Motion for a mistrial based on objectionable testimony; People v Lane; Hearsay; The present sense impression exception (MRE 803(1)); The excited utterance exception (MRE 803(2)); Harmless error; “Drug profile” testimony; People v Murray; Failure to give a jury instruction on the proper use of this testimony & expert testimony; M Crim JI 5.10; Waiver; Ineffective assistance of counsel; Failure to raise futile objections; Sentencing; Scoring of OV 5; Proportionality challenge to within guidelines sentences; MCL 769.34(10); People v Posey

The court held that the trial court did not abuse its discretion in denying defendant’s motion for a mistrial based on witness-C’s objectionable testimony, and that while a statement by a victim (R) to his girlfriend was not admissible under MRE 803(1), its admission was harmless error. It rejected defendant’s arguments as to the admission of drug profile testimony, and found that OV 5 was properly scored at 15 points. Finally, following Posey and other precedent, the court held that it could not consider his proportionality challenge to his within-guidelines sentences. He was convicted in 2 cases of delivery of a controlled substance causing death, and sentenced to concurrent terms of 225 months to 80 years. As to the motion for a mistrial, there was “no indication that the prosecutor knowingly or intentionally caused [C] to provide inadmissible testimony.” Further, in each of the three instances of “relatively minor irregularities[,]” defense counsel successfully objected, and the “jury was instructed to disregard testimony if an objection to that testimony was sustained.” In addition, as to the first two instances, the prosecutor “immediately clarified that [C] lacked personal knowledge and thus could not testify to whom [R] texted and about what occurred in the vestibule outside” C’s presence. Defense counsel on cross-examination also pointed out that C “lacked personal knowledge of whether [R’s] text messages were sent to defendant, or whether [R] actually purchased drugs from defendant at” a restaurant. Under these circumstances, the court could not “conclude that a mistrial was the only possible way to cure any prejudice to defendant.” Instead, the trial court’s jury instructions, “the prosecutor’s clarifying questions (and [C’s] responses), the prosecutor’s discussion with” C during a recess about “what he could and could not say in front of the jury,” as well as defense counsel’s thorough cross-examination, “remedied any prejudice to defendant.” R’s statement that he “‘got a bag from Cisco’ described an event that had occurred several hours in the past, and thus, was not ‘substantially contemporaneous’ as required by MRE 803(1).” But its erroneous admission did not warrant a new trial given the strong (although largely circumstantial) evidence pointing “directly to defendant’s guilt.” Affirmed.