             If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                  revision until final publication in the Michigan Appeals Reports.




                           STATE OF MICHIGAN

                            COURT OF APPEALS


 PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                       March 17, 2020
                Plaintiff-Appellee,

 v                                                                     No. 344643
                                                                       Saginaw Circuit Court
 TORYE SHEVAR GILBERT,                                                 LC No. 17-044170-FC

                Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and K. F. KELLY and TUKEL, JJ.

RONAYNE KRAUSE, P.J. (concurring.)

        I agree entirely with the majority’s resolution of the mistrial issue. I concur in the result
of the majority’s resolution of the vouching and ineffective assistance of counsel issues. I agree,
for the most part, with the majority’s recitation of the facts and the law, so I will not repeat them.
However, I respectfully disagree with the majority to the extent it concludes that the prosecutor’s
remarks during closing argument were merely inartful. I conclude that some of the prosecutor’s
commentary crossed the line from inartful to improper. Nevertheless, I agree that the evidence
was sufficiently overwhelming that reversal is not warranted.

        A core tenet of modern jurisprudence is the avoidance of elevating superficial
nomenclature over substance wherever reasonable. See In re Traub Estate, 354 Mich 263, 278-
279; 92 NW2d 480 (1958). Thus, as the majority observes, a reviewing court should not read too
much into the bare fact of whether a prosecutor uses the phrase “I believe” instead of “the evidence
shows.” See People v Cowell, 44 Mich App 623, 628; 205 NW2d 600 (1973). Presumably, most
juries would, in any event, tend to expect a prosecutor to believe in a defendant’s guilt. Id. On
several occasions, the prosecutor stated some variation on “we believe that we’ve met the burden”
of a count, or “we believe that” a count “has been proven.” I agree with the majority that those
statements are at worst inartful, especially because they were made in the context of discussing the
extensive evidence establishing that those counts had, in fact, been proven.

       However, language and phraseology are not irrelevant, and some of the prosecutor’s other
remarks are more troubling. At one point, the prosecutor stated that “[t]here is no doubt in my
mind that the People have met their burden beyond a reasonable doubt.” During rebuttal, the



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prosecutor further stated that “[t]he People believe wholeheartedly that this is not a great bodily
harm case” and reiterated that “[t]here is no doubt in my mind that we have met our burden.” I
recognize that these statements were not in the nature of unsworn testimony as to facts or to the
veracity of any particular witness. See People v Erb, 48 Mich App 622, 631-632; 211 NW2d 51
(1973); People v Davis, 57 Mich App 505, 511-513; 226 NW2d 540 (1975). Nevertheless, these
statements are dramatic departures from merely substituting “I believe” for “the evidence shows.”
They come perilously close to impermissibly “attempt[ing] to place the prestige of [the
prosecutor’s] office behind the assertion that the defendant is guilty.” People v Jansson, 116 Mich
App 674, 693-694; 323 NW2d 508 (1982). The prosecutor may not “do indirectly what [he or
she] is precluded from doing directly.” People v Guenther, 188 Mich App 174, 186-187; 469
NW2d 59 (1991).

       Finally, the prosecutor concluded initial closing argument with the following:

              I say to you today, that there is no doubt in my mind that we have met our
       burden. We have proven beyond a reasonable doubt that the defendant did commit
       each and every count that he’s been charged with, one through ten. And we ask
       you, the People ask you, to do what’s right, and to find the defendant guilty as
       charged. Thank you.

In addition to the concerns already discussed, the above remark strongly resembles a civic duty
argument. See People v Bass (On Rehearing), 223 Mich App 241, 251-252; 581 NW2d 1 (1997),
precedential effect stayed in part on other grounds 456 Mich 851 (1997) and reinstated 457 Mich
866 (1998). In Bass, the prosecutor urged the jury to “do the right thing” and to “do justice,”
which this Court found, in context, did not deprive the defendant of a fair trial. However, this
Court did not hold that the prosecutor’s remarks had been proper. I believe that urging the jury to
convict because that would be “do[ing] what’s right” improperly injects an issue “broader than a
defendant’s guilt or innocence of the charges.” See People v Crawford, 187 Mich App 344, 354;
467 NW2d 818 (1991).

       I agree with the majority that the evidence in this case was overwhelming, and I do not find
the prosecutor’s oversteps so egregious that, under the circumstances of this case, they warrant
reversal. I therefore fully concur in the result reached by the majority. However, I respectfully
cannot accept that no error occurred at all.

                                                            /s/ Amy Ronayne Krause




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