Prosecutorial misconduct; Victim’s credibility; Appealing to the jury’s sympathy; Jury instruction; Ineffective assistance of counsel; Failure to object to the prosecutor’s questioning & closing argument; Sentencing; MCL 769.12(1)(a); Cruel or unusual punishment; People v Burkett; People v Stovall; People v Lorentzen; People v Bullock; Proportionality

The court concluded that the prosecutor did not commit misconduct, and defendant was not denied the effective assistance of counsel. Finally, he “failed to present any unusual circumstances” rendering his sentence disproportionate. Thus, the court held that “the 25-year minimum mandatory sentence requirement is not unjustifiably disproportionate under the circumstances of this case.” He was convicted of CSC III and IV. He was sentenced as a fourth-offense habitual offender to 25 to 50 years for each CSC III conviction and 3 to 15 years for the CSC IV conviction. The trial court ordered the “sentences to be served concurrently with each other, but consecutively to a prison sentence that defendant was already serving.” He argued, among other things, that the prosecutor improperly vouched for the victim’s credibility. Although he took “issue with the prosecutor’s line of questioning, the record indicates that defense counsel initially cross-examined the victim about discrepancies in her trial testimony, as well as in her statements during the preliminary examination and the forensic interview. Defense counsel asked the victim, ‘Isn’t it true that you and your mother are lying about this incident?’ and the victim responded, ‘[N]o.’ ‘Under the doctrine of invited response, the proportionality of the response, as well as the invitation, must be considered to determine whether the error, which might otherwise require reversal, is shielded from appellate relief.’” The court held that reviewing “the comments in context, the prosecutor proportionately responded to defense counsel’s questioning of the victim’s honestly and credibility by asking if she was being honest in her testimony. The questioning was proper and the prosecutor did not suggest that he had special knowledge of the victim’s honesty.” Defendant did not show “plain error in the challenged testimony.” He next argued “that the prosecutor improperly asked the jury to sympathize with the victim in his closing argument.” The court noted that while “the prosecutor used the term ‘dragged’ to describe the victim needing to be brought in to testify, a prosecutor does not need to use the blandest terms possible to argue the case.” It found that even if the prosecutor had committed plain error, “the trial court instructed the jury that the lawyers’ statements and arguments were not to be considered” evidence. The trial court also “instructed the jury on its responsibility to determine the facts of the case, to apply the law as given by the court, and to not let sympathy or bias influence their decision.” Defendant did not provide “proof that the jury disregarded the court’s instructions or that it convicted him out of sympathy for the victim. He has thus failed to show that he was prejudiced by the prosecutor’s statements.” Affirmed.