Voluntariness of a confession; Custodial interrogation; People v Cortez; Right against self-incrimination; Waiver; People v Barritt; Totality of the circumstances test; Ineffective assistance of counsel for failure to file a motion to suppress; Failure to make a futile objection; Prejudice; Improper vouching; People v Dobek; Other acts evidence involving a minor; MCL 768.27a; Unfair prejudice; MRE 403; Consecutive sentencing; Proportionality

The court held that there were no errors requiring reversal, but that remand was required for the trial court to articulate its reasoning for imposing consecutive sentences. Defendant was convicted of CSC I for sexually abusing KG. He began sexually abusing her sometime between the ages of three and five and continued to do so until she was 16. KG estimated that during this time she engaged in 1,500 to 1,600 sexual acts with defendant. The trial court sentenced him to 25 to 60 years for the first two CSC I convictions, and 210 to 720 months for the third and fourth counts. It sentenced him to serve the first three counts concurrently, but to serve the fourth count consecutive to the third count. On appeal, the court rejected his argument that his inculpatory statements were involuntary and trial counsel was ineffective for failing to object to their admission. “Each factor was either neutral or favor[ed] a determination that defendant was not in custody. Considering the totality of the circumstances, [he] was not in custody.” As such, the officer “was not required to read him his Miranda rights, and defendant’s inculpatory statements did not need to be suppressed.” In addition, the “totality of the circumstances surrounding [his] inculpatory statements supports the conclusion that they were freely and voluntarily made.” And defendant “cannot establish that his counsel’s performance fell below an objective standard of reasonableness.” The court also rejected his claim that one of the prosecution’s expert witnesses impermissibly vouched for KG at trial when she testified that “around 90 percent of kids are sexually touched by someone they know and love.” The prosecution referred to the expert’s testimony “to dispel the notion that a delayed disclosure and flat affect were inconsistent with a child experiencing sexual abuse. She did not refer to [it] to contend that KG was a victim because she had a flat affect or because she delayed disclosure.” The court next rejected his challenge to the constitutionality of MCL 768.27a and his contention that other-acts evidence admitted under that statute should have been excluded under MRE 403. “Because the trial court adhered to binding authority when it admitted other-acts evidence under MCL 768.27a, no error was committed.” Further, while it “was prejudicial to defendant, . . . it was not so unduly prejudicial that it outweighed the probative value.” Finally, the court and the prosecution agreed with defendant that he was entitled to remand as the trial court failed to articulate its reasoning for sentencing him consecutively. It “only stated that it had the authority to” do so, leaving the court “to speculate regarding the trial court’s rationale, and thus, unable to determine whether the trial court abused its discretion.” But the trial court did not err by relying on “victim closure” as a ground for sentencing. Affirmed, but remanded.