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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v CAROL ANN POOLE, Defendant-Appellant.

UNPUBLISHED December 29, 2009

No. 284245 Wayne Circuit Court LC No. 06-014443-FC

Before: Gleicher, P.J., and Fitzgerald and Wilder, JJ. PER CURIAM. A jury convicted defendant of second-degree murder, MCL 750.317, first-degree child abuse, MCL 750.316(1)(b), and involuntary manslaughter, MCL 750.321. The trial court vacated the involuntary manslaughter conviction and sentenced defendant to concurrent prison terms of 20 to 35 years for the second-degree murder conviction and 10 to 15 years for the firstdegree child abuse convictions. Defendant appeals as of right. We affirm. This case arises from the death of defendant's two-year-old foster daughter, Allison, from a skull fracture and a brain injury. The child died on September 22, 2006, as a result of injuries sustained on September 21, 2006, at the family home. The prosecutor's theory of the case was that defendant intentionally injured the child and the injuries resulted in the child's death. The defense theory of the case was that defendant accidentally dropped the child over the secondfloor banister to the floor below while playing a game of "whirly bird."1 Whirly bird involved the child putting her knees against someone's chest, with that person putting their arms behind the child's back and spinning around. I. Prosecutorial Misconduct

Defendant gave four different explanations for the child's injuries. First, she indicated that the child injured herself in her toddler bed. Second, she indicated that the child fell in the bathtub. Third, she indicated that the child fell off the vanity cabinet in the bathroom. Fourth, she indicated that the child accidentally went over the second-floor banister during a game of whirly bird.

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Defendant first argues that she was denied a fair trial by several instances of prosecutorial misconduct. Preserved claims of prosecutorial misconduct are reviewed de novo to determine whether the defendant was denied a fair and impartial trial. People v Bahoda, 448 Mich 261, 266-267; 531 NW2d 659 (1995); People v Abraham, 256 Mich App 265, 272; 662 NW2d 836 (2003). Where an alleged error is not preserved with an appropriate objection at trial, this Court's review is limited to plain error affecting the defendant's substantial rights. Id. at 274. Further, this Court will not reverse if the prejudicial effect of the prosecutor's comments could have been cured by a timely instruction upon request. People v Joezell Williams II, 265 Mich App 68, 70-71; 692 NW2d 722 (2005). Claims of prosecutorial misconduct are decided case by case and the challenged comments must be considered in context. People v McElhaney, 215 Mich App 269, 283; 545 NW2d 18 (1996). A prosecutor is afforded great latitude in closing argument. He is permitted to argue the evidence and reasonable inferences that arise from the evidence in support of her theory of the case. Bahoda, supra at 282. However, the prosecutor must refrain from making prejudicial remarks. Id. at 283. While prosecutors have a duty to see that a defendant receives a fair trial, they may use "hard language" when the evidence supports it and they are not required to phrase their arguments in the blandest of terms. People v Ullah, 216 Mich App 669, 678; 550 NW2d 568 (1996). Defendant first argues that the prosecutor wrongfully suggested that defendant was pretend crying at trial and then questioned a witness about whether defendant's behavior at trial was consistent with her behavior at the hospital the night of the incident. Specifically, when the prosecutor asked a witness if she had "heard her go [indicating] no tears and then stop?" defendant objected on the ground that the prosecutor was attempting to introduce evidence into the record that suggested defendant was not crying during the trial, and asserted that the jury should make its own conclusions regarding defendant's demeanor. The trial court, after noting that the witness indicated she was not looking at defendant during her testimony, sustained the objection. The prosecutor's question did not deny defendant a fair trial. The trial court sustained defendant's objection to the question, and the prosecutor ceased his line of questioning. The jury was subsequently instructed that the lawyers' questions to witnesses are not evidence. Thus, any prejudice was cured. Further, preserved, nonconstitutional errors do not require reversal unless it affirmatively appears that it is more probable than not that the error was outcome determinative. People v Lukity, 460 Mich 484, 496; 596 NW2d 607 (1999). It does not affirmatively appear that the prosecutor's isolated comment, to which an objection was sustained, affected the outcome of defendant's trial. Therefore, reversal is not required. Id. Defendant next argues that the prosecutor improperly mocked the defense expert, Dr. Rothfeder, during cross-examination when he was questioning Dr. Rothfeder with regard to whether defendant could have generated the force necessary to inflict the type of injury suffered by the child if defendant banged the child's head against a wall. Dr. Rothfeder responded, "Probably," and then the following colloquy occurred: [Defense counsel]: Judge, I think it should be noted for the record that Mr. Dorsey is like shaking his head at the doctor

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