Opinion
No. 351158
02-11-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MANA NASSER ALJALHAM, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court
LC No. 19-001644-01-FH Before: CAVANAGH, P.J., and SERVITTO and CAMERON, JJ. PER CURIAM.
Defendant appeals as of right his jury trial convictions of possession with intent to deliver 50 to 449 grams of oxycodone, MCL 333.7401(2)(a)(iii), and possession with intent to deliver less than 50 grams of hydrocodone, MCL 333.7401(2)(a)(iv). We affirm.
I. BACKGROUND
This case arises from police surveillance of defendant at the intersection of Chase Road and Alber Street in Dearborn. Officer-in-charge, Corporal Todd Donaldson, testified that he began surveillance of a silver Cadillac ATS parked in an alley in Detroit. He recognized defendant, who he had seen drive the same Cadillac before, enter the passenger seat. He did not recognize the driver, who was later identified as Mohsen Ghaleb. Corporal Donaldson followed the Cadillac into Dearborn, where Corporal Brandon Nichols took over surveillance.
Corporal Nichols saw defendant and Ghaleb enter a hair salon on the southeast corner of the intersection. After five minutes, defendant walked across the street to another hair salon, and Ghaleb got in the driver seat of the Cadillac. A man in a Pontiac parked in front of the Cadillac, got in the passenger seat of the Cadillac for about a minute, and then left in his own vehicle. A short time later, a man got out of a blue Mazda and into the passenger seat of the Cadillac for about a minute before entering the salon where defendant was. A short time later, a man on foot approached the Cadillac and got in the passenger seat for about a minute before walking off. The driver of a black Audi had a short conversation with defendant, who walked across the street to the Cadillac. The Cadillac then drove off followed closely by the Audi.
Corporal Michael Fischer parked in the parking lot of a nearby grocery store. Shortly after, the Cadillac, followed by the Audi, parked in the same lot near an alley. There were numerous other spots closer to the grocery store. The driver of the Audi, and the driver of a red Ford Taurus got in the back of the Cadillac. About a minute later, the Taurus driver emerged with a clenched fist and appeared to deposit a small item in his pocket. The Taurus driver left the parking lot, and Sergeant Jeremy Long ordered an investigatory stop of the Cadillac.
Officer Eric Raby instructed the occupants of the Cadillac to put their hands in the air, but defendant did not comply. Defendant leaned forward with his arms extended, apparently manipulating an object on the floor. When defendant ignored a second order, Officer Raby opened the passenger door and arrested defendant. There was a black plastic bag full of various prescription narcotics at defendant's feet. The jury convicted defendant of possession with intent to deliver Oxycodone and Hydrocodone. Defendant now appeals.
II. INTERPRETER / INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that trial counsel failed to provide effective assistance when he failed to procure an Arabic interpreter for defendant at pretrial meetings and at crucial stages of the proceedings, including trial. Defendant additionally argues that the error rises to the level of a constructive denial of counsel—a structural error requiring immediate reversal—because the prosecution's case was not subjected to meaningful adversarial testing as a result of the error. We disagree.
"Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law." People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). Findings of fact "are reviewed for clear error," while "constitutional determinations are reviewed de novo." Id. A finding is clearly erroneous if this Court is "left with a definite and firm conviction that the trial court made a mistake." People v Franklin, 500 Mich 92, 100; 894 NW2d 561 (2017) (quotation marks and citation omitted).
Defendant has failed to show that he did not understand English, and therefore, that trial counsel performed deficiently by not procuring an Arabic interpreter during the proceedings. He does not specify what information the alleged language barrier prevented him from disclosing that would have been helpful to his defense. Therefore, defendant cannot establish that he was prejudiced by the absence of an Arabic interpreter. Defendant's argument that he has met the even higher burden of establishing a constructive denial of counsel is without merit because trial counsel did not completely fail to subject the prosecution's case to adversarial testing.
The United States Constitution's Sixth Amendment right to counsel entails "the right to effective assistance of counsel." Strickland v Washington, 466 US 668, 686; 104 S Ct 2052; 80 L Ed 2d 674 (1984). Our Supreme Court has held that the Michigan Constitution provides an identical right to be analyzed under an identical test. People v Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012).
[E]stablishing ineffective assistance requires a defendant to show (1) that trial counsel's performance was objectively deficient, and (2) that the deficiencies prejudiced the defendant. Prejudice means "a reasonable probability that, but for
counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." [People v Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018), quoting Strickland, 466 US at 694.]
"[D]efense counsel is 'strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.' " Vaughn, 491 Mich at 670, quoting Strickland, 466 US at 690. A reviewing court is required "to affirmatively entertain the range of possible 'reasons . . . counsel may have had for proceeding as they did.' " Vaughn, 491 Mich at 670, quoting Cullen v Pinholster, 563 US 170, 196; 131 S Ct 1388; 179 L Ed 2d 557 (2011). This Court will not "substitute our judgment for that of counsel" or "use the benefit of hindsight when assessing counsel's competence." People v Unger, 278 Mich App 210, 242-243; 749 NW2d 272 (2008).
Defendant's ineffective assistance claim is premised on his contentions that he did not understand English well enough to participate in preparing a defense and that his trial counsel, Cyril Hall, was aware of that fact. The trial court did not clearly err in rejecting those contentions, and therefore, defendant has failed to establish the factual predicate of his ineffective assistance claim. See People v Hoag, 460 Mich 1, 6; 594 NW2d 57 (1999) (emphasizing that "[a] defendant has the burden of establishing the factual predicate for his claim of ineffective assistance of counsel.").
At trial, defendant expressly stated, under oath, that he had a high school education and that he could read, write, and understand English. He did not inform the court of any language difficulty until after he was convicted, when he promptly retained a new attorney and moved for a new trial. Wayne Circuit Court Judge Helal Farhat testified that, before he was appointed to the bench, he represented defendant at one or two appearances in this case. "[T]he crux" of his conversations with defendant were in English. They would sometimes "naturally" switch to Arabic, but it was not an intentional measure to translate English for defendant. Judge Farhat opined that defendant understood Arabic better than English, but he understood English.
Defendant's "close friend," Leila Yousif, testified to the contrary that Judge Farhat and defendant "mostly" spoke in Arabic. She testified that she attended most of defendant's meetings with the three attorneys that represented him in this case, and that she had to translate English into Arabic for defendant "[a] lot of times. Like too many times." According to Yousif, in defendant's meetings with Hall, Hall would speak in English to his associate Amir Makled, who would translate to Arabic.
Defendant testified that he was 34 years old, and he had been in the United States for about 20 years. He testified that the high school diploma he had submitted along with his sentencing memorandum in this case was a forgery he bought online. He admitted that he never asked Hall for an interpreter at any stage of the proceedings, but maintained that he told Hall "I don't know enough English." Defendant also claimed that he told Hall that he did not understand what was happening at trial, but Hall told him to be quiet. According to defendant he understood "[n]othing" when the trial court questioned him regarding his decision not to testify; he simply answered as instructed by Hall.
Hall testified that he exclusively spoke English when communicating with defendant, who was a "[h]undred percent" capable of conversing in English. Hall explained:
[A]pproximately 90 percent of my practice involves individuals that speak the Arabic language . . . [a]s a first of second language. So as a direct result of that, whenever I perceive that there's a difficulty, I bring one of the staff members into the office. I have multiple members on the staff that speak Arabic, also in various dialects of Arabic.Hall emphatically denied that anyone ever translated for defendant during pretrial meetings. Hall reiterated that defendant never asked for an interpreter, and Hall never thought he needed one. He added that his office was well acquainted with all of the interpreters that would have come into court, including the interpreter that was currently assisting defendant at the hearing; it would have been "too simple" to get an interpreter if defendant needed one.
The trial court stated that it had reviewed body camera footage of defendant conversing with the police in another case: "[F]or every piece of audio that I heard, it was clear that [defendant] was able, was spoken to in English, and respond[ed] in English [in] what I would characterize as a clear and intelligent way." The trial court summarized the testimony and stated that it did not find defendant to be a credible witness. The court noted that defendant effectively impeached himself by attaching his high school diploma to his sentencing memorandum and then testifying that the diploma was a forgery. The trial court emphasized that, when it questioned defendant at trial regarding his right to testify, defendant stated, "I swear that I will say the truth," which was more than a simple yes or no answer. The trial court found that Yousif and defendant's sisters were not credible witnesses—they were testifying due to their relationships with defendant. The trial court found that it was "beyond belief and defies logic" that Hall—given his frequent representation of Arabic-speaking clients and ready access to interpreters—would brush off defendant's request for an interpreter.
The trial court did not clearly err in finding that defendant understood English, and that he never asked Hall for an interpreter or presented Hall with any reason to believe an interpreter was necessary. This Court defers to the trial court's unique opportunity to judge the credibility of witnesses. MCR 2.613(C). There is no factual basis on which to conclude that defendant had difficulty understanding English during the proceedings or that Hall performed deficiently by ignoring defendant's language difficulties. Furthermore, defendant has not identified any information that he was unable to share with Hall, and consequently, he has failed to explain how his defense was negatively impacted by the lack of an interpreter. Therefore, even assuming that Hall knew or should have known that defendant needed an interpreter, defendant was not prejudiced by the absence of an interpreter.
Lastly, defendant argues that the absence of an interpreter amounted to a constructive denial of counsel. In addition to the "functional denial" of counsel afforded by deficient performance, the United States Supreme Court and our Supreme Court have recognized a "constructive denial of counsel" that occurs when, for example, "counsel is provided but does nothing" or "the state directly interferes with the attorney-client relationship by preventing counsel from rendering assistance." People v Mitchell, 454 Mich 145, 153; 560 NW2d 600 (1997), citing United States v Cronic, 466 US 648; 104 S Ct 2039; 80 L Ed 2d 657 (1984). In such cases, a defendant need not show that he was prejudiced to obtain a new trial because "prejudice is presumed." Id.
The case law is clear that constructive denial of counsel only exists when the attorney-client relationship is so compromised that a defendant effectually does not have a lawyer. Id. Because defendant has failed to establish that Hall's performance was deficient under the Strickland standard, he necessarily, as a matter of law, cannot meet the higher burden of showing a constructive denial of counsel. Hall successfully persuaded the trial court to exclude "other-acts" evidence of defendant selling drugs to undercover officers in other cases, he thoroughly cross-examined the prosecution's witnesses, he moved for a mistrial when an officer testified that he recognized defendant from other investigations, and he argued in closing that nothing the officers saw established that defendant possessed the narcotics seized from the Cadillac or that he intended to distribute them. Therefore, defendant's argument that his attorney completely failed to subject the prosecution's case to adversarial testing is without merit.
III. INVESTIGATORY STOP
Defendant argues that the search of the Cadillac was unreasonable because the investigatory stop that led to the search was predicated on "mere hunch" that defendant had engaged in narcotics transactions. We disagree.
"This Court's review of a lower court's factual findings in a suppression hearing is limited to clear error and those findings will be affirmed unless we are left with a definite and firm conviction that a mistake was made." People v Lewis, 251 Mich App 58, 67; 649 NW2d 792 (2002). "However, the lower court's ultimate ruling with regard to the motion to suppress is reviewed de novo." Id.
The trial court did not err in denying defendant's motion to suppress evidence taken from the Cadillac because, given their prior experience with defendant selling prescription narcotics, the officers were able to articulate a reasonable suspicion that the four different men who briefly entered the Cadillac were purchasing narcotics. "The right to be free from unreasonable searches and seizures is guaranteed by both the United States Constitution and the Michigan Constitution." Id., citing US Const, Am IV; Const 1963, art 1, § 11. In this case, defendant argues that the search of the Cadillac was constitutionally invalid because it was predicated on an unlawful investigatory stop. See People v Frazier, 478 Mich 231, 247 n 17; 733 NW2d 713 (2007), quoting Segura v United States, 468 US 796, 804; 104 S Ct 3380; 82 L Ed 2d 599 (1984) (" '[T]he exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality or fruit of the poisonous tree.' "). Generally, a seizure is constitutionally invalid in the absence of probable cause, but the police may conduct a valid investigatory stop on the basis of a " 'reasonable, articulable suspicion. .' " that a suspect has engaged or will soon engage in criminal activity. Lewis, 251 Mich App at 69, quoting Terry v Ohio, 392 US 1, 30-31; 88 S Ct 1868; 20 L Ed 2d 889 (1968). "For conduct to support a finding of a reasonable suspicion, it need be . . . merely evasive." People v Oliver, 464 Mich 184, 197; 627 NW2d 297 (2001), citing Illinois v Wardlow, 528 US 119, 124; 120 S Ct 673; 145 L Ed 2d 570 (2000). The police may order occupants to exit the vehicle during the course of a valid investigatory stop. People v Chapo, 283 Mich App 360, 368; 770 NW2d 68 (2009), citing Maryland v Wilson, 519 US 408, 414-415; 117 S Ct 882; 137 L Ed 2d 41 (1997).
At the hearing on defendant's motion to suppress the evidence obtained during the search of the Cadillac, Corporal Donaldson testified that he had been a narcotics officer for two years, and he had completed various forms of narcotics-specific training. He had investigated "[a]t least a hundred" narcotics cases in Dearborn, including several in which he served as officer-in-charge. According to Corporal Donaldson, defendant was a "known prescription drug dealer." On July 20, 2017, Corporal Donaldson began surveillance on defendant and a man he later identified as Ghaleb as they entered a Silver Cadillac outside a house in Detroit. Although defendant was the passenger on that particular day, Corporal Donaldson had seen defendant drive the Cadillac "on numerous occasions." Prior investigations had involved "controlled purchases of narcotics from [defendant], and . . . a previous search warrant in the City of Detroit, involving [defendant], where he was arrested, also."
When the Cadillac reached Chase Road and Alber Street in Dearborn, Corporal Nichols took over surveillance. Corporal Nichols testified that he saw defendant and Ghaleb enter a hair salon on the southeast corner of the intersection. After a few minutes, defendant walked to another salon on the opposite corner of the intersection, and Ghaleb returned to the Cadillac. Within a brief period of time, two unidentified drivers and a man on foot each approached the Cadillac, got in the passenger seat for a short time, and then left the area. Corporal Nichols had been involved in "hundreds" of narcotics investigations. He believed that "a short stay," in police terminology, when a person enters a vehicle or a house for less than minute, was indicative of a drug transaction. After the three apparent drug transactions, a black Audi parked outside the salon on the northwest corner, and defendant came outside to briefly talk to the driver. The Audi circled around the neighborhood and parked directly in front of the Cadillac. When defendant reentered the Cadillac, both vehicles left the area. Corporal Nichols reported these events over the radio as they happened to all the officers involved in the surveillance. On cross-examination, Corporal Nichols admitted that he had not directly seen a narcotics transaction take place inside the Cadillac.
Corporal Fischer testified that he picked up surveillance of the Cadillac when it parked in a grocery store parking lot, closely followed by the Audi. Ghaleb was in the driver seat of the Cadillac, and defendant was in the passenger seat. The driver of the Audi and the driver of a red Ford Taurus got in the back seat of the Cadillac. The Taurus driver exited the Cadillac one or two minutes later, clenching his fist. The Taurus driver placed his clenched hand in his front pocket, and the hand came out unclenched. Based on his training and experience, Corporal Fischer believed that the Taurus driver had narcotics in his hand. When Corporal Fischer reported what he had seen over the radio, a patrol car was ordered to conduct an investigatory stop. Defendant was ordered to put his hands in the air two or three times, and he did not comply. When the police opened the passenger door, they spotted a plastic bag containing "a large amount" of prescription narcotics at defendant's feet.
At the hearing on defendant's motion to suppress, defense counsel compared this case to People v LoCicero, 453 Mich 496; 556 NW2d 498 (1996), in which our Supreme Court held that the police did not have a reasonable, articulable suspicion of a drug transaction when the defendants' vehicle and another vehicle drove together to a parking lot, and one of the defendants conversed with the driver of the other vehicle for two or three minutes. Defense counsel argued that the alleged transactions that occurred when defendant was in the salon did not involve defendant at all, and that the officers had no reason to believe that defendant, as opposed to anyone else who got in the Cadillac, had conducted a narcotics transaction. Therefore, defense counsel argued, the officers stopped the Cadillac merely because they had investigated defendant before, and they had a hunch that the occupants of the Cadillac were committing a crime. The trial court found that the officers witnessed multiple individuals enter the Cadillac for a short time, and that one of the individuals exited the Cadillac with a clenched fist. Therefore, the trial court ruled that the officers had a reasonable suspicion that a narcotics transaction had occurred, on the basis of their training, experience, and prior experience with defendant.
On appeal, defendant renews the argument that the officers lacked a reasonable, articulable suspicion to stop the Cadillac and order defendant from the vehicle. Our Supreme Court has instructed that, in determining whether a reasonable suspicion exists to support an investigatory stop, "due weight must be given, not to [the officer's] inchoate and unparticularized suspicion or 'hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." LoCicero, 453 Mich at 501-502, quoting Terry, 392 US at 27. In LoCicero, our Supreme Court noted that it had held in People v Nelson, 443 Mich 626; 505 NW2d 266 (1993), that the police were justified in stopping three men who made brief visit to a house that had been surveilled after an informant indicated that the house was being operated as a drug house. LoCicero, 453 Mich at 503. The LoCicero Court distinguished Nelson from the case before it on the ground that, because the officers had no prior experience with the defendants, they were unable to articulate why a parking-lot meeting in itself indicated a drug transaction. Id. at 506-507.
Unlike the officers in LoCicero, the officers in this case did not stop the Cadillac solely on the basis of the parking lot meeting with another driver. Corporal Donaldson testified that he specifically chose defendant for surveillance because he had conducted controlled buys of narcotics from defendant in the past and had even arrested defendant. He had also, "on numerous occasions," seen defendant drive the Cadillac without Ghaleb. Therefore, the officers had reason to believe that defendant was aware of the apparent drug transactions that took place while he was in the salon, when not just one, but three apparent customers got into the Cadillac with Ghaleb for a short period of time before leaving the area. With knowledge of their past interactions with defendant and the apparent transactions that occurred while he was in the salon, the police saw the Taurus driver get into the Cadillac with defendant, Ghaleb, and the Audi driver, who appeared to be taking orders from defendant. The Taurus driver got out one or two minutes later, apparently clenching a small object in his fist. Given their prior experience with defendant selling prescription narcotics, the officers were able to articulate a reasonable suspicion that the four different men who briefly entered the Cadillac, with the sole apparent purpose of interacting with defendant or Ghaleb, were purchasing narcotics. While a single parking-lot meeting is not necessarily indicative of criminal activity, four different men entering a parked vehicle associated with a known drug dealer for short periods of time is indicative of drug dealing. Therefore, the police had a reasonable suspicion that the occupants of the Cadillac were engaged in criminal activity. Upon a valid investigatory stop, defendant refused an order and the police ordered him from the vehicle, as they were authorized to do. See Chapo, 283 Mich App at 368. Defendant did not contend in the trial court and does not contend on appeal that the police lacked probable cause to search the bag that was in plain view at defendant's feet. Therefore, the trial court did not err in denying defendant's motion to suppress the evidence obtained as a result of a reasonable investigatory stop.
IV. MISTRIAL/PROSECUTORIAL MISCONDUCT
Defendant argues that the prosecutor intentionally goaded defendant into moving for a mistrial when an officer testified that he recognized defendant from prior investigations, and that the trial court abused its discretion in denying defendant's motion for a mistrial. We disagree.
This court reviews claims of prosecutorial misconduct de novo. People v Aceval, 282 Mich App 379, 389; 764 NW2d 285 (2009). "This Court reviews for an abuse of discretion a trial court's ruling whether to grant a mistrial." People v Waclawski, 286 Mich App 634, 708; 780 NW2d 321 (2009). A trial court abuses its discretion when it chooses an outcome outside the range of principled outcomes. Id.
The prosecutor did not engage in misconduct because the prosecutor did not elicit the officer's testimony that he recognized defendant from prior investigations. Defendant was not prejudiced by the officer's brief, isolated comment because the jury could easily deduce from admissible evidence that the police had some reason to have multiple officers surveil defendant. As a matter of law, an isolated, improper response to a proper question does not warrant a mistrial.
"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 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 court, as long as that attempt does not prejudice the defendant." Id. at 660-666. Therefore, "prosecutorial misconduct cannot be predicated on good-faith efforts to admit evidence." Id. at 660. "A mistrial is warranted only when an error or irregularity in the proceedings prejudices the defendant and impairs his ability to get a fair trial." Waclawski, 286 Mich App at 708 (quotation marks and citations omitted). "[A]s a general rule, unresponsive testimony by a prosecution witness does not justify a mistrial unless the prosecutor knew in advance that the witness would give the unresponsive testimony or the prosecutor conspired with or encouraged the witness to give that testimony." People v Jackson, 313 Mich App 409, 427; 884 NW2d 297 (2015) (quotation marks and citation omitted). "[A]n unresponsive, volunteered answer to a proper question is not grounds for the granting of a mistrial. Waclawski, 286 Mich App at 710 (quotation marks and citation omitted). Because jurors are presumed to follow their instructions, a curative instruction will alleviate the prejudicial effect of "an isolated comment that was not repeated or explored further. Id. at 709-710.
In this case, before trial, the prosecution filed a notice of its intent to introduce evidence of defendant's other acts of narcotics dealing in the other cases. On the first day of trial, the trial court excluded the other-acts evidence on the ground that defendant's other acts of selling narcotics to undercover officers were not strikingly similar to his alleged acts in this case. Shortly after the prosecution's first witness, Corporal Nichols, was sworn in, the following exchange occurred on direct examination:
Q. When you arrive at Chase and Alber, parked in the parking lot at the southwest corner, what do you do?
A. I called out that I have an eye on the vehicle. It's sitting [with its] right wheels to the curb, at which time two individuals get out of the car. A driver, and then the passenger, who I recognized from prior investigations as—.
Defense counsel objected, and the trial court promptly sustained the objection. Defense counsel later moved for a mistrial on the ground that "the prosecution inadvertently interjected character evidence into the case, which is tantamount to a violation of [the trial court's] order on the 404(b) [evidence]." He added that he could not cross-examine Corporal Nichols regarding the investigation without opening the door to other-acts evidence, and that he did know "what the court [could] do regarding an instruction" that would not "highlight" Corporal Nichols's improper testimony. The prosecutor argued that the fact that the surveilling officers knew who defendant was when they initiated surveillance was a fact of this case, and not character evidence or other-acts evidence. The trial court ruled that it was "unavoidable" that the jury would learn that defendant was the target of the surveillance, but that it was improper for the officers to mention prior investigations. The trial court offered to instruct the jury "that while Corporal Nichols recognized [defendant] from a prior circumstance or investigation, the jury [is to] draw no inference or not use that in their deliberation." Defense counsel continued to argue with the prosecutor about whether the fact that defendant was the "target" of the surveillance was admissible. The trial court denied defendant's motion for a mistrial; it instructed the prosecutor that the officers could testify that they were familiar with defendant and had seen him drive the Cadillac before. Despite defense counsel's apparent agreement that the trial court's offered instruction was sufficient, the trial court did not give an instruction when the jury returned. However, before deliberations began, the trial court instructed the jury that it was not to consider any evidence that the court had excluded.
Defendant compares this case to People v Dawson, 431 Mich 234; 427 NW2d 886 (1988), in which our Supreme Court held that a second trial was barred by the double jeopardy clause when the prosecutor admittedly engaged in improper questioning to induce a mistrial because the prosecution's case was not going well. However, there is no reason to conclude that prosecutor intentionally elicited Corporal Nichols's statement. The prosecutor simply asked Corporal Nichols a proper, nonleading question: "When you [arrive at the intersection and park], what do you do?" Defense counsel admitted that the prosecutor did not intentionally elicit Corporal Nichols's response that he recognized defendant from other investigations. Therefore, the prosecutor simply engaged in a good-faith effort to admit evidence, which is not prosecutorial misconduct. See Noble, 238 Mich App at 660.
Even if the prosecutor's question was improper, defendant would not have been prejudiced by Corporal Nichols's brief comment. The fact that multiple members of the Dearborn Police Narcotics Unit were instructed by their supervisors to surveil defendant was an essential fact of this case that could not be excluded under any rule of evidence. Corporal Donaldson, the officer-in-charge of this case, properly testified that he recognized defendant, but he did not recognize Ghaleb. Therefore, the jury easily could have deduced from admissible evidence that the police were familiar with defendant and had a reason to order multiple narcotics officers to surveil him. Because the prosecutor did not elicit Corporal Nichols's brief, improper testimony, because defendant was not prejudiced by the testimony in light of the other evidence, and because this Court has held that an isolated, improper statement is not grounds for a mistrial under such circumstances, the trial court did not abuse its discretion in denying defendant's motion for a mistrial. The trial court did not contemporaneously give the jury a curative instruction regarding the comment, but it did promptly sustain defendant's objection, and it instructed the jury before deliberations that it was not consider any evidence that the trial court excluded. Therefore, there is no reason to conclude that Corporal Nichols's isolated improper response to a proper question denied defendant a fair trial.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Deborah A. Servitto
/s/ Thomas C. Cameron