References to “murder weapon”; Ineffective assistance of counsel; Failure to request a mistrial; Failure to request a curative instruction; Failure to fully investigate; Distinguishing People v Jordan; Sentencing; Scoring of OVs 3 & 9

The court concluded that defendant had failed to show that he was “entitled to a new trial on the basis of the stricken testimony referring to a ‘murder weapon.’” Also, he was not denied the effective assistance of counsel for failure to request a mistrial where any such request would have been futile. Finally, the trial court did not err by scoring OV 3 at 25 points and OV 9 at 10 points. He was sentenced as a second-offense habitual offender to 25 to 50 years for the murder conviction and two years for the felony-firearm conviction. Defendant argued “that testimony from two police witnesses referring to a weapon found in the trunk of the vehicle defendant was driving as the ‘murder weapon’ denied him a fair trial.” Although he framed “his issue as one of prosecutorial misconduct, his trial counsel successfully objected to the testimony, resulting in the trial court striking the inappropriate references to the ‘murder weapon’ by the police witnesses.” Defendant’s actual argument appeared “to be that the trial court should have granted a mistrial because of the prejudicial nature of the comments.” To the extent he asserted that he was “entitled to a new trial on the basis of prosecutorial misconduct, it is important to recognize that he never identifies any conduct on behalf of the prosecutor that his claim is based on.” Instead, he relied “solely on the characterizations of the two police witnesses.” The court found that defendant did “not identify what the prosecutor did that forms the basis of his claim of prosecutorial misconduct, and we can find none.” However, it concluded that the gravamen of defendant’s argument was “that the prejudice introduced by the police officers’ testimony referring to the firearm they found as the ‘murder weapon’ was so severe that the trial court should have granted a mistrial.” It found that he “failed to show how his right to a fair trial was violated.” Defendant argued “that his right to due process was violated through the police’s failure to fully investigate the nine-millimeter casing that was found in the southern part of the parking lot.” The court concluded that he had “identified no evidence that the prosecution possessed that it failed to disclose.” Instead, he argued “that the police should have more fully investigated the nine-millimeter casing. But due process does not require the police to seek and find exculpatory evidence.” Moreover, it found that “assuming that there was such a duty to further investigate the nine-millimeter casing, defendant has failed to show how the outcome of the trial would have been different.” As a result, his argument was without merit. Affirmed.