                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                 UNPUBLISHED
                                                                 June 22, 2017
              Plaintiff-Appellee,

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

              Defendant-Appellant.


Before: STEPHENS, P.J., and K. F. KELLY and MURRAY, JJ.

PER CURIAM.

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

                         I. FACTS AND PROCEDURAL HISTORY

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

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



1
  Dr. Ruben Ortiz-Reyes, the deputy medical examiner that conducted Watson’s autopsy,
testified that the injury to Watson’s neck was 6 inches by 2 inches and 4 inches deep.


                                              -1-
                        II. INEFFECTIVE ASSISTANCE OF COUNSEL

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

        Generally, to preserve an ineffective assistance of counsel argument, a defendant must
file a motion for a new trial or Ginther2 hearing in the trial court to establish evidentiary support
for the argument. People v Sabin (On Second Remand), 242 Mich App 656, 658-659; 620
NW2d 19 (2000). Defendant failed to raise this issue in a motion for a new trial or Ginther
hearing in the trial court, and this Court denied defendant’s motion to remand. People v
Adamowicz, unpublished order of the Court of Appeals, entered September 23, 2016 (Docket No.
330612). Thus, our review is limited to the appellate record. Sabin (On Second Remand), 242
Mich App at 658-659.3

        Analysis of ineffective assistance of counsel arguments involves mixed questions of law
and fact. People v Trakhtenberg, 493 Mich 38, 47; 826 NW2d 136 (2012). We review a trial
court’s findings of fact for clear error, and questions of constitutional law de novo. Id.

        To evaluate whether ineffective assistance of counsel was provided, we use the standard
established in Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674
(1984). People v Hoag, 460 Mich 1, 5-6; 594 NW2d 57 (1999), citing People v Pickens, 446
Mich 298; 521 NW2d 797 (1994). The defendant must show: “(1) 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.” Trakhtenberg,
493 Mich at 51. The effective assistance of counsel is presumed, People v Roscoe, 303 Mich
App 633, 644; 846 NW2d 402 (2014), and the defendant must overcome the presumption that
defense counsel’s actions constituted sound trial strategy, Trakhtenberg, 493 Mich at 52.
Further, the defendant must establish a factual predicate for his claim. Hoag, 460 Mich at 6.

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



2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
3
  Defendant’s submission of Coryanna Ku’s and Edward Bajoka’s affidavits violates the court
rule that prohibits citing to matters outside the record. MCR 7.210(A)(1); see also People v
Williams, 241 Mich App 519, 524 n 1; 616 NW2d 710 (2000) (“[P]arties cannot enlarge the
record on appeal by the use of affidavits.”).


                                                -2-
283 Mich App 360, 371; 770 NW2d 68 (2009), quoting People v Kelly, 186 Mich App 524, 526;
465 NW2d 569 (1990).

         Defendant correctly asserts that the prosecution focused its case on the theory that, had he
killed Watson in self-defense, he would have immediately come forward to the police. In his
opening statement and closing argument, the prosecutor repeatedly said, “The guilty flee when
no man pursues, but an innocent man is as bold as a lion.” Further, the prosecution’s witnesses
testified regarding defendant’s calm demeanor when speaking to the police about the incident, as
well as the actions defendant took to conceal Watson’s death, including hiding the body and
attempting to clean the blood.

        However, defendant failed to establish a factual predicate for his argument that, had
defense counsel called an expert witness to explain defendant’s behavior following Watson’s
death, there is a reasonable probability that the outcome of trial would have been different. He
merely speculates that expert testimony regarding behaviors associated with post-traumatic stress
disorder would have been favorable and would have effectively countered the prosecution’s
theory. See Payne, 285 Mich App at 190 (holding that the defendant failed to demonstrate
ineffective assistance of counsel because he “merely speculated that an independent expert could
have provided favorable testimony”).

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

                                 II. PROSECUTORIAL ERROR

        Defendant next argues that he is entitled to a new trial because the prosecutor’s questions
to him and to Detective Noble regarding his ability to flee during the altercation with Watson, as
well as the prosecutor’s statements during closing argument suggesting that he could have safely
retreated, constituted prosecutorial misconduct. He also asserts that defense counsel provided
ineffective assistance when he failed to object to the questions and statements.




                                                -3-
        To preserve a prosecutorial error4 argument, a defendant must contemporaneously object
to the alleged error and ask for a curative instruction. People v Bennett, 290 Mich App 465, 475;
802 NW2d 627 (2010). If a defendant fails to timely and specifically object below, review is
generally precluded “ ‘except when an objection could not have cured the error, or a failure to
review the issue would result in a miscarriage of justice.’ ” People v Unger, 278 Mich App 210,
234-235; 749 NW2d 272 (2008), quoting People v Callon, 256 Mich App 312, 329; 662 NW2d
501 (2003). Defense counsel failed to object to the prosecution’s questions regarding
defendant’s ability to flee during the incident, or to the prosecutor’s statements during closing
argument. Thus, the issue is not preserved for appellate review.

        Unpreserved issues of prosecutorial error are reviewed for “outcome-determinative, plain
error.” Unger, 278 Mich App at 235. To establish plain error affecting substantial rights “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,
763; 597 NW2d 130 (1999). “ ‘Reversal is 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.’ ” Unger, 278 Mich App at 235, quoting Callon, 256
Mich App at 329.

       “[T]he test for prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial.” People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). “[W]e consider
issues of prosecutorial misconduct on a case-by-case basis by 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).

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




4
  Although this type of issue is generally referred to as “prosecutorial misconduct,” this Court
has stated that, “the term ‘misconduct’ is more appropriately applied to those extreme . . .
instances where a prosecutor’s conduct violates the rules of professional conduct or constitutes
illegal conduct,” but that arguments “premised on the contention that the prosecutor made a
technical or inadvertent error at trial” are “more fairly presented as claims of ‘prosecutorial
error[.]’ ” People v Cooper, 309 Mich App 74, 87-88; 867 NW2d 452 (2015) (citation omitted).
Nevertheless, regardless of “what operative phrase is used, [this Court] must look to see whether
the prosecutor committed errors during the course of trial that deprived defendant of a fair and
impartial trial.” Id. at 88, citing People v Aldrich, 246 Mich App 101, 110; 631 NW2d 67
(2001). Here, we will refer to defendant’s argument as prosecutorial error, as the argument is
limited to technical errors by the prosecutor.


                                               -4-
       In 2006,5 the Legislature enacted the Self-Defense Act (SDA), MCL 780.971 et seq.,
which “codified the circumstances in which a person may use deadly force in self-defense or in
defense of another person without having the duty to retreat.” People v Dupree, 486 Mich 693,
708; 788 NW2d 399 (2010). MCL 780.972 provides, in pertinent part:

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

       (a) The individual honestly and reasonably believes that the use of deadly force is
       necessary to prevent the imminent death of or imminent great bodily harm to
       himself or herself or to another individual.

“The reasonableness of a person’s belief regarding the necessity of deadly force ‘depends on
what an ordinarily prudent and intelligent person would do on the basis of the perceptions of the
actor.’ ” People v Guajardo, 300 Mich App 26, 42; 832 NW2d 409 (2013), quoting People v
Orlewicz, 293 Mich App 96, 102; 809 NW2d 194 (2011).

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

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

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


5
  Except as provided in MCL 780.972, the Self-Defense Act (SDA) did “not modify the common
law of this state in existence on October 1, 2006 regarding the duty to retreat before using deadly
force or force other than deadly force.” MCL 780.973.


                                                -5-
       (1) A person can use deadly force in self-defense only where it is necessary to do
       so. If the defendant could have safely retreated but did not do so, you may
       consider that fact in deciding whether the defendant honestly and reasonably
       believed [he/she] needed to use deadly force in self-defense.

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

In so doing, the Court reasoned: “At trial, the prosecutor never argued that defendant was
required to, or even should have, retreated from the altercation. In attempting to rebut
defendant’s self-defense claim, the prosecutor argued only that defendant could not establish that
he honestly and reasonably believed that he needed to use deadly force.” Id. at 120. The
prosecutor clearly stated, in his closing argument, that defendant had no duty to retreat by law,
and that he introduced testimony regarding defendant’s ability to flee during the altercation with
Watson for the purpose of challenging whether defendant honestly and reasonably believed he
needed to use deadly force.

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

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

       Because defendant cannot establish that the prosecutor committed an outcome-
determinative error, his ineffective assistance of counsel argument also fails. Defense counsel
need not make fruitless or meritless objections. People v Ericksen, 288 Mich App 192, 201; 793
NW2d 120 (2010).




                                               -6-
                                  III. EVIDENTIARY ERROR

        Defendant asserts that the court abused its discretion when it admitted into evidence
testimony regarding, and a booking photograph from, his April 13, 2014 interaction with police,
as well as an audio-less video of his first interview with Detective Noble.

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

       Defendant’s arguments are not preserved. Defendant did not argue in the trial court, as
he does on appeal, that the evidence was not relevant to his guilty mind because silence is a
symptom of psychological trauma. Further, defense counsel withdrew the arguments related to
drunk driving at the motion hearing when the court ordered that it would admit evidence of the
incident without reference to the fact that defendant was pulled over for drunk driving, and failed
to object at trial when Officer Jenkinson testified that defendant was intoxicated, or when the
prosecution offered defendant’s booking photograph for admission.

         With regard to the video, when the prosecutor moved to admit the video of defendant’s
first interview with Detective Noble, and play the video for the jury, defense counsel objected on
the basis that, with no audio, “it would potentially prejudice [defendant] if the jury would
interpret some of his hand movements or gestures in a way that’s totally out of context . . . .”
However, defense counsel then admitted that he opened the door to the video’s admission. Thus,
defendant waived his evidentiary error argument as to the video.

        Unpreserved evidentiary claims are reviewed for plain error affecting substantial rights.
People v Chelmicki, 305 Mich App 58, 62; 850 NW2d 612 (2014). A plain error affects
substantial rights when “the error affected the outcome of the lower court proceedings.”
Carines, 460 Mich at 763. “Reversal is warranted only when the plain, forfeited error resulted in
the conviction of an actually 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. (citation and quotation marks omitted).

        In general, other-acts evidence may not be introduced “to prove the character of a person
in order to show action in conformity therewith.” MRE 404(b)(1). However, such evidence may
be admissible to demonstrate “proof of motive, opportunity, intent, preparation, scheme, plan, or
system in doing an act, knowledge, identity, or absence of mistake or accident . . . .” MRE
404(b)(1).

                                                -7-
        Defendant asserts that the evidence regarding his April 13 interaction with police
constituted character evidence masquerading as evidence of intent because it did not “make a
material fact – guilty mind – more or less probable than it would be without the evidence.”
Evidence is relevant if it has “ ‘any tendency to make the existence of any fact that is of
consequence . . . more probable or less probable than it would be without the evidence.’ ”
People v Coy, 258 Mich App 1, 13; 669 NW2d 831 (2003), quoting MRE 401. “ ‘The elements
of first-degree murder are (1) the intentional killing of a human (2) with premeditation and
deliberation.’ ” Bass, 317 Mich App at 265-266 (citation omitted). Further, “[o]nce a defendant
raises the issue of self-defense and ‘satisfies the initial burden of producing some evidence from
which a jury could conclude that the elements necessary to establish a prima facie defense of
self-defense exist,’ the prosecution must ‘exclude the possibility’ of self-defense beyond a
reasonable doubt.” People v Stevens, 306 Mich App 620, 630; 858 NW2d 98 (2014), quoting
Dupree, 486 Mich at 709-710.

        Despite defendant’s argument to the contrary, evidence that he interacted with a police
officer on April 13, after Watson’s death, was relevant to proving that defendant did not act in
self-defense, but intended to kill Watson. Factors to consider when analyzing premeditation
include a defendant’s actions before and after a crime. Bass, 317 Mich App at 266. Officer
Jenkinson testified that, during his 1½ to 2 hour interaction with defendant, defendant never
mentioned killing Watson in self-defense. From that testimony, a rational juror could conclude
both that defendant did not act in self-defense, and that he killed Watson with premeditation,
because it is reasonable to infer that a person who believes they committed a justifiable killing
would divulge such to another. This is especially true considering that, in his written statement
to police, defendant said he “was so scared people would just call from the smell and [he] would
just confess if anyone asked.”

        Additionally, the probative value of the testimony and defendant’s booking photograph
was not outweighed by their prejudicial effect. Relevant evidence may be excluded if the
“probative value is substantially outweighed 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.” MRE 403. “ ‘Unfair prejudice exists when there is a
tendency that evidence with little probative value will be given too much weight by the jury.”
People v Danto, 294 Mich App 596, 600; 822 NW2d 600 (2011), quoting People v McGhee, 268
Mich App 600, 614; 709 NW2d 595 (2005).

        Defendant argues that the reason for his interaction with police and booking photograph –
drunk driving – became apparent during Officer Jenkinson’s testimony, making the evidence
overly prejudicial because it “implied that just days after Mr. Watson’s death, [he] was making
reckless decisions and endangering himself and others.” However, defendant himself testified
that he was put in the “drunk tank” during his interaction with police on April 13, and that after
Watson’s death, he stayed home all the time and drank and smoked “weed.” “[E]rror requiring
reversal cannot be error to which the aggrieved party contributed by plan or negligence . . . .”
People v Griffin, 235 Mich App 27, 46; 597 NW2d 176 (1999), overruled on other grounds by
People v Thompson, 477 Mich 146 (2007). Further, it is unlikely that knowing defendant was
intoxicated during the April 13 contact with police affected the jury’s perception of Officer
Jenkinson’s testimony or defendant’s photograph, or its ultimate decision in the case. The
evidence was clearly intended to demonstrate that defendant had the opportunity to tell the police

                                               -8-
about Watson’s death, but failed to do so. And, as discussed, substantial evidence beyond this
police interaction existed from which the jury could have concluded that defendant killed
Watson with premeditation and deliberation, rather than in self-defense.

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

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

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

               Q. He wasn’t crying?

               A. I didn’t see tears.

                                                 * * *

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

               A. Correct.

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

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




6
 Defendant appears calm throughout the video. Further, defendant does appear, in the video, to
demonstrate how he held the knife when cutting into Watson’s neck. He begins with two hands,
and then switches to one as he seemingly pulls the knife through Watson’s neck.


                                                -9-
                         IV. CRUEL AND UNUSUAL PUNISHMENT

       Finally, defendant argues that the life sentence mandated by MCL 750.316(1), is
unconstitutional both on its face and as applied, because it violates the prohibitions against cruel
and unusual punishment in both the Michigan and United States Constitutions.

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

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

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

       Affirmed.



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




                                               -10-
