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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED June 22, 2017

v No. 330612 Oakland Circuit Court ALEX JAY ADAMOWICZ, LC No. 2014-251162-FC

Defendant-Appellant.

Before: S TEPHENS , P.J., and K. F. K ELLY and M URRAY , JJ.

P ER C URIAM

. Defendant appeals as of right his jury trial conviction of fir st-degree murder, MCL 750.316(1)(a). The trial court sentenced defendant to life imp risonment without parole. We affirm.

I. FACTS AND PROCEDURAL HISTORY

This case arises from the death of John Watson at the Tivoli A partments in Walled Lake. Watson and defendant lived in the same building. In the early morning hours of April 12, 2014, Watson entered defendant’s apartment to drink and smoke “weed.” According to defendant, Watson became agitated. When defendant asked Watson to leave a nd threatened to call the police, an altercation ensued, wh ich ended with d efendant cutti ng Watson’s throat. 1 Watson died from the injury.

Defendant covered Watson’s body with blankets, and moved him f rom the couch to a closet in the apartment. He also attempted to clean the blood spatter from the walls and the couch. Defendant continued to live in the apartment until May 11, 2014, when defendant’s mother, Marie Holley, discovered Watson’s body. That day, the two drove to the Wixom Police Station. While at the station, defendant spoke with Walled Lak e Police Detective Andrew Noble and confessed to killing Watson, but maintained that he did so in self-defense.

1 Dr. Ruben Ortiz-Reyes, the deputy medical examiner that conduc ted Watson’s autopsy, testified that the injury to Watson’s neck was 6 inches by 2 in ches and 4 inches deep.-2- II. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant first argues that his trial counsel was ineffective for failing to call an expert witness that could explain his beha vior following Watson’s death.

Generally, to preserve an ineffective assistance of counsel ar gument, a defendant must file a motion for a new trial or Ginther 2 hearing in the trial court to establish evidentiary support for the argument. People v Sabin (On Second Remand) , 242 Mich App 656, 658-659; 620 NW2d 19 (2000). Defendant failed to raise this issue in a moti on for a new trial or Ginther hearing in the trial court, and this Court denied defendant’s m otion to remand. People v Adamowicz , unpublished order of the Court of Appeals, e ntered September 23, 2016 (Docket No. 330612). Thus, our review is limite d to the appellate record. Sabin (On Second Remand) , 242 Mich App at 658-659. 3

Analysis of ineffective assist ance of counsel arguments involv es mixed questions of law and fact. People v Trakhtenberg , 493 Mich 38, 47; 826 NW2d 136 (2012). We review a trial court’s findings of fact for c lear error, and questions of cons titutional law de novo. Id

. To evaluate whether ineffective assistance of counsel was prov ided, we use the standard established in Strickland v Washington , 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). People v Hoag , 460 Mich 1, 5-6; 594 NW2d 57 (1999), citing People v Pickens , 446 Mich 298; 521 NW2d 797 (1994). The defendant must show: “(1) c ounsel’s performance fell below an objective standard of reasonableness and (2) but for c ounsel’s deficient performance, there is a reasonable probability that the outcome would have b een different.” Trakhtenberg
, 493 Mich at 51. The effective assistance of counsel is presume d, People v Roscoe , 303 Mich App 633, 644; 846 NW2d 402 (2014), and the defendant must overc ome the presumption that defense counsel’s actions cons tituted sound trial strategy, Trakhtenberg , 493 Mich at 52. Further, the defendant must esta blish a factual predicate for h is claim. Hoag , 460 Mich at 6.

“An attorney’s decision whether to retain witnesses, including expert witnesses, is a matter of trial strategy.” People v Payne , 285 Mich App 181, 190; 774 NW2d 714 (2009). However, such a decision must be made only after counsel has co nducted an adequate investigation of the relevant facts and law. People v Ackley , 497 Mich 381, 390; 870 NW2d 858 (2015). “In general, the failure to call a witness can constit ute ineffective assistance of counsel only when it ‘deprives the defendant of a substantial defense.’ ” Payne , 285 Mich App at 190, quoting People v Hoyt , 185 Mich App 531, 537-538; 462 NW2d 793 (1990). “ ‘A substan tial defense is one that might have made a difference in the outcome of the trial.’ ” People v Chapo
,

2 People v Ginther , 390 Mich 436; 212 NW2d 922 (1973).

3 Defendant’s submission of Coryanna Ku’s and Edward Bajoka’s af fidavits violates the court rule that prohibits citing to matters outside the record. MCR 7.210(A)(1); see also People v Williams , 241 Mich App 519, 524 n 1; 616 NW2d 710 (2000) (“[P]arties ca nnot enlarge the record on appeal by the u se of affidavits.”).-3- 283 Mich App 360, 371; 770 NW2d 68 (2009), quoting People v Kelly , 186 Mich App 524, 526; 465 NW2d 569 (1990).

Defendant correctly asserts that the prosecution focused its c ase on the theory that, had he killed Watson in self-defense, he would have immediately come f orward to the police. In his opening statement and closing argument, the prosecutor repeated ly said, “The guilty flee when no man pursues, but an innocent man is as bold as a lion.” Fur ther, the prosecution’s witnesses testified regarding defendant’s c alm demeanor when speaking to the police about the incident, as well as the actions defendant t ook to conceal Watson’s death, i ncluding hiding the body and attempting to clean the blood.

However, defendant failed to est ablish a factual predicate for his argument that, had defense counsel called an expert witness to explain defendant’s behavior following Watson’s death, there is a reasonable probability that the outcome of tr ial would have been different. He merely speculates that expert t estimony regarding behaviors ass ociated with post-traumatic stress disorder would have been favorab le and would have effectively c ountered the prosecution’s theory. See Payne , 285 Mich App at 190 (holding that the defendant failed to dem onstrate ineffective assistance of counsel because he “merely speculated that an independent expert could have provided favorable testimony”).

Moreover, defendant cannot overcome the presumption that defen se counsel’s decision not to call an expert constituted sound trial strategy. Rather than placing more intense focus on defendant’s behavior following Wa tson’s death, it appears that defense counsel attempted to rebut the prosecution’s argument by acknowledging defendant’s a ctions, but concentrating on defendant’s description of, and state of mind during, his alter cation with Watson. As an example, in his opening statemen t, defense counsel opined that people react to traumatic events differently, and that defendant m ay not have had the best react ion, but asked the jury not to judge the case based on defendant’s beh avior after Watson’s death. F urther, during direct examination of defendant, he asked defendant to describe what happened duri ng the altercation with Watson, and inquired as to whether defendant feared for his life at the time of the incident. Although this strategy may have ultimately been unsuccessful, this Court “wil l not second-guess counsel regarding matters of trial strategy,” or “assess counsel’s comp etence with the benefit of hindsight.” People v Rice (On Remand) , 235 Mich App 429, 445; 597 NW2d 843 (1999). Thus, defendant’s ineffective assistance of counsel argument fails.

II. PROSECUTORIAL ERROR

Defendant next argues that he is entitled to a new trial becau se the prosecutor’s questions to him and to Detective Noble regarding his ability to flee dur ing the altercation with Watson, as well as the prosecutor’s statements during closing argument sug gesting that he could have safely retreated, constituted prosecutorial misconduct. He also asser ts that defense counsel provided ineffective assistance when he f ailed to object to the question s and statements.-4- To preserve a prosecutorial error 4 argument, a defendant must contemporaneously object to the alleged error and ask for a curative instruction. People v Bennett , 290 Mich App 465, 475; 802 NW2d 627 (2010). If a defendant fails to timely and specif ically object below, review is generally precluded “ ‘except when an objection could not have cured the error, or a failure to review the issue would result in a miscarriage of justice.’ ” People v Unger , 278 Mich App 210, 234-235; 749 NW2d 272 (2008), quoting People v Callon , 256 Mich App 312, 329; 662 NW2d 501 (2003). Defense counsel failed to object to the prosecutio n’s questions regarding defendant’s ability to flee during the incident, or to the pros ecutor’s statements during closing argument. Thus, the issue is notpreserved for appellate revie w.
Unpreserved issues of prosecutorial error are reviewed for “ou tcome-determinative, plain error.” Unger , 278 Mich App at 235. To establish plain error affecting subs tantial rights “three requirements must be met: 1) error must have occurred, 2) the e rror was plain, i.e., clear or obvious, 3) and the plain error a ffected substan tial rights.” People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999). “ ‘Reversal is warranted only when p lain error resulted in the conviction of an actually innocen t defendant or seriously affec ted the fairness, integrity, or public reputation of judi cial proceedings.’ ” Unger , 278 Mich App at 235, quoting Callon , 256 Mich App at 329.

“[T]he test for prosecutorial misconduct is whether a defendan t was denied a fair and impartial trial.” People v Dobek , 274 Mich App 58, 63; 732 NW2d 546 (2007). “[W]e consider issues of prosecutorial misconduct on a case-by-case basis by e xamining the record and evaluating the remarks in contex t, and in light of defendant’s arguments.” People v Thomas , 260 Mich App 450, 454; 678 NW2d 631 (2004).

During direct examination, the prosecutor asked Detective Nobl e several times whether, during the interviews with defendant, defendant ever said that he could have fled the apartment during the altercation with Watson. He also asked defendant si milar questions during crossexamination, and referenced this testimony throughout his closi ng argument. Defendant argues that these questions and statements were legally irrelevant and prejudicial because defendant had no duty to retreat before killi ng Watson in self-defense.

4 Although this type of issue is gen erally referre d to as “prose cutorial misconduct,” this Court has stated that, “the term ‘mi sconduct’ is more appropriately a pplied to those extreme . . . instances where a prosecutor’s conduct violates the rules of pr ofessional conduct or constitutes illegal conduct,” but that arguments “premised on the contentio n that the prosecutor made a technical or inadvertent error at trial” are “more fairly prese nted as claims of ‘prosecutorial error[.]’ ” People v Cooper , 309 Mich App 74, 87-88; 867 NW2d 452 (2015) (citation omitted ). Nevertheless, regardless of “whatoperative phrase is used, [th is Court] must look to see whether the prosecutor committed errors during the course of trial that deprived defendant of a fair and impartial trial.” Id . at 88, citing People v Aldrich , 246 Mich App 101, 110; 631 NW2d 67 (2001). Here, we will refer to defendant’s argument as prosecu torial error, as the argument is limited to technical erro rs by the prosecutor.-5- In 2006, 5 the Legislature enacted the Self-Defense Act (SDA), MCL 780.97 1 et seq ., which “codified the circumstances in which a person may use dea dly force in self-defense or in defense of another person without having the duty to retreat.” People v Dupree , 486 Mich 693, 708; 788 NW2d 399 (2010). MCL 780.972 provides, in pertinent p art:

(1) An individual who has not or is not engaged in the commissi on of a crime at the time he or she uses deadly force may use deadly force again st another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies:

(a) The individual honestly and r easonably believes that the us e of deadly force is necessary to prevent the imminent death of or imminent great bo dily harm to himself or herself or t o another individual.

“The reasonableness of a person’ s belief regarding the necessit y of deadly force ‘depends on what an ordinarily prudent and intelligent person would do on t he basis of the perceptions of the actor.’ ” People v Guajardo , 300 Mich App 26, 42; 832 NW2d 409 (2013), quoting People v Orlewicz , 293 Mich App 96, 102; 809 NW2d 194 (2011).

We note initially that “prosecutorial misconduct cannot be pre dicated on good-faith efforts to admit evidence,” People v Noble , 238 Mich App 647, 660; 608 NW2d 123 (1999), and prosecutors “are generally free to argue the evidence and all r easonable inferences from the evidence as it relates to their theory of the case,” People v Mann , 288 Mich App 114, 120; 792 NW2d 53 (2010) (citation and quotation marks omitted). Defendant has presented no evidence that the prosecutor did not act in good faith when he elicited the now-challenged testimony, or when, during closing argument, he reasonably inferred from this testimony that defendant lacked an honest and reasonable belief th at the use of deadly force ag ainst Watson was necessary.

Further, the record and relevant caselaw support the conclusio n that the prosecutor acted in good faith when presenting the evidence. In People v Riddle , 467 Mich 116, 127; 649 NW2d 30 (2002), decided before enactment of the SDA, the Michigan Supreme Court stated: “We reaffirm today that the touchstone of any claim of self-defense, as a j ustification for homicide, is necessity . An accused’s conduct in failing to retreat, or to otherwise avoid the intended harm, may in some circumstances – other than those in which the accus ed is the victim of a sudden, violent attack – indicate a lack of reasonableness or necessityin resorting to deadly force in selfdefense.” But the Court further reasoned that “[i]t is univers ally accepted that retreat is not a factor in determining whether a defensive killing was necessary when it occurred in the accused’s dwelling[.] Id . at 134.

However, in People v Richardson , 490 Mich 115, 118-121; 803 NW2d 302 (2011), a case where the defendant fired shots from his porch, the Court uphel d the following jury instruction:

5 Except as provided in MCL 780.972, the Self-Defense Act (SDA) did “not modify the common law of this state in existence on October 1, 2006 regarding the duty to retreat before using deadly force or force other than deadly force.” MCL 780.973.-6- (1) A person can use deadly force in self-defense only where it is necessary to do so. If the defendant could have safely retreated but did not d o so, you may consider that fact in deciding whether the defendant honestly a nd reasonably believed [he/she] needed to use d eadly force in self-defense.

(2) However, a person is never required to retreat if attacked in [his/her] own home, nor if the person reasonably believes that an attacker is about to use a deadly weapon, nor if the person i s subject to a sudden, fierce , and violent attack.

In so doing, the Court reasoned: “At trial, the prosecutor neve r argued that defendant was required to, or even should have , retreated from the altercatio n. In attempting to rebut defendant’s self-defense claim, t he prosecutor argued only that defendant could no t establish that he honestly and reasonably believe d that he needed to use deadl y force.” Id . at 120. The prosecutor clearly stated, in his closing argument, that defend ant had no duty to retreat by law, and that he introduced testimony regarding defendant’s ability to flee during the altercation with Watson for the purpose of challe nging whether defendant honestl y and reasonably believed he needed to use deadly force.

Regardless, even assuming, without deciding, that the prosecut or erred by eliciting the testimony, defendant fails to demonstrate that the error affect ed the outcome of his trial. The court instructed the jury that a person attacked in his own hom e has no duty to retreat. Curative instructions will cure most inappropriate prosecutorial stateme nts, and it is presumed that jurors follow their instructions. Unger , 278 Mich App at 235.

Further, the jury’s conviction of defendant for first-degree m urder demonstrates that it found he killed Watson with pre meditation and deliberation, not just that he lacked an honest and reasonable belief deadly force was necessary to prevent imminen t death or great bodily injury. Substantial evidence beyond the testimony regarding defendant’s ability to flee supported this determination. “ ‘The elements of first-degree murder are (1) the intentional killing of a human (2) with premeditation and deliberation.’ ” People v Bass , 317 Mich App 241, 265-266; 893 NW2d 140 (2016) (citation omitted). “ ‘To premeditate is to th ink about beforehand; to deliberate is to measure and evaluate the major facets of a cho ice or problem.’ ” Id . at 266, quoting People v Plummer , 229 Mich App 293, 300; 581 NW2d 753 (1998) (citation and quotation marks omitted). One factor to consider when analyzin g premeditation is a defendant’s actions before and after a crime. Bass , 317 Mich App at 266. The extreme measures defendant took to conceal Watson’ s death, the injury defendant inflicted, the searches on defendant’s laptop regarding drinking bleach and r at poison, and defendant’s testi mony that he wanted to get back at Watson for hitting him during the altercation, demonstrate prem editation and deliberation.

Because defendant cannot establish that the prosecutor committ ed an outcomedeterminative error, h is ineffective assist ance of counsel argu ment also fails. Defense counsel need not make fruitless or meritless objections. People v Ericksen , 288 Mich App 192, 201; 793 NW2d 120 (2010).-7- III. EVIDENTIARY ERROR

Defendant asserts that the court abused its discretion when it admitted into evidence testimony regarding, and a booking photograph from, his April 1 3, 2014 interaction with police, as well as an audio-less video of his first interview with Dete ctive Noble.

To preserve an evidentiary error for appeal, “a party opposing the admission of evidence must object at trial and specify the same ground for objection that it asserts on appeal.” People v Aldrich , 246 Mich App 101, 113; 631 NW2d 67 (2001), citing MRE 103(a)( 1) and People v Grant , 445 Mich 535, 545, 553; 520 NW2d 123 (1994). Prior to trial, the prosecution filed a notice of intent to introduce ev idence of defendant’s April 13, 2014 contact with police under MRE 404(b), asserting that the c ourt should adm it the evidence for the non-character purpose of demonstrating defendant’s intent and knowledge. On that day, d efendant was pulled over by Novi Police Officer Daniel Jenki nson for drunk driving, but fai led to disclose Watson’s death to the officer. In response, defendant argued that the contact co uld not be used to prove his guilty mind because the prosecution had not proven that Watson was dec eased on that date, evidence of drunk driving is not relevant to murder, and evidence of drunk driving would be overly prejudicial.

Defendant’s arguments are not preserved. Defendant did not ar gue in the trial court, as he does on appeal, that the evidence was not relevant to his gu ilty mind because silence is a symptom of psychological trauma. Further, defense counsel with drew the arguments related to drunk driving at the motion hearing when the court ordered that it would admit evidence of the incident without reference to the fact that defendant was pulle d over for drunk driving, and failed to object at trial when Officer Jenkinson testified that defend ant was intoxicated, or when the prosecution offered defendant’s booking photograph for admissio n.
With regard to the video, when the prosecutor moved to admit t he video of defendant’s first interview with Detective Noble, and play the video for th e jury, defense counsel objected on the basis that, with no audio, “it would potentially prejudice [defendant] if the jury would interpret some of his hand movements or gestures in a way that’ s totally out of context . . . .” However, defense counsel then ad mitted that he opened the door to the video’s admission. Thus, defendant waived his evidentiar y error argument as to the video

. Unpreserved evidentiary claims are reviewed for plain error af fecting substantial rights. People v Chelmicki , 305 Mich App 58, 62; 850 NW2d 612 (2014). A plain error affe cts substantial rights when “the error affected the outcome of the lower court proceedings.” Carines , 460 Mich at 763. “Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually i nnocent defendant or when an err or seriously affect[ed] the fairness, integrity or public reputation of judicial proceeding s independent of the defendant’s innocence.” Id . (citation and quotation marks omitted).

In general, other-acts evidence may not be introduced “to prov e the character of a person in order to show action in conf ormity therewith.” MRE 404(b)(1 ). However, suchevidence may be admissible to demonstrate “proof of motive, opportunity, int ent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mist ake or accident . . . .” MRE 404(b)(1).-8- Defendant asserts that the evide nce regarding his April 13 int eraction with police constituted character evidence masquerading as evidence of inte nt because it did not “make a material fact – guilty mind – more or less probable than it wou ld be without the evidence.” Evidence is relevant if it has “ ‘any tendency to make the exis tence of any fact that is of consequence . . . more probable or less probable than it would be without the evidence.’ ” People v Coy , 258 Mich App 1, 13; 669 NW2d 831 (2003), quoting MRE 401. “ ‘The elements of first-degree murder are (1) t he intentional killing of a hum an (2) with premeditation and deliberation.’ ” Bass , 317 Mich App at 265-266 (citati on omitted). Further, “[o]nce a defendant raises the issue of self-defense and ‘satisfies the initial bur den of producing some evidence from which a jury could conclude that the elements necessary to esta blish a prima facie defense of self-defense exist,’ the prosecu tion must ‘exclude the possibil ity’ of self-defense beyond a reasonable doubt.” People v Stevens , 306 Mich App 620, 630; 858 NW2d 98 (2014), quoting Dupree , 486 Mich at 709-710.

Despite defendant’s argument to the contrary, evidence that he interacted with a police officer on April 13, after Wats on’s death, was relevant to prov ing that defendant did not act in self-defense, but intended to kill Watson. Factors to consider when analyzing premeditation include a defendant’s actions before and after a crime. Bass , 317 Mich App at 266. Officer Jenkinson testified that, during his 11⁄2 to 2 hour interaction w ith defendant, defendant never mentioned killing Watson in self-defense. From that testimony, a rational juror could conclude both that defendant did not act in self-defense, and that he ki lled Watson with premeditation, because it is reasonable to infer that a person who believes th ey committed a justifiable killing would divulge such to another. This is especially true conside ring that, in his written statement to police, defendant said he “wa s so scared people would just c all from the smell and [he] would just confess if anyone asked.”

Additionally, the probative value of the testimony and defenda nt’s booking photograph was not outweighed by their prejudicial effect. Relevant evide nce may be excluded if the “probative value is substantially outweighed by the danger of u nfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue d elay, waste of time, or needless presentation of cumulative evidence.” MRE 403. “ ‘Unfair prej udice exists when there is a tendency that evidence with little probative value will be give n too much weight by the jury.” People v Danto , 294 Mich App 596, 600; 822 NW2d 600 (2011), quoting People v McGhee , 268 Mich App 600, 614; 709 NW2d 595 (2005).

Defendant argues that the reas on for his inter action with poli ce and booking photograph – drunk driving – became apparent during Officer Jenkinson’s test imony, making the evidence overly prejudicial because it “implied that just days after Mr. Watson’s death, [he] was making reckless decisions and endangering himself and others.” Howeve r, defendant himself testified that he was put in the “drunk ta nk” during his interaction withpolice on April 13, and that after Watson’s death, he stayed home all the time and drank and smoke d “weed.” “[E]rror requiring reversal cannot be error to which the aggrieved party contribut ed by plan or negligence . . . .” People v Griffin , 235 Mich App 27, 46; 597 NW2d 176 (1999), overruled on other grounds by People v Thompson , 477 Mich 146 (2007). Further, it is unlikely that knowing de fendant was intoxicated during the April 13 contact with police affected th e jury’s perception of Officer Jenkinson’s testimony or defendant’s photograph, or its ultimat e decision in the case. The evidence was clearly intended to demonstrate that defendant had the opportunity t o tell the police-9- about Watson’s death, but failed to do so. And, as discussed, substantial evid ence beyond this police interaction existed from w hich the jury could have concl uded that defendant killed Watson with premeditation and deliberation, rather than in self -defense.

With regard to defendant’s argument that the trial court erred by admitting into evidence the video of his first interview with Detective Noble, we initi ally hold that defe ndant waived this issue. During defense counsel’s cross-examination of Detective Noble regarding the interview, the following exchange occurred:

Q . And it’s your testimony that [defendant] was completely calmthat entire time, correct?

A . Yes, correct, for what had taken place.

Q . He wasn’t crying?

A . I didn’t see tears.

* * *

Q . Okay, and had there been a video of that interview we could have seen what his demeanor was, correct?

A . Correct.

Defense counsel admitted that he opened the door to admission o f the video with this line of questioning. Again, “error requi ring reversal cannot be error to which the aggrieved party contributed by plan or negligence . . . .” Griffin , 235 Mich App at 46.

Regardless, the probative value of the video’s admission was n ot outweighed by the danger of unfair prejudice. Defendant admitted that he appeare d calm throughout the interview depicted in the video, and explained the hand gestures he made. At trial, defendant used one hand to demonstrate for the jury how he pushed the knife into W atson’s neck. However, when questioned further by the prosecutor, defendant clarified that he used two hands to push the knife into Watson’s neck, as demonstrated in the video. 6 Thus, the jury did not interpret the gestures out of context, as defendant suggests, and the trial court did not err by admitting the video into evidence.

6 Defendant appears calm throughout the video. Further, defenda nt does appear, in the video, to demonstrate how he held the knife when cutting into Watson’s ne ck. He begins with two hands, and then switches to one as he s eemingly pulls the knife throug h Watson’s neck.-10- IV. CRUEL AND UNUSUAL PUNISHMENT

Finally, defendant argues that the life sentence mandated by M CL 750.316(1), is unconstitutional both on its face and as applied, because it vi olates the prohibitions against cruel and unusual punishment in both the M ichigan and United States C onstitutions.

To preserve the argument that a sentence is unconstitutionally cruel or unusual, a defendant must advance the claim in the trial court. People v Bowling , 299 Mich App 552, 557; 830 NW2d 800 (2013). Defendant failed to advance this argument in the trial court, so it is not preserved for appellate review.

In general, this Court reviews constitutional questions de nov o. People v Benton , 294 Mich App 191, 203; 817 NW2d 599 (2011). “ ‘Statutes are presum ed to be constitutional, and the courts have a duty to construe a statute as constitutional unless its unconstitutionality is clearly apparent.’ ” Id ., quoting People v Dipiazza , 286 Mich App 137, 144; 778 NW2d 264 (2009) (citation and quotation marks omitted). However, unpres erved issues are reviewed for plain error affecting s ubstantial rights. Carines , 460 Mich at 763.

In People v Hall , 396 Mich 650, 657-658; 242 NW2d 377 (1976), the Michigan Supr eme Court upheld the life sentence mandated by MCL 750.316, under b oth the United States and Michigan Constitutions. Defendant cites Miller v Alabama , 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012), and scientific s tudies, in support of his arg ument that it is unconscionable to apply mandatory minimum senten ces to all offenders, including t hose whose brains are still developing. But Miller only held that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on ‘cruel and unusual punishments,’ ” id . at 2460, 2468, and defendant was over 18 at the time he kille d Watson. As he points to no further legal authority directly supporting his argument, his sentence did not violate the United States and Michigan Constitutions.

Affirmed.

/s/ Cynthia Diane Stephens /s/ Kirsten Frank Kelly /s/ Christopher M. Murray