            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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   April 23, 2019
               Plaintiff-Appellee,

v                                                                  No. 340965
                                                                   Jackson Circuit Court
KEANTE MARTEZ KIYA,                                                LC No. 16-005352-FH

               Defendant-Appellant.


Before: M. J. KELLY, P.J., and SERVITTO and BOONSTRA, JJ.

BOONSTRA, J. (dissenting).

       I respectfully dissent. I would hold that, although some of the prosecution’s statements
were inappropriate, they did not rise to the level of plain error requiring reversal.

         As the majority correctly states, this Court reviews an unpreserved issue under the plain
error standard set forth in People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). See
People v Cain, 498 Mich 108, 116; 869 NW2d 829 (2015). When reviewing a defendant’s claim
of prosecutorial misconduct, a reviewing court “must examine the pertinent portion of the record
and evaluate a prosecutor’s remarks in context.” People v Schutte, 240 Mich App 713, 721; 613
NW2d 370 (2000) (citations omitted). “Generally, prosecutors are accorded great latitude
regarding their arguments and conduct.” People v Bahoda, 448 Mich 261, 282; 531 NW2d 659
(1995) (quotation marks and citations omitted). A prosecutor may argue the evidence as it
relates to the facts and the prosecutor’s theory of the case. Id. However, “prosecutors should not
resort to civic duty arguments that appeal to the fears and prejudices of jury members or express
their personal opinion of a defendant’s guilt, and must refrain from denigrating a defendant with
intemperate and prejudicial remarks.” Id. at 282-283.

       In this case, the prosecution stated during its opening statement that it believed the
biggest issue in Jackson County to be heroin abuse:

              You know, as an Assistant Prosecutor I get asked often, what’s the biggest
       problem with Jackson? And I don’t even have to hesitate. I mean it easily comes
       to my mind. Heroin. Not a single question about it. It affects people’s lives
       every single day. You’ve heard how many people’s lives it affected just in the
       jury pool.

               And that’s the reason why we are here today, because the defendant in this
       case is one of the people that’s selling that poison to the people on the streets.

Further, during closing arguments, the prosecution stated:

               All right. It’s funny, I was talking to my kids the other day, I have three
       young kids and we were going over some of the things that scare them like
       monsters under the bed, things in the closet, things like that and I—I started
       thinking about, God, you know, I’m forty years old and there’s not a whole lot
       that scares me anymore.

               But heroin does. Heroin terrifies me. I sit here everyday [sic] and see
       something involving heroin. Everyday [sic] somebody is dying of heroin. It
       affects everybody. And as I mentioned before, this gentleman over here is selling
       that poison on our streets to make some money. Twenty dollars here and there.

Finally, the prosecution stated at the close of its rebuttal argument:

              [Defendant is] what I like to call a dealer of death, because that’s what
       these heroin dealers are, they’re—they’re dealing out death.

              People are dying for it everyday [sic] and I think it’s time that they’re held
       accountable. And I ask that you find him guilty.

        I agree with the majority that many of these statements, specifically the statements
concerning “heroin dealers” generally and the statement that “it’s time that they’re held
accountable,” improperly appealed to the jury’s civic duty to address the heroin problem in
Jackson County, and therefore injected issues broader than defendant’s guilt or innocence into
the judicial proceedings. Bahoda, 448 Mich at 282. However, the trial court instructed the jury
that it was required to decide the case on the evidence and that the attorneys’ statements and
arguments were not evidence. The trial court also instructed the jury that it “must not let
sympathy or prejudice influence [its] decision.”

       Jurors are presumed to follow their instructions, and instructions are presumed to cure
most errors. People v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003). I am not
convinced that the trial court’s instructions were insufficient to cure the prejudicial effect of the
prosecution’s statements. See Bahoda, 448 Mich at 281; Ackerman, 257 Mich App at 449.
More importantly, I believe that defendant has not demonstrated that no curative instruction, if
requested, could have cured the error. People v Callon, 256 Mich App 312, 329-340; 662 NW2d
501 (2003). For example, had defendant objected to aspects of the prosecution’s opening
statement, the trial court could not only have issued a curative instruction reminding the jury not
to consider issues broader than the guilt or innocence of this particular defendant, but could have
warned the prosecution against making such statements in the future, therefore preventing further
improper statements, including during closing arguments. See People v Riley, 465 Mich 442,

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448; 636 NW2d 514 (2009). We should not permit a defendant, whether deliberately or not, to
harbor an “appellate parachute” by failing to raise any objection to the prosecution’s improper
statements, when such an objection would afford the trial court an opportunity to deal with them
as they occur. I would therefore hold that defendant did not establish that the prosecution’s
statements, reviewed in the context of the case, constituted plain error requiring reversal. See
Carines, 460 Mich at 763.

        Further, I would hold that defendant has not demonstrated that the prosecution’s
statements seriously affected the fairness, integrity, or public reputation of the trial or resulted in
the conviction of an innocent defendant. See id. The evidence against defendant at trial was
strong, and included testimony from an undercover officer who directly purchased heroin from
defendant. Although the majority points to some perceived weaknesses in the prosecution’s
case, it acknowledges that the evidence was sufficient to support defendant’s conviction. And,
although I agree with the majority that the prosecution made impermissible statements, I am far
from convinced that the prosecution employed a strategy of seeking a conviction based on
appeals to the jury’s civic duty, rather than presenting evidence of defendant’s specific guilt.
The prosecution’s improper statements were confined to its opening statement and closing
argument; in between those statements it presented a solid, evidence-based case for defendant’s
conviction. I would conclude that defendant was not deprived of his right to a fair trial and that
defendant is not entitled to the reversal of his conviction and sentence. See Carines, 460 Mich at
763-764; Bahoda, 448 Mich at 266-267.

       For these reasons, I would affirm defendant’s conviction.



                                                               /s/ Mark T. Boonstra




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