosecutorial error; Other acts questioning; Curative instruction; Prejudice; Shifting the burden of proof; People v Fyda; Ineffective assistance of counsel for failure to request a mistrial; Failure to make a futile objection; Sentencing; Scoring of OV 10; MCL 777.40(1)(a) (predatory conduct); People v Huston; Departure sentence; Proportionality; People v Dixon-Bey

Finding no errors requiring reversal, the court affirmed defendant’s convictions and sentences. He was convicted of AWIGBH and felony-firearm for shooting the victim four times outside the victim’s acquaintance’s (T) apartment. The trial court sentenced him to 6 to 10 years for AWIGBH and 2 years for felony-firearm. On appeal, the court rejected defendant’s argument that the prosecutor’s questions to T about defendant’s prior bad acts required reversal because the trial judge immediately struck the testimony and instructed the jury to disregard it. The court noted “‘[c]urative instructions are sufficient to cure the prejudicial effect of most inappropriate prosecutorial statements.’” In addition, counsel was not ineffective for failing to request a mistrial as the “improper testimony was short, the trial court identified [it] swiftly and immediately gave a curative instruction, and the inadmissible evidence was never mentioned again during trial. This was simply not the type of egregious error that would warrant a mistrial, and defendant’s trial counsel was not ineffective for failing to make a futile motion for a mistrial.” As to the prosecutor’s rebuttal closing argument, the court rejected defendant’s burden-shifting claim where the prosecutor answered the defense theme that unnamed bystanders existed and were never interviewed by observing the defense could have subpoenaed them. “This was a fair response to the defense’s argument[,]” and it did not relieve the prosecution of its burden. The court also rejected defendant’s argument that he was entitled to resentencing because the trial court erred in assigning 15 points to OV 10 and failed to justify the extent of its upward departure sentence. It upheld 15 points for OV 10 because the record supported that defendant lay in wait for the victim, and “[l]ying in wait is the textbook example of predatory conduct” under MCL 777.40(1)(a). It also upheld the upward-departure minimum term, finding the trial court adequately explained why the guidelines understated the offense and why the chosen minimum was proportionate. There are “no ‘magic words’” required to justify the extent of a departure when the explanation was thorough enough to allow the court to understand the trial court’s reasons for the particular departure.