                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    March 29, 2016
               Plaintiff-Appellee,

v                                                                   No. 324674
                                                                    Wayne Circuit Court
HERMAN RAMIK KERSEY,                                                LC No. 14-004826-FC

               Defendant-Appellant.


Before: RONAYNE KRAUSE, P.J., and JANSEN and STEPHENS, JJ.

RONAYNE KRAUSE, P.J. (concurring).

        I concur in most of the majority’s opinion. I write separately to indicate that I find that
the prosecutor’s repeated statements about defendant being a convicted felon, outside the context
of the felony firearm charge, to be improper.

        The record is clear that the prosecutor essentially argued the issue of defendant’s
conviction while discussing defendant’s credibility, in direct response to defense counsel arguing
that the victim was not believable. Defense counsel objected and the trial court instructed the
jury that the prosecutor’s comments were limited to the felon in possession of a firearm charge
and that the prior felony was not for the purpose of whether or not defendant was believable.
The prosecutor again stated that defendant was a convicted felon. Defense counsel again
objected and the trial court stated “let’s move on”. “’Issues of prosecutorial misconduct are
decided case by case, with the reviewing court examining the pertinent portion of the record and
evaluating the prosecutor's remarks in context.’” People v Gonzalez, 256 Mich App 212, 222-
223; 663 NW2d 499 (2003), quoting People v Noble, 238 Mich App 647, 660; 608 NW2d 123
(1999). I find this to be misconduct, however because a jury is presumed to have followed the
court’s instruction, People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998), defendant was
not deprived of a fair trial.

                                                            /s/ Amy Ronayne Krause




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