Opinion
353939
11-18-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. EUGENE SCOTT TURNER, Defendant-Appellant.
UNPUBLISHED
Wayne Circuit Court LC No. 19-006217-01-FC
Before: Cavanagh, P.J., and Shapiro and Gadola, JJ.PER CURIAM
Defendant appeals from his bench-trial convictions for first-degree murder, MCL 750.316(a), possession of a firearm during commission of felony (felony-firearm), MCL 750.227, and tampering with evidence, MCL 750.483a(6)(b). For the reasons stated in this opinion, we affirm.
I. BACKGROUND
This case arises from the shooting death of Robin Mcardle. Defendant ran an illicit drug dealing business, and Mcardle brought new customers to defendant. Defendant's ex-girlfriend, Lashawndra Bell, testified that there was an "issue" between defendant and Mcardle because defendant believed Mcardle was stealing his customers. Defendant testified at trial and denied there ever being bad blood between Mcardle and himself.
On the day leading up to the murder, defendant arrived at the home of Daniel Sanders with Dynada Bulley (defendant's then-girlfriend), Mcardle and a friend referred to only as "Drew." Bell was also present at Sanders's home and at one point she walked into the bathroom and saw defendant with Drew. Recounting the incident at trial, Bell testified that defendant appeared angry and stated, "I hate snitches," before shooting a handgun indiscriminately without hitting anyone. At the time of this incident, Mcardle was in the living room. Defendant admitted that he fired his handgun in the bathroom at Sanders's house, but denied he had done so because he was mad at Mcardle. 1
After this incident, defendant, Bulley, Mcardle and Drew left Sanders's house together. The four got into Bulley's Chevrolet Impala, bound for defendant's cousin's home. Defendant drove with Bulley in the front passenger seat; Mcardle rode in the back-passenger seat directly behind defendant. According to Bulley, while driving defendant suddenly yelled, "I hate snakes," pulled out his gun, aimed it toward the backseat, and fired the gun four or five times. No one was shot, but according to Bulley, Mcardle immediately exited from the Impala and ran away. Defendant chased after her on foot, and when she tried to flag down a passing car for help, defendant waved his handgun, and the car drove off. Eventually defendant and Mcardle returned to the car together. Bulley later saw Mcardle with a gun and suggested that defendant may have given it to her so that she would feel safe; Bulley did not believe the gun had any bullets in it. Defendant denied shooting his gun in the Impala, denied that Mcardle left the car, and denied saying, "I hate snakes."
Bulley testified that when they arrived at defendant's cousin's home, defendant instructed her to go inside and have his cousin bring a gun to him. Bulley went inside and spoke with defendant's cousin, while defendant and Mcardle waited in the car. Bulley testified that defendant's cousin put a gun in her coat and went outside; when she returned, she no longer had the gun. When the Impala drove off, only defendant and Mcardle were in the car.
After Bell left Sanders's house, she walked to the home of Paul Cokewell. Bell was worried about Mcardle and used a friend's phone to call her. Cokewell was present for the phone call. Bell testified that Mcardle answered the phone and was crying and sounded "very scared." Bell could hear defendant "hollering at her" in the background. Bell heard Mcardle say, "[H]elp me. He's trying to kill me." She heard defendant respond, "It's because of you." And Bell also heard Mcardle say, "Why are you doing this to me," and, "Help me. I can't breathe." Cokewell also testified at trial and his account of the phone call was largely consistent with Bell's version.
Bulley testified that defendant returned to his cousin's home about 15 to 20 minutes after leaving with Mcardle and that he was the only one in the car. Bulley observed the back window on the driver's side of the Impala was "busted," and blood was in the interior of the car on the driver's side of the rear passenger seat. At trial, defendant admitted that he had driven off in the Impala with Mcardle, and that she was shot during this time. However, defendant maintained that an unnamed drug dealer had met up with him and shot Mcardle. Defendant's drug dealer then directed defendant to drive to a vacant lot. According to defendant, once at the vacant lot, the drug dealer pulled Mcardle out of the Impala and shot her again.
Defendant declined to name the drug dealer because he was a "dangerous guy."
Raysheane Johnson-Louie lived next to the vacant lot. She testified that she saw at least three figures in the Impala and that the driver and a passenger from the back seat exited the vehicle and pulled a third figure from the car, who had been seated in the rear of the car behind the driver's seat. Johnson-Louie testified that the driver shot the third person three times. Police arrived on the scene shortly thereafter to find Mcardle dead in the vacant lot next to Johnson-Louie's house, having sustained two gunshot wounds to her head and one to her neck. 2
After defendant arrived back at his cousin's house, he and Bulley drove the Impala to a residential street and tried to light it on fire. Defendant and Bulley then drove in a separate vehicle to another gas station to get more gasoline, but by the time they arrived back to the Impala, two police cars were on the scene. The two turned around and booked a hotel room for the night. Once at the hotel, at defendant's request, Bulley made a false police report that someone had stolen her car. In the Impala, the police found six 9mm shell casings; four on the front passenger seat and two in the rear seats.
Bulley was charged as an accessory after the fact and arrested. She was offered a plea deal: probation in exchange for her testimony against defendant. As part of this plea deal, Bulley made a written statement to police on May 30, 2019, in which she stated that defendant had confessed to killing Mcardle and had explained his motive. At trial, when the prosecutor started questioning her about this statement, Bulley had issues remembering what she had told the police. However, she affirmed multiple times that everything in her police statement was true.
II. DISCUSSION
A. BULLEY'S POLICE STATEMENT
Couched in terms of a confrontational-clause argument, defendant contends that the trial court convicted him on the basis of evidence extraneous to the record. Specifically, defendant challenges the trial court's reliance on Bulley's May 30, 2019 police statement rather than her testimony at trial. Defendant argues that the police statement was admissible only for impeachment purposes, and by relying on it as substantive evidence of defendant's guilt, the trial court based its verdict from evidence outside the record. We disagree.
Given that Bulley testified at trial and was subject to cross-examination, defendant fails to set forth a cognizable claim that his right to confrontation was violated. See People v Yost, 278 Mich.App. 341, 370; 749 N.W.2d 753 (2008) ("The right of confrontation insures that the witness testifies under oath at trial, is available for cross-examination, and allows the [factfinder] to observe the demeanor of the witness.") (quotation marks and citation omitted).
Defendant did not argue at trial that the trial court could not consider Bulley's prior statements as substantive evidence, and therefore we review this issue for plain error affecting substantial rights. See People v Carines, 460 Mich. 750, 763-764; 597 N.W.2d 130 (1999). To avoid forfeiture, a defendant must demonstrate that "1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." Id. at 763. "The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." Id.
The trial court's verdict was based, in part, on Bulley's testimony that on at least two occasions defendant confessed to the killing and said why he did it. While that is an accurate recitation of Bulley's police statement, at trial Bulley either denied making certain statements, such as asking defendant what had happened to Mcardle which prompted the purported confession, or claimed a lack of memory. Significantly, however, the record shows that Bulley adopted her police statement as true. Three times Bulley was asked if she had told the truth in her May 30, 3 2019 statement to police, and three times she agreed she was truthful. Thus, although Bulley had some difficulties remembering what she said in her statement, she ultimately adopted this statement as truthful. And when a witness admits that his or her prior statement is true, the witness's prior statement becomes substantive evidence. People v Harris, 56 Mich.App. 517, 525; 224 N.W.2d 680 (1974); People v Couch, 49 Mich.App. 69, 73-74; 211 N.W.2d 250 (1973). Accordingly, we find no plain error in the trial court's reliance on the statements Bulley made to the police. Further, while Bulley claimed that she could not remember whether defendant confessed to the killing, she testified that defendant said he should have slipped Mcardle a "bold pack because she was a crackhead." In other words, Bulley testified at trial that defendant mentioned to her that he should have used a different method to kill Mcardle, which is itself a confession to the murder.
B. FACTUAL FINDINGS AND SUFFICIENCY OF THE EVIDENCE
Defendant attacks several of the trial court's findings of fact as "illogical," implying the trial court drew unreasonable inferences from the evidence. In making these arguments, defendant again relies on his right to confrontation. When examining the substance of these arguments, however, it is clear that defendant is challenging specific findings and credibility determinations made by the trial court, and ultimately, the sufficiency of the evidence. See People v Latz, 318 Mich.App. 380, 385; 898 N.W.2d 229 (2016) ("[C]ourts are not bound by the labels a party gives to an argument but rather by the substance of the argument.").
We review de novo a challenge to the sufficiency of the evidence in a bench trial. People v Sherman-Huffman, 241 Mich.App. 264, 265; 615 N.W.2d 776 (2000). When reviewing such a challenge, this Court must view the evidence in a light most favorable to the prosecution to determine whether there is sufficient evidence to justify a rational trier of fact finding defendant guilty beyond reasonable doubt. See People v Wolfe, 440 Mich. 508, 515; 489 N.W.2d 748, amended 441 Mich. 1201 (1992). This Court reviews a trial court's findings of fact for clear error. See MCR 2.613(C); People v Pennington, 323 Mich.App. 452, 464; 917 N.W.2d 720 (2018). A trial court's findings of fact are clearly erroneous if we are "left with a definite and firm conviction that the trial court made a mistake." People v Reese, 491 Mich. 127, 139; 815 N.W.2d 85 (2012) (quotation marks and citation omitted).
To convict a defendant of first-degree murder, the prosecution must prove beyond a reasonable doubt that (1) the defendant intentionally killed the victim and (2) the killing was premeditated and deliberate. People v Oros, 502 Mich. 229, 240; 917 N.W.2d 559 (2018) (citation omitted); MCL 750.316(a). "To premeditate is to think about beforehand; to deliberate is to measure and evaluate the major facets of a choice or problem." Id. (quotation marks, citation and alteration omitted). Intent may be inferred from all the facts and circumstances. People v Cameron, 291 Mich.App. 599, 615; 806 N.W.2d 371 (2011).
Defendant first argues that the trial court erred by finding that he "clearly had a motive to kill" Mcardle, which supported the trial court's determination that premeditation and deliberation were proved beyond a reasonable doubt. "Although motive is not an essential element of the 4 crime, evidence of motive in a prosecution for murder is always relevant." People v Unger, 278 Mich.App. 210, 223; 749 N.W.2d 272 (2008).
The trial court did not clearly err by finding that defendant had a motive to kill Mcardle. The evidence supported the conclusion that defendant was motivated by a desire to retaliate against her for stealing his customers. Defendant contests the trial court's reliance on Bulley's statement to the police that defendant killed Mcardle because she "was going behind his back [and] selling drugs to people he cared for." As discussed, however, the court's reliance on Bulley's police statement as substantive evidence was proper because she adopted it as true at trial. But even without Bulley's statement, Bell testified that there was an "issue" between defendant and Mcardle because she was stealing his customers.
In addition to defendant's purported motive, the trial court reasonably inferred that defendant's escalating anger and violence throughout the day supported a finding of premeditation and deliberation. Again, Bell testified that defendant fired multiple gunshots while in Sanders's bathroom, apparently angry at a "snitch." As defendant points out, his use of the word "snitch" may suggest he was referring to someone besides Mcardle because a snitch refers to someone cooperating with law enforcement. But it is for the fact-finder alone to sift through competing inferences. See People v Hardiman, 466 Mich. 417, 428; 646 N.W.2d 158 (2002). And the subsequent incident in the Impala further supports the conclusion that defendant was in fact angry at Mcardle. Bulley testified that defendant fired multiple shots toward the backseat where Mcardle was seated after announcing, "I hate snakes." Mcardle then ran out of the vehicle, and defendant apparently coaxed her back into the vehicle by giving her the gun. Defendant then procured another gun from his cousin and drove off alone with Mcardle. Bell and Cokewell also testified to statements made by Mcardle during a phone call around this time. According to their testimony, Mcardle sounded scared and distraught and they overheard defendant making statements to her such as, "It's because of you," and, "After all I've done for you, Bitch." In sum, viewed in a light most favorable to the prosecution, there was more than sufficient evidence of premeditation and deliberation.
Defendant next argues that the trial court erred by finding credible Bulley's testimony regarding the initial shooting in the Impala, as opposed to defendant's testimony denying that this incident occurred. We generally defer to a trial court's credibility determinations given the court's opportunity to observe the witnesses. People v Galloway, 259 Mich.App. 634, 638; 675 N.W.2d 883 (2003); MCR 2.613(C). And in reviewing the sufficiency of the evidence, we are required to draw all reasonable inferences and credibility determinations in support of the verdict. See People v Galloway, 259 Mich.App. 634, 638; 675 N.W.2d 883 (2003).
The trial court noted that Bulley's testimony was corroborated by the physical evidence, as shell casings found on the front passenger seat of the Impala suggested that defendant fired his gun from the driver seat toward the back of the car. But citing Officer Eugene Fitzhugh's testimony that shell casings usually eject up and to the right, defendant argues the physical evidence did not corroborate Bulley's testimony. However, it is unknown how defendant was holding the gun, and it is reasonable to infer that the bullets would land on the front passenger seat if they were shot from the driver's seat. Moreover, as it pertains to resolving the competing testimony on whether the initial shooting in the Impala occurred, the trajectory of the bullets has little relevance. Rather, it is the number of casings found in the front passenger seat, which exceeded Mcardle's injuries, 5 that supported Bulley's testimony that defendant fired multiple shots toward Mcardle without hitting her.
Defendant also argues that the trial court erred by finding that corroborating physical evidence supported the credibility of the prosecution's witnesses. Defendant's overriding argument is that, on several matters, the physical evidence was equally corroborative of his version of events. For instance, the trial court found that Bell's testimony regarding the bathroom shooting was credible because it was supported by the physical evidence. But defendant—testifying after the prosecution's offer of proofs—did not deny that he fired multiple shots while in Sanders's bathroom, and so he argues that this fact did not support the trial court finding Bell credible. However, defendant presents no compelling argument as to why the trial court should have found that his testimony, as a whole, was more credible that the prosecution's witnesses. Further, the more specific arguments defendant makes against the trial court's credibility determinations are unpersuasive. Defendant contends that the trial court was wrong to credit Bulley's testimony about the initial shooting in the Impala because, according to defendant, Bulley "repeatedly denied" seeing any damage to the Impala when she exited it at his cousin's home. However, while Bulley testified that she did not see any bullet holes or damage to her vehicle after the initial shooting, she testified that she did not inspect her vehicle when exiting it. Defendant also argues that phone records showing that Mcardle had a 12-minute phone conversation with Bell, which belies Bell and Cokewell's assertions they had only a brief conversation with her. But, contrary to defendant's argument, Bell and Cokewell did not testify that their conversation with Mcardle was brief. Therefore, the trial court did not err by concluding the phone records corroborated Bell and Cokewell's testimony.
For these reasons, defendant fails to establish that the trial court's findings made in support of the verdict were clearly erroneous or that there was insufficient evidence supporting that verdict.
C. PROSECUTORIAL MISCONDUCT AND INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant also argues that he was denied a fair trial by numerous instances of prosecutorial misconduct and that his trial court's decision to not object to the alleged misconduct amounted to ineffective assistance of counsel. We disagree on both counts.
To preserve a claim of error involving prosecutorial misconduct, a defendant must contemporaneously object and request a curative instruction. People v Bennett, 290 Mich.App. 465, 475; 802 N.W.2d 627 (2010). Defendant failed to object to any of the instances of prosecutorial misconduct that he alleges. As a result, this issue is unpreserved. For unpreserved claims of prosecutorial misconduct, this Court examines whether the claimed error amounted to plain error that affected defendant's substantial rights. See People v Gibbs, 299 Mich.App. 473, 482; 830 N.W.2d 821 (2013).
A prosecutor may not argue facts that were unsupported by the evidence. See People v Stanaway, 446 Mich. 643, 686; 521 N.W.2d 557 (1994); Unger, 278 Mich.App. at 241. However, the prosecutor may argue the evidence and all reasonable inferences arising from it as they relate to his or her theory of the case. See People v Bahoda, 448 Mich. 261, 282; 531 N.W.2d 659 (1995); 6 Unger, 278 Mich.App. at 236. Prosecutorial comments must be read as a whole and evaluated in the light of defense arguments and the relationship they bear to the evidence admitted at trial. People v Brown, 279 Mich.App. 116, 135-136; 755 N.W.2d 664 (2008).
Defendant first asserts that the prosecutor argued facts not in evidence while discussing Bulley's testimony in closing argument. For the reasons discussed, however, statements that Bulley made to the police were properly considered as substantive evidence, and thus the prosecutor did not err by relying on these statements in closing argument. Defendant also argues that the prosecutor erred by citing Bulley's testimony in support of the position that defendant made threatening statements to Mcardle during the phone call initiated by Bell. The prosecutor argued in full:
[Defendant] says that it was a lie that there was this phone call with [Mcardle] where she was scared and where he was threatening her. Paul Cokewell says that call happened. Who's more credible? Lashawndra Bell says that call happened. Who's more credible? Dynada Bulley said that incident happens. Who's more credible?
Defendant is correct that Bulley did not provide any testimony regarding the phone call, but the prosecutor argued only that Bulley "said that incident happens." (Emphasis added). The distinction seems to stem from the uncertainty as to when the phone call between Bell and Mcardle occurred. The prosecutor appears to have been arguing that the phone call in which Mcardle pleaded for help took place when she ran from the Impala and tried to flag down an approaching vehicle, as described by Bulley's testimony. Because this was a reasonable inference to draw from the record, we cannot say that the prosecutor's argument on this matter was erroneous.
Defendant also takes issue with the prosecutor stating that Bulley had been consistent in her police statements and her testimony at the preliminary examination and trial. Once again, to the extent Bulley's trial testimony deviated from her May 30, 2019 police statement, she adopted the latter as true. Defendant does identify some slight variations between Bulley's testimony at the preliminary examination and her trial testimony, but her overarching testimony was largely the same. Thus, it was not improper for the prosecutor to refer to Bulley's testimony as "consistent."
Defendant next argues that the prosecutor made inflammatory and improper arguments relating to his drug trafficking and the discharge of the firearm in the bathroom. Addressing defendant's credibility, the prosecutor argued:
But in general [defendant] is not credible. This defendant is not credible by his own admission. Here's why his credibility generally speaking should be questioned or altogether destroyed as this Court considers it: number one, he's a drug dealer.
7Now, I love how it is, like, he's smiling and laughing about this as he's testifying, like, it's my business. And, you know, [Mcardle] helps me get customers and Ms. Bell and all the rest. To find him credible is to find an outright drug dealer to be a credible individual.
He's a guy that by his own admission will fire off rounds in a bathroom when he's frustrated. Is that person credible? Is somebody who can take a gun and fire off rounds in a bathroom with other people present somebody that you find credible. [Emphasis added.]
A prosecutor may argue from the facts that a witness is not worthy of belief, People v Howard, 226 Mich.App. 528, 548; 575 N.W.2d 16 (1997), but the prosecutor seemed to be arguing that defendant should not be believed because of his bad character, see Cristini v McKee, 526 F.3d 888, 889 (CA 6, 2008) ("When a prosecutor dwells on a defendant's bad character to prove that he or she committed the crime charged, we may find prosecutorial misconduct."). However, even assuming that this was an improper argument, any resulting prejudice was tempered by the fact this was a bench trial. "Unlike a jury, a judge is presumed to possess an understanding of the law, which allows him to understand the difference between admissible and inadmissible evidence or statements of counsel." People v Wofford, 196 Mich.App. 275, 282; 492 N.W.2d 747 (1992) (citation omitted). Further, the was ample evidentiary support for the trial court's conclusion that defendant's testimony was not credible and there is no indication that the trial court convicted him on the basis of an improper character inference. Accordingly, defendant fails to show that he was prejudiced by these brief comments.
Defendant also argues that the prosecutor made an inflammatory comment by stating that Bulley had "every reason to be scared of this defendant." But there was evidence in the record from which one could infer that Bulley had reason to fear defendant. The evidence showed that, when angry, defendant was willing to indiscriminately fire his gun with people nearby and that he was also willing to go to great lengths to cover up Mcardle's murder. The prosecutor's comment was not improper.
Next, defendant argues that the prosecution erred by failing to file a notice of intent to introduce other-acts evidence under MRE 404(b) regarding the incident in which defendant fired a gun in Sanders's bathroom.
"MRE 404 governs the admissibility of other-acts evidence. The general rule under MRE 404(b) is that evidence of other crimes, wrongs, or acts is inadmissible to prove a propensity to commit such acts." People v Denson, 500 Mich. 385, 397; 920 N.W.2d 306 (2017). MRE 404(b) states in part:
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.
Defendant argues that the firing of a gun in Sanders's bathroom was not part of "the conduct at issue in the case," MRE 404(b), and so it constituted other-acts evidence. See People v Jackson, 498 Mich. 246, 263; 869 N.W.2d 253 (2015). Whether this is correct is subject to disagreement. However, even assuming that this incident was MRE 404(b) evidence and that the 8 prosecution failed to provide the pretrial notice required by MRE 404(b)(2), defendant fails to show that the failure to provide pretrial notice had any effect on the defense's case or strategy. Even if the prosecution had given the required notice, the evidence would have been admitted over any objection because it was probative of premeditation and deliberation. Again, this incident showed that defendant was so angry at someone that he fired off his gun multiple times in a bathroom. And subsequent events give strongly support the conclusion that Mcardle was the source of defendant's ire. Accordingly, the bathroom shooting provided circumstantial evidence that the murder, which occurred sometime after that incident, was premeditated.
Defendant also argues that the prosecutor erred by asking him to comment on the credibility of the prosecution's witnesses. See People v Knapp, 244 Mich.App. 361, 384; 624 N.W.2d 227 (2001) ("It is not proper for a prosecutor to ask a defendant to comment on the credibility of prosecution witnesses since a defendant's opinion on such a matter is not probative and credibility determinations are to be made by the trier of fact.") (quotation marks and citation omitted). Defendant points to several instances where the prosecutor identified a discrepancy between defendant's testimony and a prosecution witness's testimony, which was followed by the prosecutor asking defendant whether that witness was "lying," "mistaken" or "wrong." Viewed in context, however, the prosecutor was attempting to ascertain which facts defendant disputed. See People v Ackerman, 257 Mich.App. 434, 449; 669 N.W.2d 818 (2003) (holding that the prosecutor may ask a defendant whether he or she has "a different version of the facts" because "[i]t is not improper for the prosecutor to attempt to ascertain which facts are in dispute."). Thus, while the prosecutor's approach to doing so may have been inartful, it was not improper. The prosecution does concede that it asked one question of defendant that appeared to go directly to Bulley's credibility. The prosecutor asked defendant whether he and Bulley had problems with each other and after he answered, "No," the prosecutor asked, "So what [Bulley is] saying against you . . . is entirely because of her self-interest in her case?" The prosecutor appears to have been trying to determine whether there was a factual basis other than the plea agreement for Bulley to testify against defendant. Although the question was arguably improper, defendant again fails to explain how he was prejudiced given that the trial court understood that it was responsible to determine Bulley's credibility as the trier of fact. 9
For instance, the prosecutor had the following exchange with defendant regarding Bell's testimony that defendant was in the bathroom with Drew:
Q. Was Drew in the bathroom? A. No. Q. Okay. So when [Bell] says, "Drew was in the bathroom" she's lying about [that]? A. Yeah. Drew never was in the bathroom.
Defendant raises the same challenge regarding the prosecutor's questioning of defendant's mother, Theresa Carter. The prosecutor asked Carter why Bulley would lie and why the judge should not believe Bulley's testimony. Unlike the questioning of defendant, the prosecutor explicitly asked Carter to comment on Bulley's credibility. These questions were improper, but again, defendant fails to explain how he was prejudiced. There is no basis to conclude that Carter's views on Bulley's credibility had any impact on the trial court's credibility determinations or ultimate finding of guilt.
Finally, defendant claims that cumulative error requires reversal of his convictions. "To warrant reversal based on cumulative error, 'the effect of the errors must have been seriously prejudicial in order to warrant a finding that defendant was denied a fair trial.'" People v Schrauben, 314 Mich.App. 181, 193; 886 N.W.2d 173 (2016), quoting People v Knapp, 244 Mich.App. 361, 388; 624 N.W.2d 227 (2001). "In making this determination, only actual errors are aggregated to determine their cumulative effect." Bahoda, 448 Mich. at 292 n 64.
As discussed, even assuming some of the alleged instances of prosecutorial misconduct were in fact error, defendant has made no showing of prejudice. With respect to the alleged improper arguments, the trial court understood that the prosecutor's statements were not evidence and there is no indication that the court was swayed by the prosecutor's argument that defendant should not be believed because he was drug dealer. Nor is there any basis to conclude that the purported MRE 404(b) evidence would have been excluded or that defendant's trial strategy would have been different had the evidence been properly noticed by the prosecutor. Some of the prosecutor's questions to witnesses about the credibility of other witness's was improper, but this questioning had no discernible effect on the trial court's credibility determinations, which were supported by the record. In sum, considering the substantial circumstantial evidence of defendant's guilt, we cannot conclude that the brief and isolated instances of prosecutorial misconduct prejudiced defendant or denied him a fair bench trial.
For the same reasons, we disagree with defendant that he was denied the effective assistance of counsel by trial counsel's failure to object to the above alleged instances of prosecutorial misconduct.
Because no evidentiary hearing has been held regarding this claim, our review is limited to mistakes apparent on the record. See People v Riley, 468 Mich. 135, 139; 659 N.W.2d 611 (2003).
To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the two-part test of Strickland v Washington, 466 U.S. 668; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984). First, a defendant must show that his counsel's performance fell below an objective standard of reasonableness under the prevailing professional norms. Id. at 687-688. Second, a defendant must show that he was prejudiced by counsel's deficient performance. Id. at 687. "The defendant has the burden of establishing the factual predicate of his ineffective assistance claim." People v Douglas, 496 Mich. 557, 592; 852 N.W.2d 587 (2014).
Many of the alleged instances of prosecutorial misconduct raised by defendant are without merit and therefore did not warrant an objection. See People v Ericksen, 288 Mich.App. 192, 201; 10 793 N.W.2d 120 (2010) ("Failing to advance a meritless argument . . . does not constitute ineffective assistance of counsel."). While some of the instances may have resulted in sustained objections, e.g., the MRE 404(b) issue and the prosecutor directly questioning defendant and Carter about Bulley's credibility, these errors had no meaningful prejudice when they had no effect on the outcome given the substantial evidence of defendant's guilt. As such, defendant has failed to show a reasonable probability that the outcome of his trial would have been different had his counsel objected.
Affirmed. 11