                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 12, 2015
               Plaintiff-Appellee,

v                                                                  No. 319300
                                                                   Wayne Circuit Court
JHERI EDRECE CAMPBELL,                                             LC No. 12-011652-FC

               Defendant-Appellant.


Before: MARKEY, P.J., and MURRAY and BORRELLO, JJ.

PER CURIAM.

        Defendant appeals by right his jury trial convictions of four counts of first-degree
criminal sexual conduct (CSC), MCL 750.520b(1)(c) (sexual penetration under circumstances
involving the commission of kidnapping) and (f) (personal injury and force or coercion), and
assault with intent to do great bodily harm less than murder, MCL 750.84. The trial court
sentenced defendant as a fourth habitual offender, MCL 769.12, to concurrent sentences of 40 to
60 years’ imprisonment for each first-degree CSC conviction and 40 to 60 years’ imprisonment
for the assault with intent to do great bodily harm less than murder conviction. We affirm.

               I. FAILURE TO REMOVE A JUROR OR GRANT A MISTRIAL

        First, defendant contends that the trial court abused its discretion in refusing to remove
Juror #5 from the jury; removing the juror would have necessitated a mistrial. According to
defendant, the jury, and particularly Juror #5, was tainted by statements made in the presence of
several jurors. We disagree that the trial court abused its discretion.

        “The trial court’s decision whether to remove a juror is reviewed for an abuse of
discretion.” People v Mahone, 294 Mich App 208, 215; 816 NW2d 436 (2011). Similarly, a
trial court’s denial of a mistrial is reviewed for an abuse of discretion. People v Lugo, 214 Mich
App 699, 704; 542 NW2d 921 (1995). “An abuse of discretion occurs when [the] trial court’s
decision is outside the range of principled outcomes.” People v Duenaz, 306 Mich App 85, 90;
854 NW2d 531 (2014).




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        On the second day of trial, the trial court indicated that it had received a note from Juror
#1 stating that the day before, when a number of jurors returned from lunch, a woman who was
removed from the courtroom later that day was sitting in the hallway talking about the case.1
The trial court stated:

          He indicates there were specific discussion [sic] and I quote, “I understand her not
          leaving because she’s frozen in fear.” Unquote. And quote, “That even happened
          to me but I at least made the phone call then and there.” Unquote. And then he
          also heard her say quote, “I feel bad because that’s my sister’s son but I told him
          if he done it then he deserves what’s coming to him.” Unquote. And then uh
          apparently Ms. Yang came to the courtroom and was asked when she was due and
          Ms. Yang indicated she did not hear any further comment because she just kept
          moving and said the woman said something about please be on our case and leave
          to save my boy from quote, “two years or twenty years” but he wasn’t able to hear
          that very well. He indicates there were eight jurors sitting there when this
          discussion was taking place.

The trial court indicated that it would like to interview Juror #1, and possibly other jurors, about
the potential taint this information caused. The trial court questioned Juror #1 who indicated that
the information did not affect his ability to keep an open mind. Juror #1 believed that the person
he heard speaking was affiliated with defendant but that the information did not cause him to be
biased for or against defendant. Juror #1 did not think that the other jurors heard the comments,
but they were present. When asked exactly what the person said, Juror # 1 stated:

                   It was before opening statements were made. It was right during lunch
          time, I had just gotten back. They were just talking about the case, talking about
          the uh victim um about what she thought uh was wrong with it; why she thought
          she wasn’t credible um and basically—the only thing that really—the only thing
          that I really thought was uh that kind of stayed in my mind was that at one point I
          heard something about why would she stay in the bed; and I just knew that for
          somehow there’s a somebody staying in the bed related and said before opening
          statements or anything about this case was even discussed.

        Trial counsel requested that each juror be asked whether he or she heard someone talking
about the case. The prosecutor requested that Juror #1 be excused and was concerned about
further tainting the jury by polling each juror. The trial court individually asked each juror
whether he or she overheard comments about the case. Juror #4 indicated that she heard
someone talking about the case after lunch. Juror #4 stated that everyone in the vicinity could
hear the lady speaking. Juror #4 stated that the statements did not affect her ability to keep an
open mind. Juror #4 believed the person was affiliated with defendant but that did not affect her
view of defendant. Juror #5 also heard some ladies talking in the hallway “about what was going
on at that time,” but did not really hear what they said. Juror #5 was not sure which side the



1
    The transcript of the first day of the trial indicates a spectator was removed from the courtroom.


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ladies were affiliated with and the statements did not affect his view of the case. None of the
other jurors indicated that they overheard any comments about the facts of the case.

        Trial counsel argued that two of the jurors indicated that everyone heard the comments
and, thus, the jury was tainted. He requested a mistrial. The prosecutor requested that Juror #1
and Juror #4 be excused. Trial counsel argued that more than three jurors heard the statements
but may have been confused by the trial court’s question. He argued that other jurors may have
subconsciously heard statements that could affect them. The trial court agreed that Juror #1 and
Juror #4 should be dismissed, but it found no indication that 11 other jurors heard anything, and
Juror #5 did not hear specifics. Trial counsel requested that Juror #5 be interviewed again. Trial
counsel argued that Juror #5 should be excused or a mistrial granted. The trial court found that
although Juror #1 and Juror #4 could remain on the jury, they should be removed because of the
possibility of taint; the court denied defendant’s motion for a mistrial.

        “A motion for a mistrial should be granted only for an irregularity that is prejudicial to
the rights of the defendant and impairs the defendant’s ability to get a fair trial.” Lugo, 214 Mich
App at 704. “A defendant who chooses to be tried by a jury has a right to a fair and impartial
trial.” People v Sawyer, 215 Mich App 183, 186; 545 NW2d 6 (1996). In deciding whether to
remove a juror, the trial court must weigh “a defendant’s fundamental right to a fair and
impartial jury with his right to retain the jury originally chosen to decide his fate.” People v
Tate, 244 Mich App 553, 562; 624 NW2d 524 (2001). A trial judge may excuse any juror
impaneled for any condition that arises during a trial that the judge believes justifies doing so,
“unless the number of jurors be reduced to less than 12.” MCL 768.18(1).

       This Court reviews claims of external influences on a jury as follows:

       In order to establish that the extrinsic influence was error requiring reversal, the
       defendant must initially prove two points. First, the defendant must prove that the
       jury was exposed to extraneous influences. Second, the defendant must establish
       that these extraneous influences created a real and substantial possibility that they
       could have affected the jury’s verdict. . . . If the defendant establishes this initial
       burden, the burden shifts to the people to demonstrate that the error was harmless
       beyond a reasonable doubt. We examine the error to determine if it is harmless
       beyond a reasonable doubt because the error is constitutional in nature. The
       people may do so by proving that either the extraneous influence was duplicative
       of evidence produced at trial or the evidence of guilt was overwhelming. [People
       v Fletcher, 260 Mich App 531, 540; 679 NW2d 127 (2004) (citations omitted).]

         To the extent that defendant argues that he was denied the jury he selected, we find that
the trial court did not abuse its discretion in removing Juror #1 and Juror #4. Although Juror #1
and Juror #4 indicated that the statements they heard did not affect them, there was a possibility
that they could be affected by what they heard. The trial court was permitted to excuse such
jurors for any condition it believed justified excusal. MCL 768.18(1). Removal of Juror #1 and
Juror #4 did not reduce the number of jurors to fewer than 12.

        The trial court’s decision to retain Juror #5 and deny a mistrial was also within the range
of principled outcomes. See Duenaz, 306 Mich App at 90. Juror #5 stated that he did not really

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hear what was said; he was not sure which side the speaker was associated with, and he was not
affected by the statements. The remaining jurors all indicated that they did not hear any
comments about the case. Although Juror #1 indicated that several other jurors were present
when the statements were made, he did not think they heard anything. Further, while Juror #4
stated that everyone in the vicinity could hear the person speaking, it is not clear who was in the
vicinity at the time. Moreover, it is presumed jurors are truthful and honor their oath. People v
King, 215 Mich App 301, 303; 544 NW2d 765 (1996). Accordingly, defendant has failed to
prove that the remaining jurors, including Juror #5, were “exposed to extraneous influences” that
“created a real and substantial possibility that they could have affected the jury’s verdict.”
Fletcher, 260 Mich App at 540. The jury was also instructed not to let prejudice influence its
decision. It is presumed that jurors follow their instructions. People v Graves, 458 Mich 476,
486; 581 NW2d 229 (1998). Thus, the trial court did not abuse its discretion in retaining Juror
#5, defendant was not denied a fair trial, and the trial court did not abuse its discretion in denying
a mistrial. See Mahone, 294 Mich App at 215; Lugo, 214 Mich App at 704.

                             II. PROSECUTORIAL MISCONDUCT

       Defendant also contends that he was denied a fair trial and due process of law based on
the prosecutor’s improper appeal to the jury’s sympathy. We disagree.

       “Issues of prosecutorial misconduct are reviewed de novo to determine whether the
defendant was denied a fair and impartial trial.” People v Bennett, 290 Mich App 465, 475; 802
NW2d 627 (2010). This Court reviews allegations of prosecutorial misconduct on a case-by-
case basis, considering the prosecutor’s remarks in context. Id.

       During her rebuttal argument, the prosecutor discussed the victim’s credibility, stating:

       Counsel was saying [the victim], she was evading the questions, she was arguing;
       and like I said there were times when, yeah, she didn’t wanna answer the
       questions. There is [sic] times when she was upset and when I asked for a break,
       she said yes and got up off the stand and she ran out. Why? Because this woman
       has gone through hell! This woman was beaten and raped and then she comes to
       court, she does everything she’s supposed to do. She calls the police; she tells
       them who raped her; she tells them who beat her; she goes to the hospital; she
       does a line-up; she goes to the nurse; she gives statements; she does what she’s
       supposed to do. But what happens, she comes to court and she gets raped again
       and she’s called a liar.

Trial counsel objected to the suggestion that the victim was being raped again, and the trial court
noted the objection.

        “A prosecutor may not appeal to the jury to sympathize with the victim. Nor may a
prosecutor urge the jury to convict as part of its civic duty or on the basis of its prejudices.”
People v Unger, 278 Mich App 210, 237; 749 NW2d 272 (2008) (citations omitted). In Unger,
this Court found that the prosecutor’s comments that a crime victim was “re-victimized” in court
were improper. Id. But, the Court concluded that viewed in context, the comments were
relatively brief and did not likely deflect the jury’s attention from the evidence presented.

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Further, the jury was instructed that the attorney’s statements and arguments were not evidence.
For these reasons, the Court concluded that the prosecutor’s brief improper remark did not deny
the defendant a fair trial or affect the outcome of the proceedings. Id.

         The prosecutor’s argument that the victim was being “raped again” was improper but
does not warrant reversal. Unger, 278 Mich App at 237. The remainder of the prosecutor’s
remarks also does not warrant reversal because they merely offered an alternative explanation for
the victim’s conduct other than defense counsel’s argument that the victim was not credible.
Even an improper remark may not require reversal when the prosecutor is responding to the
defense counsel’s argument. Id. at 238. The prosecutor was explaining why the victim may
have appeared upset in an attempt to rebut trial counsel’s arguments that she was not credible.
While discussing the victim’s credibility the prosecutor did, in her initial closing argument, also
discuss how the victim had to come to court and relive the “horrible crime,” she made the
specific claim that the victim was “raped again” in rebuttal. Moreover, the comment was
relatively brief and did not likely deflect the jury’s attention from the evidence presented. Id. at
237, 238. Although the trial court only noted the objection when it was made and did not
provide a specific curative instruction at that time, it did instruct the jury at the end that it “must
not let sympathy or prejudice influence [its] decision” and that “[t]he lawyers’ statements and
arguments are not evidence.” And, although they were not specifically curative instructions, we
conclude in light of the presumption that jurors follow their instructions and that these
instructions were sufficient to cure any possible prejudicial effect of any improper prosecutorial
statements. Graves, 458 Mich at 486; Unger, 278 Mich App at 235; People v Callon, 256 Mich
App 312, 330-331; 662 NW2d 501 (2003). Accordingly, we conclude defendant was not denied
a fair trial.

       We affirm.

                                                               /s/ Jane E. Markey
                                                               /s/ Christopher M. Murray
                                                               /s/ Stephen L. Borrello




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