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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED July 23, 2015

v No. 320868 Wayne Circuit Court ROBERT A. FOSTER, LC No. 12-010678-FH

Defendant-Appellant.

Before: S AWYER , P.J., and D ONOFRIO and B ORRELLO , JJ.

P ER C URIAM

.
Defendant appeals as of right his jury trial convictions of un lawful imprisonment, MCL 750.349b, assault with intent to d o great bodily harm, MCL 750. 84, assault with a dangerous weapon (felonious assault), MC L 750.82(1), and domestic violenc e, MCL 750.81(2). The trial court sentenced defendant, as a fourth habitual offender, MCL 7 69.12, to 19 to 40 years for the unlawful imprisonment conviction, 10 to 40 years for the assaul t with intent to do great bodily harm conviction, 5 to 15 years for the felonious assault convic tion, and 93 days, time served, for
the domestic violence conviction. We affirm.

This case arises out of a severe domestic violence incident th at lasted several days.
Defendant raises two issues in hi s principal brief on appeal an d three issues in his “Standard 4” brief. We address each issue respectively.

Defendant first argues that the prosecution committed miscondu ct 1 by providing an erroneous definition to the jury of the restraint element for u nlawful imprisonment. We disagree.

Defendant failed to contemporaneously object to the alleged pr osecutorial error and failed to request any curative i nstruction. Accordingly, this claim of error is unpreserved.

1 As this Court recently noted in People v Cooper , ___ Mich App ___; ___ NW2d ___ (2015); slip op at 7-8, although the term “prosecutorial misconduct” ha s become a term of art often used
to describe any error committed by the prosecution, claims of inadvertent erro r by the prosecution are “better and more fairly presented as claims of ‘prosecutorial error,’ with only the most extreme cases rising to the level of ‘prosecutorial miscon duct.’ ”-2- People v Bennett , 290 Mich App 465, 475; 802 NW2d 627 (2010) (citing People v Unger , 278 Mich App 210, 235; 749 NW2d 272 (2008)). Unpreserved claims of prosecutorial error are reviewed for plain error affec ting substantial rights, with rev ersal “warranted only when plain error resulted in the conviction of an actually innocent defend ant or seriously affected the fairness, integrity, or public reputation of judicial proceedin gs.” Bennett , 290 Mich App at 475- 476 (quotation marks and citations omitted). This Court consid ers allegations of prosecutorial misconduct on a case-by-case basis, reviewing prosecutorial com ments in their proper context.
Id. at 475 (citing People v Akins , 259 Mich App 545, 562; 675 NW2d 863 (2003)).

Although a clear misstatement of law by the prosecution, left uncorrected, can deprive a criminal defendant of the right to a fair trial, see, e.g., People v Grayer , 252 Mich App 349, 357; 651 NW2d 818 (2002), the prosecution did not clearly misstate t he law. Defendant argues that no legal authority supports the prosecution’s assertion during closing arguments that “one moment of restraint” is sufficient to satisfy the restraint ele ment for unlawful imprisonment. But that statement is directly suppor ted by this Court’s opinion in People v Chelmicki , 305 Mich App 58, 69, 850 NW2d 612 (2014) (holding that restraint need not la st “for any particular length of time,” and unlawful imprisonment “can occur when the victim is held for even a moment ”) (emphasis added). Thus, the pros ecution did not misstate the l aw.

Furthermore, even assuming that the prosecution’s comments wer e plain error, and that defendant suffered prejudice as a result, reversal would nevert heless be unwarranted. This Court
will not reverse “where a curative instruction could have allev iated any prejudicial effect” from prosecutorial error but the defendant fails to request a curati ve instruction, Bennett , 290 Mich App at 476 (quoting People v Callon , 256 Mich App 312, 329-330; 662 NW2d 501 (2003)), and “[c]urative instructions are sufficient to cure the prejudicial effect of most inappropriate prosecutorial statements . . . ,” Unger , 278 Mich App at 235 (citation omitted). Since a curative instruction could have remedied any alleged prejudice by provid ing the jury with an appropriate legal instruction, reversal would be unwarranted even if the pr osecution had misstated the law. Additionally, the alleged prejudice was cured when the trial court subsequently provided proper instructions to the jury regardi ng the elements for unlawful im prisonment.

Defendant next argues that, by failing to object to the prosec ution’s allegedly erroneous definition of the restraint element for unlawful imprisonment, and thereby failing to preserve the issue, defendant’s trial couns el rendered constitutionally defi cient performance. We disagree.

“[W]hether defense counsel performed ineffectively is a mixed question of law and fact; this Court reviews for clear error the trial court’s findings o f fact and reviews de novo questions
of constitutional law.” People v Trakhtenberg , 493 Mich 38, 47; 826 NW2d 136 (2012).
Because no Ginther 2 hearing was conducted regarding this issue, our review is limi ted to errors apparent on the record. People v Horn , 279 Mich App 31, 38; 755 NW2d 212 (2008).

When reviewing a claim of ineff ective assistance, there is a s trong presumption in favor of the adequacy of counsel and “the defendant bears a heavy bur den of proving otherwise.”

2 People v Ginther , 390 Mich 436, 443-444; 212 NW2d 922 (1973).-3- People v Lockett , 295 Mich App 165, 187; 814 NW 2d 295 (2012). To assert a vali d claim of ineffective assistance, “a defendant must show that (1) counsel ’s performance was below an objective standard of reasonablen ess under prevailing professio nal norms[,] (2) there is a reasonable probability that, but f or counsel’s error, the resul t of the proceedings would have been different,” and (3) the ultimat e result was “fundamentally unfa ir or unreliable.” Id.

Defendant’s claim of ineffective assistance necessarily fails because, as already discussed, the prosecution did not misstate the law regarding t he restraint element for unlawful imprisonment. Defense counsel’s failure to make a futile objec tion to the prosecution’s proper statement of the law during closing arguments does not constitu te ineffective assistance. See,

e.g., People v Matuszak , 263 Mich App 42, 58; 687 NW2d 342 (2004). Furthermore, since the prosecution’s description of the law was accurate, defendant ha s failed to demonstrate any prejudice from his counsel’s all egedly defective performance.

Likewise, “ ‘declining to raise objections, especially during closing arguments, can often be consistent with sound trial strategy.’ ” People v Eliason , 300 Mich App 293, 303; 833 NW2d 357 (2013) (quoting Unger , 278 Mich App at 242). For instance, where a trial court will subsequently instruct the jury regarding the law, counsel may r easonably conclude that an objection to prosecuto rial statements would “be superfluous.” Matuszak , 263 Mich App at 58. This is particularly true because the jury is presumed to follo w the trial court’s instructions. Id. (citing People v Graves , 458 Mich 476, 486; 581 NW2d 229 (1998)). Since it is presume d that counsel’s trial strategy was effective, People v Payne , 285 Mich App 181, 190; 774 NW2d 714 (2009) (citing People v Ackerman , 257 Mich App 434, 455; 669 NW 2d 818 (2003)), defendant’s claim of ineffective assistance of counsel fails; he has cited no record evidence to rebut the presumption that his counsel’s trial strategy was effective.

We turn now to the issues raised in defendant’s “Standard 4” b rief. Defendant first argues that the trial court engaged in judicial misconduct and demonstrated bias, thereby depriving defendant of his right t o a fair trial. We disagree.

Because defendant failed to object to the alleged judicial bia s and misconduct in the lower court, this issue is unpreserved. People v Jackson , 292 Mich App 583, 597; 808 NW2d 541 (2011); People v Sardy , 216 Mich App 111, 117-118; 549 NW2d 23 (1996). Unpreserved issues regarding judicial conduct are reviewed for plain error. People v Conley , 270 Mich App 301, 305; 715 NW2d 377 (2006) (citing People v Carines , 460 Mich 750, 774; 597 NW2d 130 (1999)). “To avoid forfeiture unde r the plain error rule, thre e requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvi ous, 3) and the plain error affected substantial rights.” Carines , 460 Mich at 763 (citing United States v Olano , 507 US 725, 731- 734; 113 S Ct 1770; 123 L Ed 2d 508 (1993)).

Defendant argues that the trial court engaged in misconduct th at pierced the veil of judicial impartiality by unduly influencing the jury. See Conley , 270 Mich App at 307. The judicial conduct at issue is a statement made by the trial cour t on the first day of trial, warning
defendant that he would be removed from the courtroom if he was disruptive, as he had been in pretrial proceedings. But that warning was given before jury selection began and, as such, could not have influenced the jury at all. Thus, this unpreserved cl aim of error fails because no plain
error occurred.-4- Defendant’s remaining allegatio ns of judicial bias and miscond uct 3 are totally unsupported by citation to evidence and, after a thorough revie w of the record, also lack any seeming merit. Accordingly, we conclude that defendant has for feited those claims of error.

Carines , 460 Mich at 763; People v Kammeraad , 307 Mich App 98, 143; 858 NW2d 490 (2014) (explaining that a defendant cannot merely “assert an error and then leave it up to this Court to
discover and rationalize the ba sis for his claims. . . .”) (quo tation marks and citation omitted).

Defendant next argues that th e prosecution violated applicable discovery rules by failing to produce a requested police record. This issue was waived fo r appellate review at defendant’s preliminary examination when d efense counsel explicitly withdre w the discovery request at
issue. People v Carter , 462 Mich 206, 214-215; 612 NW2d 144 ( 2000) (explaining that “ counsel may not harbor error as an appell ate parachute[;] thus, where d efense counsel expressly acquiesces to the handling of an issue in the lower court, the issue is waived for appellate review and any error is necessa rily extinguished).

Finally, defendant argues that he was denied the effective ass istance of counsel at his preliminary examination. We disagree.

Although defendant’s argument is largely incoherent, he seems to argue that his counsel had a conflict of interest and somehow aided the prosecution in suppressing evidence. Defendant does not specify what conflict of interest his counse l allegedly had and fails to state what evidence his counsel allege dly helped the prosecution supp ress. Because no Ginther hearing was conducted on this issue, our review is limited to e rrors apparent on the record.

Horn , 279 Mich App at 38. Defendant fails to cite any record evide nce in support of this claim of error. Furthermore, upon review of the record, no error is apparent. Thus, defendant has failed to meet the heavy burden of demonstrating that his couns el’s performance at the preliminary examination was constitutionally deficient. Lockett , 295 Mich App at 187.

Affirmed.

/s/ David H. Sawyer
/s/ Pat M. Donofrio /s/ Stephen L. Borrello

3 Defendant argues that the trial court denied his counsel’s mot ion for a mistrial on the basis of bias and prejudice, but he provides no evidence of such imprope r motives. Likewise, defendant claims that the trial court, d efense counsel, and the prosecuti on conspired during a sidebar
conference to exclude evidence of defendant’s unlawful arrest. Again, defendant cites no evidence to support this bald a ssertion of misconduct by conspi racy.