Motion for a new trial; MCR 6.431(B); MCL 769.26; Prosecutor’s comments on defendant’s closing argument; Vouching; Commenting on the credibility of a prosecution witness; Effect of an aggrieved party contributing to an error

Concluding that the prosecutor’s rebuttal comments on defendant’s closing argument did not support reversing defendant’s CSC I convictions or result in a miscarriage of justice, the court held that the trial court abused its discretion in granting his motion for a new trial. The prosecution contended that “by inquiring into a sexual-assault allegation that the victim made against another person,” the defense sought to introduce the victim’s testimony on cross-examination as a means of attacking her “credibility. If nothing came out of the victim’s other allegation of sexual assault, then it is possible that the allegations against defendant were unfounded. Indeed, defendant never provided an offer of proof or introduced evidence that established said allegation was false, but in his closing arguments, defendant still brought up the” other allegation. In moving for a new trial, defendant asserted that the prosecutor’s rebuttal response, “telling the jury that nobody knew what happened or why the victim’s other sexual-assault allegation went nowhere intentionally misled the jury and unfairly vouched for the victim.” The trial court agreed; the court did not. Considering the prosecutor’s remarks as a whole and in light of defendant’s arguments and the trial evidence, the court found that “the prosecutor was simply responding to defendant’s closing statements on an issue that defendant introduced. In his closing argument, defendant stated that the victim’s other sexual-assault allegation was a ‘case [that] went nowhere,’ but there was no testimony elicited or evidence” presented at trial supporting this. “The prosecutor responded by clarifying that nobody has any ‘idea what happened with’ the victim’s other sexual-assault allegation or knows ‘why’ the victim’s other sexual-assault allegation ‘didn’t go anywhere,’ which was a fair response to defendant’s closing statements.” The prosecutor’s response was aimed at the absence of evidence supporting defendant’s claim that the “other sexual-assault allegation ‘went nowhere.’” The court determined it could not “be said nor reasonably inferred that the prosecutor’s brief comments about defendant’s unproven assertion unfairly prejudiced defendant, let alone suggested to the jury that the victim’s other sexual-assault allegation was true.” Thus, it held that he was not unfairly prejudiced due to the prosecutor’s rebuttal remarks. Vacated and remanded.