Prosecutorial misconduct; Gang-related testimony; Distinguishing People v Wells; Ineffective assistance of counsel; Failure to object to the gang-related testimony; Admissibility of investigative-subpoena testimony; Distinguishing People v Seals; Voluntariness; People v Cipriano

The court held that even if there were a plain error, defendant-Newbern did not establish “that the alleged prosecutorial misconduct affected his substantial rights.” Also, he could not “establish ineffective assistance predicated on his lawyer’s failure to object to the gang-related testimony.” Finally, on this record, he failed to show “that the admission of his investigative-subpoena testimony was plain error affecting his substantial rights.” Newbern was convicted of first-degree premeditated murder, CCW, FIP, and felony-firearm. He argued “that the prosecutor committed misconduct by eliciting ‘extensive’ testimony from” a police detective about two local gangs. Newbern asserted “that it was improper because there was no evidence in this case of a connection between Newbern’s conduct and gang affiliation.” He relied on Wells. The court noted that unlike the prosecutor in Wells, the prosecutor here “only briefly introduced evidence that the two groups mentioned by Newbern were local gangs. She did not use that evidence to suggest that Newbern’s motive for murdering [K] was gang related, nor did she argue that Newbern was a member of either gang.” The court held that given “the brief and limited scope of the gang-related evidence, its innocuous nature, and the fact that no unfairly prejudicial inferences were argued based upon the admitted evidence,” Newbern did not “establish a clear or obvious error.” Further, it noted “the substantial evidence indicating that [he] was the person who shot [K] to death—which includes video footage, cellphone location analysis, eyewitness testimony placing him at the scene of the shooting, and evidence that he was in possession of a gun on the day of the shooting[.]” Newbern also argued “that his investigative-subpoena testimony is inadmissible because it was not voluntary and understanding as he was high, intoxicated, and sleep deprived when he testified.” But the court concluded that “considering the totality of the circumstances, the Cipriano factors militate toward a finding that Newbern’s testimony was voluntary. Accordingly, even if this issue were raised before the trial court, Newbern cannot show that the evidence would have been excluded.”