PEOPLE OF MI V DENNIS MILLER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 15, 1997
Plaintiff-Appellee,
v
No. 176553
Oakland Circuit Court
LC No. 93-124419
DENNIS L. MILLER,
Defendant-Appellant.
Before: Taylor, P.J., and McDonald and C. J. Sindt*, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of possession with intent to deliver between 50
and 224 grams of cocaine, MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii), and possession with
intent to deliver marijuana, MCL 333.7401(2)(c); MSA 14.15(7401)(2)(c). On January 13, 1994,
defendant was sentenced to ten to twenty years’ imprisonment on the cocaine conviction, and one to
four years’ imprisonment on the marijuana conviction, to be served concurrently. Defendant appeals his
convictions, and the prosecutor cross-appeals defendant’s concurrent sentences. We affirm in part and
remand for resentencing.
First, defendant argues that the affidavit in support of the search warrant of his home was
defective, and not supported by probable cause. On appeal, this Court must look at the affidavit and
determine whether the information contained in the document could have caused a reasonably cautious
person to conclude that there was a substantial basis to conclude that the evidence sought might be
found in a specific location. People v Russo, 439 Mich 584; 487 NW2d 698 (1992). The affidavit in
this case indicates that Livonia Police had been investigating Thomas Lingo for drug trafficking, and on
February 13, 1993, arrested him in possession of marijuana and cocaine shortly after he was observed
visiting defendant’s home. The marijuana seized from Lingo was wrapped in a folded section of a Royal
Oak newspaper dated February 11, 1993. Lingo had not made any stops in or around Royal Oak
where he might have purchased a newspaper, and there were no other newspaper sections on his
person nor in his vehicle when he was arrested. Further, an unnamed informant had told the affiant that
* Circuit judge, sitting on the Court of Appeals by assignment.
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Lingo had a system of using homes of associates for storage and distribution locations. We believe that
the facts and circumstances described in the affidavit would indeed allow a person of reasonable
prudence to believe that Lingo was using defendant’s home to store drugs, and that marijuana, cocaine
and other contraband would be found there.
We reject defendant’s argument that the affidavit lacked information regarding the reliability of
the unnamed informant. MCL 780.653; MSA 28.1259(3) provides that probable cause in an affidavit
may be based upon information supplied by an unnamed informant if the affidavit contains allegations
from which the magistrate can conclude that 1) the informant spoke from personal knowledge and 2)
either the informant is credible or the information is reliable. A finding of personal knowledge should be
derived from the information provided and not merely from a recitation that the informant had personal
knowledge. People v Stumpf, 196 Mich App 218; 492 NW2d 795 (1992). In this case, the exhibit
to the affidavit contained an extensive description by the informant of the alleged drug trafficking
organization to which Lingo belonged. The informant stated that he or she had been involved in that
distribution ring, and described the workings of the organization in detail. We conclude that the
informant was speaking from personal knowledge. As to the reliability of the informant, we note that the
informant’s leads were verified by the police during the Lingo investigation. Thus, the informant could
be considered reliable. See People v Harris, 191 Mich App 422; 479 NW2d 6 (1991).
We also find no merit in defendant’s argument that the information in the affidavit was stale. The
staleness of information in support of a search warrant rests on the totality of the circumstances,
including the criminal, the items to be seized, the place to be searched, and the character of the crime.
Russo, supra. The crime being investigated in this case was the trafficking of drugs, an ongoing
endeavor rather than a single instance crime. The investigation yielded information that Lingo had not
had any legitimate source of income in several years, suggesting that the drug trafficking was still
occurring. Thus, we conclude that the affidavit in support of the search warrant was sufficient, and the
search warrant was supported by probable cause.
The defendant next argues that the prosecutor shifted the burden of proof by suggesting in
closing arguments that there was no evidence showing defendant’s lack of knowledge about the cocaine
in his house. Some prosecutorial remarks which could otherwise be considered improper may not
require reversal if they address issues specifically raised by defense counsel. People v Duncan, 402
Mich 1; 260 NW2d 58 (1977). We note that defense counsel stressed to the jury in opening statement
that “the only issue that will be before you is knowledge. Did Dennis Miller know that the cocaine was
in the house.” The prosecutor’s comments in closing arguments were responsive to defendant’s claim.
Arguments regarding the weight of evidence presented by a defendant do not shift the burden to
defendant to prove his innocence, but rather question the reliability of the evidence presented. People v
Fields, 450 Mich 94; 538 NW2d 356 (1995). We find no error.
Further, we find no error stemming from the trial court’s denial of defense counsel’s motion to
withdraw as counsel and for a continuance. Defense counsel indicated to the trial judge that he was
present during a meeting where defendant told police where he received $40,000 for the down payment
on his home. Counsel stated that he had a different recollection of defendant’s statement, and he was
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therefore compelled to be a witness on his client’s behalf if the prosecutor chose to pursue the issue. In
reviewing this issue, this Court considers whether 1) defendant was asserting a constitutional right; 2)
defendant had a legitimate reason for asserting that right; 3) defendant was guilty of negligence; and 4)
defendant had caused prior adjournments of the trial. See People v Williams, 386 Mich 565; 194
NW2d 337 (1972); People v Krysztopaniec, 170 Mich App 588; 429 NW2d 828 (1988). We find
that while defendant was asserting his constitutional rights to counsel and to testify in his own defense,1
we do not believe that defendant had a legitimate basis for asserting these rights. If the issue of where
defendant obtained the $40,000 down payment was raised, and the prosecutor impeached defendant
with his prior statement, defendant could have called his father or other family members as rebuttal
witnesses to testify that the money for the home actually came from defendant’s father. Further,
defendant was negligent in failing to assert the right at an earlier date. The record reveals that defense
counsel had notice of the officer’s version of defendant’s statement approximately one month prior to
the trial date, but failed to raise the issue until the day of trial. Based upon the Williams factors, we
conclude that the trial court did not abuse its discretion in denying defense counsel’s request for
withdrawal as counsel and for continuance.
Finally, we agree with the prosecution that defendant should have been sentenced to
consecutive terms of imprisonment. Consecutive sentences may be imposed only if specifically
authorized by statute. People v Chambers, 430 Mich 217; 421 NW2d 903 (1988). MCL 333.7401;
MSA 14.15(7401)(3) provides:
A term of imprisonment imposed pursuant to subsection (2)(a) or section
7403(2)(a)(i), (ii), (iii), or (iv) shall be imposed to run consecutively with any term of
imprisonment imposed for the commission of another felony.
This consecutive sentencing requirement applies to convictions for any other felony for which the
defendant was previously or simultaneously sentenced, including another controlled substances violation.
People v Morris, 450 Mich 316; 537 NW2d 842 (1995). Defendant was convicted on the cocaine
charge under MCL 333.7401(2)(a); MSA 14.15(7401)(2)(a), and was simultaneously sentenced for
felony possession of marijuana with intent to distribute, MCL 333.7401(2)(c); MSA
14.15(7401)(2)(c). As a matter of law, the trial court was required to impose consecutive sentences
pursuant to MCL 333.7401(3); MSA 14.15(7401)(3).
Remanded for resentencing consistent with this opinion. We do not retain jurisdiction.
/s/ Clifford W. Taylor
/s/ Gary R. McDonald
/s/ Conrad J. Sindt
1
Defendant argued that he felt constrained not to testify because doing so would open the door to
impeachment by the officer’s recollection of defendant’s statement.
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