People of Michigan v. Joseph Nathan Perez ( 2021 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 11, 2021
Plaintiff-Appellee,
v No. 350037
Kent Circuit Court
JOSEPH NATHAN PEREZ, LC No. 18-003297-FH
Defendant-Appellant.
Before: BECKERING, P.J., and SAWYER and SHAPIRO, JJ.
SHAPIRO, J. (concurring).
I concur fully with the majority as to defendant’s claims regarding mistrial, the
complainant’s wearing of non-jail clothing, permitting the not-yet-certified SANE nurse to testify,
the denial of a directed verdict and the sufficiency of the evidence. As to the other issues, I concur
in result only as I do not fully agree with the majority’s analysis. I would conclude that the
instruction referencing defendant’s parole-status was error, but was forfeited as counsel
specifically approved the subject instruction. I would also conclude that the nurse’s testimony that
the results of the physical examination were consistent with the history provided by the
complainant constituted improper vouching but was harmless given counsel’s cross examination
regarding the exam and the other proofs in the case. Finally, counsel’s failure to cross-examine
the complainant regarding her prior convictions was error as it served no tactical purpose, but I do
not believe that such impeachment would have made a different outcome reasonably probable.
See People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001), citing Strickland v Washington,
466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984) (“To demonstrate prejudice, the defendant
must show the existence of a reasonable probability that, but for counsel’s error, the result of the
proceeding would have been different.”).
/s/ Douglas B. Shapiro
-1-