Ineffective assistance of counsel; Witness issues; Failure to object to a statement in the prosecutor’s closing argument; Prosecutorial error; Jury instruction related to flight; Failure to raise a futile objection; Sentencing; Scoring of OV 9; MCL 777.39(1)(c); Claim the trial court was required to conduct de novo resentencing; People v Rosenberg

In these consolidated appeals, the court rejected defendant’s ineffective assistance of counsel claims and his challenge to the scoring of OV 9 at 10 points. He was convicted of discharge of a firearm in or at a building, causing injury; FIP; and felony-firearm (second offense). The trial court found that defense counsel (M) tried to investigate a woman (F) “as a potential defense witness, but she would not cooperate because she thought that he was the prosecutor. The trial court’s finding of fact was not clearly erroneous. Thus, [M] did not act in an objectively unreasonable manner, as he in fact followed up with defendant’s recommendation.” In addition, M “made a strategic choice to attack the prosecutor’s case in closing argument by commenting, ‘We haven’t heard from [F].’” As a result, the court concluded that defendant failed to show that M “made an objectively unreasonable error in failing to call” F. Next, the court found that the prosecutor’s closing argument “statement that defendant ‘takes off’ was supported by evidence that defendant left the location, but the statement, ‘he goes into hiding for about two years’ was not. Although defendant was not arrested until [3/12/22], there was no evidence that [he] purposefully concealed his whereabouts or obstructed law enforcement.” Thus, there was a legitimate basis to object and request a curative instruction. But defendant did not show that M’s failure to do so was an objectively unreasonable error. M “testified that he generally pursues a strategy of not objecting during closing arguments, which the trial court acknowledged in its findings of fact. Additionally, defense counsel could, as [M] did, rely on the trial court to instruct the jury that attorneys’ arguments are not evidence.” The jury instruction on flight “made no reference to hiding, which was the objectionable aspect of the closing.” As a result, “there was no firm basis for counsel to object to” it. As to OV 9, any error was harmless because rescoring it at 0 points would not change defendant’s OV level. Further, there was no scoring error. The score was “supported by evidence relating to the sentencing offense of discharge of a firearm at a building, causing injury.” While only one person was injured, the others “on the porch were at risk of injury from” the shooting. Affirmed.