                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    July 23, 2015
               Plaintiff-Appellee,

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

               Defendant-Appellant.


Before: SAWYER, P.J., and DONOFRIO and BORRELLO, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of unlawful imprisonment, MCL
750.349b, assault with intent to do great bodily harm, MCL 750.84, assault with a dangerous
weapon (felonious assault), MCL 750.82(1), and domestic violence, MCL 750.81(2). The trial
court sentenced defendant, as a fourth habitual offender, MCL 769.12, to 19 to 40 years for the
unlawful imprisonment conviction, 10 to 40 years for the assault with intent to do great bodily
harm conviction, 5 to 15 years for the felonious assault conviction, and 93 days, time served, for
the domestic violence conviction. We affirm.

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

       Defendant first argues that the prosecution committed misconduct1 by providing an
erroneous definition to the jury of the restraint element for unlawful imprisonment. We disagree.

        Defendant failed to contemporaneously object to the alleged prosecutorial error and
failed to request any curative instruction. 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” has become a term of art often used
to describe any error committed by the prosecution, claims of inadvertent error 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 misconduct.’ ”


                                                -1-
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 affecting substantial rights, with reversal “warranted only when plain
error resulted in the conviction of an actually innocent defendant or seriously affected the
fairness, integrity, or public reputation of judicial proceedings.” Bennett, 290 Mich App at 475-
476 (quotation marks and citations omitted). This Court considers allegations of prosecutorial
misconduct on a case-by-case basis, reviewing prosecutorial comments 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 the 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 element for unlawful imprisonment. But
that statement is directly supported by this Court’s opinion in People v Chelmicki, 305 Mich App
58, 69, 850 NW2d 612 (2014) (holding that restraint need not last “for any particular length of
time,” and unlawful imprisonment “can occur when the victim is held for even a moment”)
(emphasis added). Thus, the prosecution did not misstate the law.

        Furthermore, even assuming that the prosecution’s comments were plain error, and that
defendant suffered prejudice as a result, reversal would nevertheless be unwarranted. This Court
will not reverse “where a curative instruction could have alleviated any prejudicial effect” from
prosecutorial error but the defendant fails to request a curative 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 providing the jury with an appropriate
legal instruction, reversal would be unwarranted even if the prosecution had misstated the law.
Additionally, the alleged prejudice was cured when the trial court subsequently provided proper
instructions to the jury regarding the elements for unlawful imprisonment.

        Defendant next argues that, by failing to object to the prosecution’s allegedly erroneous
definition of the restraint element for unlawful imprisonment, and thereby failing to preserve the
issue, defendant’s trial counsel rendered constitutionally deficient 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 of fact and reviews de novo questions
of constitutional law.” People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012).
Because no Ginther2 hearing was conducted regarding this issue, our review is limited to errors
apparent on the record. People v Horn, 279 Mich App 31, 38; 755 NW2d 212 (2008).

       When reviewing a claim of ineffective assistance, there is a strong presumption in favor
of the adequacy of counsel and “the defendant bears a heavy burden of proving otherwise.”


2
    People v Ginther, 390 Mich 436, 443-444; 212 NW2d 922 (1973).


                                                -2-
People v Lockett, 295 Mich App 165, 187; 814 NW2d 295 (2012). To assert a valid claim of
ineffective assistance, “a defendant must show that (1) counsel’s performance was below an
objective standard of reasonableness under prevailing professional norms[,] (2) there is a
reasonable probability that, but for counsel’s error, the result of the proceedings would have been
different,” and (3) the ultimate result was “fundamentally unfair or unreliable.” Id.

        Defendant’s claim of ineffective assistance necessarily fails because, as already
discussed, the prosecution did not misstate the law regarding the restraint element for unlawful
imprisonment. Defense counsel’s failure to make a futile objection to the prosecution’s proper
statement of the law during closing arguments does not constitute 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 has failed to demonstrate any
prejudice from his counsel’s allegedly 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 reasonably conclude that an
objection to prosecutorial statements would “be superfluous.” Matuszak, 263 Mich App at 58.
This is particularly true because the jury is presumed to follow the trial court’s instructions. Id.
(citing People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998)). Since it is presumed 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 NW2d 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” brief. Defendant first
argues that the trial court engaged in judicial misconduct and demonstrated bias, thereby
depriving defendant of his right to a fair trial. We disagree.

        Because defendant failed to object to the alleged judicial bias 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 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.” 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 that 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 court 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 claim of error fails because no plain
error occurred.

                                                -3-
       Defendant’s remaining allegations of judicial bias and misconduct3 are totally
unsupported by citation to evidence and, after a thorough review of the record, also lack any
seeming merit. Accordingly, we conclude that defendant has forfeited 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 basis for his claims. . . .”) (quotation marks and citation omitted).

       Defendant next argues that the prosecution violated applicable discovery rules by failing
to produce a requested police record. This issue was waived for appellate review at defendant’s
preliminary examination when defense counsel explicitly withdrew 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 appellate parachute[;] thus, where defense counsel expressly
acquiesces to the handling of an issue in the lower court, the issue is waived for appellate review
and any error is necessarily extinguished).

       Finally, defendant argues that he was denied the effective assistance 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 counsel allegedly had and fails to state
what evidence his counsel allegedly helped the prosecution suppress. Because no Ginther
hearing was conducted on this issue, our review is limited to errors apparent on the record.
Horn, 279 Mich App at 38. Defendant fails to cite any record evidence 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 counsel’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 motion for a mistrial on the basis of
bias and prejudice, but he provides no evidence of such improper motives. Likewise, defendant
claims that the trial court, defense counsel, and the prosecution conspired during a sidebar
conference to exclude evidence of defendant’s unlawful arrest. Again, defendant cites no
evidence to support this bald assertion of misconduct by conspiracy.


                                                -4-
