                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     May 9, 2017
               Plaintiff-Appellee,

v                                                                    No. 331436
                                                                     Kent Circuit Court
EDVIN ROMEO HERNANDEZ-TELLO,                                         LC No. 15-004343-FH

               Defendant-Appellant.


Before: WILDER, P.J., and BOONSTRA and O’BRIEN, JJ.

PER CURIAM.

        Defendant appeals by right his convictions, following a jury trial, of domestic assault,
MCL 750.81(4), and assaulting, resisting, or obstructing a police officer, MCL 750.81d(1). The
trial court sentenced defendant as a third-offense habitual offender, MCL 769.11, to concurrent
sentences of 3 to 10 years’ imprisonment for his domestic assault conviction and two to four
years’ imprisonment for his assaulting, resisting, or obstructing a police officer conviction. We
affirm.

                   I. PERTINENT FACTS AND PROCEDURAL HISTORY
        Defendant was arrested by police officers after they responded to a call from defendant’s
neighbor, Charles Grandy. Grandy had reported hearing a woman scream and seeing through the
window of defendant’s home what appeared to be a man assaulting a woman. At the home the
officers found the female victim, her son, and defendant. The female victim and her son did not
appear for trial. The body camera footage of a responding officer was played for the jury.
Grandy testified that defendant appeared to be the man whom had had seen through the window.
Responding officers testified that defendant shoved an officer, attempted to flee, physically
resisted being handcuffed during his arrest, and was eventually subdued with a taser. The female
victim and some of the responding officers spoke Spanish during portions of the body camera
footage played for the jury. Defendant was convicted as described above.1 This appeal


1
 Defendant was also charged with one count of domestic assault against the female victim’s son;
however, the prosecution conceded at the close of proofs that there was not enough evidence to
submit that charge to the jury, and the trial court granted the prosecution’s motion to dismiss that
count.


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followed. On appeal, defendant argues that the prosecution committed error2 by instructing the
jury that a Spanish speaking juror could translate, during the jury’s deliberations, Spanish
statements heard on the body camera video.

                                 II. STANDARD OF REVIEW

        Ordinarily, this Court “review[s] de novo claims of prosecutorial misconduct to
determine whether defendant was denied a fair and impartial trial.” People v Ackerman, 257
Mich App 434, 448; 669 NW2d 818 (2003). However, “[r]eview of alleged prosecutorial
misconduct is precluded unless the defendant timely and specifically objects, except when an
objection could not have cured the error, or a failure to review the issue would result in a
miscarriage of justice.” People v Callon, 256 Mich App 312, 329; 662 NW2d 501 (2003).
“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) (citations omitted). In other words, if a
defendant fails to make a contemporaneous objection or request for a curative instruction
regarding an alleged error, then “review is limited to ascertaining whether plain error affected
defendant’s substantial rights.” People v Brown, 279 Mich App 116, 134; 755 NW2d 664
(2008). Defendant did not object to the prosecution’s statement in the trial court and therefore
failed to preserve this issue for appeal. People v Bennett, 290 Mich App 465, 475; 802 NW2d
627 (2010). On plain error review, the defendant has the burden to show (1) “error”; (2) that was
“plain,” meaning “clear or obvious”; (3) and that affected substantial rights or caused prejudice,
meaning “that the error affected the outcome of the lower court proceedings.” People v Carines,
460 Mich 750, 763; 597 NW2d 130 (1999).

                                        III. ANALYSIS

        The prosecution has a responsibility “to seek justice and not merely convict.” People v
Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). “[T]he test for prosecutorial misconduct
is whether a defendant was denied a fair and impartial trial.” Id. “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 Akins, 259 Mich App
545, 562; 675 NW2d 863 (2003) (quotation marks and citation omitted). “Prosecutors are
typically afforded great latitude regarding their arguments and conduct at trial,” and “[t]hey are




2
  Defendant refers to his claim on appeal as one of prosecutorial misconduct. However, this
Court has stated that “although the term prosecutorial misconduct has become a term of art often
used to describe any error committed by the prosecution, claims of inadvertent error by the
prosecution are better and more fairly presented as claims of prosecutorial error, with only the
most extreme cases rising to the level of prosecutorial misconduct.” People v Jackson (On
Reconsideration), 313 Mich App 409, 425 n 4; 884 NW2d 297 (2015), quoting People v Cooper,
309 Mich App 74, 87-88; 867 NW2d 452 (2015) (quotation marks omitted). We therefore adopt
this convention.


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generally free to argue the evidence and all reasonable inferences from the evidence as it relates
to their theory of the case.” Unger, 278 Mich App at 236.

       In this case, the alleged victims did not testify at trial, and defense counsel made the
following statements during closing argument:

              Ya know, I got up real early this morning thinking, Oh, boy. I gotta go to
       court today, I have to come to trial. And, ya know, you get that coffee going
       and—but, like you all, I got up, and I came here, because it’s important.

              This is how our system works. If you’re not here, it doesn’t work. If you
       don’t use your common sense, it doesn’t work.

              Common sense, ladies and gentlemen, is based on what you hear, what
       you see, and what took place. Because, if we start guessing about results and
       speculating about outcomes, then we’ve essentially taken that justice system,
       crumpled it up, and, Ah, so what. So what.

               Because all of us have different experiences. All of us come to the table
       with just a broad array of how we look at things and how we perceive things.

               But, you’re here.

               Ya know, it was once said that, If you don’t have the law, you argue the
       facts. And if you don’t have the facts, you argue the law. And, if you don’t have
       witnesses that come to trial, well, you build a case around what other people
       speculate about. And then that speculation goes right into the minds of the jurors,
       who now have to speculate as to what those witnesses would have said if they’d
       have come. But, then, why aren’t they here? You’re here. [Emphasis in
       original.]

Additionally, defense counsel argued:

               The police are called. They show up. Clearly, we have two people
       upstairs not cooperating with the police. Clearly. Not only did they not cooperate
       with the police, but they’re not here. They’re not cooperating with them, they’re
       not cooperating with you, but, yet, the prosecution wants you to believe some
       version on some body cam that my client committed an assault.

                                             * * *

              And the folks that supposedly were the victims of the domestic assault are
       not here. Where are they? I don’t know.

During rebuttal argument, the prosecution stated:

              There was quite a bit of information that would lead you to believe that
       there is a motive for this defendant to try to avoid the police. Another

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       deportation. And the fact that he committed yet another domestic violence
       against a woman, who quite clearly was trying to cover up for him during the
       course of the interaction between Officer VanderPloeg and Officer Kribs, and her
       son, and her.

               Fortunately, we have a Spanish speaker on the jury who can maybe delve
       into what was being said there between the mother and the son. [Emphasis
       added.]

As stated, defense counsel did not object to this statement.

        It would have been improper to instruct the jury that the bilingual juror could serve as an
ad hoc interpreter for the jury during its deliberations. See MCR 1.111(F), MRE 604. Here,
however, the jury was not so instructed. Moreover, and while we consider the prosecution’s
statement regarding the bilingual juror to have been improper, it appears that the statement,
viewed in context, was made as part of a larger response to defense counsel’s argument
concerning the fact that neither of the alleged victims testified at trial. Akins, 259 Mich App at
562. The statement was also an isolated remark. If defendant had made a timely objection to the
prosecution’s statement, the trial court could have instructed the jury that the bilingual juror
could not serve as an interpreter, which would have alleviated any potentially prejudicial effect
of the statement. “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).
Because a curative instruction would have sufficiently prevented any prejudice in this case, we
do not find plain error requiring reversal. Unger, 278 Mich App at 235; Ackerman, 257 Mich
App at 448-449; Carines, 460 Mich at 763.

        Further, defendant has not cited a single statement from the video that would have
prejudiced him if translated from Spanish to English. Because defendant has not shown how any
error could have affected the outcome of his trial, defendant has also failed to demonstrate plain
error requiring reversal. Carines, 460 Mich at 763.

       Affirmed.



                                                               /s/ Kurtis T. Wilder
                                                               /s/ Mark T. Boonstra
                                                               /s/ Colleen A. O’Brien




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