Motion for a mistrial; Prosecutorial misconduct; Harmless error; Dismissal of a juror & replacement with an alternate; People v Tate; Right to a fair, impartial, & unanimous jury; Jury instructions after the replacement; MCR 6.411; MCL 768.18(1); Distinguishing People v Hunter; Failure to give an alternate juror instruction consistent with M Crim JI 3.11a

The court held that defendant did not establish outcome-determinative error related to the denial of his motion for a mistrial. Further, it concluded that the trial court did not abuse its discretion in dismissing a juror during deliberations due to her scheduling conflict. Finally, while it erred in regard to instructing the jury afterward, defendant was not entitled to reversal due to lack of prejudice. He was convicted of second-degree murder, FIP, CCW, and felony-firearm. His motion for a mistrial followed the prosecutor questioning defendant’s wife about whether she conducted a Google search about removing gunpowder residue from hands. The court determined that it did not have to “decide whether the prosecutor erred by asking the question, because” defendant did not establish that it “caused outcome-determinative prejudice.” It noted that only one “question was asked, it was isolated and did not lead to further related inquiry, it was never actually answered, and it was not referenced in the prosecutor’s closing arguments.” It further found that “the weight of the properly admitted evidence makes it unlikely that the question affected the outcome. This was not a particularly close case. Two witnesses who knew both defendant and the victim identified defendant in the surveillance footage that showed the shooting, [his] vehicle resembled the one in the surveillance video, and photographs by a license plate reader and cell-tower mapping data placed [him] and his vehicle near the scene of the” murder. He also “sent a video of the shooting to a friend and told other friends that he needed to ‘disappear ASAP,’ which was evidence of consciousness of guilt.” As to the excused juror, MCL 768.18(1) permits a juror to be excused “from service ‘[s]hould any condition arise during the trial of the cause which in the opinion of the trial court’ justifies excusal.” Juror two disclosed her plans to attend a birthday party in New York “during voir dire and, in response to questioning by the trial court, stated that she could not change her plans or make alternate arrangements.” Defendant failed to show prejudice. As to instructing the newly constituted jury, “jurors were given an alternate juror instruction directing deliberations to begin anew,” and they deliberated for about “an hour before reaching a unanimous verdict[.]” Affirmed.