People of Michigan v. John Henry Lewis

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

May 05, 2026

Plaintiff-Appellee, 10:48 AM

v No. 366385

Berrien Circuit Court

JOHN HENRY LEWIS, LC No. 2022-001714-FH

Defendant-Appellant.

Before: TREBILCOCK, P.J., and BOONSTRA and LETICA, JJ.

PER CURIAM.

Defendant appeals by right his jury trial conviction of delivery of methamphetamine,

MCL 333.7401(2)(b)(i), and delivery of marijuana, MCL 333.7401(2)(d)(iii). The Berrien Circuit

Court initially sentenced defendant with an enhancement for a second offense, MCL 333.7413, to

15 to 40 years’ imprisonment for the methamphetamine conviction1 and 2 to 8 years’ imprisonment

for the marijuana conviction. Defendant argues that he was denied the effective assistance of

counsel when his defense counsel failed to introduce his codefendant’s statements against interest,

failed to inform defendant that the codefendant’s statements might not be admitted into evidence,

and failed to object to the prosecutor’s rebuttal-argument reference to defendant’s testimony about

his criminal history. We affirm.

1

Defendant was resentenced to 10 to 40 years’ imprisonment on the methamphetamine conviction

after the trial court found that the initial sentence was improperly enhanced on the basis of someone

else’s conviction for the use of cocaine in 2007, which was mistakenly attributed to defendant’s

criminal history. Defendant’s issues regarding the trial court’s sentence are the subject of a

separate appeal.

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I. PERTINENT FACTS AND PROCEDURAL HISTORY

This case arises from defendant’s delivery of a bag containing methamphetamine and

marijuana to an undercover officer on behalf of his codefendant, Torey Blackamore. Defendant’s

sole defense at trial was that he did not know that the bag contained drugs.

During his arraignment on the two delivery charges, the trial court informed defendant that

he was being charged as a second-offense offender because he had a previous cocaine-use

conviction on or about March 13, 2007. Defendant disputed the conviction, explaining that he was

in prison at that time, so the conviction must belong to someone else.

In January 2023, defense counsel engaged an investigator to interview Blackamore about

defendant’s role in the drug transaction. At that time, Blackamore was in jail for pending charges

relating to his role in drug transactions with the same undercover officer who had received drugs

from defendant. The investigator summarized Blackamore’s statements in an investigative

memorandum as follows:

On 1/3/2023 at around 3:15pm I interviewed Torey Blackamore at the

Berrien County jail. I asked Mr Blackamore if he knew John Lewis and he said he

did not. Mr Blackamore was then shown a photograph of Mr Lewis by Atty

Hampel and Mr Blackamore said that he did indeed recognize Mr Lewis. I asked

Mr Blackamore if he ever had any dealings with Mr Lewis and he said not really,

he knew Mr Lewis from around town. I asked Mr Blackamore if he had dealings

with Mr Lewis on 5/5/2022? Mr Blackamore said that he did. I asked him to

describe the dealings that day with Mr Lewis. Mr Blackamore said that he was at

Union Park selling drugs. Mr Lewis happened to be sitting by him and Mr

Blackamore asked Mr Lewis if he wanted to make some money and Mr Lewis

agreed. Mr Blackamore said that he had a package that he told Mr Lewis to run

across the park and give it to a white truck that was parked on Hurd Street. Mr

Lewis took the package and ran it over to the truck and came back and was given

$20 by Mr Blackamore. I asked Mr Blackamore if he told Mr Lewis what was in

the package and he said he did not. I asked Mr Blackamore if the contents of the

package could clearly be made out by anyone looking at it and Mr Blackamore

stated that he couldn’t remember what the package looked like so he couldn’t be

sure. I asked Mr Blackamore if there was anything else he wanted to add and he

said he had nothing else for me. End of interview.

Defendant subpoenaed Blackamore to testify at defendant’s trial. But on the day of trial,

Blackamore asserted his Fifth Amendment right against self-incrimination and refused to testify.

Seeing no other avenue for presenting the defense that defendant did not know that he was

delivering drugs, defendant took the stand and testified against his counsel’s advice. During his

testimony, defendant explained, “I have one drug case in my whole life in 2007, and that was use

of cocaine.” In his closing rebuttal argument, the prosecutor referred back to that testimony:

Now, whether or not he knew there were drugs in there or not, again, is all

about how he acted, and reacted, and those circumstances. He did testify today

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actually that he had a prior experience with drugs, use of cocaine. So, he’s familiar

with what drugs are, what drugs look like, in some fashion or form. And that’s

what was in that bag.

The jury delivered a guilty verdict on both counts of delivery.

Defendant moved for a Ginther2 hearing and a new trial, arguing, in pertinent part, that he

was denied the effective assistance of counsel when his defense counsel failed to introduce

Blackamore’s statements from the investigative memorandum into evidence after Blackamore

became unavailable, failed to warn defendant of the risk that the jury might not hear those

statements so that defendant could make an informed decision whether to proceed to trial, and

failed to object to the prosecutor’s reference to defendant’s criminal history.

The trial court held both a Ginther hearing and a hearing on the motion for a new trial. The

trial court did not make any relevant findings of fact or conclusions of law during those hearings,

instead opting to enter a written order denying defendant’s motion for a new trial. Regarding

defendant’s ineffective-assistance arguments, the trial court’s entire discussion consisted of one

sentence: “The Defendant has failed to establish ineffective assistance of trial counsel.” This

appeal followed.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant argues that his defense counsel was ineffective because he failed to introduce

codefendant Blackamore’s statements from the investigative interview or to warn defendant of the

risk that Blackamore’s statements might be excluded. We disagree.

A. STANDARD OF REVIEW

“Whether a defendant received ineffective assistance of trial counsel is a mixed question

of fact and constitutional law.” People v Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011).

The trial’s court’s factual findings are reviewed for clear error, and questions of constitutional law

are reviewed de novo. Id. The decision to deny a motion for a new trial is reviewed for an abuse

of discretion, which occurs when the trial court chooses an outcome falling outside the range of

principled outcomes. People v Miller, 482 Mich 540, 544; 759 NW2d 850 (2008). “A trial court

necessarily abuses its discretion when it makes an error of law.” People v Waterstone, 296 Mich

App 121, 132; 818 NW2d 432 (2012).

Both parties note that the trial court denied defendant’s motion for a new trial without

making any specific findings on the ineffective assistance claim. A trial court “must state its

reasons for granting or denying a new trial orally on the record or in a written ruling made a part

of the record,” MCR 6.431(B), but it is not required to make any specific findings of fact or

conclusions of law. “Findings of fact and conclusions of law are unnecessary in decisions on

motions unless findings are required by a particular rule.” MCR 2.517(A)(4). In this case, the

trial court stated its reason for denying the motion in its written order: after the Ginther hearing, it

2

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

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concluded that defendant “failed to establish ineffective assistance of trial counsel.” Although our

review could have benefitted from a more thorough analysis from the trial court, the written order

complied with MCR 6.431(B). The trial court made no findings of fact from the Ginther hearing

for us to review for clear error, but we may still address defendant’s ineffective assistance claims

on the existing record. See People v Petri, 279 Mich App 407, 410; 760 NW2d 882 (2008) (“A

trial court’s findings of fact, if any, are reviewed for clear error, and this Court reviews the ultimate

constitutional issue arising from an ineffective assistance of counsel claim de novo.”) (emphasis

added). It is not necessary to remand this case for the trial court to further articulate its reasons for

denying the motion.

B. HEARSAY

Codefendant Blackamore’s statements from the investigative interview were against his

penal interest because he likely knew that they could be used against him in a trial or sentencing

for his pending criminal case, but they were not admissible because (1) they were not sufficiently

corroborated by evidence to make the statements trustworthy, and (2) they were nested within the

investigator’s out-of-court statements, which were also hearsay.

Hearsay is an out-of-court statement offered “to prove the truth of the matter asserted.”

MRE 801(c)(2). Hearsay is inadmissible unless the rules of evidence provide an exception.

MRE 802. For example, hearsay is admissible if the declarant is unavailable to testify and the

statement qualifies as a statement against interest. At the time of defendant’s trial, a “statement

against interest” was defined as follows:

A statement which was at the time of its making so far contrary to the

declarant’s pecuniary or proprietary interest, or so far tended to subject the

declarant to civil or criminal liability, or to render invalid a claim by the declarant

against another, that a reasonable person in the declarant’s position would not have

made the statement unless believing it to be true. A statement tending to expose

the declarant to criminal liability and offered to exculpate the accused is not

admissible unless corroborating circumstances clearly indicate the trustworthiness

of the statement. [MRE 804(b)(3), as amended May 21, 2001, 464 Mich clxxviii-

clxxix (2001)].3

3

The Michigan Rules of Evidence were substantially amended on September 20, 2023, effective

January 1, 2024. See ___ Mich ___ (2023). As amended, former MRE 804(b)(3) is now found at

MRE 804(b)(4) and provides:

(4) Statement Against Interest. A statement that:

(A) a reasonable person in the declarant’s position would have made only

if the person believed it to be true because, when made, it was so contrary to the

declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate

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A declarant is considered unavailable if he invokes the Fifth Amendment right against self-

incrimination and refuses to testify. People v Meredith, 459 Mich 62, 66; 586 NW2d 538 (1998).

However, “the mere fact that the declarant invoked his Fifth Amendment right not to testify does

not make the statement against penal interest.” People v Barrera, 451 Mich 261, 270; 547 NW2d

280 (1996).

In Barrera, the police investigated four men in connection with a victim’s death from

multiple stab wounds. Id. at 264. One of those men, Copeland, stated to the police that he was

the only stabber. Id. at 265, 280. Copeland was later convicted of first-degree murder in a separate

trial. Id. at 280. The other three codefendants were tried together. Id. at 265. Copeland was

unavailable as a witness in their trial because he invoked his Fifth Amendment right not to testify.

Id. The three codefendants sought to introduce Copeland’s statement to the police under the

“statement against interest” hearsay exception. Id. Our Supreme Court clarified when a statement

qualifies as a statement against penal interest:

[W]hether a declarant’s statement was sufficiently against penal interest is whether

the statement would be probative of an element of a crime in a trial against the

declarant, and whether a reasonable person in the declarant’s position would have

realized the statement’s incriminating element. If so, then the statement tended to

subject the declarant to criminal liability. [Id. at 272.]

The Court concluded that Copeland’s statements qualified as statements against his penal interest

because, although the statements did not sufficiently establish every element of first-degree

murder, they were “probative of many possible crimes,” including possession and use of controlled

substances, negotiating with a prostitute for a sex act, and stabbing the victim. Id. at 281-282.

The prosecutor argues in this case that codefendant Blackamore’s statements from the

investigative memorandum stating that he gave a package to defendant, told him to give it to a

white truck, and paid him $20 without telling him about the contents of the package were not

statements against Blackamore’s penal interest because “[h]e could not be found guilty for any of

those actions.” But Barrera established that the statement “need not by itself prove the declarant

guilty.” Id. at 270-271. At minimum, Blackamore’s statements were probative of his guilt for

possessing a controlled substance in violation of MCL 333.7403 or for using defendant as his agent

to deliver a controlled substance in violation of MCL 333.7401.

It is unclear whether Blackamore pleaded guilty to delivery of a controlled substance before

or after he made the inculpatory statements during the investigative interview on January 3, 2023.

But as of the trial on February 28, 2023, he had not yet been sentenced. If he had not yet entered

a plea, then the statements could have been used against him at a trial. But even if he had already

the declarant’s claim against someone else or to expose the declarant to civil or

criminal liability; and

(B) must be supported by corroborating circumstances that clearly indicate

its trustworthiness, if it tends to expose the declarant to criminal liability.

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entered a plea, the statements could have been used against him at his sentencing. A reasonable

person in Blackamore’s position would recognize that making those statements to an investigator

engaged by a codefendant’s attorney would likely subject him to criminal liability for those

statements. Under Barrera, 451 Mich at 472, these statements were against his penal interest.

Even if an unavailable declarant’s statement is against his penal interest, it must be

supported by corroborating circumstances that clearly indicate its trustworthiness to be admissible.

MRE 804(b)(3), as amended May 21, 2001, 464 Mich clxxviii-clxxix (2001). This Court uses a

balancing test when considering whether the corroborating circumstances are sufficient to justify

admitting the statements. Barrera, 451 Mich at 279. There is an inverse relationship between “the

defendant’s constitutional right to present exculpatory evidence in his defense and the rationale

and purpose underlying MRE 804(b)(3) of ensuring the admission of reliable evidence.” Id.

“[T]he more crucial the statement is to the defendant’s theory of defense, the less corroboration a

court may constitutionally require for its admission.” Id. In this case, defendant’s entire theory of

his defense was that he did not know that he was delivering drugs. The circumstances of the

delivery appeared extremely suspicious, and defendant planned for Blackamore’s testimony to be

the only evidence that defendant lacked knowledge of the drugs. Blackamore’s statements in the

investigative interview were important to the defense, so not much corroboration was required to

admit them.

Codefendant Blackamore’s statements, however, do not even meet that lowered threshold.

Defendant argues that Blackamore’s statements were partially corroborated by the trial testimony

of two police officers: one testified that defendant’s name was never mentioned in previous drug

deals with Blackamore, and one testified that he could not see inside the black package that he

received from defendant. But a statement is not corroborated just because it is somewhat consistent

with other evidence. When determining the reliability of an out-of-court statement, a court must

consider “its content and the circumstances in which it was made.” People v Dhue, 444 Mich 151,

161; 506 NW2d 505 (1993) (quotation marks and citation omitted; emphasis added).4 The police

officers’ testimony months after the investigative interview had no effect on the circumstances in

which Blackamore made the statements and do little if anything to corroborate those statements.

Considering the statements and the circumstances surrounding the investigative interview

itself, we conclude that there were insufficient corroborating circumstances to admit codefendant

Blackamore’s statements under the former MRE 403(b)(3). Although Blackamore voluntarily

gave the statements and may have had no personal reason to try to help defendant, other

circumstances more clearly indicate that the statements were unreliable. Notably, the interviewees

4

Dhue was abrograted in part by People v Taylor, 482 Mich 368, 378-379; 759 NW2d 361 (2008),

on the basis that “the holding in [Dhue] that a codefendant’s nontestimonial statement is governed

by both MRE 804(b)(3) and the Confrontation Clause is no longer good law,” but it affirmed

Dhue’s application of MRE 804(b)(3). Blackamore’s statements were nontestimonial because

they were made for defendant’s investigative interview, not in any court proceeding or police

interrogation. See id. at 377. Nontestimonial statements do not implicate the Confrontation

Clause, so only the statements’ admissibility under MRE 804(b)(3) is relevant in this case. See id.

at 378.

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were defendant’s attorney and investigator, and Blackamore gave the least amount of information

possible to get through the interview. Many of the statements were made in response to “yes or

no,” leading questions, so it would not be difficult for Blackamore to give the “right” answer, and

Blackamore’s incentive, if any, was simply to tell the attorney and interviewer whatever they

wanted to hear. And when the investigator asked Blackamore if he had anything else to share,

Blackamore said that he did not, so the investigator ended the interview. These circumstances

undermined the reliability of Blackamore’s statements, so we conclude that they were not

admissible under “statement against interest” exception to the rule against hearsay.

Furthermore, defendant could not have admitted the statements from the investigative

memorandum at trial because the investigative memorandum almost entirely consists of the

investigator’s statements summarizing codefendant Blackamore’s statements, which is hearsay

within hearsay. See Solomon v Shuell, 435 Mich 104, 128-129; 456 NW2d 669 (1990) (holding

that a report summarizing a conversation between the report’s author and another person was

hearsay within hearsay). For hearsay within hearsay to be admissible, each layer of hearsay must

conform with a hearsay exception. MRE 805. We find no other exception applicable to this case.

C. PERFORMANCE AND PREJUDICE

Defense counsel was not ineffective for failing to request to admit codefendant

Blackamore’s statements because that request would have been futile, and his failure to warn

defendant of the risk that Blackamore statements might not be admitted was not objectively

unreasonable or prejudicial to the defense.

The Michigan and United States constitutions guarantee criminal defendants the right to

the effective assistance of counsel. People v Yeager, 511 Mich 478, 488; 999 NW2d 490 (2023).

See also US Const, Am VI; Const 1963, art 1, § 20. “Effective assistance of counsel is presumed,

and a defendant bears a heavy burden of proving otherwise.” People v Putman, 309 Mich App

240, 248; 870 NW2d 593 (2015). “In order to obtain a new trial, a defendant must show that (1)

counsel’s performance fell below an objective standard of reasonableness and (2) but for counsel’s

deficient performance, there is a reasonable probability that the outcome would have been

different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012).

In this case, codefendant Blackamore’s statements did not fall into any exception to the

rule against hearsay, so any motion to admit them would have inevitably failed. Defense counsel

cannot be ineffective for his decision not to bring a futile motion. See People v Riley, 468 Mich

135, 142; 659 NW2d 611 (2003) (“Ineffective assistance of counsel cannot be predicated on the

failure to make a frivolous or meritless motion.”).

Defendant alternatively argues that his counsel was ineffective in failing to properly advise

defendant of the risk that a jury might not hear codefendant Blackamore’s statements. According

to defendant, his counsel should have determined the risk that Blackamore would refuse to testify

earlier so that defendant could make an informed decision whether to enter a guilty plea like his

codefendants. At the Ginther hearing, defense counsel testified that he learned about two weeks

before the trial that Blackamore would likely assert his Fifth Amendment rights and refuse to

testify. About a week before the trial, defense counsel tried to reach out to Blackamore’s attorney

to discuss the matter, but Blackamore’s attorney did not receive the call because his office lost

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power, internet, and phone service after an ice storm. Defense counsel was not aware that

Blackamore would actually refuse to testify until the day of the trial.

In hindsight, defense counsel could have consulted with Blackamore’s attorney more than

a month earlier, back when he conducted the investigative interview and listed Blackamore as a

potential witness. But “[t]he Sixth Amendment guarantees reasonable competence, not perfect

advocacy judged with the benefit of hindsight.” Yarborough v Gentry, 540 US 1, 8; 124 S Ct 1;

157 L Ed 2d 1 (2003). Defense counsel was not privy to information about Blackamore’s pending

criminal case, so he could not have known the impact that Blackamore’s statements might have on

that case or whether Blackamore’s attorney would advise him not to testify. In that regard, his

decision to wait for defendant’s and Blackamore’s cases to progress further before addressing

whether Blackamore would testify was not objectively unreasonable.

That decision also did not prejudice the outcome of defendant’s case. Defendant asserts

that he could have received a lighter sentence like other, similarly situated defendants if he also

entered a guilty plea,5 but instead he proceeded to trial because defense counsel led him to believe

that codefendant Blackamore’s statements gave him a strong defense. However, the timing of the

proceedings in this case does not support that conclusion. Defendant rejected his plea offer and

decided to proceed to trial at the preliminary examination on September 7, 2022, several months

before the investigative interview on January 3, 2023. He informed the trial court that he had

discussed his decision with defense counsel and that he understood that the prosecutor would

withdraw the offer after the preliminary examination and would not extend another offer. Despite

that testimony, defendant claims to have believed, on the basis of his previous experience in other

criminal cases, that the prosecutor would extend a better offer if he set the case for trial. 6 Aside

from any sentencing issues that form the subject of defendant’s other appeal, the length of his

sentence was caused by his unreasonable assumption that he could hold out for a better plea offer,

not by his counsel’s failure to advise him about the admissibility of statements that, at that point

in time, Blackamore had not yet even made. Defendant was not denied the effective assistance of

counsel on that basis.

5

Three offenders, including Blackamore, were charged in connection with their roles in a larger

drug-dealing conspiracy. They all entered pleas to delivery or possession charges and received

much lighter sentences than defendant.

6

Defendant speculates on appeal that the prosecutor might have made an exception to the deadline

for plea offers if it came to light that the original plea offer was based on the erroneous belief that

defendant was a subsequent drug offender. He states that “[t]he prosecutor has not presented any

evidence that in Berrien County plea offers are never extended or negotiated based on additional

information, circumstances or even convenience of the parties or the trial court.” But in a claim

of ineffective assistance of counsel, defendant has the burden of proof, not the prosecutor. See

Putman, 309 Mich App at 248. Defendant likewise states without evidence that “plea agreements

are routinely renegotiated regardless of cut-off dates based on new information.” This was not a

topic of discussion in the Ginther hearing, so defendant has not developed a sufficient factual

record to support that argument.

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II. PROSECUTORIAL ERROR

Defendant next argues that the prosecutor erred when he referred to defendant’s mistaken

testimony about his criminal history during his rebuttal closing argument, and that defense counsel

was ineffective for failing to object to that error. We disagree.

A. STANDARD OF REVIEW

Generally, “[i]ssues of prosecutorial misconduct are reviewed de novo to determine

whether the defendant was denied a fair and impartial trial.” Bennett, 290 Mich App at 475. But

because this issue was not preserved, it is reviewed for plain error affecting substantial rights. See

id. “To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must

have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected

substantial rights.” People v Carines, 460 Mich 750, 765; 597 NW2d 130 (1999). “Reversal is

warranted only when the plain, forfeited error resulted in the conviction of an actually innocent

defendant or when an error seriously affect[ed] the fairness, integrity, or public reputation of

judicial proceedings independent of the defendant’s innocence.” Id. (quotation marks and citation

omitted; alteration in original).

B. REBUTTAL ARGUMENT

The prosecutor’s reference to defendant’s mistaken testimony about having a previous drug

charge does not support a claim of prosecutorial misconduct.

“[W]e consider issues of prosecutorial misconduct on a case-by-case basis by examining

the record and evaluating the remarks in context, and in light of defendant’s arguments.” People

v Thomas, 260 Mich App 450, 454; 678 NW2d 631 (2004). “Prosecutors are typically afforded

great latitude regarding their arguments and conduct at trial. They are generally free to argue the

evidence and all reasonable inferences from the evidence as it relates to their theory of the case.”

People v Unger, 278 Mich App 210, 236; 749 NW2d 272 (2008) (citation omitted). On the other

hand, prosecutors “may not make a statement of fact to the jury that is unsupported by the

evidence . . . .” People v Ericksen, 288 Mich App 192, 199; 793 NW2d 120 (2010) (quotation

marks and citation omitted; alteration in original). Even if the prosecutor plainly erred, this Court

may not reverse on that basis if “a curative instruction could have alleviated any prejudicial effect.”

Bennett, 290 Mich App at 476.

Prosecutors are expected to comply with the applicable rules of evidence, but failure to

comply with the rules is not prosecutorial misconduct unless the prosecutor acted in bad faith.

People v Dobek, 274 Mich App 58, 70; 732 NW2d 546 (2007). Defendant implies that the

prosecutor’s reference to defendant’s testimony about his prior experience with drugs somehow

implicated the rule against character evidence under MRE 404(a)(1) or the rule against using other

crimes, wrongs, or acts to prove a person’s character under MRE 404(b)(1). But the prosecutor’s

rebuttal argument did not implicate either rule because closing arguments are not evidence, and

the trial court specifically instructed the jury that the lawyers’ statements and arguments were not

evidence and that the jury may only consider properly admitted evidence. See Thomas, 260 Mich

App at 454 (holding that the same instruction was sufficient to eliminate prejudice from the

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prosecutor’s closing argument). Defendant also never argued that the prosecutor acted in bad faith

when he commented on defendant’s experience with drugs during his rebuttal argument.

The prosecutor’s reference to defendant’s experience with drugs was also a reasonable

inference that was supported by the evidence. At trial, defendant testified: “I have one drug case

in my whole life in 2007, and that was use of cocaine. That was 17 years ago.” Later, he testified,

“I’ve never been convicted of drugs.” These statements were not inconsistent with each other

because defendant referred to the 2007 offense as a “case,” not a conviction. During his rebuttal

argument, the prosecutor referred to that testimony: “He did testify today actually that he had a

prior experience with drugs, use of cocaine. So, he’s familiar with what drugs are, what drugs

look like, in some fashion or form.” The jury could make the same inference that defendant was

familiar with drugs from previous experience. Defendant’s testimony that he had a “case” for use

of cocaine, combined with the fact that his actions during the delivery were consistent with

common diversion tactics used in drug transactions, support the inference that defendant was

familiar with how drugs are delivered. At that time, no one had discovered the error in defendant’s

criminal record,7 but defendant’s testimony was still evidence that the prosecutor could draw from

in closing arguments. See Unger, 278 Mich App at 236. It was not prosecutorial misconduct to

draw inferences from testimony that was only discovered to be false after the trial.

Even if the prosecutor had suspected that defendant’s testimony was possibly mistaken

because defendant had previously disputed the 2007 conviction during his arraignment, his

decision to briefly reference the testimony in his rebuttal argument would not require reversal.

The prosecutor presented strong evidence of the suspicious circumstances surrounding defendant’s

delivery of the package, including defendant’s use of diversion tactics that the undercover officer

identified as common behavior among participants of a drug transaction. The jury could have

convicted defendant on that evidence even without any testimony about defendant’s criminal

history. Therefore, this case did not involve “an actually innocent defendant,” and to the extent

that the prosecutor’s reference may be described as erroneous, that error did not seriously affect

the fairness, integrity, or public reputation of the proceedings. Carines, 460 Mich at 765.

Because there was no prosecutorial misconduct, defense counsel was not ineffective for

failing to object to the prosecutor’s rebuttal argument because any objection would have been

meritless. See Riley, 468 Mich at 142. And because defendant failed to meet his burden to prove

that he was denied the effective assistance of counsel, the trial court’s decision to deny defendant’s

motion for a new trial on that basis fell within a range of principled outcomes and was not an abuse

of discretion.

Affirmed.

/s/ Mark T. Boonstra

/s/ Anica Letica

7

Although defendant contested the 2007 conviction at his arraignment, the trial court did not

investigate and correct the error until the Ginther hearing.

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