Prosecutorial misconduct; People v Bennett; Domestic violence elements; MCL 750.81(2); People v Cameron; Burden shifting; People v Fyda; Missing-witness instruction & due diligence; MCR 2.506(C)(1); People v Pearson; Harmless error; MCL 769.26; People v Riddle

The court held that no reversal was warranted because, although the prosecutor made an improper burden-shifting argument about whether a device was a taser and the prosecution failed to exercise due diligence to produce an endorsed witness, neither error was outcome determinative as to the domestic-violence conviction. Defendant was convicted of domestic violence under MCL 750.81(2) after an incident in which the victim testified defendant threatened to “zap” him with a device, and the trial court denied a requested missing-witness instruction after finding due diligence. On appeal, the court held the closing argument did not misstate domestic-violence law, emphasizing the offense requires “(1) the commission of an assault or an assault and battery and (2) a dating relationship between the parties,” and the prosecutor “accurately identified and described both requisite elements.” The court next held that the prosecutor improperly tried to shift the burden of proof on the taser-related question, concluding the remarks were “plainly improper,” but found no prejudice because defendant was acquitted of the taser and felonious-assault counts and, as to domestic violence, “whether the device was a taser was not a requisite element of that offense.” The court also held that the trial court erred in finding due diligence for an endorsed witness because the subpoena was served the day before trial in violation of MCR 2.506(C)(1), explaining the “clear and mandatory requirement” was “undisputedly not met” and “plainly constitutes a failure to exercise due diligence,” and therefore the trial “court should have provided the requested missing-witness instruction.” The court next held defendant was not entitled to relief because she did not establish prejudice from a witness’s absence or that failure to give the instruction caused a miscarriage of justice, stating the record left the court “to speculate about what the witness’s testimony might have been,” and “it does not ‘affirmatively appear[] that it is more probable than not that the [error] was outcome determinative.’” Affirmed.