Limitations on the scope of voir dire; Ineffective assistance of counsel; Failure to raise a futile objection; Request for remand for an evidentiary hearing; Sentencing; OV 13 scoring; MCL 777.43(1)(c) & (2)(a); Distinction between acquitted conduct & uncharged conduct; People v Beck; People v Boukhatmi; Rational-jury analysis; People v Brown

The court held that the trial court did not err in limiting the scope of voir dire, and that defense counsel was not ineffective for failing to raise a futile objection. It also upheld the trial court’s scoring of 25 points for OV 13 in sentencing defendant for his CSC II conviction, concluding the trial court properly considered uncharged (not acquitted) conduct. He contended “the trial court limited questions to only the new potential jurors after the first peremptory challenges were made” and that it did so by surprise, without warning. The court disagreed, finding that his argument mischaracterized the record. The “trial court and the parties probed into the potential bias of the initially seated potential jurors. Defendant’s trial counsel even expressed his satisfaction with the voir dire of the initially seated potential jurors. Following a break, the trial court advised the jurors that the ‘initial round of questioning has concluded.’ After jurors were dismissed by the parties for cause or with peremptory challenges, the trial court instructed additional potential jurors to be seated. [It] requested that [they] answer the initial questions that were relevant to them.” This context showed “there was no surprise in the process for questioning jurors. Rather, the procedure was agreed upon[.]” As to defendant’s related ineffective assistance claim, the court reviewed all the information the jurors provided, all the questions they were asked, and concluded that he failed “to identify any additional information that his co-counsel should have asked that would uncover pertinent information regarding juror bias or partiality.” As to OV 13, the “trial court considered three incidents including the event” that was the basis of defendant’s conviction, “‘evidence of sexual touching of the victim’s genitalia and breasts at’” a motel in Kent County, and his “use of a ‘vibrator on the victim at’” a hotel in the county. The victim’s trial testimony supported its “conclusion that these three events were sufficient to establish a pattern. The sexual conduct cited by the trial court did not involve the alleged sexual penetration for which defendant was acquitted.” It also did not include two CSC I charges in another county that were dismissed. Thus, “the evidence the trial court considered as a pattern of three or more crimes against the victim at sentencing was consistent with defendant’s acquittal.” Affirmed.