-1- 

### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED June 28, 2016

v No. 325456 Wayne Circuit Court TIMOTHY NOEL JOHNSON, LC No. 14-007003-FC

Defendant-Appellant.

Before: M ETER , P.J., and S HAPIRO and O’B RIEN , JJ.

P ER C URIAM

. Defendant, Timothy Noel Johnson, was convicted by a jury of fi rst-degree premeditated murder, MCL 750.316(1)(a), possession of a firearm during the c ommission of a felony (felony firearm), MCL 750.227b, and felon in possession of a firearm, M CL 750.224f, and sentenced as a second-offense habitual offender, MCL 769.10, to concurrent p rison terms of life without parole for the murder conviction and 32 months to five years fo r the felon in possession conviction and a consecutive two-year prison term for the felon y firearm conviction. He appeals as of right his December 12, 2014 judgment of sentence. We aff irm.

Defendant’s convicti ons arise out of the shooting death of Dak arie Mickinnie. Late in the evening on June 20, 2014, Kalyn Ware was stopped at a stoplight when she heard approximately five gun shots. After hearing the shots, she observed a man ru n by her vehicle and fall. A second man chased the man who fell and shot him approximately s ix more times. Ware described the shooter as being “[v]ery” close and said that “th e whole time [she] was looking him in his face.” Ware identified defendant as the shooter. D efendant denied having ever “met” the victim, but he did admit being “mad as hell” after “going d own through [the victim’s] Twitter account” and “seeing videos” “of [defendant’s] son.” Defendant additionally admitted that he threatened the victim, saying th at the two spoke “[a]bout fight ing each other, and met up with each other. Gun violence.” Nevertheless, he denied having kil led Mickinnie. After being arrested and charged, he was eventually convicted and sentenced as described above. This appeal followed.-2- I. ISSUES RAISED IN DEFEN DANT’S BRIEF ON APPEAL

A. GREAT WEIGHT OF THE EVIDENCE

First, defendant contends that he is entitled to a new trial b ecause the great weight of the evidence does not support his convi ction of first-degree premed itated murder. We disagree.

“An appellate court will review a properly preserved great-wei ght issue by deciding whether the evidence preponderates so heavily against the verdi ct that it would be a miscarriage of justice to allow the verdict to stand.” People v Cameron , 291 Mich App 599, 617; 806 NW2d 371 (2011).

It is well recognized that the threshold necessary for a judge to overrule a jury and grant a new trial is unquestionably among the highest in our law. When analyzing a great-weight challe nge, no court may sit as the 13t h juror and reassess the evidence. [I]n general, conflicting testimony or a question as to the cre dibility of a witness are not sufficient grounds for granting a new tria l . . . . [A]bsent exceptional circumstances, issues of witness credibility are wi thin the exclusive province of the trier of fact. To support a new trial, the witness testimony must contradict[ ] indisputable physi cal facts or laws, be patently incredible or def[y] physical realities, be so inherently implausible that it could not be believed by a reasonable juror, or have been seriously impeached in a case th at was marked by uncertainties and discrepancies. [ People v Bosca , 310 Mich App 1, 13; 871 NW2d 307 (2015), lv abeyed ___ Mich ____; 872 NW2d 492 (2015) ( citations and internal quotation marks omitted; alterations by the Bosca Court).]

Contrary to defendant’s asser tions on appeal, the testimony of Kalyn Ware, an eyewitness to the murder, was not so patently incredible or inherently imp lausible that a new trial is warranted. Defendant points to the fact that Ware only observe d the shooter for a few seconds, the fact that Ware did not identify defendant as the shooter un til 17 days after the shooting, and the fact that other witnesses described the shooter differently as reasons to disbelieve Ware’s testimony, but, at best, those facts merely present credibility questions, which are better suited for the jury. Bosca , 310 Mich App at 13. Defendant also points to the testimony o f a second witness, Ashley Gunn, who testifie d that the shooter was 5’9” a nd 200 pounds. Because he was 5’11” and 150 pounds, defendant claims, he could not have been the shooter. But, the jury could have concluded that there was mor e than one individual involved , which is consistent with the testimony that there were two se ts of shell casings at the scen e, or that Ware’s testimony was more credible than Gunn’s. Perhaps the most significant dispar ity between witnesses’ testimony is whether the shooter had facial hair—Ware testified that the shooter, i.e., defendant, had facial hair, but, according to defenda nt, he did not—but that relative ly minor disparity was properly put before the jury and does not require reversal in and of itself. In essence, defendant is merely asking this Court to sit as the 13th juror and reassess the evi dence, which it is not permitted to do. Id . It is also important to keep in mind that, in addition to Wa re’s testimony, a .40 caliber magazine and .40 caliber rounds were found in a home that was a ttributed to defendant, a black and red fisherman’s hat (similar to the hat that Ware testified the shooter was wearing) was found in that same home, the cell phone tower records placed de fendant’s cell phone in the sector that included the area of the crime near the time of the shooting, there was evidence that-3- defendant made threats against the victim, and there were photo graphs of defendant with handguns and ammunition. Accordingly, we conclude the evidence did not preponderate so heavily against the jury’s verdic t that it would be a miscarria ge of justice to allow the verdict to stand. Cameron , 291 Mich App at 617.

B. ADMISSION OF FACEBOOK EVIDENCE

Next, defendant argues that the trial court erred by admitting Facebook photographs because the prosecution did not lay sufficient foundation for t he evidence’s admission and because its probative value was substantially outweighed by the danger of unfair prejudice. We disagree.

“To preserve an evidentiary i ssue for review, 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). Defendant objecte d at trial to the admission of the Facebook records on the basis that a statement from the keeper of records was required. Therefore, defendant’s claim that the records lacked a proper foundation is preserved. Id . Defendant did not argue, however, that the photographs were unfairly prejudicial until after the trial court’s final instruc tions. Further, he did not rais e the same argument that he asserts on appeal—that there was no evidence that the guns in the photogra phs were the same guns used in the shooting. Therefore, defendant’s claim that the photograph s were unfairly prejudicial is unpreserved. Id

.
This Court reviews for an abuse of discretion a trial court’s decision to admit evidence. People v Duenaz , 306 Mich App 85, 98; 854 NW2d 531 (2014). “The trial court’s decision is an abuse of discretion when the result is outside the range of pri ncipled outcomes.” Id . This Court reviews “de novo preliminary ques tions of law regarding whether a statute or evidentiary rule applies.” Id . “Unpreserved claims of evidentiary error are reviewed for pl ain error affecting the defendant’s substantial rights.” People v Benton , 294 Mich App 191, 202; 817 NW2d 599 (2011).

1. FOUNDATION

At issue here is the trial court’s admission of Facebook photo graphs of defendant with guns and ammunition. 1 MRE 901(a) provides that “[t]he requirement of authentication or identification as a condition precedent to admissibility is sat isfied by evidence sufficient to

1 Defendant also refers to “threatening remarks aimed at the dec edent,” but the Facebook comment that was admitted was directed toward Gunn, not the dec edent. To the extent defendant claims there was no foundation for the admission of the Facebook comment, the prosecution presented testimony that defendant’s Facebook usern ame was “Cashout Team Tim B-SHXT’N,” that the comment came from defendant’s username, and that the comment was obtained pursuant to the search w arrant for defendant’s Faceboo k account. In any event, even assuming this comment was improperly admitted, its admission wa s harmless for similar reasons as those articulated with r espect to the photographs.-4- support a finding that the matter in question is what its propo nent claims.” MRE 901(b)(1) provides that the testimony of a witness with knowledge “that amatter is what it is claimed to be” is an example of proper auth entication or identification. “A proper foundation for the admission of photographs is made if someone who is familiar fro m personal observation of the scene or person photographed tes tifies that the photograph is a n accurate representation of the scene or person.” In re Robinson , 180 Mich App 454, 460; 447 NW2d 765 (1989); see also MRE 901. In this case, Detroit Police Officer Jamaire McEntire , who had interviewed defendant and was thus familiar with his appearance, testified that the F acebook photographs were of defendant. Although Officer McEntir e did not expressly state t hat the photographs were an “accurate representation” of defendant, his testimony that theywere of defendant was sufficient to establish a proper foundati on for the admission of the photo graphs.

Defendant cites MRE 803(6), the business record exception to t he hearsay rule, which requires “the testimony of the custodian or other qualified wit ness.” However, whether the evidence satisfies an exception to the rule prohibiting hearsayis a separate inquiry from whether there was a proper foundation for the admission of the evidence . Although the prosecutor did refer to the Facebook evidence as “business record[s],” there i s no indication that the evidence was admitted under MRE 803(6). In fact, defense counsel stated below that if the documents were otherwise properly admitted, he had no objection based on hearsay. Defendant similarly cites MRE 902(11), which require s “a written declaration under oath by its custodian or other qualified person” for the admissi on of a record of regularly co nducted business activity that would be admissible under MRE 803(6). Again, however, there is no indication that the Facebook photographs were admitted as business records under MR E 803(b). Therefore, this certification was not required.

Defendant also argues that the Facebook photographs were inadm issible hearsay because there was nothing to establish that the Facebook page or postin gs actually belonged to defendant. Defendant again conflates hearsay and foundation. Defendant’s statement of the question presented on appeal does not mention hearsay, nor was a hearsayargument advanced below. As discussed above, there was a proper foundation for the admissio n of the Facebook evidence, which was obtained pursuant to a search warrant for defendant’s Facebook account, and defendant’s claim that there was no evidence that it was actual ly his page and postings went to the weight, not the admissi bility, of the evidence.

Furthermore, even if the Facebook photographs were improperly admitted, any error was harmless in light of Ware’s ident ification of defendant as the shooter, the .40 caliber magazine and .40 caliber rounds found at defendant’s homes, the black an d red fisherman’s hat found at defendant’s home, the cell phone tower records placing defendan t’s cell phone in the area of the crime near the time of shooting, and defendant’s threats agains t the victim. “A pr eserved error in the admission of evidence does not warrant reversal unless afte r an examination of the entire cause, it shall affirmatively appe ar that it is more probable t han not that the error was outcome determinative.” People v Roscoe , 303 Mich App 633, 639; 846 NW2d 402 (2014) (citation and internal quotation marks omitted).-5- 2. UNFAIR PREJUDICE

Defendant argues that the Face book photographs were unfairly p rejudicial because there was no evidence proving that the guns in the photographs were t he guns used in this case or when the photographs were taken. MRE 403 provides as follows: “Although relevant, evidence may be excluded if its probative value is substantially outweig hed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. ” “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” MRE 401.

Assessing probative value against prejudicial effect requires abalancing of several factors, including the time required to present the evi dence and the possibility of delay, whether the evidence is needlessly cumula tive, how directly the evidence tends to prove the fact for which it is offered, h ow essential the fact sought to be proved is to the case, the potential for confusing or misleading the jury, and whether the fact can be proved in another manner with out as many harmful collateral effects. Unf air prejudice may exist where t here is a danger that the evidence will be given undue or preemptive weight by the ju ry or where it would be inequitable to allow use of the evidence. [ People v Blackston , 481 Mich 451, 462; 751 NW2d 408 (2008) (citations omitted).]

“Evidence of a defendant’s possession of a weapon of the kind used in the offense with which he is charged is routinely determined by courts to be dir ect, relevant evidence of his commission of that offense.” People v Hall , 433 Mich 573, 580-581; 447 NW2d 580 (1989) (opinion by B OYLE , J.). Here, the photographs estab lished defendant’s possession of a handgun similar to one used in the crime, and made it more probable tha t he was the shooter. 2 This is especially true considering the fact that defendant’s identity as the shooter was at issue in this case. Thus, the photographs had the tendency to make the exist ence of any fact that is of consequence to the determination of the action more probable orless probable. Additionally, the testimony presented clearly reflec ted that the guns in the phot ographs were not necessarily those found at the scene, and that is pr ecisely what defense counsel argued to the jury.

Furthermore, even if we assume that the admission of the photo graphs was unfairly prejudicial, defendant fails to establish that their admission affected his substantial rights. As discussed above, given Ware’s i dentification, the .40 caliber m agazine and .40 caliber rounds found at defendant’s home, the black and red fisherman’s hat fo und at defendant’s home, the cell phone tower records placing defend ant’s cell phone in the area of the crime near the time of shooting, and defendant’s threats against the victim, we cannot conclude that the admission of these photographs affected t he outcome of the trial.

2 Although neither Gunn nor Ware described the gun used in the s hooting as a handgun, in discussing the .40 caliber Smith & Wesson casings, Detective Se rgeant Molnar agreed that .40 caliber handguns w ere at issue.-6- II. ISSUES RAISED IN DEFEN DANT’S STANDARD 4 BRIEF

Defendant raises several additional issues in a pro se brief f iled pursuant to Supreme Court Administrative O rder 2004-6, Standard 4.

A. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant first argues that defense counsel was ineffective in the following ways: (1) failing to investigate, research, and present a substantial def ense based on the witnesses’ inconsistent testimony regarding the timing of the incident, (2 ) failing to investigate and challenge the chain of custody of the shell casings, (3) failin g to challenge Ware’s credibility, (4) failing to consult with expert witnesses, including identificat ion experts, ballistics experts, and cell phone or cell phone tower expe rts, (5) failing to consult with a private investigator to go over the crime scene, (6) failing to object to enlarged photographs of bullets and bullet fragments removed from the victim, extensive medical testimony, and diagr ams of the entrance and exit wounds, (7) failing to object to the prosecutor’s “questionable ” closing argument, and (8) failing to request a jury instruction on an alibi defense. Defendant a lso argues that the cumulative effect of these failures deprived him o f his constitutional rights to effective assistance of counsel and due process. We disagree in each respect.

In order to preserve a claim that counsel was ineffective, a d efendant must move the trial court for a new trial or evidentiary hearing. People v Lane , 308 Mich App 38, 68; 862 NW2d 446 (2014). Defendant moved for a new trial, but he did not ra ise the claim of ineffective assistance of counsel in doing s o. Therefore, our review of th is issue is limited to mistakes apparent from the record. Id

. “A criminal defendant has the fundamental right to effective a ssistance of counsel.” Lane , 308 Mich App at 67.

To prove that his defense counsel was not effective, the defen dant must show that (1) defense counsel’s performance fell below an objec tive standard of reasonableness and (2) there is a reasonable probability that c ounsel’s deficient performance prejudiced the defe ndant. We must presume that counsel provided effective assistance. A defendant was prejudiced if, but for d efense counsel’s errors, the result of the proceeding would have been different. [ Id . at 68 (citations omitted).]

“A defendant raising a claim of ineffective assistance of couns el bears the burden of proving the factual predicate of his or her claim.” People v Stokes , ___ Mich App ___, ___; ___ NW2d ___ (2015); slip op at 14.

1. FAILURE TO INVESTIGATE AND PRESENT A SUBSTANTIAL DEFENSE

Defense counsel’s failure to present certain evidence will only constitute ineffective assistance of counsel if it deprived defendant of a substantial defense. Moreover, decisions regarding what evidence to present and whic h witnesses to call are presumed to be matters of trial strategy, and we will not second-guess-7- strategic decisions with th e benefit of hindsight. [ People v Dunigan , 299 Mich App 579, 589-590; 831 NW2d 243 (2013) (citations omitted).]

“A substantial defense is one that could have affected the outc ome of the trial.” People v Putman , 309 Mich App 240, 248; 870 NW2d 593 (2015).

Defendant argues that defense counsel was ineffective by faili ng to investigate and present a defense relating to t he timing of the shooting. Acco rding to defendant, defense counsel should have presented a defense of a “tactical frame up” based on the inconsistent witness testimony regarding the time of the murder. He argues that, ba sed on the cell phone evidence, he would have been on his phone at the time of the shooting, which no one testified was the case. It is not apparent from the record, however, that defense counsel failed to investigate the time of the shooting. Therefore, defendant fails to establish the fact ual predicate for this claim. Stokes

, ___ Mich App at ___; slip op at 14. Additionally, defense coun sel’s decision not to present a detailed challenge reg arding the time of the shooting is presum ed to be trial strategy. Dunigan
, 299 Mich App at 589-590. Further, defendant fails to establishthat he was deprived of a defense that would have affected the outcome of the trial. With the ex ception of the victim’s mother, who referred to times of either 11:00 p.m. or 11:03 p.m., the w itnesses testified regarding events occurring at approximately 11:00 p.m. Therefore, their testimony was not inconsistent. Moreover, defendant’s claim that he would have been on his phon e at the time of the shooting lacks merit because the outgoing call from his cell phone was p laced at 10:54 p.m., but there was no evidence regarding when the ca ll ended or exactly when the s hots were fired, and the first 911 call was placed at 11:07 p.m.

2. FAILURE TO INVESTIGATE AND CHALLENGE CHAIN OF CUSTODY

“[B]reaks in the chain of custody go to the weight of the evid ence, not to its admissibility.” People v Mitchell , 493 Mich 883, 884; 822 NW2d 224 (2012). “[C]ounsel is not ineffective for failing to rai se a meritless or futile objectio n.” Putman , 309 Mich App at 245.

Defendant next contends that defense counsel’s failure to inve stigate and challenge the chain of custody of the shell casings, and failure to conduct v oir dire regarding who secured the scene, marked the evidence, and turned the evidence over to the detectives was unreasonable and prejudiced him in light of the fact that no more than 12 shots were fired, yet 19 shell casings were recovered and none of the bullets or bullet fragments were identified as a .40 caliber bullet. Again, it is not apparent from the record that defense counsel failed to investigate this issue. Moreover, any challenge to the chain of custody would not have affected the admissibility of the shell casings and, thus, would have been futile. Further, Detr oit Police Officer Christine Lewis testified that she roped off the scene, and Detroit Police Offi cer Deborah Stinson testified that she marked the evidence and placed the items she collected into evidence.

To the extent defendant suggests that defense counsel should h ave challenged the inconsistency between the numbe r of gunshots heard and the numb er of shell casings found, his decision is presumed to be trial strategy, Dunigan , 299 Mich App at 589-590, and it is not probable that this defense would have affected the outcome of t he trial. Although a third witness, Robert Bradley, testifie d that he heard exactly 12 sho ts, Gunn and Ware only estimated the number of shots they heard. M oreover, given that the victi m had 12 gunshot wounds, and-8- there were also bullet impacts on the garage, it is certainly p lausible that there were more than 12 shots fired. Similarly, the fact that Michigan State Police De tective Sergeant Dean Molnar could not determine whether the bullets were fired from the same fire arm went to the weight of the evidence, and defense counsel did argue in closing that there w as no evidence regarding the type of gun from which the bullets came.

3. FAILURE TO CHALLENGE WARE’S CREDIBILITY

“Counsel may provide ineffective assistance if counsel unreaso nably fails to develop the defendant’s defenses by adequately impeaching the witnesses aga inst the defendant.” Lane , 308 Mich App at 68. “Decisions regarding what evidence to present and whether to call or question witnesses are presumed to be matters of trial strategy, and thi s Court will not substitute its judgment for that of counsel rega rding matters of trial strateg y.” People v Davis , 250 Mich App 357, 368; 649 NW2d 94 (2002).

Defendant contends that defense counsel should have moved for an adjournment or continuance to determine what Ware learned about the shooting o n the Internet. On crossexamination, Ware testified that she knew the victim’s name and used it during her testimony because it “was all over the internet.” Although defense couns el did not move for an adjournment or continuance in order to determine what Ware learned on the Internet, this decision is presumed to be trial strategy. Davis , 250 Mich App at 368. Ware merely said that the victim’s name was all over the Internet; she did not, howev er, mention seeing anything about defendant that would suggest tha t her identification was tainte d, and the victim’s name was not in dispute. Thus, defendant also fails to establish that the t rial court would have granted an adjournment or continuance had on e been requested. Moreover, there is nothing in the record to suggest that defense counsel did not investigate this issue. D efendant merely speculates that a continuance to allow for further investigation would have led t o the discovery of evidence that could have affected the outcome of the trial, and this mere spe culation is insufficient to warrant reversal.

Defendant also argues that def ense counsel should have questio ned Ware further regarding the direction of the s treets near the location of the murder. Defense counsel, however, did ask Ware what street she was on, and she testified that she was on Wyoming headed toward Eight Mile, which was consistent with her preliminary examinati on testimony. Defendant is correct that Ware’s testimony that she was on Wyoming headed no rth toward Eight Mile is inconsistent with her testimony that the shooter entered a vehi cle that headed up Pembroke toward Eight Mile, but, when Ware was asked what direction the vehicle that the shooter got into went, it was the trial court th at interjected and asked, “Eight Mile?” Ware said, “Eight Mile,” and the trial court said, “Tha t’s north.” Defense counsel’s de cision not to ask additional questions is presumed to be trial strategy, and, nonetheless, e mphasizing Ware’s apparent confusion of the streets and dire ctions would not have affected the outcome of the trial.

4. FAILURE TO CONSULT EXPERTS

An attorney’s decision whether to retain witnesses, including expert witnesses, is a matter of trial strategy. A defendant must meet a heavy burden to overcome the presumption that co unsel employed effective trial strategy. In-9- general, the failure to call a witness can constitute ineffecti ve assistance of counsel only when it deprives the defendant of a substantial de fense. [ People v Payne , 285 Mich App 181, 190; 774 NW2d 714 (2009) (citations and int ernal quotation marks omitted).]

Defendant contends that defense counsel was ineffective by fai ling to consult with experts in identification, ballistics, and cell phones or cell phone towers. Defendant, however, merely speculates that the expert s would have provided favorabl e testimony. He has not indicated what an expert of this nature would have testified to . Therefore, he fails to show that the present would have affecte d the outcome of the trial. Payne , 285 Mich App at 190.

5. FAILURE TO CONSULT A PRIVATE INVESTIGATOR

Defendant also contends that defense counsel was ineffective b y failing to consult with a private investigator to go over the crime scene and discover other potential evidence. Like defense counsel’s decision not to consult experts, his decision not to consult a private investigator is presumed to be sound trial strategy, and defend ant merely speculates that a private investigator might have discovere d something favorable to the d efense. Again, this speculation is insufficient to warrant review. Moreover, there is no evide nce in the record that defense counsel did not adequately inves tigate the case on his own with out the assistance of a private investigator.

6. FAILURE TO CHALLENGE MEDICAL EVIDENCE

Defendant contends that defense counsel’s failure to object to the enlarged photographs of the bullets recovered from the victim’s body, extensive medi cal testimony, and diagrams of the entrance and exit wounds was unreasonable and prejudiced hi m. He claims that the evidence was “overly prejudicial,” but h e fails to explain how the evide nce was prejudicial. Photographs of bullets and diagrams of the entrance and exit wounds would n ot arouse “the sympathies of the jury,” as defendant suggests, and, contrary to defendant’s asse rtion, the medical examiner’s testimony regarding the locations of the wounds, the bullets re covered, and the manner and cause of death was not “extensive.” Defendant fails to establish tha t defense counsel’s failure to object was objectively unreasonable or t hat an objection would have re sulted in the exclusion of the evidence. Moreover, defendant fails to establish that the medi cal evidence affected the outcome of the trial in light of the other evidence presented.

7. FAILURE TO OBJECT TO PROS ECUTOR’S CLOSING ARGUMENT

“[D]eclining to raise objections, especially during closing ar guments, can often be consistent with sound trial strategy.” People v Unger , 278 Mich App 210, 242; 749 NW2d 272 (2008). Defendant contends that defense counsel was ineffectiv e by failing to object to the prosecutor’s “questionable” closing argument, but he fails to e xplain how the argument was improper. Defendant refers to Part D of Issue II of his Standa rd 4 Brief, in which he asserts prosecutorial misconduct. In that section, defendant merely qu otes portions of the prosecutor’s closing argument and similarly fa ils to explain how the argumen ts were improper. Moreover, as discussed further below, the arguments were not improper; there fore, defense counsel was not ineffective by failing to object. Defendant also fails to esta blish that the arguments affected the-10- outcome of the trial. The trial court instructed the jury that “[t]he lawyers’ statements, arguments, and any commentary, are not evidence,” and “the jury is presumed to have followed its instructions.” People v Mahone , 294 Mich App 208, 218; 816 NW2d 436 (2011).

8. FAILURE TO REQUEST AL IBI JURY INSTRUCTION

Defendant also contends that defense counsel was ineffective b y failing to request an alibi instruction. Given that defense counsel filed a notice o f intent to rely on an alibi defense and presented alibi witnesses, it is unclear why he failed to r equest such an instruction. Even assuming, however, that the failure to do so was objectively un reasonable, 3 defendant is unable to establish that he was prejudiced by this failure because the trial court properly instructed the jury regarding the prosecution’ s burden of proof and the elemen ts of the crime.

The failure to give an alibi instruction is not error requiring reversal where the court properly instructs on the elements of the charged offense and the prosecutor’s burden of proof. C onsistent with this principle, where, as here, these instructions were given, the abs ence of an alibi instruction wo uld not have a reasonable probability of affecting the outcome of the trial. Therefore, we conclude defendant was not denied the effective assistance of c ounsel. [ People v Sabin (On Second Remand) , 242 Mich App 656, 660; 620 NW2d 19 (2000) (citation omitted).]

9. CUMULATIVE EFFECT

Defendant additionally contends that the cumulative effect of defense counsel’s errors denied him the effective assistance of counsel and due process. “It is true that [t]he cumulative effect of several minor errors may warrant reversal where the i ndividual errors would not.” Unger , 278 Mich App at 258 (citation and internal quotation marks om itted; alterations by the Unger Court). However, because the only error committed by counsel w as his failure to request

3 We would note, however, that it is certainly conceivable that defense counsel may have declined to request an alibi instruction in light of the weakne sses of the alibi witnesses’ testimony, i.e., by choosing not to drawn even further attentio n to the conflicts in their accounts of defendant’s claimed alibi. Specifically, defendant and the two alibi witnesses, a friend and his girlfriend, each testified that d efendant was home at differenttimes on the night of the shooting, that defendant was doing different things during the shooting a nd throughout the evening as a whole, and that different people were in the home at the time o f the shooting. For example, defendant testified that he “l eft the mall around 9:40-ish, or 9:30-ish” and returned home “approximately like 15 minutes” later. His friend, on the othe r hand, denied that defendant “left the house at any time between 8:30 and 10:00.” Instead, defend ant’s friend testified that defendant arrived at “Somewhere around” “6:30, 7:00.” Defendan t’s friend also testified that he and defendant stayed up all night “just watching movies, playin g dominoes . . . .” In contrast, defendant’s girlfriend testified that defendant slept in bed wi th her all night and that, as “a very light sleeper,” she was certa in that “there’s no way he could h ave left.”-11- an alibi instruction, an error we have already concluded does n ot require reversal, the cumulative effect of that sole error, al one, also does not require reversa l. Id

.

B. PROSECUTORIAL MISCONDUCT

Next, defendant contends that he was denied the right to a fai r trial based on the following failures on behalf of the prosecution: (1) the failur e of the prosecution and the police to investigate the entire case, (2) the failure of the prosecution and the police to investigate possible perjury, (3) the prosecution’s improper use of “other acts” evi dence, (4) the prosecution’s “questionable” comments during cl osing argument, and (5) the cu mulative effect of the prosecution’s errors. We disagree in each respect.

“In order to preserve a claim of prosecutorial misconduct for appellate review, a defendant must have timely and specifically objected below, unl ess objection could not have cured the error.” People v Brown , 294 Mich App 377, 382; 811 NW2d 531 (2011). Defendant did not object to the prosecuti on’s alleged failure to investig ate the case, to Ware’s testimony, or to the prosecutor’s closing argument. As discussed above, defe ndant did object to the introduction of the Facebook evid ence, but his objection was no t on the same ground that he now asserts on appeal. Therefore, each of these claims are unprese rved. “Unpreserved claims of prosecutorial misconduct are revi ewed for plain error affecting substantial rights.” Id

. “The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial. Prosecutorial misconduct issues are decided on a case-by-case b asis, and the reviewing court must examine the record and evaluate a prosecut or’s remarks in context.” Brown , 294 Mich App at 382-383 (citations omitted).

A prosecutor’s role within our judicial system is to seek just ice and not merely to convict. Prosecutors have discretion on how to argue the facts and reasonable inferences arising therefrom, and are not limited to presenting their arguments in the blandest terms possible. A prosecutor’s comme nts are to be evaluated in light of defense arguments and the relationship th e comments bear to the evidence admitted at trial. [ People v Meissner , 294 Mich App 438, 455-456; 812 NW2d 37 (2011) (citations and in ternal quotation marks omit ted).]

1. FAILURE TO INVESTIGATE CASE

Defendant contends that he was denied a fair trial by the pros ecution’s failure to investigate the police’s findings, the interviews, the photo ar rays, the witnesses’ descriptions, the number of casings, Ware’s statements, the ballistics evidence, and the victim’s two friends. Defendant cites People v Jordan , 23 Mich App 375, 388; 178 NW2d 659 (1970), in which this Court stated that “[t]he fact that the prosecution merely faile d to obtain the evidence rather than actively suppressed evidence already in hand is of no consequen ce here.” 4 In this case, however,

4 Jordan , a nonbinding opinion, MCR 7.215(C)(1), involved the rape of a nine-year-old. 23 Mich App at 377. The complainant testified that, after the rap e, “there was ‘snot’ running down-12- there is nothing in the record to suggest that the prosecutor f ailed to investigate any of the issues identified by defendant. 5 Moreover, the prosecution does not have a duty to search for evidence to aid the defendant’s case; rather, its duty is to share evide nce that is discovered. People v Burwick , 450 Mich 281, 289, n 10; 537 NW2d 813 (1995). And, while the failure to turn over exculpatory evidence would constitute prosecutorial misconduct, People v Leo , 188 Mich App 417, 426-427; 470 NW2d 423 (1991), defendant fails to identify any exculpatory evidence that the prosecution failed to turn over. Accordingly, defendant fa ils to establish plain error affecting his substantial rights.

2. FAILURE TO INVESTIGA TE WARE’S TESTIMONY

Defendant next contends that he was denied a fair trial by the prosecution’s failure to investigate Ware’s testimony afte r she testified that she learn ed information from the Internet. Defendant argues that a prosecutor may not knowingly present fa lse testimony. As discussed above, Ware merely stated that the victim’s name was all over t he Internet. This statement did not establish that Ware provided false testimony or that the pr osecution knew that Ware was providing false testimony, nor did it necessitate further inves tigation by the prosecution. Therefore, defendant fails to e stablish plain error affecting h is substantial rights.

3. INTRODUCTION OF “OT HER ACTS” EVIDENCE

Defendant contends that the pr osecution improperly used “other acts” evidence to sway the jury. Defendant refers to the photographs showing him withhandguns and ammunition, and he argues that there was no evid ence that the guns were not sim ply BB guns. Officer McEntire, however, testified that the fir earm in one of the photographs w as a semi-automatic handgun. Defendant also testified, with reg ard to the photographs, that he poses with guns because he likes
her legs. Defendant allegedl y then took out a white handkerchi ef with blue stripes which he used to wipe the ‘snot’ off her thighs.” Id . When defendant was subsequently arrested, he “had in his possession a white handkerchief with blue stripes which had cer tain unidentified stains.” Id . at 378. At trial, defendant presente d a strong alibi defense—he a nd his wife testifie d “in substantial detail” that they went Christmas shopping for the entire time p eriod at issue. Id . Additional witnesses corroborated this defense. Id . at 379. Furthermore, evidence presented at trial demonstrated that the complaint had a “vengeful nature . . . an d [there was a] major attack on her credibility and morality[.]” Id . at 386. The trial court nevertheless admitted the handkerchi ef into evidence, but the stains on the handkerchief were not chem ically analyzed before trial. Id . at 378. Defendant was convicted. Id . at 385. After the convict ion, the handkerchief was chemically analyzed, and “no traces of sperm [were] on the hand kerchief.” Id . at 386-387. Obviously, the scenario presented in Jordan is substantially different from that presented here. Defendant’s unsupported claims on appeal that the prosecution f ailed to do a variety of things simply do not rise to the lev el of those asserted in Jordan

.
5 Ware’s testimony that she saw the victim’s name on the Interne t is discussed in detail through this opinion. With regard to the bullets, although there was n o testimony that they were .40 caliber, there is no indication that they were not tested. Rather, Detective Sergeant Molnar testified that he examined them, but he was unable to say wheth er they came from the same firearm.-13- guns, and, until now, he never gave any indication that the gun s in the photographs were not BB
guns. 6 Defendant fails to establish that the photographs constituted “other acts” evidence under MRE 404(b), and, as discussed above, the admission of these pho tographs did not affect the outcome of the case. Therefore, defendant fails to establish p lain error affecting his substantial rights.

4. IMPROPER COMMENTS DURING CLOSING ARGUMENT

Defendant additionally contends that he was denied a fair tria l based on the prosecutor’s comments during closing argument. Defendant quotes portions of the prosecutor’s closing argument, but he does not explain how the comments were imprope r or how they denied him a fair trial. Thus, defendant fa ils to establish plain error aff ecting substantial rights.

Nonetheless, the prosecutor’s comments were not improper. Def endant quotes the prosecutor’s argument that defendant does not get “special poin ts” for testifying and that the point of defendant’s testimony wa s to do “[d]amage control. Ex plain.” These arguments were proper in light of defendant’s testimony. To the extent the pr osecutor argued defendant was not credible, “[a] prosecutor may . . . argue from the facts that awitness is credible or that the defendant or another witness is not worthy of belief.” People v Howard , 226 Mich App 528, 548; 575 NW2d 16 (1997). Defendantalso quotes the prosecutor’ s argument that it was not easy for Ware to identify defendant as a murderer. The prosecutor w as, however, permitted to argue that Ware was credible based on the evidence presented at trial . Defendant further quotes the prosecutor’s argument that there was more than one person invol ved, and that defendant could have stopped, “[b]ut he didn’t. He fired. And fired. And fir ed. And fired. And fired. And fired. And fired. And then he ra n off.” These arguments were proper based on th e evidence that there were two groups of casings and that the victim was shot 1 2 times. Therefore, defendant fails to establish plain error aff ecting his substantial rights

.

5. CUMULATIVE EFFECT

Defendant contends that the cumulative effect of the prosecut ion’s errors violated his right to due process. In light of our conclusions above, howev er, there are no errors to accumulate, and defendant’s claim necessarily fails for that re ason. See Unger , 278 Mich App at 258.

C. TRIAL COURT’S ERRORS

Defendant also argues on appeal t hat the trial court abused it s discretion by failing to properly conduct a hearing pursuant to United States v Wade , 388 US 218; 87 S Ct 1926; 18 L

6 Notably, these photographs that he now claims include him and the BB guns are the same photographs that were discussed below, i.e., the photographs th at he claimed were not necessarily of him.-14- Ed 2d 1149 (1967). 7 We disagree. Because defendant never argued that the trial c ourt improperly conducted the Wade hearing before the trial court, this argument is unpreserved fo r appellate review. People v Danto , 294 Mich App 596, 605; 822 NW2d 600 (2011) (citation and internal quotation marks omitted). Defendant never argued belo w that the hearing was not properly conducted. Therefore, this claim is unpreserved. “Unpreserved constitutional issues are reviewed for plain error a ffecting a defendant’s substantia l rights.” Bosca , 310 Mich App at 47.

Defendant cites the portion of the Wade hearing in which the trial court did not allow defense counsel to voir dire Officer McEntire about other witne sses who were asked to describe the shooter. The trial court stated that what other witnesses described did not have anything to do with the lineup at issue. D efense counsel argued that he wa s attempting to show that the lineup was suggestive because it did not include individuals wi th descriptions provided by other witnesses. Defendant, however, fails to explain how the trial court’s decision was erroneous. To the extent defendant suggests th at another witness’s descriptio n of the shooter is a relevant factor in determining whether the identification was reliable, 8 defendant fails to provide any authority to support this argument. Defe ndant fails to establish plain e rror affecting his substantial rights.

To the extent defendant also argues that the cumulative effect of this error, coupled with its admission of the Facebook phot ographs and its denial of his new-trial motion, deprived him of his constitutional right to a f air trial, we re ject that arg ument as well. Given that there were no errors in the trial court’s rulings, there are no errors to acc umulate. See Unger , 278 Mich App at 258.

D. CUMULATIVE EFFECT OF ERRORS

Next, defendant contends that the cumulative effect of all of the errors identified in his Standard 4 Brief violated his ri ght to due process. We disagre e. Again, defendant has not established any errors. Therefore, his claim regarding the cum ulative effect of the errors must fail. Unger , 278 Mich App at 258.

E. ACTUAL AND LEGAL INNOCENCE

Finally, defendant contends tha t his right to due process was violated because he is actually and legally innocent. This issue was not raised below . Therefore, it is unpreserved. Danto , 294 Mich App at 605. “Unpreserved constitutional issues are reviewed for plain error affecting a defendant’s substantial rights.” Bosca , 310 Mich App at 47. Defendant refers to the

7 To the extent defendant also argues that the trial court abuse d its discretion by admitting the Facebook photographs and by denying his motion for a new trial based on Ware’s credibility, we decline to address those arguments for a second time in light o f our conclusions above.

8 Defendant lists several factors relevant to whether an in-court identification is independently reliable; however, such inquiry is not at issue because Ware’s pretrial identification was not excluded.-15- language of MCR 6.508(D), which pr ovides that the court may wai ve the requirement of showing good cause “if it concludes that there is a significant possibility that the defendant is innocent of the crime.” This court rule pertains to post-appea l relief and, therefore, is not applicable in this case. To the extent defendant claims a misc arriage of justice has occurred as a result of a constitutional violation, he has not established an y constitutional violations warranting relief. Nor has defendant estab lished an error in pleading or procedure that has resulted in a miscarriage of justice. See MCL 769.26.

Affirmed.

/s/ Patrick M. Meter /s/ Douglas B. Shapiro /s/ Colleen A. O’Brien