Prosecutorial misconduct; Closing arguments; Comment on a witness’s lack of motive to lie; People v Thomas; Shifting the burden of proof; Ineffective assistance of counsel; Failure to make a futile objection; Sentencing; Due process; People v Cobbs; Lack of an explanation for a departure from the statutory mandatory minimum; People v Sherrill

The court held that the record did not support defendant’s prosecutorial misconduct claim and that defense counsel was not ineffective for failing to raise a futile objection to the prosecutor’s challenged statements. It also rejected defendant’s claim “that he was denied due process because he relied on the trial court’s statement that it would ‘certainly’ sentence him to the mandatory” 25-year minimum and it instead later sentenced him to a 30-year minimum. But it held that the trial court violated the principle of proportionality by failing to explain its departure. Thus, the court affirmed defendant’s CSC I convictions but vacated his sentence and remanded for resentencing. He argued that during closing argument, the prosecutor shifted the burden of proof to the defense by focusing on the victim’s (BM) lack of motive to lie. The court disagreed. “BM testified that defendant assaulted her in 2007. There was no other evidence available at [the] 2023 trial aside from witness testimony. Thus, this case rested entirely on the credibility of the witnesses. ‘[A] prosecutor may comment on his own witnesses’ credibility during closing argument, especially when there is conflicting evidence and the question of the defendant’s guilt depends on which witnesses the jury believes.’” The court also noted “that defense counsel sought to impeach BM’s credibility on cross-examination in an attempt to prove to the jury that she was being untruthful about her allegations against defendant.” The prosecutor did not commit misconduct, so defense counsel had no reason to object to the closing argument statements. As to defendant’s purported reliance on the trial court’s pretrial hearing statement about sentencing, the Cobbs framework did not apply here, where “defendant explicitly rejected the plea offer and proceeded to trial.” But the trial court failed to give “any explanation for why the legislatively-mandated 25-year term was insufficient. [Its] reasoning addressed only why the guidelines range of 108 to 180 months was inadequate, stating that the guidelines did not adequately account for the psychological harm to BM. However, this explanation provides no basis for concluding that the statutory minimum of 25 years was similarly deficient.”