Admission of a jailhouse video; MRE 405; Harmless error; Substitution of counsel; People v McFall; Self-representation; Exclusion of evidence under MRE 403; Ineffective assistance of counsel; Prejudice; Failure to make a futile objection; Failure to request a continuance due to a COVID-19 outbreak; People v Serges; Cumulative error; Sentencing; Scoring of OVs 6 & 13; MCL 777.36(1)(b) & (c); MCL 777.36(2)(a) & (b); MCL 777.43(1)(c) & (2)(c); Entitlement to resentencing

The court concluded that while it appeared likely the trial court erred in admitting a jailhouse video because MRE 405 did not apply, the error was harmless given the other trial evidence. The trial court did not abuse its discretion in denying defendant’s motions for substitution of counsel and his request to represent himself, or in excluding certain evidence under MRE 403. His ineffective assistance of counsel and cumulative error claims also failed. But resentencing was required due to errors in scoring OVs 6 and 13. Thus, the court affirmed defendant’s second-degree murder conviction but vacated his sentence and remanded for resentencing. The prosecution sought to admit the video “to rebut defendant’s testimony on direct that (1) he did not start fights, and (2) the victim was the aggressor. These well may have been legitimate grounds for admission under MRE 404(a),” but the court noted that “MRE 405 limits the ways in which such character traits can be shown. MRE 405(a) allows reputation or opinion testimony by a character witness, and cross examination of that witness with, among other things, specific instances of the defendant’s conduct. The video was not used as part of a character witness’s testimony, so MRE 405(a)” did not apply. MRE 405(b) allows the specific instances of a defendant’s conduct to show a character trait “only when a defendant’s character or character trait was ‘an essential element of a charge, claim, or defense.’ Neither open murder nor self-defense to that charge requires” such a showing. But other trial evidence, including the physical evidence, “tended to disprove that deadly force was necessary for defendant to protect himself, an element for his self-defense claim.” As to his sentencing, the trial court erred in scoring both OVs 12 and “13 at 25 points based on the same conduct, in contradiction of MCL 777.43(2)(c).” The prosecution conceded that OV 6 should not have been scored at 50 points. Regardless of whether it should have been scored at 25 points as the prosecution contended, or 10 points as defendant asserted, either score, “in combination with a score of 0 points for OV 13, changes the guidelines range and” warranted resentencing.