-1- 

STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

May 9, 2017 

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. 
-2- 

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. 
-3- 

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 
-4- 

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