                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 16, 2018
               Plaintiff-Appellee,

v                                                                  No. 333633
                                                                   Macomb Circuit Court
DANIEL JAMES DELAMIELLEURE,                                        LC No. 2015-001471-FH

               Defendant-Appellant.


Before: TALBOT, C.J., and MURRAY and O’BRIEN, JJ.

PER CURIAM.

        A jury acquitted defendant of charges of assault by strangulation, MCL 750.84(1)(b), and
felonious assault, MCL 750.82, but convicted him of aggravated domestic violence, MCL
750.81a, interfering with the reporting of a crime, MCL 750.483a, and possession of a firearm
during the commission of a felony, MCL 750.227b. The trial court denied defendant’s motion
for a new trial. The trial court sentenced defendant to time served (1 day) for his convictions of
aggravated domestic violence and interfering with the reporting of a crime, and two years’
imprisonment for the felony-firearm conviction. Defendant appeals as of right. We affirm.

         Defendant’s convictions arise from an altercation with his former girlfriend. The victim
lived in Chicago, but was in a relationship with defendant, who lived in Michigan. On
December 30, 2014, while the victim was staying with defendant in his home, they got into an
argument early in the day after the victim received a text message from a male friend. The
argument was eventually resolved, and defendant went out drinking with his brother. According
to the victim, when defendant returned, he was upset because his male roommate had told him
that the victim talked to him. The victim alleged that defendant repeatedly assaulted her, at one
point strangling her, and at another point firmly pressing a gun on her head behind her ear.
When the victim tried to call 911, defendant grabbed her cellphone, snapped it in half, and threw
it into the closet. According to the victim, she eventually managed to escape and drive to her
friend’s house.

         Defendant disputed these events at trial. He admitted to throwing the victim’s phone, but
testified that he grabbed and restrained the victim in an effort to calm her down. He also
admitted shoving her against the side of the closet and regretted using enough force that may
have caused her to hit her head on something inside the closet. According to defendant, the
victim chose to leave the house wearing only her nightshirt and some shorts. Defendant claimed

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that, after the victim left, he cleaned his house, called a friend to pick him up, and spent the night
at his friend’s house because he thought the victim might come back and he did not want to
argue with her further. Defendant denied placing his hands around the victim’s neck and denied
owning a gun or possessing a gun during the incident. The police later searched defendant’s
house, but did not recover a firearm.

                             I. PROSECUTORIAL MISCONDUCT

        Defendant argues that he is entitled to a new trial due to several incidents of misconduct
by the prosecutor. Defendant preserved most of his claims with appropriate objections at trial.
A preserved claim of prosecutorial misconduct is reviewed de novo to determine whether the
defendant was denied a fair and impartial trial. People v Abraham, 256 Mich App 265, 272; 662
NW2d 836 (2003). Defendant also raised each of his appellate claims in a motion for a new trial,
which the trial court denied. A trial court’s decision denying a defendant’s motion for a new trial
is reviewed under the following standards:

               We review for an abuse of discretion a trial court’s decision to grant or
       deny a new trial. People v Miller, 482 Mich 540, 544; 759 NW2d 850 (2008).
       An abuse of discretion occurs when the trial court’s decision is outside the range
       of principled outcomes. People v Blackston, 481 Mich 451, 467; 751 NW2d 408
       (2008). Underlying questions of law are reviewed de novo, People v Washington,
       468 Mich 667, 670-671; 664 NW2d 203 (2003), while a trial court’s factual
       findings are reviewed for clear error, MCR 2.613(C); People v Cress, 468 Mich
       678, 691; 664 NW2d 174 (2003). “A trial court may grant a new trial to a
       criminal defendant on the basis of any ground that would support reversal on
       appeal or because it believes that the verdict has resulted in a miscarriage of
       justice.” People v Jones, 236 Mich App 396, 404; 600 NW2d 652 (1999), citing
       MCR 6.431(B). [People v Terrell, 289 Mich App 553, 558-559; 797 NW2d 684
       (2010), overruled in part on other grounds by People v Grissom, 492 Mich 296
       (2012).]

        The test for prosecutorial misconduct is whether the defendant was denied a fair trial.
People v Bahoda, 448 Mich 261, 266-267; 531 NW2d 659 (1995). Claims of prosecutorial
misconduct are decided case by case and challenged conduct must be viewed in context. People
v McElhaney, 215 Mich App 269, 283; 545 NW2d 18 (1996). Prosecutorial misconduct may not
be predicated on good-faith efforts to admit evidence. People v Noble, 238 Mich App 647, 660;
608 NW2d 123 (1999). The prosecutor is entitled to attempt to introduce evidence that he
legitimately believes will be accepted by the trial court, so long as it does not prejudice the
defendant. Id. at 660-661. “Curative instructions are sufficient to cure the prejudicial effect of
most inappropriate prosecutorial statements, and jurors are presumed to follow their
instructions.” People v Unger, 278 Mich App 210, 235; 749 NW2d 272 (2008) (internal citation
omitted).

       Defendant argues that it was improper for the prosecutor to ask him why the friend at
whose house he allegedly stayed on the night of the incident did not testify at trial. Defendant
contends that the prosecutor’s question improperly shifted the burden of proof. We disagree. In
People v Fields, 450 Mich 94, 111-112; 538 NW2d 356 (1995), our Supreme Court explained

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when a prosecutor’s comments or questions cross the line of permissible argument and shift the
burden of proof:

               Our Court of Appeals has addressed on many occasions the claim that
       prosecutorial comment on the failure of the defendant to call corroborating
       witnesses “shifted the burden of proof.” See People v Spivey, 202 Mich App 719,
       509 NW2d 908 (1993); People v Holland, 179 Mich App 184; 445 NW2d 206
       (1989); People v Shannon, 88 Mich App 138, 145; 276 NW2d 546 (1979). These
       published opinions of the Court of Appeals have consistently held that when a
       defendant advances an alternate theory or alibi, “the prosecution, by commenting
       on the nonproduction of corroborating alibi witnesses, is merely pointing out the
       weakness in defendant’s case” and not “improperly shifting the burden of proof to
       the defendant.” Shannon, supra at 145.

             In People v Gant, 48 Mich App 5; 209 NW2d 874 (1973), the Court of
       Appeals explained why such comment does not shift the burden of proof.

                       This approach [comment by the prosecutor on the
               defendant’s failure to call witnesses to support his defense] does
               not cast the burden upon defendant to prove his innocence since
               defendant cannot be convicted upon the basis that he failed to
               affirmatively prove his defense. The circumstantial evidence
               resulting from defendant’s failure to offer evidence and witnesses
               to support a proffered defense is no substitute for the prosecutor’s
               burden to prove defendant guilty beyond a reasonable doubt. In
               spite of this failure, defendant cannot be convicted unless the
               prosecution has carried its burden of proof on every element of the
               crime charged. While defendant is free to offer to the jury a
               defense supported only by his testimony, the nonproduction of
               other evidence, known and available to defendant, provides the
               jury with yet another fact for use to test his credibility. [Id. at 9-
               10.]

       Stated otherwise, if the prosecutor’s comments do not burden a defendant’s right
       not to testify, commenting on a defendant’s failure to call a witness does not shift
       the burden of proof. United States v Dahdah, 864 F2d 55 (CA 7, 1988).
       [Alternations in original.]

        Defendant testified at trial and offered his version of events, including that he spent the
night with his friend to avoid further confrontation with the victim, not to hide from the police.
Because defendant’s testimony made the issue of the friend’s identity and possible testimony
relevant, Fields, 450 Mich at 116, the prosecutor’s question about defendant’s failure to call his
friend as a witness at trial was not improper. Defendant had already elected to testify, so the
question did not impact defendant’s decision to testify. Further, the question about
nonproduction of a corroborating witness was a permissible question related to the strength of
defendant’s testimony, and we do not consider it as shifting the burden of proof to defendant.


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The prosecutor was entitled to explore whether defendant’s alleged friend was a “fictional
character.” Id. at 117-118.

        Defendant also argues that the prosecutor impermissibly used defendant’s prearrest
silence as substantive evidence of his guilt when questioning defendant about why he did not tell
his version of the events to anyone sooner. We disagree. In People v Solmonson, 261 Mich App
657, 664-665; 683 NW2d 761 (2004), this Court explained:

               A defendant’s right to due process guaranteed by the Fourteenth
       Amendment is violated where the prosecutor uses his postarrest, post-Miranda
       warning silence for impeachment or as substantive evidence unless it is used to
       contradict the defendant’s trial testimony that he made a statement, that he
       cooperated with police, or that trial was his first opportunity to explain his version
       of events. But in the instant case, nothing indicates that the police ever read
       defendant the Miranda warnings, even after his arrest. Moreover, although the
       prosecutor’s questions were broad enough to encompass both prearrest and
       postarrest timeframes, the record reflects that defendant never invoked his
       constitutional right to silence. The defendant’s right to due process is implicated
       only where his silence is attributable to either an invocation of his Fifth
       Amendment right or his reliance on the Miranda warnings. Thus, where a
       defendant has received no Miranda warnings, no constitutional difficulties arise
       from using the defendant’s silence before or after his arrest as substantive
       evidence unless there is reason to conclude that his silence was attributable to the
       invocation of the defendant’s Fifth Amendment privilege. [Citations omitted.]

See also People v McGhee, 268 Mich App 600, 634-635; 709 NW2d 595 (2005). Here, the
prosecutor’s questions did not infringe on defendant’s right to remain silent because they
involved defendant’s silence without regard to any custodial interrogation or invocation of his
right to remain silent. Instead, the prosecutor’s questions involved proper inquiries regarding the
strength or weakness of defendant’s testimony. Accordingly, they were not improper.

       Next, defendant argues that the prosecutor engaged in misconduct by attempting to elicit
hearsay evidence that defendant’s roommate told the police that defendant owned or possessed a
firearm. At trial, the prosecutor acknowledged that any information from the roommate about a
gun involved an out-of-court statement, but he argued that it was being offered only to show
what the police did when they arrived at defendant’s house, not for its truth, and therefore was
not hearsay. See MRE 801(c). The trial court disagreed and precluded this line of questioning.
As indicated earlier, a prosecutor is entitled to attempt to introduce evidence that he legitimately
believes will be accepted by the trial court, so long as it does not prejudice the defendant. Noble,
238 Mich App at 660-661. Further, the trial court protected defendant’s rights by foreclosing the
challenged line of questioning, and by promptly instructing the jury to disregard the prosecutor’s
questions and any information provided by the roommate to the police. The trial court’s swift
response to the prosecutor’s questions was sufficient to alleviate any prejudice. Unger, 278
Mich App at 235. Accordingly, the questions did not deny defendant a fair trial.

        Defendant also argues that the prosecutor engaged in misconduct by suggesting during
his cross-examination of defendant that defendant had attempted to bribe the victim by paying

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back a $10,000 loan if she would not testify at trial. The trial court sustained defense counsel’s
objection to the prosecutor’s question and instructed the jury to disregard it. We agree with
defendant that the prosecutor’s question was improper, but disagree that defendant is entitled to
appellate relief. As the trial court observed, there was no evidence linking defendant’s legal
obligation to repay the victim’s loan to an attempt to convince the victim not to proceed with the
charges or testify at trial. Because the prosecutor’s suggestion was not based on any facts or
evidence, or reasonable inferences that could be drawn from any evidence, the question cannot
be deemed to have been made in good faith. However, the prosecutor’s question did not deny
defendant a fair trial. The improper question was met with an immediate objection, which led to
the trial court instructing the jury to disregard the question and strongly stating that “[t]here is
absolutely no evidence presented in this case that any attempt was ever made for payment in
return of a reduction or dismissal of any charges, there is no evidence to that effect.” The trial
court also emphasized that questions asked by the attorneys are not evidence, an instruction that
it repeated in its final instructions. The jury is presumed to have followed the court’s instruction.
Unger, 278 Mich App at 235. Under these circumstances, the prosecutor’s improper question
did not deny defendant a fair trial.

       Lastly, defendant argues that the cumulative effect of the prosecutor’s misconduct denied
him a fair trial. See People v Hill, 257 Mich App 126, 152; 667 NW2d 78 (2003). However, to
the extent that the prosecutor acted improperly, the trial court’s immediate responses to the
prosecutor’s conduct and curative instructions were sufficient to protect defendant’s rights and
ensure that he received a fair trial. Unger, 278 Mich App at 235.

                                   II. JURY INSTRUCTIONS

       In his final issue, defendant argues that the trial court erred when it responded to a jury
note inquiring about the felony-firearm charge by reinstructing the jury on the elements of
felony-firearm. We disagree. The jury note stated:

              The separate crime of possessing a firearm at the time he committed the
       crime of Assault with a Dangerous Weapon.

               Does that mean a gun is in the house.

               Or does that mean he is holding a gun.

After conferring with the attorneys, all parties agreed that it would be appropriate to reinstruct
the jury on the elements of felony-firearm. Defense counsel expressly stated that he was
satisfied with that decision. The trial court thereafter reinstructed the jury on the elements of
felony-firearm in accordance with the parties’ agreement. Because defense counsel expressly
approved the trial court’s response to the jury’s note, this claim of error is waived, leaving no
error to review. People v Kowalski, 489 Mich 488, 503-504; 803 NW2d 200 (2011); People v
Riley, 465 Mich 442, 448; 636 NW2d 514 (2001) (“Counsel may not harbor error as an appellate
parachute.”). Even were we to address the issue, we would disagree with defendant because the




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trial court’s response to the jury’s question was appropriate. The question involved what type of
conduct was necessary to prove the offense of felony-firearm, which is exactly what the trial
court addressed in its supplemental instructions.1

       Affirmed.

                                                            /s/ Michael J. Talbot
                                                            /s/ Christopher M. Murray
                                                            /s/ Colleen A. O'Brien




1
   Defendant also points to post-verdict interviews with jurors in support of his argument.
However, all references that defendant makes to those interviews are a product of the jury’s
deliberative process, which cannot be a basis for granting a new trial. See People v Fletcher, 260
Mich App 531, 540; 679 NW2d 127 (2004). Defendant also points to the fact that he was
convicted of felony-firearm but not an underlying felony. However, appellate relief is not
available where a jury acquits a defendant of an underlying felony charge, but convicts the
defendant of felony-firearm. People v Lewis, 415 Mich 443, 448-453; 330 NW2d 16 (1982);
People v Vaughn, 409 Mich 463, 464-465; 295 NW2d 354 (1980). The jury may have chosen to
be lenient by convicting on only one offense or it reached a compromised verdict. In either
situation, appellate courts will not afford a defendant relief. Lewis, 415 Mich at 452-453. And
while juror confusion arising from an error with the instructions may warrant a new trial, Lewis,
415 Mich at 450 n 9, the instruction in this case was proper.


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