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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
June 8, 2004
Wayne Circuit Court
LC No. 02-009233
Before: Smolenski, P.J., and White and Kelly, JJ.
Defendant was convicted, following a jury trial, of first-degree premeditated murder,
MCL 750.316(1)(a), and possession of a firearm during the commission of a felony, MCL
750.227b(1). He was sentenced to life imprisonment for the murder conviction to be served
consecutively to two years’ imprisonment for the felony-firearm conviction. Defendant appeals
as of right, and we affirm.
Defendant shot and killed his wife in Oakland County after an apparent argument
between defendant, his wife, and, via cell phone, her brother, Roland Popaj, over whether
defendant’s wife would be working at her family’s restaurant that day. Defendant then drove to
the restaurant in Wayne County, entered, and shot Popaj in the back twice, killing him. The
instant case involves the brother.
Defendant asserts that the trial court erred by failing to give a limiting instruction to the
jury as to the proper use of MRE 404(b), or prior bad acts, evidence - - in this case the evidence
of defendant’s earlier shooting of his wife.1 We disagree. Defendant’s trial counsel did not
request a limiting instruction or object to the absence of such a limiting instruction. This issue is
thus unpreserved, and defendant must demonstrate plain error which affected his substantial
rights - - that defendant was innocent or that the error seriously affected the fairness, integrity or
public reputation of the judicial proceedings regardless of defendant’s innocence. People v
Knox, 469 Mich 502, 508; 674 NW2d 366 (2004), citing People v Carines, 460 Mich 750, 763;
597 NW2d 130 (1999).
Defendant does not claim error in the admission of this evidence, only in the failure to give a
proper instruction regarding its use.
In the absence of either a request or an objection, a trial court is under no duty to give a
limiting instruction sua sponte. People v Rice (On Remand), 235 Mich App 429, 444; 597
NW2d 843 (1999). Further, on this record there is no reason to assume that the jury used the
evidence as improper character evidence, rather than as evidence bearing on intent and
Defendant also asserts that his trial counsel’s failure to request the limiting instruction
constituted ineffective assistance of counsel. We disagree. Generally, to establish ineffective
assistance of counsel, a defendant must show that counsel’s performance was deficient and that
there is a reasonable probability that, but for the deficiency, the factfinder would not have
convicted the defendant. People v Snider, 239 Mich App 393, 423-424; 608 NW2d 502 (2002).
As noted above, we are satisfied that the failure to give the instruction did not affect the outcome
of the trial.
/s/ Michael R. Smolenski
/s/ Helene N. White
/s/ Kirsten Frank Kelly