Other acts evidence; MRE 404(b); People v VanderVliet; MRE 403; People v Mardlin; Lack of notice; People v Jackson; Plain error review; Prejudice; Ineffective assistance of counsel; Failure to request an involuntary manslaughter instruction & to object to the other acts evidence; People v Gillis; Sentencing; Proportionality; People v Milbourn; Within-guidelines sentence

The court held that defendant was not entitled to relief based on his challenge to the admission of other acts evidence or his ineffective assistance of counsel claims. And it rejected his proportionality challenge to his within-guidelines sentence. Thus, it affirmed his second-degree murder conviction and his 25 to 50-year sentence. Witness-D testified about two incidents that occurred the night of the murder – (1) defendant’s allegedly pulling a knife on D after losing two games of pool (the knife incident) and (2) his shooting and reloading a gun in front of D at defendant’s house (the gun incident). The court noted he “denied that he shot and killed the victim[.]” Both incidents rebutted his argument. The first showed his “motive for killing the victim and his state of mind at the time of the incident. Prior to the knife incident, [he] lost two games of pool to [D]. Defendant’s refusal to play a third game motivated [him] to pull a knife on [D], i.e., the embarrassment of having failed to beat [D] at pool motivated defendant to pull a knife on him.” And the trial testimony reflected “the victim laughing in response to defendant saying he would kill him caused” defendant to say, “[Y]ou don’t believe it,” in response to which “the victim laughed again, and being laughed at and ‘called out’ in this manner and the resulting embarrassment may have likewise motivated defendant to shoot.” The court also found that the gun incident showed his motive and state of mind. D’s “negative reaction to defendant firing the gun, i.e., [D] indicating that he was going to leave because of what defendant did, motivated defendant to shoot out [D’s] tire. Thus, later in the night, when the victim laughed at defendant, the gun incident is also relevant as evidence that, on the night of the incident, defendant was motivated to react with a weapon upon the most casual slight. Proof of motive is relevant to prove murder.” The gun incident also showed his identity. The court held that both incidents were “substantively admissible under MRE 404(b).” While the prosecution failed to give the required notice, the court concluded this plain error “did not affect defendant’s substantial rights.” D testified about the incidents at the preliminary exam, and the prosecution notified defendant of its intent to present D as a trial witness. Thus, there was no unfair surprise. Further, even absent D’s “testimony, the other evidence of defendant’s guilt was overwhelming.”