Opinion
358834
03-23-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. HENRY H. ROYSTER, Defendant-Appellant.
UNPUBLISHED
Genesee Circuit Court LC No. 18-042483-FC
Before: Gleicher, C.J., and O'Brien and Maldonado, JJ.
PER CURIAM.
A jury convicted defendant, Henry H. Royster, of 13 counts of first-degree criminal sexual conduct (CSC-I), for sexually abusing his stepdaughter when she was between the ages of 5 and 11. On appeal, Royster challenges the admissibility of expert testimony and contends that the prosecutor improperly commented on his silence and expressed an opinion regarding his guilt at trial. We discern no prejudicial error and affirm.
Nine of the convictions were based on conduct that occurred before 2006. The convictions fell under MCL 750.520b(1)(a) (sexual penetration of a victim under the age of 13) and the court imposed sentences of 10½ to 30 years' imprisonment for those offenses. The other four conviction offenses occurred after the Legislature enacted MCL 750.520b(2)(b), which provides a 25-year minimum sentence for sexual penetration when the defendant is over 17 and the victim under 13. The court sentenced Royster to 25 to 50 years' imprisonment for those convictions.
I. BACKGROUND
At trial, MT described that Royster, her stepfather, sexually abused her beginning when she was 5 years old until the age of 11. These assaults occurred approximately twice a week, usually while MT's mother was at work. Early on, Royster touched MT's chest and vagina. As time passed, Royster began rubbing his penis against MT's vagina. He eventually forced cunnilingus and fellatio. Royster often ordered MT to touch his penis and on at least two occasions, attempted to insert his penis into her vagina. Royster used his power as MT's father figure to convince MT to keep these assaults secret. Other members of the family and community observed what they perceived as Royster's favoritism of MT during this timeframe. Royster often spent time alone with MT and portrayed himself as MT's emotional support provider. He would bring home treats just for MT and exclude the other children in the home, including MT's older half-brother and two younger half-brothers.
MT described that the abuse began when she was three years old, but all Royster's convictions arose from conduct beginning when MT was five.
Eventually, Royster and MT's mother broke up. Royster moved to Texas and MT and her mother moved to Oklahoma. Only then did 17-year-old MT tell her mother about the abuse. MT's mother contacted authorities in Michigan and filed a police report. She also contacted Royster who claimed "he didn't do anything." Law enforcement arrested Royster three years later. Trial proceedings were eventually delayed by the Covid-19 pandemic and the defense's repeated claims that Royster was incompetent to stand trial. The jury ultimately convicted Royster of 13 counts of CSC-I and acquitted him of a 14th count.
I. EXPERT TESTIMONY
Before trial, the prosecution named Thomas Cottrell as an expert witness on the psychology of child abuse victims. The prosecution summarized:
Thomas Cottrell is an Expert in the field of Child Sexual Abuse. . . . He will testify in the following areas: the dynamics of child sexual abuse, including the dynamics of disclosure and delayed disclosure; the dynamics of child sexual abuse by a known perpetrator; the neurobiology of trauma; memory and how memory is created and stored, particularly in children; and memory versus suggestibility. The basis for his testimony will be his decades of research, education, teaching, working with children and adults who have suffered abuse and sexual abuse, and practice both in the private and public sector.
The defense sought to preclude Cottrell's testimony. Citing People v Thorpe, 504 Mich. 230; 934 N.W.2d 693 (2019), defense counsel asserted that Cottrell's testimony would be "irrelevant and highly prejudicial . . . given the lack of any physical evidence in this case" and that it would impermissibly bolster the testimony of the complaining witness in this credibility contest.
The court conducted a hearing pursuant to Daubert v Merrell Dow Pharm, Inc, 509 U.S. 579; 113 S.Ct. 2786; 125 L.Ed.2d 469 (1993), to consider the admissibility of Cottrell's testimony. Cottrell testified regarding his extensive credentials in the field of child sexual abuse and decades-long personal experience in the field. The trial court granted in part Royster's motion, ruling that Cottrell could provide only "generalized background information" about child sexual abuse.
At trial, Cottrell acknowledged that he had no information specific to this case and would give only generalized testimony. In relevant part, Cottrell testified about the "neurobiology of trauma," explaining that trauma is "a biological event that . . . happens in our brain," that people experience trauma differently due to various hormonal responses, and that this can affect a person's memory. Cottrell explained that this was "really understanding very harmful events from a biological prospective not a psychological perspective." Royster objected, asserting that this testimony "far exceeds [Cottrell's] expertise when it comes [to] biological events and hormones. He's a licensed social worker, he's been qualified as an expert when it comes to child sexual abuse but not necessarily when it comes to the biological response of it in a human being." The prosecution countered that "the research that has been conducted is in the neurobiology of trauma. He can certainly recite what he's learned in that field." The trial court overruled the objection without explanation.
Cottrell then testified that because of how traumatic memories are "encoded in our brain," such trauma often prevents a person from remembering events linearly and could lead to memories being fragmented. Cottrell explained that such memories could be tied to powerful emotions and that it was his role as a therapist to help sexual abuse victims "put those pieces together in a way that they can make sense of what happened to them." Such victims could essentially relive their traumatic experiences due to the tie to powerful emotions. Cottrell also testified regarding "grooming," common symptoms among child abuse victims, delayed disclosures, and common misconceptions of child abuse victims.
On appeal, Royster contends that "the Michigan Supreme Court found that almost identical testimony from Mr. Cottrell was error" requiring reversal in Thorpe. This is simply not accurate. In Thorpe, 504 Mich. at 259, the Court found reversible error where Cottrell testified "that children lie about sexual abuse 2% to 4% of the time." He went on to describe
only two specific scenarios in his experience when children might lie, neither of which applies in this case. As a result, although he did not actually say it, one might reasonably conclude on the basis of Cottrell's testimony that there was a 0% chance [the victim] had lied about sexual abuse. In so doing, Cottrell for all intents and purposes vouched for [the victim's] credibility. [Id. at 259.]
Cottrell's generalized testimony in this case bears no resemblance to the problematic testimony in Thorpe. Indeed, this Court has repeatedly upheld the admission of generalized testimony from this specific witness in unpublished opinions.
In the alternative, Royster contends that Cottrell was permitted to testify beyond the scope of his expertise-social work-regarding neurobiology, and that Cottrell's testimony "was merely anecdotal" and based on his personal experience, things that cannot be tested or peer-reviewed. We review the trial court's ruling on this issue for an abuse of discretion, People v Mardlin, 487 Mich. 609, 614; 790 N.W.2d 607 (2010), and review any underlying legal issues de novo. People v McDaniel, 469 Mich. 409, 412; 670 N.W.2d 659 (2003).
This Court recently addressed a similar challenge to Cottrell's testimony in People v Muniz, __Mich App__;__ N.W.2d __(2022) (Docket No. 355977):
MRE 702 provides as follows:
If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of
reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
MRE 702 incorporates the standards of reliability established in [Daubert, 509 U.S. 579]. Gilbert v DaimlerChrysler Corp, 470 Mich. 749, 781; 685 N.W.2d 391 (2004). "[T]he court may admit evidence only once it ensures, pursuant to MRE 702, that expert testimony meets that rule's standard of reliability." Id. at 782. "The trial court thus acts as a gatekeeper for expert testimony and has a fundamental duty to ensure that the proffered expert testimony is both relevant and reliable." People v Bynum, 496 Mich. 610, 624; 852 N.W.2d 570 (2014). A trial court must make a searching inquiry to determine whether to admit expert testimony. Gilbert, 470 Mich. at 782. The preliminary determination of the qualification of an expert is for the trial court. Id. at 780.
Defendant argues that Cottrell's testimony lacked reliability because it appeared to be based on his training and experience treating victims, rather than academic studies. Michigan courts regularly admit expert testimony concerning typical and relevant symptoms of abuse, such as delayed reporting and secrecy. People v Peterson, 450 Mich. 349, 373; 537 N.W.2d 857 (1995) (holding that the prosecution may present relevant and helpful evidence to generally explain the common postincident behavior of child victims of sexual abuse). As to Cottrell not specifically citing the academic journals or other sources on which a child sex abuse expert witness relied, our Supreme Court long has recognized that "[t]here has developed a body of knowledge and experience about the symptomatology of child abuse victimization," People v Beckley, 434 Mich. 691, 733; 456 N.W.2d 391 (1990), that "serves only to define the broad range of possible physical, psychological, and emotional reactions that a child victim could potentially experience." Id. at 722. Our Supreme Court explained that "the purpose of allowing expert testimony in these kinds of cases is to give the jury a framework of possible alternatives for the behaviors," and "to provide sufficient background information about each individual behavior at issue which will help the jury to dispel any popular misconception commonly associated with the demonstrated reaction." Id. at 726.
" 'Under MRE 702, it is generally not sufficient to simply point to an expert's experience and background to argue that the expert's opinion is reliable and, therefore, admissible.'" Elher v Misra, 499 Mich. 11, 23; 878 N.W.2d 790 (2016), quoting Edry v Adelman, 486 Mich. 634, 642; 786 N.W.2d 567 (2010). However, in addition to his work in treating over 300 victims of abuse, Cottrell testified regarding his training, continuing education through conferences and training sessions, and research, all sources of his knowledge. A witness may be qualified "as an expert by knowledge, skill, experience, training, or education." MRE 702. In this case, Cottrell discussed each of these areas as the foundation of his knowledge. [Muniz, __Mich App at__, slip op at 2-3.
The defendant in Muniz has filed an application for leave to appeal in the Michigan Supreme Court contending that cases cited by this Court are contrary to Daubert's principles. The Supreme Court has yet to consider this application and we are bound by this Court's published opinion in Muniz until such time as the Supreme Court may overrule it. MCR 7.215(C)(2).
Here, too, Cottrell was qualified as an expert based on his significant experience with victims of child sexual abuse, his training, continuing education, and research. Although Royster contends that Cottrell has insufficient training in the neurobiology of trauma, he has provided no evidence that specialized training was required to render the general opinions Cottrell offered. Royster's argument is thinner than that made by the defendant in Muniz, __Mich App at__, slip op at 3-4. Royster has not established that Cottrell's testimony was unreliable and he is not entitled to relief on this ground.
II. DEFENDANT'S SILENCE/COMMENTARY ON GUILT
Royster's second appellate challenge is a complicated tapestry of interconnected arguments. Royster cites testimony given by witnesses and arguments made by the prosecutor that he claims improperly referred to his invocation of the right to remain silent. He cites witness testimony and a prosecution statement expressing a belief in his guilt. Royster contends that the improper testimony and prosecutorial comments violated his rights to due process and his constitutional right to remain silent. In the absence of a constitutional violation, Royster claims that the challenged testimony and statements were unfairly prejudicial and therefore inadmissible. Finally, Royster contends that his trial counsel was constitutionally deficient for failing to object in these instances.
A. RIGHT TO REMAIN SILENT
We will begin with an analysis of those statements and testimony that Royster alleges violated his right to remain silent.
"The Fifth Amendment guarantees an accused the right to remain silent during his criminal trial and prevents the prosecution from commenting on the silence of a defendant who asserts the right." Jenkins v Anderson, 447 U.S. 231, 235; 100 S.Ct. 2124; 65 L.Ed.2d 86 (1980). This right "has been made applicable to the states through the Due Process Clause of the Fourteenth Amendment." People v Borgne, 483 Mich. 178, 184; 768 N.W.2d 290 (2009). "The defendant's right to due process is implicated only where his silence is attributable to either an invocation of his Fifth Amendment right or his reliance on the Miranda warnings." People v Solmonson, 261 Mich.App. 657, 664-665; 683 N.W.2d 761 (2004). "[W]here a defendant has received no Miranda warnings, no constitutional difficulties arise from using the defendant's silence before or after his arrest as substantive evidence unless there is reason to conclude that his silence was attributable to the invocation of the defendant's Fifth Amendment privilege." Id. at 665. See also People v McGhee, 268 Mich.App. 600, 634; 709 N.W.2d 595 (2005) ("A defendant's constitutional right to remain silent is not violated by the prosecutor's comment on his silence before custodial interrogation and before Miranda warnings have been given.").
Miranda v Arizona, 384 U.S. 436; 86 S.Ct. 1602; 16 L.Ed.2d 694 (1966).
The admission of testimony regarding the failure to answer an accusation levied by a private party is not constitutional in nature. Indeed, even when the state is the accuser, a challenge to prearrest, pre-Miranda silence is only evidentiary in nature. People v McReavy, 436 Mich. 197, 213; 462 N.W.2d 1 (1990). "[A] defendant's silence in the face of accusation" is not admissible "as substantive evidence of his guilt." People v Hackett, 460 Mich. 202, 213; 596 N.W.2d 107 (1999). To test admissibility, a court must consider the statement under MRE 801(d)(2)(B), which provides that a statement is not hearsay and may be admitted against a party if it is "a statement of which the party has manifested an adoption or belief in its truth." This test is also applicable when the prosecutor seeks to admit evidence of silence before a defendant's arrest and before Miranda warnings are given. Solmonson, 261 Mich.App. at 664-665.
Alternatively, Royster contends that evidence of his silence was unfairly prejudicial under MRE 403. While relevant evidence is generally admissible, MRE 402, it "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . ." MRE 403. "In this context, prejudice means more than simply damage to the opponent's cause. A party's case is always damaged by evidence that the facts are contrary to his contentions, but that cannot be grounds for exclusion." People v Vasher, 449 Mich. 494, 501; 537 N.W.2d 168 (1995). Rather, "[u]nfair prejudice may exist where there is a danger that the evidence will be given undue or preemptive weight by the jury or where it would be inequitable to allow use of the evidence." People v Blackston, 481 Mich. 451, 462; 751 N.W.2d 408 (2008).
1
At trial, Flint Police Detective Sergeant Mona Patterson testified that she took up the investigation as a cold case several years after MT's report was made. The prosecutor attempted to elicit testimony regarding whether Royster had cooperated with police and been informed of or waived his rights. This testimony was lengthy and we quote it in full:
Q. Did you conduct an interview when [Royster] was taken into custody? A. No. Q. Why not? A. He didn't want to speak with me. Q. When you have a suspect who's taken into custody and you want to speak to them, what do you do first? A. I read them their rights. Q. Their [Miranda] rights? 7 A. Yes. Q. And is that the option for them to speak or not speak if they so see fit? A. Yes. Q. All right. Did you read the rights to [Royster]? A. No, he wouldn't speak with me. Q. Did you read him his rights? A. Yes. Q. And when you read someone their rights, do they have to give an affirmative answer, is there . . . something they have to sign, how . . . do you know that they . . . understand their rights? A. This was different, he was just uncooperative so - - Q. Hang on. A. Okay. Q. Does that mean that you present him [h]is [Miranda] rights? A. Yes. Q. And how do you do that? A. I . . . usually, when I present the [Miranda] rights I read it along with the suspect and there's a form that's read and for him to sign and date and said that I read him rights, whether or not he speaks with me. Q. Okay, and did you read that form to [Royster] in this case? A. Yes. Q. Did he sign the form indicating that he understood his [Miranda] rights? A. No, I don't have it. Q. . . . [D]o you recall if he signed that particular form? A. No, I don't recall him signing a form. 8 Q. Okay. Did he, in any other, indicate that he understood his [Miranda] rights? A. I don't . . . know how to answer that question because . . . the interaction was uncooperative, it . . . wasn't - - Q. Where you able [sic] to get an answer to the question - - A. No. Q. - - do . . . you did not, okay. Did he indicate at all that he wanted to speak with you? A. No. Q. But did he, in fact, speak with you? A. No. Q. Did you . . . at any point, try to ask him about the allegations in this case? A. No. Q. And, again, never got a statement from [Royster] or at least you think that -
At this point, defense counsel objected based on "asked and answered." The trial court overruled the objection because it believed "it's acceptable to clarify." Detective Sergeant Patterson was then asked, "Was it a verbal indication, physical indication?" She replied, "It was verbal and just body movement."
Neither Royster's constitutional nor evidentiary challenges are preserved in relation to this testimony as counsel objected on different grounds below. People v Douglas, 496 Mich. 557, 574; 852 N.W.2d 587 (2014). Our review is therefore limited to plain error affecting Royster's substantial rights. People v Carines, 460 Mich. 750, 763-764; 597 N.W.2d 130 (1999).
Although this exchange was lengthy, it does not warrant relief. Royster neither waived nor invoked his right to remain silent when questioned by police. In fact, he resisted all attempts by Detective Sergeant Patterson to even read him Miranda rights. Detective Sergeant Patterson's testimony revealed that Royster was uncooperative with the police, but that does not require exclusion. "The distinction between a tacit admission requiring the adoption of a 'statement' and nonresponsive conduct as evidence of consciousness of guilt is subtle but is one recognized by this Court and our Supreme Court. In McReavy, [436 Mich] at 213-214, our Supreme Court found that the defendant's demeanor, nonresponsive conduct, and statements were all properly admitted." Solmonson, 261 Mich.App. at 666-667. This was nonresponsive conduct, but it was not a commentary on Roster's invocation of the right to remain silent or even an opinion that Royster was demonstrating consciousness of guilt. There is no ground to warrant relief in this regard.
Royster also contends that counsel should have objected on different grounds below to preserve his challenges. To establish the right to a new trial based on the ineffective assistance of counsel, a defendant must satisfy two components: "First, the defendant must show that counsel's performance was deficient . . . Second, the defendant must show that the deficient performance prejudiced the defense." Strickland v Washington, 466 U.S. 668, 687; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984). To establish that counsel's performance was deficient, a defendant must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Solmonson, 261 Mich.App. at 663. To establish prejudice, the defendant must demonstrate a reasonable probability that, but for counsel's errors, the result of the proceedings would have differed. Id. at 663-664.
Counsel cannot be deemed ineffective for failing to raise meritless objections. People v Putman, 309 Mich.App. 240, 245; 870 N.W.2d 593 (2015). Counsel had no ground to object as the detective did not comment on Royster's silence after asserting his Miranda rights or invoking his right to silence and as the testimony regarding Royster's uncooperative stance was admissible. Royster is not entitled to a new trial on this ground.
2
Royster also challenges the prosecutor's elicitation of testimony from MT and her mother about his "silence." At trial, MT and her mother testified about their communication with Royster after MT reported the sexual abuse to her mother. The mother testified that she "called and texted [Royster] all day long, and never got any response[.]" "[A]bout 18 hours afterwards [Royster] called" back. The mother asserted that she "answered the phone" and "he said what's going on and I said I think you're fully aware of what's going on." Royster responded, "I didn't do a god damn thing." MT recalled this conversation took place over text, not verbally. MT testified that when Royster denied responsibility, she took her mother's phone and texted, "[T]his is [MT], are you really going to sit here and act like you didn't do anything to me?' Royster ended the conversation and neither MT nor her mother heard from him again.
Royster challenges the following comments in the prosecutor's closing argument in his analysis of these witnesses' testimonies:
Let me start by saying, this is it. This is all the physical evidence that we've got. That, in no way, means that you can't be satisfied and render a conviction. If I had every piece of evidence that I could give you or every piece of evidence that existed, maybe we wouldn't be here. I don't have it and that's why you're here because at some point we had a situation where I couldn't decide, I can't make anyone do anything, and [Royster] has a constitutional right not to do anything so we brought it to you. It doesn't seem fair but that's what it is.
[Royster] absolutely has a right not to speak today and you can't consider that. You can absolutely consider what happened when mom called 18 hours and
texted for 18 hours and called police and finally got ahold of him and she confronted him with this information and you can absolutely consider that when [MT] got on the phone and said are you really going to say you didn't do this to me you can consider that silence, you can consider that as evidence and you should. [Emphasis added.]
Again, defense counsel did not object, limiting our review to plain error. Carines, 460 Mich. at 763-764. However, there is no error, plain or otherwise. The first challenged comment has no connection with the testimony of MT or her mother and seems misplaced in Royster's brief. Rather, the prosecutor was commenting on his burden of proof overall in the case and conceded that Royster, as a criminal defendant, had no duty to prove or say anything. This was a true statement of the law and was not an improper commentary on Royster's silence.
The second challenged statement also was not improper commentary on Royster's silence. Royster did not remain silent in the face of MT's and her mother's accusation. Rather, he denied any wrongdoing and then refused to give any further response. His denial was a statement and his ending the conversation was an act, not silence. This evidence was admissible. Although the prosecutor mischaracterized Royster's denial and subsequent cessation of the conversation as silence, the jury heard the evidence and could draw their own conclusion. The prosecutor correctly informed the jury that they could consider it as evidence.
These statements were not overly prejudicial. Royster contends that the statements were unduly prejudicial because there was "no corroborating witness to the alleged assaults on MT." However, a sexual abuse victim's testimony, standing alone, is enough to support a conviction. See MCL 750.520h ("The testimony of a victim need not be corroborated in prosecutions under [MCL 750.520b to MCL 750.520g]."). The defense also compares this case to People v Blackston, 481 Mich. 451; 751 N.W.2d 408 (2008), but that case is completely inapposite. The issue in Blackston was whether the court erred in excluding written statements by two witnesses who were unavailable to testify at a retrial, recanting their previous testimony against the defendant. Id. at 455-457. The issue fell under the Confrontation Clause and involved analysis of prior inconsistent statements. Id. at 460-462. The defense goes on to argue that the testimony of MT and her mother, and the prosecutor's related argument, "functioned to cast [Royster] in an extremely negative light." As noted, "prejudice means more than simply damage to the opponent's cause." Vasher, 449 Mich. at 501. The defense has not met its burden for relief in this regard.
And defense counsel was not ineffective in failing to object to the witnesses' testimonies or the prosecutor's closing argument. No error occurred and counsel had no ground to object. See Putman, 309 Mich.App. at 245.
B. OPINIONS ON GUILT
Royster's remaining challenges are to testimony and prosecutorial arguments that he claims express an opinion about his guilt. "[A] witness cannot express an opinion on the defendant's guilt or innocence of the charged offense . . . ." People v Fomby, 300 Mich.App. 46, 53; 831 N.W.2d 887 (2013) (quotation marks and citation omitted). Prosecutors also may not "express their personal opinion of a defendant's guilt . . ." People v Bahoda, 448 Mich. 261, 282-283; 531 N.W.2d 659 (1995). Although "[i]t is not proper for the prosecuting officer to tell the jury that he believes the defendant guilty," the prosecutor may "argue from the testimony that the defendant is guilty and to state what evidence convinces him and should convince them of such guilt." People v Bigge, 297 Mich. 58, 68; 297 N.W. 70 (1941).
Royster's first challenge comes from the testimony of Detective Sergeant Patterson. When asked, "How did you receive the case whereby [Royster] was a named suspect?," Detective Sergeant Patterson responded, "It was assigned to me and I started by [sic] own personal investigation of the case and saw the suspect was known, he was in the home, he was . . . the stepfather of the victim, and she had been sexually violated between - - ." (Emphasis added.) Defense counsel immediately objected to this testimony and the trial court sustained it. This challenge is therefore preserved and our review is for an abuse of discretion. People v Aldrich, 246 Mich.App. 101, 113; 631 N.W.2d 67 (2001).
Royster contends that the prosecutor violated his rights by eliciting this inadmissible expression of the witness's belief in his guilt. It is clear from the record that the prosecutor did not intend to elicit such testimony and that Detective Sergeant Patterson's answer was not responsive to the actual question asked. "As a general rule, unresponsive testimony by a prosecution witness does not justify a mistrial unless the prosecutor knew in advance that the witness would give the unresponsive testimony or the prosecutor conspired with or encouraged the witness to give that testimony." People v Hackney, 183 Mich.App. 516, 531; 455 N.W.2d 358 (1990). Moreover, defense counsel immediately objected and the trial court sustained the objection, excluding the witness's statement. Any error was remedied in that moment and no further relief is justified.
In closing argument, the prosecutor described at length the evidence presented against Royster. The prosecutor then summarized: "Now, your Honor is correct, right now even then [Royster] remains . . . shrouded in a veil of innocence, and it's our job to pull away that shroud, correct?" The prosecutor reminded the jury that it was their duty to consider the witness testimony about MT's behavior and the kindergarten project to determine their meaning and import.
The prosecutor then made the following challenged argument:
Fast forward to 2016, Detective Patterson picks up the case. She has to start from let's say scratch because . . . she'll have remnants of the file or at least a file that was pieced together as best as possible by the previously investigating detective and she started from zero. She reviewed all those materials, you heard about her investigation, you heard about how it lead [sic] her to her suspect and you heard about how she made that arrest. Now, the fact that there's probably things or items or statements that I can't give you doesn't change the fact that . . . we believe this Defendant is guilty. Now, remember early on I talked about circumstantial evidence . . . . [Emphasis added.]
The prosecutor proceeded to explain the import of circumstantial evidence in this case.
Defense counsel raised no objection during closing argument, limiting our review of this challenge to plain error affecting Royster's substantial rights. Carines, 460 Mich. at 763-764. We find the prosecutor's language troublesome. However, this Court has rejected reliance on "magic words" in finding reversible error in this regard. People v Cowell, 44 Mich.App. 623, 628; 205 N.W.2d 600 (1973) (emphasis added).
"A panel of the Court of Appeals must follow the rule of law established by a prior published decision of the Court of Appeals issued on or after November 1, 1990, that has not been reversed or modified by the Supreme Court, or by a special panel of the Court of Appeals as provided in this rule." MCR 7.215(J)(1). However, this Court has recently stated: "We think it reasonable to draw the negative inference that we are not strictly required to follow uncontradicted opinions from this Court decided before November 1, 1990, but we think they are nevertheless considered to be precedent and entitled to significantly greater deference than are unpublished cases." Woodring v Phoenix Ins Co, 325 Mich.App. 108, 114-115; 923 N.W.2d 607 (2018).
If the prosecutor says "I believe" rather than "the evidence shows", this in and of itself does not constitute reversible error. The prosecutor is free to argue that the evidence shows that the defendant is guilty. The question is not whether the jury would conclude that the prosecutor believes that the defendant is guilty, a conclusion they would reach in any event, but rather, whether the prosecutor has attempted to vouch for the defendant's guilt. The prosecutor may not attempt to place the prestige of his office, or that of the police, behind a contention that the defendant is guilty, but he may argue that the evidence shows that the defendant is guilty. [Id.]
By quoting the prosecutor's statement in a vacuum, defense counsel attempts to convince this Court that the prosecutor improperly expressed his belief in Royster's guilt. In reality, the prosecutor made an extensive argument that the evidence supported Royster's guilt before stating that it was the prosecutor's duty to pierce the veil of innocence. Only then did the prosecutor conclude this portion of the argument by contending that the evidence showed Royster's guilt. While we may prefer that the prosecutor had employed different language, the argument was not improper. Royster is not entitled to a new trial.
We affirm.