PEOPLE OF MI V LUIS ALBERTO QUINTANA
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 19, 2011
Plaintiff-Appellee,
V
No. 295324
Oakland Circuit Court
LC No. 2008-224240-FC
LUIS ALBERTO QUINTANA,
Defendant-Appellant.
Before: CAVANAGH, P.J., and TALBOT and STEPHENS, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of two counts of first-degree criminal
sexual conduct, MCL 750.520b, assault with intent to do great bodily harm less than murder,
MCL 750.84, and aggravated stalking, MCL 750.411i. He was sentenced to concurrent prison
terms of 135 to 360 months each for the first-degree CSC convictions, two to ten years for the
assault conviction, and one to five years for the stalking conviction. Additionally, the Judgment
of Sentence provides that defendant is subject to lifetime electronic monitoring. He appeals as of
right. We affirm in part and vacate in part.
Defendant was convicted of sexually assaulting the victim, a former friend, in her
apartment on November 21, 2008. The victim testified that defendant sexually assaulted her
after first physically assaulting her and repeatedly threatening to kill her. Defendant testified that
the sexual acts were consensual, and that the victim initiated a physical altercation because she
was upset that defendant did not provide her with cocaine.
I. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant first argues that defense counsel was ineffective for introducing evidence of
defendant’s status as an illegal alien. We disagree. Because defendant did not raise an
ineffective assistance of counsel claim in the trial court, our review of this issue is limited to
mistakes apparent on the record. People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973);
People v Sabin (On Second Remand), 242 Mich App 656, 658-659; 620 NW2d 19 (2000).
Effective assistance of counsel is presumed and defendant bears a heavy burden of proving
otherwise. People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994); People v Effinger,
212 Mich App 67, 69; 536 NW2d 809 (1995). To establish ineffective assistance of counsel,
defendant must show that counsel’s performance fell below an objective standard of
reasonableness, and that there is a reasonable probability that the result of the proceeding would
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have been different but for counsel’s error. People v Frazier, 478 Mich 231, 243; 733 NW2d
713 (2007).
Defendant argues that defense counsel was ineffective for introducing his status as an
illegal alien during jury voir dire. Counsel stated:
There was one other thing that I wanted to tell you about [defendant]. We
have an interpreter here. English is not his first language. He’s not an American
citizen. He’s actually from Argentina. He’s here in this country illegally. It’s a
big issue in our country and has been for a number of years now. There’s quite a
bit of discussion about it in the public press and, and people have feelings about
that. And what I need to know is whether any of you would hold that against him
the fact that he is what we would call in the law an illegal alien? He gets that
same presumption of innocence. The People have the same burden of proof as it
would be if he were an American citizen. But I’m telling you that now because I
need to know whether that will have any effect on your ability to be fair and
impartial in this trial.
Defendant further complains that defense counsel unreasonably elicited testimony concerning
defendant’s illegal alien status during defendant’s direct-examination.
The record shows that defendant’s status as an illegal alien was injected as a matter of
trial strategy, and defendant has not overcome the presumption of sound strategy. The defense
theory throughout trial was that the sexual acts were consensual and that the victim was not
credible. The defense attacked the victim’s credibility through defendant’s testimony that the
victim exchanged sex for cocaine, and that she threatened to report his status as an illegal
immigrant when he refused to give her money. Thus, defendant’s status as an illegal alien was
part of his defense theory, and was used to assist in undermining the victim’s credibility. “This
Court will not substitute its judgment for that of counsel regarding matters of trial strategy, nor
will it assess counsel’s competence with the benefit of hindsight.” People v Rockey, 237 Mich
App 74, 76-77; 601 NW2d 887 (1999). The fact that the strategy chosen by defense counsel did
not work does not constitute ineffective assistance of counsel. People v Stewart, 219 Mich App
38, 42; 555 NW2d 715 (1996).
Further, before eliciting defendant’s illegal alien status for defense purposes, defense
counsel attempted to protect defendant’s rights by questioning the prospective jurors during voir
dire to test their reaction to illegal aliens. The prospective jurors indicated that they could be fair
and impartial, and would not allow defendant’s status as an illegal alien to affect their verdict.
The purpose of voir dire is to expose potential juror bias so that a defendant may be tried by a
fair and impartial jury. People v Sawyer, 215 Mich App 183, 186; 545 NW2d 6 (1996). The
trial court instructed the jurors that they were to be fair and impartial, and not be influenced by
prejudice or bias. “It is well established that jurors are presumed to follow their instructions.”
People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998). Because there is no evidence of
jury bias based on defendant’s status as an illegal alien, there is no reasonable probability that
defense counsel’s decision to use this information to support the defense theory affected the
outcome of the trial. Frazier, 478 Mich at 243. Consequently, defendant cannot establish a
claim of ineffective assistance of counsel.
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II. IMPROPER TESTIMONY
Next, defendant argues that Detective Mark Bradley was impermissibly permitted to
comment on the victim’s credibility. A trial court’s decision to admit evidence is generally
reviewed for an abuse of discretion. People v McDaniel, 469 Mich 409, 412; 670 NW2d 659
(2003). A trial court abuses its discretion when its decision falls outside the range of reasonable
and principled outcomes. People v Yost, 278 Mich App 341, 379; 749 NW2d 753 (2008).
Where evidence is improperly admitted, the defendant bears the burden of establishing that the
evidentiary error resulted in a miscarriage of justice. MCL 769.26 and People v Lukity, 460
Mich 484, 493; 596 NW2d 607 (1999).
In response to the prosecutor’s inquiry on direct examination, Detective Bradley testified
that the purpose of the detective bureau is to follow up on cases. He met with the victim on
November 24, 2008, to confirm that the statement she gave to the initial officer would be the
same statement that she provided to the detective bureau. Defendant argues that Detective
Bradley then impermissibly expressed his opinion regarding the truthfulness of the victim’s
account when he made the following emphasized remarks:
Q. Based on the information that you received from her what did you do
next?
A. Sergeant Hamlin and I discussed the matter additionally and we
determine that the, the—we believed that an assault did take place.
Defense counsel:
Well objection. That is a decision for the jury to
make. The witness cannot give an opinion on what he believes.
***
The court:
You may take an answer. That is for you to decide, ladies
and gentlemen, but the preliminaries of it we’re going to walk through a little bit
of.
***
A. Based upon the conversations that Sergeant Hamlin and I had with
Miss Graham we believe that an assault did take place. Therefore, I completed
my portion of the report and forwarded that to the prosecutor’s office seeking a
warrant. [Emphasis added.]
It is improper for a witness to provide an opinion regarding the credibility of another
witness because credibility is a determination for the trier of fact. People v Buckey, 424 Mich 1,
17; 378 NW2d 432 (1985). Contrary to what defendant argues, however, the challenged
testimony was not an “expert opinion” that the victim was credible. As observed by the trial
court, the challenged testimony was intended to explain preliminary or background information
regarding the course and chronology of the case. Regardless, to the extent that the testimony
violated the rule, defendant has not established that any error affected the outcome of trial. MCL
769.26; Lukity, 460 Mich at 495-496. Because Detective Bradley was called as a prosecution
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witness and a criminal prosecution was instituted against defendant, the jurors would have
understood that the detective may have considered the victim’s account fairly believable even
without the disputed testimony. See People v Dobek, 274 Mich App 58, 71; 732 NW2d 546
(2007). The trial court instructed the jury, both during the detective’s testimony and in its final
instructions, that the jury was to decide what to believe. Also, in the final instructions, the court
instructed the jury that defendant was presumed innocent, that the prosecution had to prove the
facts beyond a reasonable doubt, and that testimony of police officers should be judged by the
same standards the jurors used to evaluate the testimony of any other witness. The trial court’s
instructions protected defendant’s right to a fair trial. Consequently, the challenged testimony
does not require reversal.
III. PROSECUTOR’S CONDUCT
Defendant next argues that the prosecutor impermissibly shifted the burden of proof and
improperly referenced his use of an interpreter during trial. We disagree. Because defendant did
not object to the challenged comments below, this issue is unpreserved and we review the issue
for plain error affecting substantial rights. People v Carines, 460 Mich 750, 752-753, 763-764;
597 NW2d 130 (1999). This Court will not reverse if the alleged prejudicial effect of the
prosecutor’s conduct could have been cured by a timely instruction. People v Watson, 245 Mich
App 572, 586; 629 NW2d 411 (2001).
A prosecutor may not imply that a defendant must prove something or present a
reasonable explanation because such an argument tends to shift the burden of proof. People v
Guenther, 188 Mich App 174, 180; 469 NW2d 59 (1991). During rebuttal argument, the
prosecutor remarked that “defendant had to take the stand. He had to. His defense was consent.
So by law he has to take the stand.” Although the prosecutor’s remark was intended as a
response to defense counsel’s assertion during closing argument that defendant took the stand to
tell his account even though he had no obligation to testify, the remarkwas improper because it
incorrectly stated the law. However, defendant has not established that his substantial rights
were affected. Carines, 460 Mich at 752-753, 763-764. As previously indicated, defendant
bears the burden of showing actual prejudice, People v Pipes, 475 Mich 267, 274; 715 NW2d
290 (2006), and reversal is only warranted if the error resulted in the conviction of an actually
innocent defendant or if the error seriously affected the fairness, integrity, or public reputation of
judicial proceedings, independent of the defendant’s innocence. Carines, 460 Mich at 752-753,
763-764.
Viewed in context, the prosecutor’s improper remark was not a substantial factor in
defendant’s conviction. As observed by plaintiff, defendant asserted a defense of consent and
thus was required to introduce evidence of consent to support a consent instruction. See CJI2d
20.27. As a practical matter, had defendant not testified, there would have been no evidence of
consent and the jury would not have been instructed on consent. In fact, defense counsel
acknowledged this fact to the court when he indicated that defendant would be called as a
witness because “[i]t’s a defense consent so he’s obligated to testify.” Moreover, a timely
objection could have cured any prejudice by obtaining an appropriate cautionary instruction. See
Watson, 245 Mich App at 586. Even though defendant did not object, the trial court instructed
the jury that defendant did not have to offer any evidence or prove his innocence, and that the
prosecution was required to prove the elements of the crimes beyond a reasonable doubt. The
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instructions were sufficient to dispel any possible prejudice. People v Long, 246 Mich App 582,
588; 633 NW2d 843 (2001).
Defendant also argues that the prosecutor improperly referenced his use of an interpreter
in the following emphasized remark made during rebuttal argument:
The defendant conceded a lot of points. But the most important point was
that [the victim] doesn’t speak Spanish. So perhaps the biggest lie of all is the lie
of when he’s speaking Spanish on the stand because he understands English. And
he understood that she wanted to get up free. [sic] And she—he understood that
she never wanted to be stalked. Never wanted to be physically injured. Never
wanted to be sexually assaulted and more importantly never wanted this to
happen. [Emphasis added.]
Viewed in context, the challenged remark did not create bias against defendant based on
his use of an interpreter. The prosecutor’s argument responded to the defense implication and
assertion during trial and closing argument that defendant should be believed on the principal
issue of consent. During closing argument, defense counsel argued that defendant should be
believed because he admitted several “bad acts,” including choking the victim, removing a rug
from her car, taking her panties and photographs, and having a vodka bottle on the night of the
incident. He indicated that defendant was credible, and that if he was going to lie, he would not
admit a fact that confirmed what the victim stated. In responding to defense counsel’s argument,
the prosecutor pointed out defendant’s “biggest lie” was speaking in only Spanish at trial, given
the victim’s testimony that defendant always spoke English, that she had no problem
understanding defendant, and that he had no problem communicating with her. The prosecutor’s
remark was not patently designed to create bias against defendant, and was based on evidence
introduced during trial. A prosecutor is free to argue the evidence and reasonable inferences
from the evidence as they relate to his theory of the case, including that a witness is not worthy
of belief, People v Fisher, 220 Mich App 133, 156; 559 NW2d 318 (1996), overruled in part on
other grounds in People v Houthoofd, 487 Mich 568, 583; 790 NW2d 315 (2010), and the
prosecutor is not required to phrase his arguments and inferences in the blandest possible terms.
People v Ullah, 216 Mich App 669, 678; 550 NW2d 568 (1996). Thus, there was no clear error
by the prosecutor.
IV. SCORING OF OFFENSE VARIABLE 7
Next, defendant argues that he is entitled to resentencing because the trial court
erroneously scored 50 points for offense variable (OV) 7 of the sentencing guidelines. We
disagree.
“A sentencing court has discretion in determining the number of points to be scored,
provided that evidence of record adequately supports a particular score.” People v Endres, 269
Mich App 414, 417; 711 NW2d 398 (2006). A scoring decision “for which there is any evidence
in support will be upheld.” Id. (citation omitted).
Fifty points should be scored for OV 7 if “[a] victim was treated with sadism, torture, or
excessive brutality or conduct designed to substantially increase the fear and anxiety a victim
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suffered during the offense.” MCL 777.37(1)(a); People v Hornsby, 251 Mich App 462, 468;
650 NW2d 700 (2002). During the criminal episode, defendant went to the victim’s house on
two separate occasions. After finally gaining entry, defendant ignored the victim’s request to
leave and then used derogatory language toward her, choked her, and stated that he was going to
kill her. As the victim struggled, defendant continued to choke her to the point that she was
incapable of speaking, pinned her down on the floor, and repeatedly threatened to kill her if she
did not have sex with him. After the victim agreed to have sex, defendant kept his hand around
her neck and dragged her by the neck down the hallway into her bedroom to sexually assault her.
As a result of defendant’s actions during the criminal episode, the victim had a swollen black
eye, a scratch on her chin, marks on her neck, and significant bruising on various parts of her
body, including her arms and knees. Defendant’s conduct was contemporaneous with the sexual
assaults and was designed to increase the fear and anxiety the victim was suffering as a result the
assaults. Consequently, the record supports the trial court’s 50-point score for OV 7.
V. LIFETIME ELECTRONIC MONITORING
Finally, defendant asserts that the Judgment of Sentence improperly provides for lifetime
electronic monitoring. We agree.
Defendant's challenge to the lifetime electronic monitoring presents an issue of statutory
interpretation. This Court reviews de novo questions of the applicability or interpretation of a
statute. People v Martin, 271 Mich App 280, 286–287; 721 NW2d 815 (2006).1
When defendant was sentenced, the trial court did not reference electronic monitoring.
However, the Judgment of Sentence explicitly provides that defendant is subject to lifetime
electronic monitoring. The parties agree that the propriety of lifetime electroic monitoring in this
instance is dependent on the meaning of MCL 750.520b(2)(d), which provides:
(d) In addition to any other penalty imposed under subdivision (a) or (b), thecourt
shall sentence the defendant to lifetime electronic monitoring under section 520n.
MCL 750.520n(1) provides:
A person convicted under section 520b or 520c [FN1] for criminal sexual
conduct committed by an individual 17 years old or older against an individual
less than 13 years of age shall be sentenced to lifetime electronic monitoring as
provided under section 85 of the corrections code of 1953, 1953 PA 232, MCL
791.285.
1
In reviewing this issue de novo, we are treating defendant's challenge as preserved. However,
even if we were to conclude that this issue was unpreserved, our conclusion would not differ as
the imposition of lifetime electronic monitoring in this case would also constitute plain error
affecting defendant's substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d
130 (1999).
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On appeal, defendant asserts that lifetime electronic monitoring is only proper where the
defendant is 17 years of age or older and the victim is younger than 13 years of age. There is no
contention that the victim in this case was younger than 13. In contrast, the prosecution contends
that the legislature intended all individuals convicted of first-degree CSC to be subject to lifetime
electronic monitoring.
We conclude that although the legislature may have intended to subject all individuals
convicted first-degree CSC to lifetime electronic monitoring, the legislature’s intent is irrelevant
to our determination because the statutory language is unambiguous. MCL 750.520b(2)(d)
explicitly references MCL 750.520n, which only applies where the victim is younger than 13.
For this Court to accept the prosecution’s interpretation of MCL 750.520b(2)(d), it would
essentially be required to ignore that provision’s reference to MCL 750.520n. Stated differently,
if the legislature desired to subject all individuals convicted of first-degree CSC to lifetime
electronic monitoring, the controlling statute would not have included the language that we
emphasize below:
In addition to any other penalty imposed under subdivision (a) or (b), thecourt
shall sentence the defendant to lifetime electronic monitoring under section
520n.
Under the rules of statutory interpretation, we cannot simply disregard the specific language
utilized by the legislature. As a result, the portion of the Judgment of Sentence requiring lifetime
electronic monitoring is vacated.
Affirmed in part and vacated in part.
/s/ Mark J. Cavanagh
/s/ Michael J. Talbot
/s/ Cynthia Diane Stephens
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