                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 23, 2016
               Plaintiff-Appellee,

v                                                                  No. 324252
                                                                   Ottawa Circuit Court
KEVIN ONEIL WALKER, JR.,                                           LC No. 14-038378-FH

               Defendant-Appellant.


Before: MURPHY, P.J., and WILDER and BORRELLO, JJ.

PER CURIAM.

        Defendant, Kevin Oneil Walker, Jr., appeals as of right his jury trial conviction for
assault by strangulation, MCL 750.84(1)(b). He was sentenced to 270 days in jail. We affirm.

         This case arises out of an incident between defendant and the female victim with whom
defendant had an on-and-off relationship. On February 9, 2014, defendant wrapped his arm
around the victim’s throat. The victim struggled to get away, but she could not. The victim
testified that she thought that she was going to die and that she believed she lost consciousness.
The victim remained in the same apartment with defendant after the assault and did not notify
police until a day later. The investigating police officer did not notice any physical marks or
bruises on the victim’s neck at the time she reported the assault.

       At trial, defense counsel cross-examined the victim about the veracity of her story and
her delayed reporting of the crime. Defendant also called three character witnesses to the stand,
who opined that the victim was not a truthful person. The prosecution introduced one character
witness, who opined that the victim was a truthful person. In her closing argument, the
prosecutor made several comments about the victim’s credibility:

               But this is about you judging [the victim], not about what other people
       think of all these people. It’s about what you saw today what you think happened
       on that day and I submit to you it happened exactly as [the victim] said.

                                              ***

              And if you believe her, if you think she is a credible witness, and I submit
       to you there’s no reason not to believe her, you will convict the defendant and
       find him guilty.
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              If you believe her, you convict the defendant. I submit to you you have no
       reason not to. I submit to you her story for her life makes sense.

      On appeal, defendant challenges these statements and argues that they constituted
improper vouching for the credibility of the victim. We disagree.

        Defendant’s argument is unpreserved because he did not object to the prosecutor’s
remarks. People v Bennett, 290 Mich App 465, 475; 802 NW2d 627 (2010). We review
unpreserved claims of prosecutorial misconduct for plain error affecting defendant’s substantial
rights. Id. “To avoid forfeiture under the plain error rule, three requirements must be met: 1)
error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error
affected substantial rights.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Once
these requirements are satisfied, an appellate court must still exercise its discretion in deciding
whether to reverse, and reversal is only warranted when the plain error resulted in the conviction
of an actually innocent defendant, or when the error seriously affected the fairness, integrity, or
public reputation of the proceedings independent of the defendant’s innocence. Id.

        “[T]he test for prosecutorial misconduct is whether a defendant was denied a fair and
impartial trial” as a result of the prosecutor’s conduct. People v Dobek, 274 Mich App 58, 63;
732 NW2d 546 (2007). Prosecutorial misconduct is reviewed on a case by case basis, and we
“must examine the entire record and evaluate a prosecutor’s remarks in context.” Id. at 64. “The
propriety of a prosecutor’s remarks depends on all the facts of the case.” People v Rodriguez,
251 Mich App 10, 30; 650 NW2d 96 (2002). “A prosecutor’s comments are to be evaluated in
light of defense arguments and the relationship the comments bear to the evidence admitted at
trial.” Dobek, 274 Mich App at 64. A “prosecutor cannot vouch for the credibility of his
witnesses to the effect that he has some special knowledge concerning a witness’ truthfulness.”
People v Bahoda, 448 Mich 261, 276; 531 NW2d 659 (1995). However, “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.” People v Thomas, 260 Mich App 450, 455; 678 NW2d 631 (2004). “The
prosecutor is free to argue from the evidence and its reasonable inferences in support of a
witness’s credibility.” Bennett, 290 Mich App at 478.

        In this case, when evaluating the comments in context, the prosecutor’s remarks did not
rise to the level of misconduct or error. The first challenged statement was responsive to
defendant’s three character witnesses, who testified that the victim was not a truthful person.
Before making the first statement, the prosecutor told the jury that it was up to the jurors to
determine who was credible, and the prosecutor argued using the evidence from her cross-
examination that the character witnesses were not to be believed because of their close, familial
relationship with defendant. The second challenged statement was responsive to the cross-
examination of the victim, specifically, that the victim waited a day to report the attack to police
and the lack of physical evidence. The prosecutor argued that even without physical evidence,
the testimony of the victim, if the jury believed her, would be enough to convict defendant.
Viewed in context, the prosecutor was acknowledging holes in her case—the delayed reporting
and lack of physical evidence—and explaining that the victim’s testimony filled those holes.

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The third challenged statement, made during rebuttal, was directly in response to defense
counsel’s closing argument that the victim’s testimony was unreliable, unbelievable, and
illogical. The prosecutor’s third statement explained why the victim’s testimony was logical,
reasonable, and “ma[d]e sense.”

        None of these statements constituted improper vouching. The fact that the prosecutor
stated “I submit” in all three of the statements did not make the statements improper, because the
crucial inquiry is not whether the prosecutor used “magic words,” such as “I know” or “I
believe,” but rather, whether the prosecutor was improperly vouching by suggesting possession
of extrajudicial information. People v Reed, 449 Mich 375, 399; 535 NW2d 496 (1995). The
prosecutor never indicated that she had personal or special knowledge, or possessed extrajudicial
information, that the victim was credible. Moreover, in light of defendant’s opening statement
asserting that the victim fabricated the assault, the testimony by defendant’s impeachment
witnesses opining that the victim was untruthful, and defendant’s closing argument attacking the
victim’s veracity, the prosecutor was free to argue from the evidence that the victim was credible
despite the testimony and arguments to the contrary. Dobek, 274 Mich App at 64. Looking at all
of the facts in the case, Rodriguez, 251 Mich App at 30, the prosecutor did not improperly vouch
for the victim’s credibility, and, therefore, there was no plain error, Carines, 460 Mich at 763.
Furthermore, defendant has entirely failed to establish the requisite prejudice flowing from the
three brief statements, assuming prosecutorial misconduct or error.

       Defendant also argues that he was denied the effective assistance of counsel because
defense counsel failed to object to the three statements challenged on appeal. Because the
statements did not reflect improper vouching, any objection defense counsel would have made
would have been meritless. “Counsel is not required to raise meritless or futile objections.”
People v Moorer, 262 Mich App 64, 76; 683 NW2d 736 (2004). Accordingly, defendant was not
denied the effective assistance of counsel.

       Affirmed.



                                                            /s/ William B. Murphy
                                                            /s/ Kurtis T. Wilder
                                                            /s/ Stephen L. Borrello




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