                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     January 26, 2016
               Plaintiff-Appellee,

v                                                                    No. 324029
                                                                     Genesee Circuit Court
CHRISTOPHER PATRICK ALLEN,                                           LC No. 13-034266-FC

               Defendant-Appellant.


Before: STEPHENS, P.J., and HOEKSTRA and SERVITTO, JJ.

PER CURIAM.

       Defendant appeals as of right his jury trial convictions of one count of first-degree
criminal sexual conduct, MCL 750.520b(1)(a), and one count of aggravated indecent exposure,
MCL 750.335a(2)(b). He was sentenced to 25 to 40 years in prison for the first-degree CSC
conviction and to a concurrent term of 16 to 24 months in prison for the aggravated indecent
exposure conviction. For the reasons stated below, we reverse defendant’s convictions and
remand to the trial court for a new trial.

        Defendant presents multiple claims of prosecutorial misconduct in his attorney brief and
Standard 4 Brief. All of defendant’s claims were unpreserved, save one. An unpreserved claim
of prosecutorial misconduct is reviewed for plain error that affected the defendant’s substantial
rights. People v Abraham, 256 Mich App 265, 274; 662 NW2d 836 (2003). Under this standard,
reversal is warranted only where there was plain error, i.e. clear and obvious error; the error
affected substantial rights, i.e., the error affected the outcome of the lower court proceedings; and
the error resulted in the conviction of an actually innocent defendant or seriously affected the
fairness, integrity or public reputation of judicial proceedings. People v Borgne, 483 Mich 178,
196-197; 768 NW2d 290 (2009).

        The test for prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial. People v Brown, 294 Mich App 377, 382; 811 NW2d 531 (2011). Prosecutorial
misconduct issues are decided on a case-by-case basis, and the reviewing court must examine the
record and evaluate a prosecutor's remarks in context. Id. Reversal is not required where a
curative instruction could have alleviated any prejudicial effect. People v Unger, 278 Mich App
210, 235; 749 NW2d 272 (2008). “Curative instructions are sufficient to cure the prejudicial
effect of most inappropriate prosecutorial statements.” Id.



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       In his attorney brief, defendant argues that prosecutorial misconduct occurred when
Detective Brian Abraham was allowed to testify regarding defendant’s credibility and when
Detective Abraham and Sergeant Kissel were allowed to testify regarding defendant’s silence.

       During direct examination by the prosecutor, Detective Abraham testified as follows:

               PROSECUTOR: Thank you. Detective, during the time that you were
       interviewing Christopher Allen did you believe he was telling you the truth?

              WITNESS: No. I did not.

              PROSECUTOR: Why was that?

               WITNESS: Um, a couple signs that I’ve seen. I’ve been interviewing
       people over sixteen years. Um, when I come to your house to take a report I’m
       interviewing you. Even if it’s a larceny of a bike, I’m interviewing you. You can
       tell. Number one, the facts of the case that was given to me from the beginning,
       um, it’s a very serious complaint that’s being issued. At no time during my
       interview did I see or hear the suspect—I should say maybe showing emotion,
       deny any charges. All he did was explain what he did. He never once said no. I
       did not do this. My wife, she hates me. This is so serious of an event that if I was
       in his shoes I would be pacing the room. I would not be just sitting there with my
       head down. I would probably be crying. I’d have so much emotions going
       through me, myself and I’ve seen that through other victims, especially if you
       were wrongfully accused of something.

              PROSECUTOR:         You said through other victims.       You mean other
       suspects?

               WITNESS: I’m sorry. I’m sorry. Yes. Other suspects being accused of
       any serious crime; bank robbery, armed robbery, a CSC case, even petty larceny.
       If they didn’t do it you generally see some kind of reaction besides just a calm,
       relaxed, talking with his hand over his mouth, and just staying very calm.

       The prosecutor concedes that Detective Abraham’s testimony was an improper comment
on another’s credibility. See People v Musser, 494 Mich 337, 348-349; 835 NW2d 319 (2013);
People v Buckey, 424 Mich 1, 16-18; 378 NW2d 432 (1985). Further, we conclude that the error
was plain, in that it was “clear and obvious.” Borgne, 483 Mich at 196-197. However, because
defense counsel effectively cross-examined Detective Abraham regarding his opinion of
defendant’s credibility, it is unlikely that this error alone affected the outcome of the trial.

       During the prosecutor's direct examination, Sergeant Kissel explained that he was not
involved in arresting defendant, but that he observed the arrest because he “happened to be
outside” when defendant was arrested. The following exchange then occurred:

              PROSECUTOR: At the time that you saw the suspect did he ever say
       anything like why am I being arrested? What’s going on? I don’t understand
       what’s happening?

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               WITNESS: I never heard him ask any of those questions.

               PROSECUTOR: Thank you. I have nothing further.

       Later, during her closing arguments, the prosecutor argued:

              When he got back to the house he just turned himself in. He didn’t say I
       didn’t do anything. She’s lying. She’s making it up. He didn’t say why am I
       being arrested. He threw his keys on the top of the car and put his hands behind
       his back because he knew he was caught. He knew that he had done what he was
       accused of doing.

Sergeant Kissel’s testimony indicates that he observed defendant while defendant was being
arrested and immediately before the arrest. There was no indication that defendant had been
given his Miranda rights when Sergeant Kissel observed him failing to ask why he was being
arrested. “A defendant’s constitutional right to remain silent is not violated by the prosecutor’s
comment on his silence before custodial interrogation and before Miranda warnings have been
given.” People v McGhee, 268 Mich App 600, 634; 709 NW2d 595 (2005); see also People v
Schollaert, 194 Mich App 158, 160-167; 486 NW2d 312 (1992) (holding that the defendant’s
silence was not constitutionally protected because it did not occur during custodial interrogation
or in reliance on Miranda rights). Therefore, defendant has not shown error in Sergeant Kissel’s
testimony.

       During cross-examination, Detective Abraham testified that he was not allowed to ask
defendant whether he sexually assaulted his daughter. The prosecutor later questioned Detective
Abraham as follows:

              PROSECUTOR: You said a few minutes ago when you were speaking
       with Ms. Young that you weren’t allowed to ask the question. Was that because
       the Defendant asked to end the interview?

              WITNESS: Yes. The Defendant during my questioning he—we were
       close. He was showing signs that he wanted to talk. Um, as I sat and spoke with
       him his head is nodding. Those are obvious signs when you’re interviewing
       that—to somebody like myself you are getting closer for somebody to break
       down. Um, he asked for a moment. At that time I told him to take just a moment
       or go ahead and acknowledged that moment and I thought for sure that’s when he
       was going to begin to say blank, blank, blank. Instead he asked for an attorney.
       I’m no longer allowed to question him any further. . . .

        A plain error occurred because Detective Abraham clearly commented on defendant’s
silence post-Miranda. Because Detective Abraham’s reference to defendant’s post-arrest, post-
Miranda silence was brief and the prosecutor did not use the testimony in her arguments against




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defendant, however, it is unlikely that this error alone affected the outcome of the trial or the
fairness and integrity of the trial.1

       In defendant’s supplemental brief filed in propria persona pursuant to Supreme Court
Administrative Order No. 2004–6, Standard 4, defendant argues two additional claims of
prosecutorial misconduct. There he contends that the prosecutor appealed to the sympathy of the
jury and violated both MCR 6.201(B) and Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed
2d 215 (1963), with the late disclosure of a recording of defendant’s police interview.

       During voir dire, the prosecutor stated as follows:

               Um, the allegations in this case are kind of disturbing. You’re going to
       hear—and I’m going to just let you know. You going to hear that—the
       allegations are that the Defendant assaulted his twenty-one month old daughter.
       I’m sorry. I have a fifteen month old so it makes me emotional and I wasn’t
       going to get emotional. But it does make me emotional. I’m sorry. . . . Does
       anyone think they can’t hear that? I’m sorry. I really don’t ever get emotional in
       court so I’m sorry.

       After the jury was chosen and left the courtroom, defense counsel objected to the
prosecutor appealing to the sympathy of the jury by having “multiple breakdowns” and by
“making the correlation between her children and the victim in this case.” Defense counsel
moved for a mistrial on the same basis. The trial court denied the motion for a new trial, but, at
defense counsel’s request, instructed the jury that it “must not let sympathy or prejudice
influence your decision.”

        It is improper for a prosecutor to appeal to the sympathy of the jury. People v Meissner,
294 Mich App 438, 456; 812 NW2d 37 (2011). Further, a prosecutor may not argue facts not in
evidence. People v Lee, 212 Mich App 228, 255; 537 NW2d 233 (1995). While the
prosecutor’s conduct here was improper, we conclude that any prejudice was cured by the trial
court’s instruction. People v Unger, 278 Mich App 210, 235; 749 NW2d 272 (2008) (“Curative
instructions are sufficient to cure the prejudicial effect of most inappropriate prosecutorial
statements.”). Therefore, defendant has not shown that the prosecutor’s conduct during voir dire
alone denied him a fair trial.

       Also in defendant’s Standard 4 Brief, defendant argues that he was denied a fair trial by
the prosecutor’s late disclosure of a recording of his police interview. Defendant contends that



1
  Defendant also argues in his attorney brief that his right to a properly instructed jury was
violated by the trial court’s misleading response to a jury question. We conclude that defendant
waived any error, however, by expressing satisfaction with the trial court’s response to the jury’s
question. People v Kowalski, 489 Mich 488, 503; 803 NW2d 200 (2011).




                                                -4-
the late disclosure violated both MCR 6.201(B) and Brady v Maryland, 373 US 83; 83 S Ct
1194; 10 L Ed 2d 215 (1963). We review de novo a claim that a defendant was denied his due
process rights by the prosecutor’s failure to timely disclose exculpatory evidence. People v
Schumacher, 276 Mich 165, 176; 740 NW2d 534 (2007).

        Under MCR 6.201(B), upon request, the prosecutor must provide to the defendant “any
written or recorded statements” by a defendant. If a party fails to comply with the rule, the court,
in its discretion, may, among other options, grant a continuance, prohibit the party from
introducing the undisclosed evidence, or “enter such other order as it deems just under the
circumstances.” MCR 6.201(J). “When determining the appropriate remedy for discovery
violations, the trial court must balance the interests of the courts, the public, and the parties in
light of all the relevant circumstances, including the reasons for noncompliance.” People v
Banks, 249 Mich App 247, 252; 642 NW2d 351 (2002).

        Here, the prosecutor violated MCR 6.201(B) by failing to turn over the recording to the
defendant when defendant made his initial discovery request. Nevertheless, because defendant
had already been given a police statement that summarized the interview, we do not believe that
the late disclosure alone denied defendant a fair trial.

        A Brady violation is shown where (1) evidence is suppressed by the prosecution either
inadvertently or in bad faith, (2) the evidence is favorable to the accused because it is either
exculpatory or impeaching, and (3) the evidence is material, i.e. there is a reasonable probability
that, had the evidence been disclosed to the defense, the result of the proceeding would have
been different. People v Chenault, 495 Mich 142, 150; 845 NW2d 731 (2014). Defendant has
not shown that the videotape was material to his defense. It is undisputed that the defense
received a police statement that summarized defendant’s police interview. Defendant has not
pointed to any evidence in the videotaped statement that was not included in the police report
and that would have changed the result of the proceedings. Because defendant has not shown
that the videotape was material to his defense, defendant has not demonstrated a Brady violation.

        Standing alone, defendant’s claimed errors of prosecutorial misconduct do not warrant
reversal. We conclude, however, that the cumulative effect of the numerous errors in this case
amount to error requiring reversal. People v Cooper, 236 Mich App 643, 659-660; 601 NW2d
409 (1999). Given the compendium of errors as a whole directed toward defendant’s most basic
due process rights, we cannot conclude that defendant received a fair trial. People v Knapp, 244
Mich App 361, 388; 624 NW2d 227 (2001). “A prosecutor can deny a defendant his or her right
to a fair trial by making improper remarks that so infect the trial with unfairness as to make the
resulting conviction a denial of due process.” People v Lane, 308 Mich App 38, 62; 862 NW2d
446 (2014) (quotation omitted). The prosecutor’s crying during jury selection and comparing the
victim in this case to her own child elicited an immediate emotional response from the jury.
Thereafter, two jurors raised their hands, stated that they too were getting very emotional and
could not be fair, and asked to be excused from the jury. “A fundamental pillar of our legal
system is that a person is presumed innocent until proven guilty.” People v Rosales, 160 Mich
App 304, 312; 408 NW2d 140 (1987). During direct examination, Detective Abraham was
specifically asked by the prosecution to comment on defendant’s guilt and in effect, act as a
“human lie detector.” People v Dobek, 274 Mich App 58, 70; 732 NW2d 546 (2007). After
noting his 16 years of interrogation experience, Detective Abraham told the jury that he did not

                                                -5-
believe defendant was telling the truth and why. Issues of credibility are the province of the jury
and it is improper for the prosecutor to ask a witness to comment on the credibility of another
witness. Dobek, 274 Mich App at 71. Defendant also has the right to not have his post-Miranda
silence used against him. People v Shafier, 483 Mich 205, 212-213; 768 NW2d 305 (2009);
Wainwright v Greenfield, 474 US 284, 290–291; 106 S Ct 634; 88 L Ed 2d 623 (1986).
“[P]rosecutorial references to a defendant's post-arrest, post-Miranda silence violate a
defendant's due process rights under the Fourteenth Amendment of the United States
Constitution.” Shafier, 483 Mich at 212-213. Detective Abraham was also allowed to testify
that right before he believed defendant would confess, defendant became silent and then exerted
his right to counsel. Sergeant Kissel’s testimony and the prosecutor, in her closing argument,
reminded the jury of defendant’s silence on other occasions that were not on their own
misconduct, but did compound the already improper inferences to defendant’s guilt, silence and
exercise of constitutional rights. The prosecutor also clearly violated MCR 6.201(B). “[A]
discovery violation can result in constitutional error when it violates a defendant's right to due
process.” People v Elston, 462 Mich 751, 770; 614 NW2d 595 (2000). In this instance, no
prejudice resulted because a written summary of the taped interview was available. The
prosecution’s duty to disclose remains regardless of whether the prosecutor had good or bad
intentions. Brady, 373 US 86. Reversal for trial error is warranted when it is determined that the
defendant was “convicted through a judicial process which is defective in some fundamental
respect.” Burks v United States, 437 US 1, 15; 98 S Ct 2141, 2149; 57 L Ed 2d 1 (1978). “When
this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free
from error, just as society maintains a valid concern for insuring that the guilty are punished.”
Id. We conclude that the cumulative effect of error in this case undermines the confidence in the
reliability of the verdict and a new trial is warranted. Dobek, 274 Mich App at 106.

        For the foregoing reasons, we reverse defendant’s convictions and remand this case for
further proceedings. Given our disposition, it is unnecessary to address the remainder of
defendant’s Standard 4 Brief claims regarding the ineffective assistance of counsel.

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.

                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Joel P. Hoekstra
                                                            /s/ Deborah A. Servitto




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