STATE OF MICHIGAN COURT OF APPEALS

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1 STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED March 29, 2005 v No Oakland Circuit Court TANYA LEE MARKOS, LC No FH Defendant-Appellant. Before: Neff, P.J., and Cooper and R. S. Gribbs*, JJ. PER CURIAM. Defendant appeals as of right from her jury trial conviction of operating a motor vehicle while under the influence of intoxicating liquor or while having an unauthorized blood alcohol level (OUIL/UBAL-3d), MCL (1), third offense, MCL (8)(c). The trial court sentenced defendant to 183 days in jail and three years probation. Defendant also pleaded guilty to operating a vehicle with a suspended license, MCL (1), and was sentenced to fifty-six days in jail. Defendant s issues on appeal relate to her OUIL/UBAL-3d conviction. We affirm. At approximately 2:40 a.m. on April 19, 2001, a Farmington Hills police officer observed defendant s car cross over the solid right line approximately four times. The officer also saw defendant apply the brakes several times even though there was no other traffic on the road and there were no obstructions in the roadway. The officer testified that when he stopped defendant, he smelled a strong odor of intoxicants, saw that defendant s eyes were bloodshot, and noticed that defendant slurred her speech. The officer administered six field sobriety tests, five of which defendant failed. Defendant initially told the officer that she had consumed only one beer, but after the sobriety tests, she admitted she had drunk a couple more than that. The officer arrested defendant, and an open bottle of beer was found in her car. At the police station, defendant submitted to two Breathalyzer tests. Before performing a breath alcohol test, there is a required fifteen-minute observation period during which the subject * Former Court of Appeals judge, sitting on the Court of Appeals by assignment. -1-

2 may not smoke, eat, drink, or regurgitate AC, R (1)(e). 1 The officer observed defendant for fifteen minutes; however, approximately one minute after the observation period began, defendant was given permission to wash her face. While at the sink, defendant apparently either took a drink of water or rinsed her mouth. When asked if she had drunk any water, defendant said no. Thirteen minutes and twenty-two seconds elapsed between the time defendant put water in her mouth until the first test was administered, and fourteen minutes and thirty-two seconds elapsed before the second test. The results of both tests were 0.17 percent. Defendant first argues that the Breathalyzer test results should have been suppressed because the administrative rule regarding the observation period was violated. People v Rexford, 228 Mich App 371, ; 579 NW2d 111 (1998). Defendant presented an expert witness who testified that the water in defendant s mouth might have affected the Breathalyzer test results. The prosecution s expert witness, however, testified that both test results were accurate and unaffected by the water. The officer observed defendant driving somewhat erratically, and he testified expressly regarding all six field sobriety tests, providing detailed descriptions of the tests and defendant s performance. Defendant admitted that she had drunk more than a few beers, the officer found an open bottle of beer in her car, she smelled strongly of intoxicants, her eyes were bloodshot, and her speech was slurred. Furthermore, the jury viewed a videotape of the traffic stop and a videotape of the waiting period and administration of the Breathalyzer tests. The jury received an abundance of evidence besides the Breathalyzer test results. Although 1999 AC, R (1)(e) was technically violated, the prosecution s expert witness testified that the tests were not affected. We therefore conclude that admission of the Breathalyzer tests was not error. Defendant next argues that the trial court erred in denying defendant s motions for a mistrial, for a judgment of acquittal, or for a new trial, when the jury was inadvertently shown during deliberations an inadmissible portion of a videotape exhibit. The portion of the tape in issue contains a reference to defendant s probationary status. We review a lower court s decision on a motion for a mistrial or a motion for a new trial for an abuse of discretion. People v Cress, 468 Mich 678, 691; 664 NW2d 174 (2003). The parties do not dispute that the evidence was not relevant under 404(b) and therefore should not have been admitted. Furthermore, the evidence was likewise inadmissible under MRE 609. However, an error in the admission of evidence is not grounds for vacating a verdict, granting a mistrial, or granting a new trial unless substantial justice requires it. MCL ; MCR 2.613(A). People v Whittaker, 465 Mich 422, 427; 635 NW2d 687 (2001). Defendant s argument that the mention of her probationary status was outcome determinative is unpersuasive AC, R (1)(e) provides as follows: A person may be administered a breath alcohol analysis on an evidential breath alcohol test instrument only after being observed for 15 minutes by the operator before collection of the breath sample, during which period the person shall not have smoked, regurgitated, or placed anything in his or her mouth, except for the mouthpiece associated with the performance of the test. -2-

3 The mention of defendant s probationary status was inadvertent, and defense counsel conceded that there was a doubt about whether the jury actually heard the remark. Sufficient credible evidence was properly presented for the jury to find defendant guilty of the charged act beyond a reasonable doubt. Whittaker, supra at 427. For the same reason, and considering the same evidence, we reject defendant s argument that reversal is required because the trial court failed to give a curative instruction about how the jury should consider the inadmissible evidence contained in the videotape. While we believe the court should have given the instruction, we are convinced that it is highly probable that the trial court s refusal to give defendant s requested curative instruction did not contribute to the verdict. People v Mitchell (On Remand), 231 Mich App 335, 339; 586 NW2d 119 (1998). Defendant next argues that she was denied a fair trial when the prosecutor made certain remarks during his closing argument. Because defense counsel failed to timely object to these comments, 2 this issue has not been properly preserved for appeal. People v Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994). To avoid forfeiture of the issue defendant must show: (1) that an error occurred; (2) that the error was plain, i.e., clear or obvious; and (3) that the plain error affected substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). We will only reverse defendant s convictions if she is actually innocent or the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. Id. at The test of prosecutorial misconduct is whether defendant was denied a fair and impartial trial, i.e., whether prejudice resulted. People v Abraham, 256 Mich App 265, 272; 662 NW2d 836 (2003). We review claims of prosecutorial misconduct case by case, examining the remarks in context, to determine whether the defendant received a fair and impartial trial. People v Bahoda, 448 Mich 261, ; 531 NW2d 659 (1995); Abraham, supra at Prosecutorial comments must be read as a whole and evaluated in light of defense arguments and the relationship they bear to the evidence admitted at trial. People v Schutte, 240 Mich App 713, 721; 613 NW2d 370 (2000), overruled on other grounds Crawford v Washington, 541 US 36; 124 S Ct 1354; 158 L Ed 2d 177 (2004). The challenged remarks include: (1) He does what you d expect any officer in your community to do. He takes her off the street. Tries to make it safe for everybody else; (2) [Y]ou can look at a motor vehicle and you can consider that a dangerous weapon because we know how many people are killed every year, every single day of the year, every hour of every day of the year by drunks, by drunk drivers; and (3) I m asking you to send the defendant a message, tell her it s not okay to go out there and drive when you ve had too many to drink. It s not okay to put all of our lives and our family members lives at risk, anybody who may be out on the roadway. The prosecution s first comment was properly responsive to defendant s assertion throughout trial that the officer acted improperly in stopping and arresting defendant. 2 Although defense counsel raised this issue before the trial court, he waited until after closing and rebuttal arguments were completed and the trial court had instructed the jury. -3-

4 Furthermore, the prosecutor was not making a statement that the jury had a duty to convict defendant, but that the officer had a duty as a police officer to arrest her once he ascertained that she was driving under the influence of alcohol. The prosecutor s second and third statements are more problematic. A prosecutor may not urge the jury to convict the defendant as part of their civic duty. Bahoda, supra at 282. A prosecutor s remarks must be reviewed in context to determine whether they constitute error, and civic duty arguments are prohibited because they inject into the trial issues that are broader than a defendant s guilt or innocence. Id. at We conclude that the prosecutor did not inject into the trial issues that are broader than a defendant s guilt or innocence or attempt to appeal to the fears and prejudices of the jury. Id. Furthermore, the trial court twice instructed the jury that the lawyers statements and arguments are not evidence. Absent an objection, the judge s instruction that arguments of attorneys are not evidence dispelled any prejudice[,] and the jury is presumed to follow the court s instructions. Id. at 281; People v Lueth, 253 Mich App 670, 687; 660 NW2d 322 (2002). Thus, defendant failed to establish that the prosecutor s comments in his closing argument constituted outcome-determinative plain error. Finally, defendant argues that even if any one of the errors discussed above was insufficient, in itself, to reverse defendant s conviction or grant a new trial, the cumulative effect is nevertheless sufficient to warrant remand for a new trial. We review a cumulative-error argument to determine whether the combination of alleged errors denied defendant a fair trial. People v Hill, 257 Mich App 126, 152; 667 NW2d 78 (2003). The cumulative effect of several minor errors may warrant reversal where the individual errors would not, but the effect of the errors must [be] seriously prejudicial in order to warrant a finding that defendant was denied a fair trial. People v Ackerman, 257 Mich App 434, 454; 669 NW2d 818 (2003) (citation omitted). As discussed previously, there were errors in defendant s trial. Defendant s probationary status was inadvertently admitted, and the trial court failed to provide a curative instruction. These errors, however, were harmless in light of the substantial evidence supporting defendant s conviction. Whittaker, supra at 427. Thus, the cumulative effect of these errors does not require reversal. Ackerman, supra at 454. Affirmed. /s/ Janet T. Neff /s/ Roman S. Gribbs -4-

5 STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED March 29, 2005 v No Oakland Circuit Court TANYA LEE MARKOS, LC No FH Defendant-Appellant. Before: Neff, P.J., and Cooper and R.S. Gribbs*, JJ. COOPER, J. (concurring in part and dissenting in part). I agree with the majority opinion s resolution of many of the issues on appeal. I write separately, however, because I believe that substantial error occurred when the jury saw a videotape during deliberations referencing defendant s probationary status. That error was compounded by the trial court s subsequent failure to give a cautionary instruction or to question the jury regarding their reliance on this extraneous information. Such error should not be countenanced by this Court. As the record shows that defendant was prejudiced by the revelation of her probationary status during deliberations, I would reverse the trial court s denial of her motion for a mistrial and remand for further proceedings. During deliberations, the jury requested and was allowed to review the videotape of defendant s observation period at the police station. At that time, the jury saw a portion of the tape in which defendant admitted to an officer that she was on probation. This portion of the tape was not shown during defendant s trial. Evidence of defendant s probationary status would not have been admissible at trial. The parties agree that the evidence is not relevant as a prior criminal act for any allowed purpose under MRE 404(b)(1). Furthermore, as it does not appear from the record that defendant s prior offense involved dishonesty or theft, her probationary status would be inadmissible for impeachment purposes under MRE 609. [I]t is perfectly plain that the jury room must be kept free of evidence not received during trial and that its presence, if prejudicial, will vitiate the verdict. 1 Where the jury 1 People v Keeth, 63 Mich App 589, 593; 234 NW2d 717 (1975), quoting Dallago v United (continued ) * Former Court of Appeals judge, sitting on the Court of Appeals by assignment. -1-

6 considers extraneous facts not introduced in evidence, this deprives a defendant of his [or her] rights of confrontation, cross-examination, and assistance of counsel embodied in the Sixth Amendment. 2 In determining whether reversal is required when inadmissible evidence that was not introduced during trial appears in the jury room during deliberations, this Court must determine if the error might have operated to substantially injure the defendant s case. 3 To establish a substantial injury, the defendant must demonstrate that there is a direct connection between the extraneous material and the adverse verdict. 4 The burden then shifts to the prosecution to establish that any error is harmless. 5 The record indicates that defendant immediately voiced her concern that the jury s viewing of the inadmissible portion of the videotape may prejudice her case. Following the viewing, a juror asked the court if everything on the tape was evidence. Over defendant s objection, the court merely informed the jury that it already heard the instruction regarding what constitutes evidence. Defendant subsequently moved for a mistrial or, in the alternative, requested a cautionary instruction, noting I don t know if the jurors all heard [the reference to probation] or not. I don t know what the reaction was. Defendant s motion was denied and the trial court declined to give a cautionary instruction regarding the inadmissible evidence. Following the jury s verdict, defendant asked the court to question the jurors individually to determine if they heard the inadmissible reference to defendant s probationary status and whether the information was discussed in deliberations. The trial court again denied defendant s request. It is very likely that evidence of defendant s probationary status could have affected the outcome of her trial. MRE 404(b) is intended to exclude character evidence, or evidence that would lead the jury to convict a defendant on the basis of his [or her] past conduct rather than on evidence of his [or her] conduct in the instant offense. 6 It appears that the jury heard the statement and became confused, as a juror asked the court if the entire tape was evidence. Where there is evidence that a jury s verdict was influenced by information not received during trial, it is appropriate for the trial court to question the jury about the deliberative process. 7 As the trial court refused defendant s request to do so, it cannot be ascertained from the record whether the inadmissible statement regarding defendant s probationary status actually influenced ( continued) States, 138 US App DC 276; 427 F2d 546, 553 (1969). 2 People v Budzyn, 456 Mich 77, 88; 566 NW2d 229 (1997), writ gtd Nevers v Killinger, 990 F Supp 844 (ED Mich, 1997). 3 People v Allen, 94 Mich App 539, ; 288 NW2d 451 (1980). See also People v Clark, 220 Mich App 240, 246; 559 NW2d 78 (1996). 4 Budzyn, supra at Id. 6 People v Werner, 254 Mich App 528, 539; 659 NW2d 688 (2002). 7 People v Fletcher, 260 Mich App 531, ; 671 NW2d 127 (2004). See also Clark, supra at

7 the jury s verdict. 8 The trial court further compounded the error by failing to give an adequate cautionary instruction. It is clear from the record that the jury likely relied on this highly prejudicial, extraneous information in reaching its verdict against defendant. The prosecution is unable to establish that the error was harmless, as the trial court refused to take any action after the inquiry by a juror. Thus, the impartiality of the jury is called into question. In light of these substantial errors, I would find that defendant is entitled to a new trial. /s/ Jessica R. Cooper 8 The majority uses defendant s concession regarding this uncertainty to support their conclusion that no prejudice occurred. However, defendant conceded this point precisely to show that the trial court s actions were improper. As there was a doubt regarding the jury s reliance on this information, the jury should have been questioned. -3-