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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED April 14, 2016

v No. 324987 Wayne Circuit Court LONDON DESHANN HARRIS, LC No. 14-005108-FC

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 325356 Wayne Circuit Court DAWYNE MATTEWS ANDREWS, LC No. 14-005108-FC

Defendant-Appellant.

Before: O’C ONNELL , P.J., AND M ARKEY AND O’B RIEN , JJ.

P ER C URIAM

. Defendants London Deshann Harris and Dawyne Mattews Andrews we re tried jointly but before separate juries. Harris was convicted of first-degree f elony murder, MCL 750.316(1)(b), and Andrews was convicted of first-degree felony murder, armed robbery, MCL 750.529, and possession of a firearm during t he commission of a felony (felo ny-firearm), MCL 750.227b. The trial court sentenced Harris to life imprisonment for his felon y-murder murder conviction. Andrews received concurrent terms of life in prison for the fel ony-murder conviction and 18 to 40 years for the armed robbery conviction, and a consecutive tw o-year term of imprisonment for the felony-firearm conviction. H arris appeals by right in Dock et No. 324987, and Andrews appeals by right in Docket No. 325356. We affirm in both appea ls.

Defendants’ convictions arise from the April 30, 2014, shootin g death of Marquise Moncrief, who was fatally shot during a robbery at a drug house on Keating Street in Detroit. The prosecutor’s theory at trial was that Harris aided and abet ted Andrews and a third coperpetrator, Timothy Brown, by using his status as a regular cu stomer at the house to enable-2- Andrews and Brown to gain access to the house. All three of th em then acted in concert to rob Moncrief, who was carrying a l arge amount of cash, and to steal marijuana.

Deon Alexander, the owner of the house, and Anthony Johnson, w ho was working at the house on the night of th e offense, both tes tified at trial. Jo hnson testified that the house only sold marijuana to regular customers. Johnson denied knowing Andrews and Brown, but said they arrived with Harris, a regular c ustomer, so Johnson agreed to s ell them marijuana. After the men entered the house, Johnson heard a gunshot. He saw that Andrew s had shot Moncrief in the head, and then he removed money from Moncrief’s pockets. Accor ding to Johnson, both Andrews and Brown were armed with guns. According to Alexander , defendant Harris and one of the other men both issued ins tructions for the occupants of the house to get down and not move. After the robbery, Harris , Andrews, and Brown all fled f rom the house together.

I. DOCKET NO. NO. 324987

A. PROSECUTORIAL MISCONDUCT

Defendant Harris raises several claims of prosecutorial miscon duct. Harris failed to preserve these claims with a tim ely objection in the trial cour t. People v Bennett , 290 Mich App 465, 475; 802 NW2d 627 (2010). Therefore our review is limited to plain error affecting Harris’s substantial rights. Id. Harris also raises a related claim of ineffective assistance of counsel, arguing that defense counsel was ineffective for faili ng to object to the prosecutor’s challenged remarks. Because Ha rris did not raise that claim ina motion for a new trial or request for a Ginther 1 hearing, our review of that issue is limited to mistakes appar ent from the record. People v Jordan , 275 Mich App 659, 667; 739 NW2d 706 (2007).

“[A]llegations of prosecutorial misconduct are considered on acase-by-case basis, and the reviewing court must consider the prosecutor’s remarks in c ontext.” Bennett , 290 Mich App at 475. Generally, prosecutors h ave great latitude with respec t to their arguments and conduct. People v Bosca , 310 Mich App 1, 34; 871 NW2d 307 (2015). “The prosecution ha s wide latitude in arguing the facts and reasonable inferences, and ne ed not confine argument to the blandest possible terms.” People v Dobek , 274 Mich App 58, 66; 732 NW2d 546 (2007).

1. DENIGRATION OF DEFENSE COUNSEL

Harris first argues that the pro secutor improperly denigrated defense counsel in the eyes of the jury by accusing him of distracting the jury with the “n onissue” of whether the physical evidence of the shooting was cons istent with the close-range sh ooting Johnson described in his testimony. A prosecutor may not personally attack the credibil ity of defense counsel or suggest that defense counsel i s intentionally atte mpting to mislead the jury. Attacks on de fense counsel’s credibility undermine the defendant’s presumption of innocence by implying to the jury that defense counsel does not be lieve his own client. People v Dalessandro , 165 Mich App 569, 580; 419 NW2d 609 (1988).

1 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).-3- The prosecutor’s remarks did not clearly exceed the bounds of acceptable argument. Harris’s counsel cross-examined the medical examiner and firear ms expert regarding stippling and other evidence of close-range firing with the apparent purp ose of establishing discrepancies between the physical evidence and the prosecutor’s theory of ho w the shooting occurred. In closing argument, defense counsel argued that the evidence disp roved the prosecutor’s evidence regarding the shooter’s position in relation to Moncrief inside the house. Counsel suggested that Moncrief was not killed during a robbery, but rather was target ed by an assassin. The prosecutor’s theory was that Harris was guilty of felony murder under an aiding and abetting theory because he acted in concert with Andrews and Tim Brown t o rob the occupants of the drug house, and Moncrief was murdered during the robbery. It w as not unreasonable for the prosecutor to argue that Harris’s counsel’s emphasis on the spe cific physical circumstances was immaterial to the prosecution’s theory and that the absence of stippling was not inconsistent with Johnson’s testimony. The prosecutor’s use of the words “noniss ue” and “distraction” did not push the argument past the boundaries of acceptable argument in to a personal attack on defense counsel’s character. Accordingl y, there was no plain error.

2. DENIGRATION OF DEF ENDANT’S CHARACTER

Harris next argues that the prosecutor improperly denigrated d efendant by referring to him as a “coward” and accusing him of “weaseling behavior.” “I t is not proper for the prosecutor to comment on the defe ndant’s character when his cha racter is not in issue.” People v Quinn , 194 Mich App 250, 253; 486 NW2d 139 (1992). In this case, th e prosecutor’s remarks were not an ad hominem attack on Harris’s character; they were part of an argument explaining why Harris’s defense of mere presence was not credible because he repeatedly tried to evade responsibility for his conduct. The prosecutor’s use of the te rms “coward” and “weaseling” does not elevate the prosecutor’s argument to plain error because a prosecutor is not required to confine argument to the blandest possible terms, Dobek , 274 Mich App at 66, and because the references were brief and were made during an otherwise proper argument that focused on the evidence.

3. DENIGRATION OF T YESHIA PROFIT

Harris further complains that the prosecutor also improperly d enigrated witness Tyeshia Profit. Profit, who was Harris’s domestic partner, testified t hat she was with Harris when Harris visited the drug house. She claimed, however, that she waited o utside in a car while Harris went inside the house. Profit testified that she saw two other pers ons enter the house at the same time Harris did, but she denied that the other persons were with Har ris. The prosecutor extensively attacked Profit’s credibility u sing recorded telephone conversa tions between Harris and Profit, which were made while Harris wa s incarcerated and awaiting tria l. In closing argument, the prosecutor argued that Profit was not credible and remarked tha t it was “despicable” and “disgusting” that Profit lied t o help Harris escape conviction.

A prosecutor is permitted to argue from the facts that a witne ss is not credible or worthy of belief. Dobek , 274 Mich App at 67. Defendant’s reliance on Hodge v Hurley , 426 F3d 368, 378 (CA 6, 2005), to argue that th e prosecutor’s remarks were i mproper is misplaced because the prosecutor did not suggest that she had some personal knowledge not presented t o the jury that Profit was untruthful. Rather, the prosecutor argued from the evidence that Profit was not a-4- credible witness. Further, the prosecutor’s use of the harsh t erms “despicable” and “disgusting” does not render the otherwise proper argument improper. Dobek , 274 Mich App at 66. The remarks do not rise to a level of plain error.

4. APPEAL TO JURORS’ SY MPATHY AND CIVIC DUTY

Harris also argues that the prosecutor improperly urged the ju ry to convict him as part of its civic duty. “[I]t is improper for a prosecutor to appeal t o the jury’s civic duty by injecting issues broader than guilt or innocence or encouraging jurors to suspend their powers of judgment.” People v Thomas , 260 Mich App 450, 455-456; 678 NW2d 631 (2004). Similarly, the prosecutor may not “seek the jury’s sympathy for the victim .” Dobek , 274 Mich App at 80.

In the instant case, the prosecutor’s general statement about the value of jury duty did not encourage the jurors to suspend their powers of judgment or to convict Harris out of a sense of duty or sympathy for Moncrief’s family. The prosecutor’s state ment about “justice for Marquise” came at the conclusion of a lengthy argument explaini ng how the evidence proved Harris’s guilt. This was not a plea for justice regardless of the evidence. It is an argument that justice would be served by convicting Harris because the eviden ce proved his guilt. The prosecutor simply and plainly stated that the family should hav e justice and did not appeal to the jury’s emotions in the dramatic manner of the prosecutor in Dalessandro . And, in contrast to People v Unger , 278 Mich App 210, 237; 749 NW2d 272 (2008), the prosecutor di d not imply that Moncrief’s family was “re-victimized” by the proceedings. Similar to People v Lane , 308 Mich App 38, 66; 862 NW2d 446 (2014), the prosecutor’s argument for justice was integrated into an argument that the evide nce proved Harris’s guilt. Acco rdingly, there was no plain error.

5. INEFFECTIVE ASSISTANCE OF COUNSEL

Harris argues that defense counsel was ineffective for failing to object to the prosecutor’s remarks discussed above. To prevail on a claim of ineffective assistance of counsel, a defendant must establish that (1) counsel’s performance was deficient, me aning that it fell below an objective standard of reasonableness, and (2) but for counsel’s error, there is a reasonable probability that the outcome of the proceeding would have been different. Jordan , 275 Mich App at 667. Because we have concluded that the prosecutor’s re marks were not improper, defendant’s ineffective assistance of counsel claim cannot succ eed. Counsel is not ineffective for failing to make a meritless objection. Unger , 278 Mich App at 255-256.

B. MOTION FOR MISTRIAL

Harris next argues that the tri al court erred in denying his m otion for a mistrial after the court rebuked defense counsel for instructing a witness to stop talking while counsel was objecting. “We review for an abus e of discretion a trial court ’s decision regarding a motion for a mistrial.” People v Schaw, 288 Mich App 231, 236; 791 NW2d 743 (2010). “This Court will find an abuse of discretion if t he trial court chose an outcome that is outside the range of principled outcomes.” Id.

A trial court should grant a mis trial only when an error is so prejudicial that the defendant’s right to fair trial is impaired. Id. Harris argues that his ability to obtain a fair trial-5- was impaired by the trial court’ s comments after he objected during Profit’s testimony because the comments pierced the veil of judicial impartiality. We dis agree.

In People v Stevens, 498 Mich 162, 164; 869 NW2d 233 (2015), our Supreme Court clarified the proper analysis under which a claim of judicial m isconduct is to be reviewed:

A trial judge’s conduct deprives a party of a fair trial if a t rial judge’s conduct pierces the veil of judicial impartiality. A judge’s conduct p ierces this veil and violates the constitutional guara ntee of a fair trial when, con sidering the totality of the circumstances, it is reasonably likely that the judge’s con duct improperly influenced the jury by creating the appearance of advocacy or p artiality against a party.

Judicial misconduct includes the belittling of counsel, inappro priate questioning of witnesses, providing improper strategic advice to one side, or biased comm entary in front of the jury. Id. at 172-173.

In this case, the challenged conduct involved an isolated rebu ke during trial. A single inappropriate act generally will not give the appearance of adv ocacy or partiality unless it is egregious. Id. at 171. In this instance, howev er, the trial court legitimate ly intervened when Harris’s counsel attempted to usurp the trial court’s authority by chastising a witness. It is the court’s responsibility to exerci se reasonable control over the mode and order of interrogation, and to protect witnesses from harassment or undue embarrassment . MRE 611(a). Moreover, the court’s conduct during the rebuke did not convey any views conc erning the weight or strength of any of the parties’ theories, arguments, or evidence in the cas e, but rather it was directed at clarifying the attorneys’ and th e court’s respective roles in t he conduct of the proceedings after an objection. Thus, under the tot ality of the circumstances, t he trial court’s comments were not reasonably likely to create an appearance of advocacy or partia lity for or against a party. Therefore, the trial court’s conduct did not pierce the veil of judicial impartiality, and accordingly, the trial court did not abuse its discretion in de nying Harris’s motion for a mistrial.

C. SUFFICIENCY OF THE EVIDENCE

Harris argues that the evidence was insufficient to support hi s felony-murder conviction because the evidence failed to establish his participation in t he robbery of the drug house, which served as the predicate felony f or the felony-murder charge. W e disagree.

“In reviewing a claim of insufficient evidence, we view the ev idence in a light most favorable to the prosecution to determine whether a rational tr ier of fact could have concluded that the elements of the offense were proven beyond a reasonabl e doubt.” Unger , 278 Mich App at 222. We resolve all conflicts in the evidence in favor of t he prosecution and will not interfere with the jury’s determinations r egarding the weight of the evid ence and the credibility of the witnesses. Id . Circumstantial evidence and reasonable inferences arising fr om the evidence can constitute satisfactory proof of the elements of a crime. Bennett , 290 Mich App at 472. A defendant’s state of mind with respect to knowledge and intent may be inferred from minimal circumstantial evidence. Bosca , 310 Mich App at 16.-6- The elements of first-degree felony murder were stated in People v Smith , 478 Mich 292, 318-319; 733 NW2d 351 (2007):

(1) the killing of a human being, (2) with the intent to kill, to do great bodily harm, or to create a very high risk of death or great bodily ha rm with knowledge that death or great bodily harm was the probable result (i.e., malice), (3) while committing, attempting to commit, or assisting in the commissio n of any of the felonies specifically enumerated in MCL 750.316(1)(b) . . . . [Citation, quotation marks, and brackets omitted.]

Armed robbery was the predicate felony supporting Harris’s fir st-degree felony-murder charge. To establish the elemen ts of armed robbery, the prosec utor must prove that

(1) the defendant, in the course of committing a larceny of any money or other property that may be the subject of a larceny, used force or vi olence against any person who was present or assaulted or put the person in fear, and (2) the defendant, in the course of committing the larceny, either poss essed a dangerous weapon, possessed an article used or fashioned in a manner to l ead any person present to reasonably believe that the article was a dangerous weapon, or represented orally or otherwise that he or she was in possessio n of a dangerous weapon. [ People v Chambers, 277 Mich App 1, 7, 742 NW2d 610 (2007).]

To prove a defendant’s guilt of felony murder under an aiding and abetting theory, the prosecutor must establi sh that the defendant:

(1) performed acts or gave encouragement that assisted in the c ommission of the killing of a human being, (2) with the intent to kill, to do gr eat bodily harm, or to create a very high risk of death or great bodily harm with know ledge that death or great bodily harm was the probabl e result, (3) while committing , attempting to commit, or assisting in the commission of the predicate felony. [ People v Riley (After Remand) , 468 Mich 135, 140; 659 NW2d 611 (2003).]

A defendant is guilty of aiding and abetting a felony murder w hen he has the requisite malice, which need not be identical to the principal’s. People v Robinson , 475 Mich 1, 14; 715 NW2d 44 (2006). To prove malice required by People v Aaron, 409 Mich 672; 299 NW2d 304 (1980),

the prosecution must show that the aider and abettor either int ended to kill, intended to cause great bodily harm, or wantonly and willfully disregarded the likelihood that the natural tendency of his behavior was to cau se death or great bodily harm. Further, if an aide r and abettor participates in a crime with knowledge of the principal’s intent to kill or to cause great b odily harm, the aider and abettor is acting with ‘wanton and willful disregard’ suffi cient to support a finding of malice. [ Riley , 468 Mich at 140-141.]

A jury may infer malice necessary for a felony-murder convictio n “from evidence that the defendant intentionally set in m otion a force likely to cause d eath or great bodily harm” or “from the use of a deadly weapon.” People v Carines , 460 Mich 750, 759; 597 NW2d 130 (1999).-7- Under the “natural and probable consequences” theory, an aider and abettor is criminally responsible for anything that is f airly within the common enter prise such that one might anticipate its commission should the opportunity arise. Robinson, 475 Mich at 9-13. “[A] natural and probable consequence of a plan to assault someone is that o ne of the actors may well escalate the assault into a murder.” Id . at 11.

The prosecution presented eviden ce that Harris and Andrews were cousins who resided in the same home in 2008. Johnson testified that Harris was with two other men, whom Johnson later identified in photographs as Andrews and Brown, when Harr is came to the house after midnight. Johnson and Alexander both testified that the drug d ealers at the Keating house would not admit anyone they did not know, and that Harris was a regul ar customer at the house. Johnson, who was working the house on the night of the offense, testified that he did not recognize the two person s who were with Harris. This evidence supports an inference that Harris knew that Andrews and Brown could not gain access to the house on their own, and that Harris aided and abetted Andrews and Brown by accompanying them to the drug house to enable them to gain access to the house.

The events following Harris’s admission to the drug house furt her support that the three men entered the house with a common intent to rob the occupants . After the men entered the house, Harris did not follow Brown’s order to get down. Alexan der was certain that Harris was one of the men who told the other occupants to get down and not move. Andrews’s mother testified that Moncrief was ca rrying $1,000 in cash to pay a de posit on an apartment. After entering the house, Andrews shot Moncrief and then searched Mon crief’s pockets. Moncrief’s money was missing after the offense. After the robbery, Harris ran with Brown and Andrews as they fled the house.

The prosecution also presented evidence that Harris had a moti ve to rob because he had no funds in his bank account, and his bondsman was threatening to revoke his bond if he did not make a scheduled bond payment. Harris made the payment approxi mately five hours after the robbery. Although Profit testified that Harris’s SSI payment w ould have been deposited at midnight on the evening of April 29 and 30, Harris’s bank recor ds indicated that the deposit was made the next day, after the bond payment was made.

Viewed in a light most favorable to the prosecution, the evide nce was sufficient to enable the jury to find beyond a reasonable doubt that Harris was acti ng in concert with Andrews and Brown, knew that they were carrying firearms, and aided and abe tted them in committing the robbery by providing them with access to the house and by assis ting them in detaining the occupants inside the house duri ng the robbery. Harris’s partic ipation in the offense, knowing that his co-perpetrators were carrying firearms, was sufficient to enable the jury to find the requisite malice for felony murd er, because a shooting is a nat ural and probable consequence that may arise from the armed robbery of a drug house. Robinson , 475 Mich at 9-13.

D. TRIAL COURT’S CONDUC T OF JURY VOIR DIRE

Harris argues that the trial court’s decision to conduct jury v oir dire itself, without allowing questions from the attorneys, violated his right to a fair trial. Harris did not object to the trial court’s jury voir dire or request the court to inquir e into any specific subjects during voir-8- dire; therefore, this issue is unpreserved and our review is li mited to plain error affecting Harris’s substantial rights. People v King , 297 Mich App 465, 472; 824 NW2d 258 (2012); People v Cameron , 291 Mich App 599, 617; 806 NW2d 371 (2011).

“A defendant who chooses a jury trial has an absolute right to a fair and impartial jury.” People v Tyburski , 445 Mich 606, 618; 518 NW2d 441 (1994). “The scope of voir d ire examination of prospective jurors is within the discretion of t he court.” MCR 6.412(C)(1). Voir dire “should be conducted for th e purposes of discovering groun ds for challenges for cause and of gaining knowledge to facilitate an intelligent exercise of p eremptory challenges.” Id. Although voir dire is the defendant’s safeguard for ensuring an impartial jury, a defendant does not have the right to have his attorney conduct voir dire, or t o have the trial court ask questions submitted by his attorney. Tyburski , 445 Mich at 619. “The court may conduct the examination of prospective jurors or permit the lawyers to do so.” MCR 6.4 12(C)(2). “If the court conducts the examination, it may permit th e lawyers to supplement the ex amination by direct questioning or by submitting questions for the court to ask.” Id . Trial courts have wide discretion when conducting voir dire, and what is acceptable practice is not go verned by hard and fast rules. Tyburski , 445 Mich at 623. On appeal, “this Court must determine wheth er the trial court conducted a voir dire ‘sufficiently probing . . . to uncover po tential juror bias.’ ” People v Sawyer , 215 Mich App 183, 187; 545 NW2d 6 (1996), quoting Tyburski , 445 Mich at 609.

In this case, the trial court’s voir dire included examination into the jurors’ personal beliefs, situations, and experi ences. The court also addressed circumstances pertinent to this particular case and queried them about any possible philosophic al or ideological disagreement they might harbor with the presumption of innocence and the pro secutor’s burden of proving the defendant’s guilt beyond a reasonable doubt. The court also as ked the jurors about their own experiences, including whether they had been the victim of a cr ime, whether they or anyone close to them had been charged with or convicted of any crime, and whether they or any associates had any experience in positions related to law enfor cement. The court also explained the concept of aiding and abetti ng theory, and it asked if anyo ne was unable to agree with the concept that a person who encourages or aids another person in the commission of the crime is as guilty as the person who committed the act. Although Harris ar gues that the jurors might have been biased because of their beliefs about drug dealing, witnes ses’ credibility, and perpetrators “snitching” against their co-pe rpetrators, we note nothing in t he record that defense counsel asked the trial court to explore these specific subjects during voir dire. Moreover, the trial court’s general questions about the jurors’ willingness and abi lity to decide the facts and assess the witnesses’ credibility based on the evidence presented, and not on the basis of their past experiences and beliefs about criminal activity, were sufficient to delve into juror bias. The trial court’s voir dire was sufficientl y probing to allow the parties to discover grounds for challenges for cause and to provide them with knowledge to facilitate inte lligent exercise of peremptory challenges. Harris has not met his burden of establishing a pl ain error affecting his substantial rights.

Harris also claims ineffectiv e assistance of counsel arising f rom counsel’s failure to object to the trial court’s decision to conduct voir dire by it self. Because the scope of voir dire is within the trial court’s discretion and a defendant does not ha ve the right to have his attorney conduct voir dire, trial counsel did not commit an objectively unreasonable error by failing to object to the trial court’s d ecision to conduct voir dire. Jordan , 275 Mich App at 667.-9- II. DOCKET NO. 325356

A. PEREMPTORY CHALLENGES

Defendant Andrews argues that t he trial court violated his rig ht to fully exercise his peremptory challenges. Andrews preserved this issue by objecti ng to the trial court’s ruling that neither party would be allowed to exercise a peremptory challen ge to excuse any member of the jury other than a new juror who replaced Juror No. 8. 2

A defendant’s right to peremptory challenges is governed by st atute, MCL 768.13, and court rule, MCR 6.412. The trial court’s application and inter pretation of a statute or court rule is reviewed de novo. People v Lee , 489 Mich 289, 295; 803 NW2d 165 (2011).

In the course of jury selection for Andrews’s jury, 14 jurors were eventually seated, and both attorneys stated that they had no objections for cause, an d both declined to exercise any peremptory challenges. However, the trial court delayed sweari ng a jury in order to inquire into a situation involving Juror No. 8. The trial court ultimately excused Juror No. 8 for cause for reasons not relevant to this a ppeal. After doing so, the trial court stated:

The People by my calculation have six more peremptory challenge s. The defense has four more. And we have, I t hink, only five [prospective] j urors left.

So in my view you should be allowed to exercise our remaining peremptory challenges only as to juror number eight because you ’ve all subsequently, you’ve all passed on the whole jury.

* * *

And if you don’t agree to that, I’m just going with a jury of 13, and I’m ending it right now.

Both attorneys disagreed with t he trial court’s proposal. Andr ews’s counsel explained:

2 The prosecutor argues that Andrews waived any error by affirma tively agreeing with the trial court’s decision to proceed to trial with one less alternate ju ror. A waiver is “the intentional relinquishment or abandonment of a known right,” and is differe nt from a forfeiture, which involves the “failure to make the timely assertion of a right.” People v Carter , 462 Mich 206, 215; 612 NW2d 144 (2000). “One who waives his rights under a r ule may not then seek appellate review of a claimed de privation of those rights, for his waiver has extinguished any error.” Id . (citation and quotation marks omitted). Andrews did not affi rmatively approve the trial court’s plan to restrict p eremptory challenges if Juror N o. 8 were replaced. He affirmatively objected to that plan. Andrews approved the alternative plan t o proceed to trial with only one alternate juror after the trial court overruled Andrews’s objec tion. Under these circumstances, Andrews’s approval of the alternative plan did not constitute a waiver of his objection to the prior ruling.-10- [W]hen I pick a jury or when I have one picked for me by the co urts, I look at the interaction even in terms of body language and everything among all the jurors. So when you take – when one comes out and another one comes in, that to me changes the whole dynamics.

Instead of seating a new juror to replace Juror No. 8, the tria l court stated, “[T]hen we’re just gonna go with a 13 person jury.”

Peremptory challenges may be exercised at any time before the swearing of the jury. “A ‘pass’ is not counted as a challe nge but is a waiver of further challenge to the panel as constituted at that time.” MCR 2.511(E)(3)( b). MCR 2.511(G) provides:

After the jurors have been seated in the jurors’ box and a cha llenge for cause is sustained or a peremptory challenge or challenges exer cised, another juror or other jurors must be selected and examined. Such juro rs are subject to challenge as are previously seated jurors.

In People v Schmitz , 231 Mich App 521, 529-530; 586 NW2d 766 (1998) (citations omitted), this Court, construing then MCR 2.511(F) (current MCR 2.511(G)), stated:

The plain language of this rule is clear. If the composition of the panel is changed after a party passes a p anel (either by challenges for cause or the exercise of peremptory challenge by anothe r party), the party is free to exercise further peremptory challenges to any member of the new panel. Any othe r interpretation would ignore the phrase “as cons tituted at that time” and viola te the principle that every word in a court rule should be given meaning and no word should be treated as surplusage or rendered nugatory if at all possible. . . . I t is not until both parties pass for peremptory challenges, and there has been no change in the makeup of the panel, that the party’s pass may be deemed conclusive. Acc ordingly, we hold that the trial court erred in equating a pass of the panel as a n acceptance of each venireman thereon. [Citations omitted.]

The Court further held that a violation of this rule was not su bject to harmless-error analysis because “subject[ing] this issue to harmless-error analysis wou ld be to require this Court to do the impossible.” Id . at 531.

Applying Schmitz to the instant case, we conclude that the trial court erred wh en it ruled that neither party would be permitted to use a peremptory chall enge to excuse any member of the newly composed panel that would have been formed if Juror No. 8 were replaced. Under the plain language of MCR 2.511(G), once Juror No. 8 was dismissed for cause, upon selection of a replacement juror, the new juror would be subject to challenge, “as are previously seated jurors.” However, the error does not req uire reversal as mandated by Schmitz

. Our Supreme Court, in People v Bell , 473 Mich 275; 702 NW2d 128 (2005), mod 474 Mich 1201 (2005), addressed whethe r a trial court’s error regar ding peremptory challenges could be deemed harmless. The pertinent facts in Bell were summarized in the lead opinion as follows:-11- Defendant is African-American and the two victims were Caucasi an. During jury selection, defense counsel attempted to exercise a peremptory challenge to strike potential juro r number ten, who is Caucasia n. Juror ten stated during voir dire that three of his friends were high-ranking po lice officers, but that he “wouldn’t think” that this fact would affect his ability to be fair and impartial. When defense counsel attempted to excuse this juror peremptoril y, the trial court disallowed the challenge, concl uding that counsel had exercised the challenge on the basis of race. The trial court initially refused to allow defense counsel to make a record, but reconsidered a fter defense counsel expressed dissatisfaction with the trial court’s refusal. Defense counsel then furnished a race-conscious, rather than race-neutral, reason for the challenge and the tria l court continued to disallow the challenge.

Jury selection continued. After several more defense peremptor y challenges, the prosecutor objected when defense counsel attemp ted to excuse juror number five. The prosecuto r claimed that defense counsel was attempting to strike juror five on the basis of race, contrary to Batson [ v Kentucky , 476 US 79; 106 S Ct 1712; 90 L Ed 2d 69 (1986)]

. The trial court excused the jury in order to make a record regarding the challenge. The prosecutor noted th at the current challenge was defense counsel’s t hird consecutive strike on a C aucasian male and that defense counsel was attempting to exclude Caucasian males from the jury. Defense counsel replied that th e prosecution’s ar gument would h ave some merit if no other Caucasian males remained on the jury. Defense counsel also noted that the majority of the remaining ju rors was [sic] C aucasian. Defe nse counsel offered no other explanation for his ch allenge. The trial court found defense counsel’s explanation race-conscious and disallowed the challenge. Conse quently, both jurors five and ten sat on the jury that convicted defendant. [ Bell , 473 Mich at 279-280.]

A majority of justices in Bell held that the trial court did not err in finding purposeful discrimination because the defendant provided race-conscious re asons for exercising the peremptory challenge. Id . at 290, 300 (C ORRIGAN , J., joined by Y OUNG and M ARKMAN , JJ.), 300-301 (W EAVER , J., concurring). The lead opinion further stated:

In light of our conclusion that the trial court’s initial erro r was cured, we need not address whether a denial of a peremptory challenge is subject to automatic reversal. Had we conc luded, however, as do our disse nting colleagues, that defendant’s peremptory challenges had been improperly deni ed, we would have applied a harmless error standard to the error, because People v Miller, 411 Mich 321, 307 NW2d 335 (1981), and People v Schmitz, 231 Mich App 521, 586 NW2d 766 (1998), are no longer binding, in light of our current harmless error jurisprudence, to the extent tha t they hold that a violation of the right to a peremptory challenge requi res automatic reversal.

We arrive at this conclusion by recognizing the distinction be tween a Batson error and a denial of a peremptory challenge. A Batson error occurs when a juror is actually dismissed on the basis of race or gender. It is undisputed that-12- this type of error is of constitutional dimension and is subjec t to automatic reversal. In contrast, a denial of a peremptory challenge on o ther grounds amounts to the denial of a statuto ry or court-rule-based right to exclude a certain number of jurors. An improper denial of such a peremptory chall enge is not of constitutional dimension. [ Bell , 473 Mich at 292-293 (C ORRIGAN , J., joined by Y OUNG and M ARKMAN , JJ.) (citations omitted).]

In a separate opinion, Chief Jus tice Taylor “concur[red] with t he lead opinion that the denial of a statutory peremptory challenge i s subject to harmless error rev iew and that People v Schmitz , 231 Mich App 521[,] . . . must be repudiated to the extent that it held to the contrary.” Bell , 473 Mich at 302 (T AYLOR , C.J., concurring in part and dissenting in part). Thus, a majo rity of the Court in Bellagreed that the denial of a pe remptory challenge may be harmle ss error. 3

We conclude that the trial court’s error here was harmless. T he right to a peremptory challenge in Michigan is provide d by statute and court rule and is of non-constitutional dimension. Bell , 473 Mich at 294-295, 302. Where, as in this case, the error is preserved, it is reviewed under the “more probable than not” standard set forth in People v Lukity , 460 Mich 484, 495-496; 596 NW2d 607 (1999). See Bell , 473 Mich at 294. Under that standard, reversal is not required unless “it is more probable than not that a dif ferent outcome would have resulted without the error.” Lukity , 460 Mich at 495.

Andrews had previously passed on challenges for cause and pere mptory challenges when the jury panel consisted of Jur or No. 8 and 13 other jurors. A fter Juror No. 8 was excused, Andrews had the same jury panel, minus one, in which any of the remaining 13 could be excused as an alternate. Thus, the jury remained composed of members t hat Andrews’s counsel had previously approved individually and as a group. Andrews’s cou nsel expressed the concern at trial that a new incoming juror might affect the interaction “a mong all the jurors” and thereby “change[] the whole dynamics.” That concern never materialized because Juror No. 8 was never replaced by a new juror. Although Andrews did not waive any error when he affirmatively approved the trial court’s plan to hold trial with only one alt ernate juror, we believe that this approval, combined with the fact that the jury composition that Andrews’s counsel had already approved was not changed by the addition of a new person, suppo rts the conclusion that the error was harmless. That is, considering that Andrews willingly proc eeded with an agreeable jury composed of one less alternate juror, and that Andrews was neve r presented with a situation where the dynamics of the jury were changed by a newly added ju ror, we agree that the trial court’s error did not affect the outcome. Accordingly, Andrews is not entitled to relief based on this issue.

B. PROSECUTORIAL MISCONDUCT

3 Although plurality opinions where a majority of justices do no t agree on the reasoning for a result are not binding precedent, Negri v Slotkin , 397 Mich 105, 109; 244 NW2d 98 (1976), a ground for decision to which a majority of the Court agrees, is binding precedent, People v Tanner , 496 Mich 199, 214 n 6; 853 NW2d 653 (2014).-13- Andrews argues that a new trial is required because the prosecu tor improperly discussed “civic duty” in her closing argument. Because Andrews did not object to the prosecutor’s argument at trial, this issue is unpreserved, and our review is limited to plain error affecting Andrews’s substantial rights. Bennett , 290 Mich App at 475.

As stated earlier when addressing Harris’s appeal, “it is impr oper for a prosecutor to appeal to the jury’s civic duty by injecting issues broader tha n guilt or innocence or encouraging jurors to suspend their powers of judgment.” Thomas , 260 Mich App at 455-456. Viewed in context, the prosecutor’s arguments did not inject issues broad er than Andrews’s guilt or innocence, and she was not encouraging the jurors to suspend th eir powers of judgment and convict him regardless of the evidence. She argued that Johnso n’s testimony was credible because he consistently described what he saw. She argued that Johnson did not know Andrews or know that Andrews was Harris’ s cousin, but he identified And rews in the photographic lineup, which was an unlikely coincidence if he did not recognize Andre ws from the incident. She also argued that Andrews’s statements in recorded telephone calls af ter hearing Johnson’s testimony at the preliminary examination indicated that Andrews was consc ious of his own guilt and realized that Johnson’s testimony would likely result in his co nviction. The prosecutor’s comments that a guilty verdict would provide justice and closur e for the family and that it would vindicate Johnson’s cooperation with the police and the prosecu tor were integrated into arguments based on the evidence. Therefore, they did not rise to the level of improper civic duty arguments. See Lane , 308 Mich App at 66. Accordingly, there was no plain error.

Because the prosecutor’s arguments were not improper, there is no basis for Andrews’s related ineffective assistance of counsel argument, so it also cannot succeed. Counsel is not ineffective for failing to assert a futile objection. Unger , 278 Mich App at 256.

We affirm in both appeals.

/s/ Peter D. O'Connell /s/ Jane E. Markey /s/ Colleen A. O’Brien