Jury instruction on a lesser included offense; People v. Cornell; AWIGBH; People v. Brown; Assault & battery; People v. Starks; Cognate offenses; People v. Hendricks; Hearsay; MRE 801(c); Waiver; People v. Kowalski; Admission of a witness’s prior consistent statement; MRE 801(d)(1)(B); People v. McCray; Excited utterances; MRE 803(2); People v. Smith; People v. McLaughlin; Present sense impression; MRE 803(1); People v. Hendrickson; Admissibility under MCL 768.27c(1); Harmless error; People v. Whittaker; A timely objection; In re Weiss; Whether an officer improperly testified about a witness’s credibility; People v. Dobek; The officer’s testimony about defendant’s veracity; People v. Heft; Lay opinion testimony; People v. Oliver; Curative effect of a jury instruction; People v. Unger; Ineffective assistance of counsel; Failure to raise a meritless objection; People v. Ericksen

Holding that assault and battery is a cognate lesser offense of AWIGBH, not a necessarily included one, the court concluded that the trial court did not err in denying defendant’s request for an assault and battery jury instruction. Further, he was not entitled to relief on the basis of his claims of evidentiary error, and his counsel was not ineffective for failing to raise a meritless objection. Thus, the court affirmed his AWIGBH conviction. It noted that while assault and battery requires an assault and a battery, “AWIGBH does not require a battery; rather it only requires an assault and an intent to do great bodily harm. While many instances of AWIGBH may also include a battery, a battery is not actually an element of AWIGBH. As such, any offense containing a battery, such as assault and battery, is not a necessarily included lesser offense of AWIGBH.” And a trial court does not have to instruct on cognate offenses. As to his evidentiary issues, while victim-L’s statements to her mother were erroneously admitted as prior consistent statements, the error was harmless because they qualified as excited utterances. “Learning that one needs to be airlifted for emergency treatment to avoid dying certainly qualifies as ‘a startling event or condition,’ and a resulting spontaneous statement is thus made ‘while the declarant was under the stress of excitement caused by the event or condition.’” L’s statement to an officer when she was being loaded into a helicopter to go to another hospital that defendant had twice punched her in the ribs also qualified as an excited utterance. But her handwritten statement to police made several days later, after recovering from surgery, did not qualify as an excited utterance or a present sense impression, and was inadmissible under MCL 768.27c(1). However, the court concluded that its admission was harmless in light of the evidence the jury had already received of L’s statements that defendant caused her injuries. Finally, her sister’s challenged testimony was admissible under MRE 803(3) “because it was not offered to prove that defendant was angry when [L] returned home, but” to show L’s fear of him “and her apprehension about returning home late.”