People of Michigan v. Troy Lee-Jabbar McClain Jr ( 2020 )


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  •             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    PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
    November 19, 2020
    Plaintiff-Appellee,
    v                                                                 No. 347213
    Saginaw Circuit Court
    BENJAMIN ROY DALY,                                                LC No. 18-045126-FC
    Defendant-Appellant.
    PEOPLE OF THE STATE OF MICHIGAN,
    Plaintiff-Appellee,
    v                                                                 No. 348372
    Saginaw Circuit Court
    TROY LEE-JABBAR MCCLAIN, JR.,                                     LC No. 18-045125-FC
    Defendant-Appellant.
    Before: BOONSTRA, PJ., and MARKEY and FORT HOOD, JJ.
    PER CURIAM.
    In Docket No. 347213, defendant, Benjamin Roy Daly, appeals by right his jury-trial
    convictions of first-degree murder, MCL 750.316(1)(a), and possession of a firearm during the
    commission of a felony (felony-firearm), MCL 750.227b(1). The trial court sentenced Daly to
    serve life imprisonment without the possibility of parole (LWOP) for his murder conviction and a
    consecutive term of two years’ imprisonment for his felony-firearm conviction. In Docket No.
    348372, defendant, Troy Lee-Jabbar McClain, Jr., appeals by right his jury-trial convictions of
    first-degree murder, MCL 750.316(1)(a), conspiracy to commit first-degree murder, MCL
    750.316(1)(a) and MCL 750.157a(a), felon in possession of a firearm (felon-in-possession), MCL
    750.224f, and three counts of second-offense felony-firearm, MCL 750.227b(1). The court
    sentenced McClain as a fourth-offense habitual offender, MCL 769.12, to serve LWOP for his
    first-degree murder and conspiracy to commit murder convictions, 15 to 30 years’ imprisonment
    -1-
    for his felon-in-possession conviction, and three terms of five years’ imprisonment for his three
    felony-firearm convictions to be served concurrently with each other and consecutively to the other
    sentences. We affirm.
    I. FACTUAL BACKGROUND
    This case arises out of the killing of Willie Dawson by Alexander Jones III at a food market.
    Dawson and McClain were “beefing” after Dawson purportedly had an affair with McClain’s wife.
    On the night of the murder, Dawson was at a food market. Evidence admitted at trial established
    that, while Dawson was at the food market, Daly called McClain to inform McClain that Dawson
    was there. McClain then got into a truck with Jones, handed Jones a gun, and instructed Jones to
    shoot Dawson. Daly waited at the market until McClain and Jones arrived. Once they arrived,
    Jones short and killed Dawson. When Jones returned to McClain’s truck, McClain purportedly
    noted that Dawson “better be dead.” Daly subsequently took Jones to several houses until they
    found Jones a place to hide.
    Following a jury trial at which Jones testified against defendants, defendants were
    convicted as outlined above. Defendant Daly now contends that his convictions and sentences
    should be vacated on the basis of erroneous hearsay admitted at trial, insufficient evidence,
    ineffective assistance of counsel, and prosecutorial misconduct. Defendant McClain contends that
    his convictions and sentences should be vacated on the basis of prosecutorial misconduct, and
    improper testimony concerning the credibility of a witness. McClain further contends that he is
    entitled to resentencing because the trial court failed to assess the minimum sentencing guidelines
    range for each of his convictions, and because conspiracy to commit first-degree murder is a
    parolable offense. We affirm.
    II. HEARSAY
    We first address Daly’s argument that the trial court improperly admitted hearsay
    testimony from Jones concerning the substance of what Daly said to McClain over the phone. We
    conclude that trial court properly admitted this statement as the statement of a coconspirator during
    a conspiracy.
    This Court reviews challenges to the trial court’s evidentiary rulings for an abuse of
    discretion. People v Duncan, 
    494 Mich. 713
    , 722; 835 NW2d 399 (2013). The trial court abuses
    its discretion when its decision falls outside the range of reasonable and principled outcomes, or
    when it makes an error of law.
    Id. at 722-723.
    This Court reviews de novo preliminary questions
    of law concerning the admission of evidence, such as the trial court’s application of the rules of
    evidence.
    Id. at 723.
    Hearsay is “a statement, other than the one made by the declarant while testifying at the
    trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c).
    Hearsay is generally inadmissible, unless it is subject to a hearsay exception. MRE 802; 
    Duncan, 494 Mich. at 724
    . “[A] statement made by a coconspirator of a party during the course and in
    furtherance of the conspiracy on independent proof of the conspiracy” is not considered hearsay.
    MRE 801(d)(2)(E). To admit a statement under MRE 801(d)(2)(E), the proponent must show (1)
    a preponderance of evidence that a conspiracy existed, independent of the hearsay statement, (2)
    -2-
    the statement was made during the course of the conspiracy, and (3) the statement furthered the
    conspiracy. People v Martin, 
    271 Mich. App. 280
    , 316-317; 721 NW2d 815 (2006). “It is not
    necessary to offer direct proof of the conspiracy.”
    Id. at 317.
    Circumstantial evidence and the
    conduct of the parties may establish that a conspiracy existed, and whether a defendant is
    ultimately charged with or acquitted of conspiracy is not determinative of the evidentiary issue.
    Id. at 317, 319.
    In this case, Jones testified that McClain told Jones that he received a call from Daly
    informing him that Dawson was at the food market. McClain purportedly got angry, threw his
    phone, and told Jones to “come on.” Jones testified that he got into McClain’s truck, where
    McClain gave Jones a gun and told him to shoot Dawson. The trial court ruled that these
    statements were admissible to show their effect on the listener, that the statements could be
    considered party admissions under MRE 801(d), and that the statements were “part of the
    conspiracy, potentially.”
    Before Jones testified, the court opined that both McClain and Daly had been charged with
    conspiracy,1 and that the information available to the court at that time suggested that a conspiracy
    did, in fact, exist. The evidence included that a food market attendant had testified that Daly was
    speaking on the phone while inside the market, and that surveillance video from the night confirms
    the same. A detective testified that Daly’s phone had, indeed, called McClain’s phone, and Daly
    himself stated during an interview that he had called McClain. The circumstantial evidence, as
    well as Daly’s own statements establish that it was more probable than not that a conspiracy existed
    and that Daly’s act of calling McClain furthered that conspiracy.
    With all of the above in mind, we conclude that the trial court’s decision to admit Jones’s
    testimony as nonhearsay evidence of a conspiracy did not fall outside the range of reasonable and
    principled outcomes because independent evidence established the existence of the conspiracy.
    Because the evidence was admissible under this ground, we need not consider Daly’s argument
    that this testimony was not also admissible in order to show its effects on the listener.
    III. SUFFICIENCY OF THE EVIDENCE
    Daly next argues that there was insufficient evidence to support his conviction of first-
    degree murder under an aiding and abetting theory because he was merely present for the event,
    and did not know that Jones intended to kill the victim. We disagree.
    We review challenges to the sufficiency of the evidence de novo. People v Harverson, 
    291 Mich. App. 171
    , 177; 804 NW2d 757 (2010). In conducting our review, we construe the evidence
    in a light most favorable to the prosecution and consider whether there was sufficient evidence for
    a rational trier of fact to find all of the elements of the crime were satisfied beyond a reasonable
    doubt. People v Johnson, 
    460 Mich. 720
    , 723; 597 NW2d 73 (1999).
    1
    Daly was charged with conspiracy to commit first-degree murder, but ultimately was found guilty
    of premeditated, first-degree murder itself on an aiding and abetting theory.
    -3-
    First-degree murder is the intentional killing of a human with premeditation and
    deliberation. People v Bass, 
    317 Mich. App. 241
    , 265-266; 893 NW2d 140 (2016). Notably,
    circumstantial evidence and reasonable inferences can sufficiently prove a defendant’s state of
    mind, knowledge, or intent. People v Kanaan, 
    278 Mich. App. 594
    , 622; 751 NW2d 57 (2008).
    Additionally, because it is difficult to prove a person’s state of mind, minimal circumstantial
    evidence sufficiently establishes a person’s intent to kill. People v Unger, 
    278 Mich. App. 210
    ,
    223; 749 NW2d 272 (2008).
    A person who helps another commit a crime is just as guilty of the crime as the person who
    directly committed it:
    Every person concerned in the commission of an offense, whether he
    directly commits the act constituting the offense or procures, counsels, aids, or abets
    in its commission may hereafter be prosecuted, indicted, tried and on conviction
    shall be punished as if he had directly committed such offense. [MCL 767.39.]
    However, a defendant’s mere presence at the crime scene is not enough to support a conviction
    under an aiding and abetting theory. People v Wolfe, 
    440 Mich. 508
    , 535-536; 489 NW2d 748
    (1992) (BOYLE, J., concurring). “[T]o convict a defendant of aiding and abetting a crime, a
    prosecutor must establish that (1) the crime charged was committed by the defendant or some other
    person; (2) the defendant performed acts or gave encouragement that assisted the commission of
    the crime; and (3) the defendant intended the commission of the crime or had knowledge that the
    principal intended its commission at the time that the defendant gave aid and encouragement.”
    People v Moore, 
    470 Mich. 56
    , 67-68; 679 NW2d 41 (2004) (quotation marks, citation, and
    brackets omitted).
    We conclude that there was sufficient evidence that Daly was more than merely present
    when Dawson killed.2 As noted, Jones testified that Daly called McClain and informed McClain
    of Dawson’s location. Video evidence corroborates this idea, wherein Daly can be seen behaving
    suspiciously inside the food market as though he were waiting for someone to arrive. Notably,
    when Dawson left the food market, Daly left immediately behind him, and Jones noted that Daly
    watched him kill Dawson from outside the store. This occurred around 1:24 a.m., and immediately
    after the murder, at 1.25 a.m., Daly made more phone contact with McClain. Further, Daly
    purportedly helped Jones to hide after the murder.
    2
    We note Daly’s additional suggestion that there was not sufficient evidence to establish that he
    ever had a phone conversation with McClain, but, not only in light of our conclusion in section II
    of this opinion, the argument is entirely without merit. Additional evidence established that Daly
    made phone calls with a number listed as “McClain” in his phone at 1:14 a.m. for 54 seconds, 1:17
    a.m. with no duration, 1:20 a.m. for 29 seconds, and 1:22 a.m. for 31 seconds. A time-stamped
    surveillance video from inside the market corroborates the same, and also shows Daly’s seemingly
    suspicious behavior, wherein it appears Daly was waiting for someone to arrive at the market.
    Again, even apart from Jones’s testimony, there was additional evidence to suggest that Daly had
    a phone conversation with McClain.
    -4-
    Taking the above facts in a light most favorable to the prosecution, we conclude that there
    was sufficient evidence to support a finding that Daly was more than merely present when Jones
    was killed. The evidence suggested that Daly knew that Jones intended to kill Dawson, and that
    indeed, Daly aided and encouraged the crime. Accordingly, we conclude that sufficient evidence
    existed to support Daly’s conviction.
    IV. INEFFECTIVE ASSISTANCE OF COUNSEL
    Daly next contends that his counsel provided ineffective assistance by failing to raise issues
    concerning his joint trial with McClain, failing to request an additional jury instruction, and failing
    to challenge a detective’s testimony that he did not think Daly was being truthful during a police
    interview. We disagree.
    We review ineffective assistance of counsel claims as “a mixed question of fact and
    constitutional law.” People v LeBlanc, 
    465 Mich. 575
    , 579; 640 NW2d 246 (2002). This Court
    reviews for clear error the trial court’s findings of fact, and reviews de novo questions of law.
    Id. Notably, Daly failed
    to preserve this issue by moving for a new trial or an evidentiary hearing,
    People v Ginther, 
    390 Mich. 436
    , 443; 212 NW2d 922 (1973), and our review is therefore limited
    to mistakes apparent from the record, People v Payne, 
    285 Mich. App. 181
    , 188; 774 NW2d 714
    (2009).
    A criminal defendant has a fundamental right to effective assistance of counsel. US Const,
    Am VI; Const 1963, art 1, § 20; United States v Cronic, 
    466 U.S. 648
    , 654; 
    104 S. Ct. 2039
    ; 80 L
    Ed 2d 657 (1984). To prove that defense counsel was not effective, the defendant must show that
    defense counsel’s performance fell below an objective standard of reasonableness. Strickland v
    Washington, 
    466 U.S. 668
    , 688; 
    104 S. Ct. 2052
    ; 
    80 L. Ed. 2d 674
    (1984). Notably, the defendant
    must overcome the strong presumption that defense counsel’s performance constituted sound trial
    strategy. People v Vaughn, 
    491 Mich. 642
    , 670; 821 NW2d 288 (2012). We give defense counsel
    wide discretion in matters of trial strategy because counsel may be required to take calculated risks
    to win a case. People v Pickens, 
    446 Mich. 298
    , 325; 521 NW2d 797 (1994). Additionally, “[a]
    particular strategy does not constitute ineffective assistance of counsel simply because it does not
    work.” People v Matuszak, 
    263 Mich. App. 42
    , 61; 687 NW2d 342 (2004). That is, this Court will
    not substitute its judgment for that of defense counsel, or review this issue with the benefit of
    hindsight. People v Odom, 
    276 Mich. App. 407
    , 415; 740 NW2d 557 (2007). Lastly, in addition
    to establishing that counsel’s performance fell below an objective standard of reasonableness,
    defendant must also show that there is a reasonable probability that counsel’s deficient
    performance prejudiced the defendant, and that, absent the error, the finder of fact may have had
    a reasonable doubt about the defendant’s guilt. 
    Strickland, 466 U.S. at 694
    ; 
    Pickens, 446 Mich. at 312
    .
    Daly first contends that his counsel provided ineffective assistance by failing to move for
    separate trials or separate juries. He contends that his counsel should have done so on account of
    defendants’ defenses being mutually exclusive of one another. We disagree.
    Generally, joint trials are favored because they promote “the interests of justice, judicial
    economy, and administration,” and defendants do not have the right to separate trials. People v
    Etheridge, 
    196 Mich. App. 43
    , 52-53; 492 NW2d 490 (1992), overruled in part on other grounds by
    -5-
    People v Reichard, 
    501 Mich. 81
    (2020). If defense counsel makes a motion to sever trials, the
    trial court must sever offenses that are related only if severance is necessary to avoid prejudicing
    the defendant’s substantial rights. MCR 6.121(B) and (C).3 One example in which trials should
    be separated includes where two defendants’ mutually exclusive or antagonistic defenses create a
    serious risk of prejudice against one or both of the defendants. People v Furline, 
    505 Mich. 16
    , 21;
    939 NW2d 447 (2020). Severance is not warranted, however, when defenses are merely
    inconsistent. People v Hana, 
    447 Mich. 325
    , 349; 524 NW2d 682 (1994), amended by 
    447 Mich. 1203
    (1994). Rather, the defenses must be irreconcilable to the extent that “a jury would have to
    believe one defendant at the expense of the other.”
    Id. (quotation marks and
    citation omitted).
    In this case, Daly’s defense and McClain’s defense were not mutually exclusive. Daly
    argued that he was not part of the conspiracy because he was not part of the planning of the crime
    and did not know that there would be a murder. In contrast, McClain argued that Jones was a
    killer, that Jones had not acted on McClain’s orders, and that Jones claimed the murder was
    McClain’s idea because Jones needed someone else to take the blame. The jury could have
    accepted Daly’s defense that he did not plan the murder and did not know it would happen
    regardless of whether it believed that Jones or McClain was the person who wanted to kill Dawson.
    Moreover, Daly’s argument that Jones did not develop the intent to kill Dawson before he was on
    the way to the food market was not so inconsistent with McClain’s argument that he was not
    involved in the shooting that it prejudiced Daly’s substantial rights or warranted a separate trial.
    Accordingly, we conclude that defense counsel did not provide ineffective assistance by failing to
    move for separate trials or separate juries because the motion would have been without merit.
    People v Heft, 
    299 Mich. App. 69
    , 80; 829 NW2d 266 (2012) (explaining that counsel is not
    ineffective for failing to make a meritless motion).
    Next, Daly also argues that defense counsel provided ineffective assistance by
    unreasonably failing to request an accomplice instruction with respect to Jones’s testimony, and
    specifically with respect to the fact that he received a “deal” in exchange for his cooperation with
    the prosecution. We disagree, and specifically conclude that counsel’s failure to request the
    instruction was a matter of trial strategy.
    Generally, whether to request a particular jury instruction is a matter of trial strategy.
    
    Matuszak, 263 Mich. App. at 59-60
    . The applicable jury instruction in this case is found in M Crim
    JI 5.4, which provides, among other things, that an instruction should be given when a witness
    who is an accomplice has admitted guilt. The instruction informs the jury that the witness received
    a promise wherein he would “not be prosecuted for the crime the defendant is charged with
    committing based upon any information derived directly or indirectly from the witness’s truthful
    testimony.” M Crim JI 5.4.
    At trial, proffer agreements were described generally for the jury through the testimony of
    a detective. That detective testified that Jones had been told a first-degree murder charge had been
    “taken off the table” in exchange for his testimony, and Jones testified that he was aware of that
    3
    The trial court should apply the same standards that it would use to sever trials when a defendant
    also moves for separate juries. People v Hana, 
    447 Mich. 325
    , 351-352; 524 NW2d 682 (1994),
    amended by 
    447 Mich. 1203
    (1994).
    -6-
    agreement. The trial court then instructed the jury to consider, among other factors, whether Jones
    was promised anything for his testimony, or whether the testimony would allow him to plead guilty
    to a less-serious charge. Even if we were to accept Daly’s argument that the testimony concerning
    whether Jones had received a deal was confusing, M Crim JI 5.4 itself would have provided no
    further clarity regarding proffer agreements than the instruction the trial court gave. Accordingly,
    defense counsel may have reasonably believed that the existing instruction adequately addressed
    the fact that Jones received a deal in exchange for his cooperation. With that in mind, we cannot
    conclude that defense counsel’s failure to request the instruction was unsound trial strategy, nor
    that counsel’s performance fell below an objective standard of reasonableness.
    Lastly, Daly argues that defense counsel provided ineffective assistance by failing to
    challenge a detective’s testimony when that detective opined that he did not believe statements
    Daly made during a police interview. We agree that the statements were improper, but again,
    cannot conclude that defense counsel’s failure to object was not a matter of trial strategy.
    A witness may not comment on or provide an opinion about the credibility of another
    witness. People v Buckey, 
    424 Mich. 1
    , 17; 378 NW2d 432 (1985). Lay witness testimony about
    the honesty of a witness has no probative value. People v Musser, 
    494 Mich. 337
    , 349; 835 NW2d
    319 (2013). A court must be careful when admitting even a police officer’s out-of-court statement
    about a witness’s credibility because the jury may give undue weight to such statements.
    Id. at 358.
    Additionally, a police officer may not indicate a belief that a witness testified truthfully or a
    witness’s story was verified. People v Bahoda, 
    448 Mich. 261
    , 281-282; 531 NW2d 659 (1995).
    In this case, a detective testified that he interviewed Daly and that Daly denied involvement
    in the crime. When the detective asked Daly whether there was “any reason why th[e]
    investigation wa[s] going to indicate that [Daly was] involved in the homicide of Willie Dawson,”
    Daly responded, “there shouldn’t be.” The detective suggested that this was “an odd response.”
    The detective then testified as follows:
    Q. Okay. But you took note to that particular sentence?
    A. When—when I’m interviewing someone, if I were to do the interview,
    maybe of you about a homicide, you would be absolute in your responses.
    Absolutely had nothing to do with that. You would look me dead in the eye, and
    you would be very confident in about your answer. Benjamin Daly’s response was
    not confident. There shouldn’t be. It was very indicative of deception.
    Q. Okay. So, you know, we said what he—or, you said what he actually
    said, the answer he gave. How was his demeanor, how was his posture, was he
    making eye contact; anything you noted during—
    A. He did not have a—a good posture, in terms of believability. He became
    very irate, screaming at the top of his lungs at us, and just vehement denying of any
    involvement in this, after, as we progressed in the interview. Just—it was a very
    abnormal response.
    * * *
    -7-
    Q. Okay. And is it fair to say that you’ve received some sort of indication,
    based on what you just said, that Mr. Daly wasn’t being completely truthful?
    A. That’s correct.
    On cross-examination, the detective testified that Daly was known as “Big Baby,” but would not
    agree with defense counsel’s suggestion that Daly was a “big, dumb kid.” The following exchange
    then took place between the detective and Daly’s counsel:
    Q. Well, and is he a very bright adult, do you think?
    A. I don’t have any training to determine level of intellect.
    Q. Well, you seem to believe that you have training to be a human lie
    detector. Seems like you’d have to know something about intellect, would you not?
    Defense counsel’s failure to challenge the detective’s testimony appears to be consistent
    with his attempt to portray Daly as a juvenile, or “a big baby.” The detective had testified that he
    did not believe Daly because Daly “became very irate, screaming at the top of his lungs at us, and
    just vehement denying of any involvement in this, after, as we progressed in the interview. Just—
    it was a very abnormal response.” The description of Daly’s alleged tantrum was consistent with
    defense counsel’s attempted portrayal of him as lacking the comprehension that would have
    allowed him to be aware of the consequences of his phone call with McClain. It also appears from
    defense counsel’s choice of words in cross-examining the detective that he deliberately did not
    object to the detective’s statement assessing Daly’s demeanor and credibility as a strategy to
    impeach the detective’s testimony. With all of that in mind, we again conclude that this was a
    matter of trial strategy. Moreover, even were we to conclude that Daly’s counsel was ineffective
    for failing to object, we would not be inclined to conclude that the failure to object was prejudicial
    such that the outcome of the trial may have been different.
    V. PROSECUTORIAL MISCONDUCT
    Next, both Daly and McClain argue that the prosecutor committed misconduct when,
    during closing arguments, she referred to defendants’ right not to be shackled or dressed in prison
    clothing in the presence of the jury. As it concerned McClain, we conclude that this statement did
    not constitute prosecutorial misconduct because it was made in response to a statement that
    McClain’s counsel had made during closing. Moreover, as it concerned Daly, even to the extent
    that the prosecutor’s comment was inappropriate, the error was harmless because a jury instruction
    could have cured the prejudice from the prosecutor’s isolated statement, and Daly denied such an
    instruction.
    This Court reviews issues of prosecutorial misconduct de novo. People v Abraham, 
    256 Mich. App. 265
    , 272; 662 NW2d 836 (2003). We evaluate instances of prosecutorial misconduct
    on a case-by-case basis, reviewing the prosecutor’s comments in context and in light of the
    defendant’s arguments and the evidence presented in the case. People v Dobek, 
    274 Mich. App. 58
    ,
    64; 732 NW2d 546 (2007). A prosecutor engages in misconduct when they deny a defendant their
    right to a fair trial by making improper remarks that infringe on a defendant’s constitutional rights.
    -8-
    Donnelly v DeChristoforo, 
    416 U.S. 637
    , 643; 
    94 S. Ct. 1868
    ; 
    40 L. Ed. 2d 431
    (1974).4 See 
    Bahoda, 448 Mich. at 266-267
    .
    First, with respect to McClain, during closing arguments his counsel stated:
    This wasn’t a game for [Jones]. That man is a killer. And you see how he
    just walked in here, had his nice clothes on? You might as well say he’s free
    already. The prosecution is just throwing get-out-of-jail-free cards.
    Desperation and deception. The man who pulled the trigger on multiple
    cases is back out. I don’t know what his deal is, but we know he’s not going to
    spend the rest of his life in prison. And then they gave the appearance to you that
    he just walked in here; didn’t come in in handcuffs, wasn’t shackled; walked right
    back out there, brushing shoulders with everybody else who’s regularly living their
    life. And this killer is walking around the hallway because he’s saying certain
    things, because he’s saying stuff. He’s moving their agenda forth. That’s not right.
    In rebuttal, the prosecution then argued:
    And I want to point to something that I believe both of the attorneys
    mentioned, some sort of deal; like he walked in here, he had clothes on, you know,
    he didn’t have shackles on, no handcuffs, and he just walked right out the door.
    That we’re just giving him this get-out-of-jail-free card.
    Now, I know all of you are, you know, intelligent adults; and if someone is
    admitting to a murder and multiple other murders we’re not just going to let them
    walk out of the front doors of the courthouse. No. He was brought here from the
    jail, we changed his clothes, just like they have a right to be in different clothes and
    not to be shackled up in front of a jury. He walked out there with five, six other
    deputies waiting to take him back.
    While one might argue in a vacuum that the prosecutor’s remark was improper, taken in
    context and in light of McClain’s argument, the prosecutor was responding to an argument raised
    by McClain. Otherwise improper remarks that respond to improper arguments by defense counsel
    generally do not constitute prosecutorial misconduct. People v Kennebrew, 
    220 Mich. App. 601
    ,
    608; 560 NW2d 354 (1996). Additionally, a brief, isolated, and uninflammatory comment is not
    highly prejudicial. People v Blackmon, 
    280 Mich. App. 253
    , 260-261, 269; 761 NW2d 172 (2008).
    Thus, we cannot conclude under the circumstances that the prosecution’s comments constituted
    prosecutorial misconduct as applied to McClain as a defendant. Moreover, and with the above in
    4
    Notably, “[f]reedom from shackling is an important component of a fair trial.” People v Dixon,
    
    217 Mich. App. 400
    , 404; 552 NW2d 663 (1996). A defendant has the right to appear at trial without
    restraints or prison attire because such clothing may undermine his or her presumption of
    innocence. People v Banks, 
    249 Mich. App. 247
    , 256; 642 NW2d 351 (2002).
    -9-
    mind, the prosecutor’s statement was so brief and isolated that we are not inclined to conclude that
    it infringed on McClain’s rights so substantially that he was denied due process.
    With respect to Daly, he argues that the prosecutor’s remarks were improper as to him
    because the argument made by the prosecutor was not in response to anything raised by Daly’s
    counsel. While it is true that the prosecutor’s remark was not in response to an argument made by
    Daly, we still cannot conclude there was any error requiring reversal because Daly declined a
    curative instruction.
    An error does not require reversal if a curative instruction could have alleviated the effect
    of the prosecution’s misconduct because curative instructions are “sufficient to cure the prejudicial
    effect of most inappropriate prosecutorial statements,” and because this Court presumes that jurors
    follow the trial court’s instructions. 
    Unger, 278 Mich. App. at 235
    . In this case, the trial court
    offered to issue a cautionary instruction with respect to the prosecution’s comment, and Daly’s
    counsel declined the offer on the basis that nothing could “be done or told to the jury that can fix
    anything.” Again, however, this Court has ruled that curative instruction are generally sufficient
    to cure the prejudicial effect of most inappropriate prosecutorial statements.
    Id. Moreover, we do
    not permit counsel to “harbor error as an appellate parachute.” People v Carter, 
    462 Mich. 206
    ,
    214; 612 NW2d 144. With counsel having being fully aware of the of the erroneous nature of the
    prosecution’s comment as it applied to Daly, and having then declined a curative instruction, we
    cannot conclude that Daly is entitled to relief on this ground.
    VI. CODEFENDANT CREDIBILITY
    McClain next argues that the detective’s testimony outlined in section IV of this opinion—
    that he believed that Daly responded oddly during a police interview—denied McClain a fair trial
    by invading the province of the jury to decide whether Daly was a credible witness. Although, as
    noted above, the detective’s opinion testimony was improper, this error did not prejudice McClain.
    An evidentiary issue is preserved when a defendant makes a timely and specific objection
    on the same grounds he later asserts on appeal. People v Considine, 
    196 Mich. App. 160
    , 162; 492
    NW2d 465 (1992). McClain did not challenge this issue before the trial court, and it is therefore
    unpreserved. This Court reviews unpreserved issues for plain error affecting a party’s substantial
    rights. People v Carines, 
    460 Mich. 750
    , 763; 597 NW2d 130 (1999). An error is plain if it is clear
    or obvious, or if it is contrary to well-settled law. Id.; 
    Vaughn, 491 Mich. at 665
    . An error affects
    substantial rights if it affected the outcome of the lower court proceedings. 
    Carines, 460 Mich. at 763
    .
    That a police officer may not opine about a witness’s credibility is well-settled law. 
    Buckey, 424 Mich. at 17
    ; 
    Musser, 494 Mich. at 348
    . Accordingly, as noted, the detective’s statement was
    plainly erroneous. That having been said, we cannot conclude that the error was prejudicial toward
    McClain. The primary witness against McClain was Jones, and defense counsel defended McClain
    by arguing that Jones was not a reliable witness. Even to the extent that the detective’s comments
    as to Daly may have impacted the juries view of McClain, we would not conclude that the
    testimony was outcome-determinative. That is, in light of all of the evidence in this case, the
    detective’s testimony about whether Daly was credible did not affect the outcome as it pertained
    to McClain.
    -10-
    VII. SENTENCING
    McClain lastly contends that the trial court erred by failing to assess the minimum
    sentencing guidelines range related to his less-serious offenses prior to McClain’s sentencing.
    McClain also contends that the trial court was required to sentence him to life imprisonment with
    the possibility of parole for his conviction of conspiracy to commit first-degree murder. We
    conclude that both arguments are without merit.
    With respect to McClain’s first argument, a defendant waives an issue by expressly
    approving of the trial court’s action. People v Carter, 
    462 Mich. 206
    , 216; 612 NW2d 144 (2000).
    A waiver extinguishes any error, leaving nothing for this Court to review.
    Id. at 215.
    An
    affirmative statement that a person has no objections is an express approval of the trial court’s
    action. People v Kowalski, 
    489 Mich. 488
    , 504-505; 803 NW2d 200 (2011). In this case, McClain
    and defense counsel both indicated that they had reviewed the presentence investigation report
    (PSIR) prior to sentencing and had no additions or corrections. By affirmatively approving of the
    PSIR, McClain waived his argument that the PSIR should have included assessments related to
    the minimum sentencing guidelines range of his lesser offenses. Thus, even if the trial court erred
    by failing to consider the minimum sentencing guidelines ranges of McClain’s lesser offenses, we
    would not review this error.
    With respect to McClain’s second argument, he notes that, unlike a conviction of
    premeditated first-degree murder, a conviction of conspiracy to commit first-degree murder is a
    parolable offense. Indeed, our Supreme Court has held that “a person sentenced to life
    imprisonment for conspiracy to commit first-degree murder is eligible for parole
    consideration . . . .” People v Jahner, 
    433 Mich. 490
    , 504; 446 NW2d 151 (1989). At that time,
    however, the first-degree murder statute provided that “[m]urder which is perpetrated by means of
    poison, lying in wait, or other wilful, deliberate, and premeditated killing . . . shall be punished by
    imprisonment for life.” MCL 750.316, as amended by 
    1980 PA 28
    . The first-degree murder
    statute has since been amended, and currently provides that “a person who commits any of the
    following is guilty of first degree murder and shall be punished by imprisonment for life without
    eligibility for parole,” listing “[m]urder perpetrated by means of poison, lying in wait, or any other
    willful, deliberate, and premeditated killing.” MCL 750.316(1)(a) (emphasis added). MCL
    750.157a(a) then provides that individuals guilty of conspiracy to commit an offense prohibited
    by law that is otherwise “punishable by imprisonment for 1 year or more,” shall be convicted and
    “punished by a penalty equal to that which could be imposed if he had been convicted of
    committing the crime he conspired to commit . . . .” With the above in mind, McClain’s sentence
    of life imprisonment without the possibility of parole for his conviction of conspiracy to commit
    first-degree murder under MCL 750.157a(a) is consistent with the first-degree murder statute,
    MCL 750.316(1)(a), which provides a term of life imprisonment without the possibility of parole.
    Affirmed.
    /s/ Mark T. Boonstra
    /s/ Jane E. Markey
    /s/ Karen M. Fort Hood
    -11-