Ineffective assistance of counsel; Failure to obtain evidence; Failure to object to other acts evidence; Failure to renew request for an assault & battery jury instruction; Explanation of a plea offer; People v White; Prosecutorial error; Alleged Brady v Maryland violations; Leading witnesses; Eliciting other acts evidence; Closing remarks; Double jeopardy; Felonious assault & AWIGBH convictions; People v McKewen

The court held that defendant failed to show that either defense counsel or the prosecution made any errors at trial that prejudiced him. Further, his convictions of AWIGBH and felonious assault (and the accompanying felony-firearm offenses) did not violate double jeopardy. The case arose from a shooting. Defendant asserted that defense counsel was ineffective for, among other things, “failing to obtain Ring camera footage from the shooting because the footage could have been exculpatory.” However, the court noted that he did not “prove that this footage existed in the first place.” It concluded defense “counsel was not ineffective for failing to obtain evidence after requesting it, learning that it did not exist, and cross-examining a witness to confirm to the jury that it did not exist.” Defendant’s prosecutorial error claims included that “the prosecution committed ‘potential’ Brady violations by failing to obtain any Ring camera footage of the shooting and failing to provide him with all the text messages from the time of the shooting.” This claim failed because he did not establish that either the footage or the messages existed. As to the prosecutor’s closing remarks, the court noted that even if the challenged statements were improper, defendant failed to explain how any of them “prejudiced the outcome of his trial. Furthermore, the trial court instructed the jury not to consider evidence that defendant may have committed a separate crime or improper act as evidence of his guilt, that the lawyer’s arguments were not evidence, and that it must base the verdict solely on the evidence presented.” Defendant did not offer any “argument as to how the jury did not follow the trial court’s instructions or why the instructions did not cure any prosecutorial error.” Thus, he was not entitled to reversal. His claim that his AWIGBH and felonious assault convictions violated his constitutional right to be free from multiple punishments likewise failed. In McKewen, the Michigan Supreme Court “held that ‘convictions for both AWIGBH and felonious assault arising out of the same act do not violate constitutional double-jeopardy protections because the AWIGBH statute authorizes multiple punishments for the same conduct.’” Affirmed.