PEOPLE OF MI V DHIA KALASHO
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 17, 1997
Plaintiff-Appellee,
v
No. 176343
Recorder’s Court
LC No. 93-006682
DHIA KALASHO,
Defendant-Appellant.
Before: Wahls, P.J., and Gage and W.J. Nykamp,* JJ.
PER CURIAM.
A jury convicted defendant of possession of less than twenty-five grams of cocaine, MCL
333.7403(2)(a)(v); MSA 14.15(7403)(2)(a)(v), possession of less than twenty-five grams of heroin,
MCL 333.7403(2)(a)(v); MSA 14.15(7403)(2)(a)(v), possession of a firearm during the commission
of a felony, MCL 750.227b; MSA 28.424(2), and being a third habitual felony offender, MCL 769.11;
MSA 28.1083. Defendant was sentenced to terms of two years’ imprisonment for the felony-firearm
conviction and four to eight years’ imprisonment for the habitual offender conviction. Defendant appeals
as of right. We affirm.
Defendant first argues that the trial court’s cursory and inadequate voir dire denied him his right
to a fair and impartial jury. Defendant also argues that counsel’s failure to request questions pertaining
to ethnic prejudice prior to trial amounted to ineffective assistance. We disagree.
The scope of voir dire examination is in the discretion of the trial court and its rulings will not be
set aside absent an abuse of that discretion. People v Sawyer, 215 Mich App 183, 186; 545 NW2d 6
(1996). Here, it is evident that there was sufficient information from which the parties could
knowledgeably exercise their peremptory challenges. Id. at 187; see People v Tyburski, 445 Mich
606, 630, 637; 518 NW2d 441 (1994). Furthermore, because this was a simple narcotics possession
case which contained no overtones of race or ethnicity, defendant was not entitled to question the
prospective jurors about any possible racial prejudice. Ristaino v Ross, 424 US 589; 96 S Ct 1017,
* Circuit judge, sitting on the Court of Appeals by assignment.
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1021-1022; 47 L Ed 2d 258 (1976); People v Daniels, 192 Mich App 658, 666-667; 482 NW2d
176 (1992). Defendant’s claim of ineffective assistance of counsel also fails as there has been no
adequate showing of prejudice. People v Poole, 218 Mich App 702, 717; 555 NW2d 485 (1996).
Defendant argues that he was denied his right to a fair and impartial jury by the jurors’ non
disclosure of prejudice against Arabs as well as against the Kalasho family and their alleged connection
to the drug trade. We disagree. The decision whether to grant a new trial is within the trial court’s
discretion and its decision will not be reversed absent an abuse of that discretion. People v Herbert,
444 Mich 466, 477; 511 NW2d 654 (1993). The jury’s limited conversation regarding its recognition
of defendant’s name, its meager knowledge surrounding the alleged involvement of the Kalasho family in
the drug trade, combined with the fact that it based its verdict on the evidence presented, demonstrated
that it was impartial and that its verdict was fair and just. Thus, the trial court did not abuse its discretion
when it denied defendant’s motion for a new trial on this ground. Id.
Next, defendant contends that the trial court erred by allowing the prosecutor to introduce
evidence that there was a court-ordered search warrant instructing the police to search “Dhia” for
drugs. Because defendant did not object to admission of the contents of the search warrant, this issue is
not properly before this Court and we decline to review it. MRE 103(a)(1); People v Grant, 445
Mich 535, 545, 553; 520 NW2d 123 (1994).
Defendant contends that the prosecutor’s repeated and vitriolic attacks on defense counsel’s
veracity, and the prosecutor’s injection of facts not in evidence, denied defendant his right to a fair trial.
We disagree. The test of prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial. People v Lawton, 196 Mich App 341, 353; 492 NW2d 810 (1992). Prosecutorial
comments must be read as a whole and evaluated in light of defense arguments and the relationship they
bear to the evidence admitted at trial. Id. at 353, 355. Because the comments concerning defense
counsel were made in response to defense counsel’s arguments, we decline to reverse. People v
Simon, 174 Mich App 649, 655; 436 NW2d 695 (1989). Furthermore, in light of the court’s
instructions that the jury could not consider the attorney’s arguments as evidence and that it could infer
from Officer Malotte’s absence that he would be an adverse witness, any error was harmless. See
People v Mezy, 453 Mich 269, 286; 551 NW2d 389 (1996) (Weaver, J.).
Defendant argues that the trial court erred when it refused to issue an instruction on the
misdemeanor offense of loitering in a place where an illegal business is being conducted. We disagree.
The decision whether to issue a misdemeanor instruction rests with the trial court and will not be
reversed absent an abuse of discretion. People v Dabish, 181 Mich App 469, 474; 450 NW2d 44
(1989). Whenever an adequate request for an appropriate misdemeanor instruction is supported by a
rational view of the evidence presented at trial, the trial judge must give the requested instruction unless
to do so would result in undue confusion, violation of due process, or some other injustice. People v
Stephens, 416 Mich 252, 255; 330 NW2d 675 (1982). Because there was evidence here that
defendant resided in the house where the drugs were recovered, one of the officers saw defendant
hiding a plastic bag containing the drugs in the couch where defendant was sitting, and another officer
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recovered the drugs from the couch where defendant had been sitting, the evidence did not support the
giving of an instruction on loitering. People v Rollins, 207 Mich App 465, 468-469; 525 NW2d 484
(1994).
Finally, defendant contends that the trial court erred when it denied defendant’s motion for a
directed verdict on the charges of possession with intent to deliver as there was no evidence that
defendant had an intent to deliver. We disagree. When ruling on a motion for a directed verdict, the
court must consider the evidence presented by the prosecutor up to the time the motion was made in the
light most favorable to the prosecution and determine whether a rational trier of fact could find that the
essential elements of the charged crime were proven beyond a reasonable doubt. People v Jolly, 442
Mich 458, 466; 502 NW2d 177 (1993).
Here, there was evidence that defendant, the subject of a valid search warrant and wanted in
connection with the sale of controlled substances, attempted to hide a plastic bag containing various
controlled substances including cocaine, heroin and LSD. In addition, the police recovered from the
house where defendant resided a sifter, a grinder and a jar of lactose, a substance used for cutting
drugs. Under these circumstances, a rational trier of fact could find that the essential elements of the
charged crime were proven beyond a reasonable doubt. See People v Ferguson, 94 Mich App 137,
151; 288 NW2d 587 (1979); People v Mumford, 60 Mich App 279, 283; 230 NW2d 395 (1975).
Thus, the trial court did not err when it denied defendant’s motion for a directed verdict on the charge of
possession with intent to deliver. Jolly, supra at 466; People v Catanzarite, 211 Mich App 573,
578; 536 NW2d 570 (1995).
Affirmed.
/s/ Myron H. Wahls
/s/ Hilda R. Gage
/s/ Wesley J. Nykamp
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