Prosecutorial misconduct; Closing argument; Comment that victims “have the right to be believed”; Violation of MCR 6.201(A); Failure to list an expert on the prosecution’s witness list; Remedy; Lack of prejudice

While the court held that the prosecutor plainly erred in stating during closing argument that victims “have the right to be believed,” it concluded defendant was not entitled to relief. The evidence against him was overwhelming, and critically, the jury was properly instructed. Thus, the court affirmed his convictions of CSC I and attempted CSC I. It first found he was correct that the prosecution violated MCR 6.201(A) as to an expert witness. Whie defendant was provided with “the doctor’s report, the prosecutor did not provide the doctor’s CV or designate the doctor as an expert on the witness list.” As to the question of remedy, in ruling on his “objection, the trial court considered what defendant knew and should have known in relation to the doctor’s testimony. [He] knew the doctor was testifying, knew that she was testifying about the report, and knew that the report included an opinion that the lack of physical evidence of abuse was consistent with [victim-]NR’s disclosure. Given this, defendant should have known that the prosecutor was going to elicit testimony from the doctor about the normal exam results, considering that the lack of evidence of abuse was defendant’s main argument in his opening statement. Thus, the trial court did not abuse its discretion in finding that defendant was not prejudiced by the prosecutor’s error.” As to his claims of prosecutorial misconduct in closing argument, the court found that most of the statements were proper. However, it held that “the prosecutor did cross the line when he stated that victims, like NR, ‘have the right to be believed.’ In a court of law, no witness has a free-standing ‘right to be believed’ by the finder of fact.” The court noted that prosecutors “across the country have asserted such a right, and those assertions have been roundly rejected by both federal and state courts.” But it concluded that this plain error did “not warrant reversal. There was overwhelming evidence of defendant’s guilt, including the testimony of NR, her mother, her grandmother, her teachers, the doctor, and police officers. The jury watched the video of defendant’s interview with police, during which he made arguably damning statements.” Further, the trial court’s jury “instructions cured any prejudicial effects that the prosecutor’s comments may have had.”