Criminal - Vouching

Where a jury found a defendant guilty of first-degree criminal sexual conduct and unlawful imprisonment, the convictions should be upheld despite the defendant’s claim on appeal that prosecution witnesses improperly vouched for the creditability of the complainant.

“Defendant, Joseph Santana, appeals as of right his jury-trial convictions of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(c) or (f), and unlawful imprisonment, MCL 750.349b(1)(c). Santana was sentenced to 14 to 30 years’ imprisonment for his CSC-I conviction and 3 to 15 years’ imprisonment for his unlawful imprisonment conviction. We affirm.

“In both the brief filed by his appellate counsel and in his Standard 4 brief, filed under Supreme Court Administrative Order 2004-6, Standard 4, Santana argues that witnesses improperly vouched for the complainant’s credibility. Because he did not object to the allegedly-improper vouching at trial, this issue is unpreserved. ... As a result, we review this issue for plain error affecting Santana’s substantial rights.

“Santana first claims that the [sexual assault nurse examiner (SANE)] vouched for the complainant’s credibility by referring to the complainant as a ‘survivor.’

“Santana argues that calling the complainant a ‘survivor’ meant the nurse believed the complainant’s story about the sexual assault. He contends the jury likely relied on this vouching when convicting him. However, the nurse did not actually describe the complainant as a survivor. Instead, she only used the term ‘survivor’ when speaking in general terms about her job and job duties. Vouching occurs when one witness opines that another witness is telling the truth or worthy of belief. ... Because the nurse did not actually refer to the complainant as a survivor, nor did she opine that the complainant was telling the truth or worthy of belief, we conclude that the nurse did not improperly vouch for the complainant.

“In his Standard 4 brief, Santana argues that the trial judge vouched for the complainant by referring to her as a ‘victim.’ However, the instances of the judge referring to the complainant as a ‘victim’ occurred when the jury was not present. As a result, the jury could not possibly be swayed by the trial judge’s use of the term ‘victim’ when referring to the complainant.

“Santana lastly asserts that a police officer improperly referred to the complainant as ‘the victim.’ The officer testified that, while searching Santana’s apartment, the police ‘took the duct tape because we were informed that the victim arrived had duct tape on her.’ Here, the officer’s referral to the complainant as ‘the victim’ is not improper. First, Michigan caselaw does not prohibit witnesses from referring to a complaining witness as a victim during criminal sexual conduct prosecutions. Indeed, MCL 750.520a(s) defines a ‘victim’ as the ‘person alleging to have been subjected to criminal sexual conduct.’ Thus, the complainant in this case, who alleged that she was subjected to criminal sexual conduct is, by statutory definition, a victim. Second, the officer did not vouch for the complainant’s credibility by calling her a victim. Instead, his comment was made in connection with describing the steps taken during the investigation of her complaint. He did not testify that he believed her allegations were truthful, nor did he testify that he had confirmed the allegations that she had made. As a result, his testimony, which did not comment on or provide an opinion on the credibility of the complainant, is not improper vouching.

“Santana also argues that his trial lawyer provided ineffective assistance by failing to object to the alleged vouching by the nurse, the trial judge, and the police officer. However, because no improper vouching occurred, any such objection would have been meritless.”

People v. Santana; MiLW 08-108016, 7 pages; Michigan Court of Appeals unpublished per curiam; M. J. Kelly, J., Boonstra, J., Cameron, J.; on motion for reconsideration; David B. Herskovic for appellant; William M. Worden for appellee.

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