CSC; Prior inconsistent statement; MRE 613(b); People v Williams; Impeachment evidence; Discovery sanction; MCR 6.201(J); Fair trial; Dowling v United States; Prosecutorial argument; People v Thomas; Ineffective assistance of counsel; Limiting instruction; People v Kelly

The court held that the trial court did not abuse its discretion by allowing the prosecution to use and admit a Facebook Messenger message for impeachment and that defendant was not denied the effective assistance of counsel. Defendant was convicted of two counts of CSC III after the victim, HP, testified that he sexually assaulted her in her apartment while his cousin, W, was elsewhere in the apartment. Before trial, the court excluded the late-produced Facebook message from the prosecution’s case-in-chief but allowed use for impeachment. On appeal, the court first held that this ruling did not bar impeachment use because the trial court “specifically stated that the prosecution could use Exhibit 8 during cross-examination for impeachment purposes[.]” The court next held that the message was properly admitted under MRE 613(b) because W denied sending it, was given an opportunity to explain, and defendant had an opportunity to examine him about it. The court found an adequate foundation because the message came from an account with W’s “profile picture and profile name,” reflected his point of view, referenced specific details about the case, and showed knowledge of defendant’s upcoming court proceedings. Even assuming error, the court held that defendant failed to show a miscarriage of justice because HP testified to nonconsensual digital and penile penetration, and W’s credibility was already weakened by other inconsistent testimony. The court also rejected defendant’s challenge to the prosecutor’s closing argument because the prosecutor used the message to attack W’s credibility and “never informed the jury” it could be used substantively. Finally, the court held that counsel was not ineffective for failing to request an immediate limiting instruction because the trial court gave a general final instruction on prior inconsistent statements and no reasonable probability of a different outcome existed. Affirmed.