PEOPLE OF MI V SHIRLEY HOUSE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 24, 1997
Plaintiff-Appellee,
v
No. 187611
Calhoun Circuit Court
LC No. 94-3219 FH
SHIRLEY HOUSE,
Defendant-Appellant.
Before: Gage, P.J., and Reilly and Hoekstra, JJ.
MEMORANDUM.
In a jury trial in Calhoun Circuit Court, defendant was convicted of delivery of cocaine under 50
grams, and adjudged a second drug offender, receiving an enhanced maximum sentence under §7413 of
the Public Health Code. Defendant appeals by right.
Defendant first contends that error occurred during trial when an undercover informant, called
as a rebuttal witness with respect to her defense of duress, was allowed to give opinion testimony that
defendant was not under duress when the sale of cocaine occurred. The record does not support
defendant’s claim. The prosecutor began by asking the witness whether he thought defendant was
under duress on this or any previous occasion when the witness had purchased cocaine from defendant;
defense counsel objected, and the trial court, anticipating the nature of the objection, ordered the
prosecutor to rephrase the question so as to elicit facts concerning the duress defense, even though the
trial court might, in its discretion, have permitted the question to stand and the witness to answer it.
MRE 704. The prosecutor then inquired of the witness whether, on this or previous occasions,
defendant had been observed to have a fearful demeanor or otherwise to be acting in a manner
evidencing duress. The witness responded in the negative. To this question and answer, there was no
objection. Neither the question nor the answer was improper or inadmissible, although defendant’s
failure to timely object waives the issue for appellate review in the absence of manifest injustice, which
did not occur here. People v Grant, 445 Mich 535; 520 NW2d 1 (1994).
Defendant next contends that the trial court erred in imposing a 40-year maximum sentence
because it failed to recognize its discretion not to enhance defendant’s sentence, or to enhance it to a
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lesser degree than 40 years, which represents a doubling of the sentence for the underlying offense. The
record indicates no statement or suggestion by the trial court that it had no discretion in setting the
maximum sentence, and accordingly this assertion of error is without merit. People v Beneson, 192
Mich App 469, 471; 481 NW2d 799 (1992).
Finally, defendant contends that her 5 to 40 year sentence violates the principle of
proportionality. Although the sentence guidelines do not properly apply to habitual offenders, People v
Edgett, 220 Mich App 686; ___ NW2d ___ (1996), here defendant’s minimum sentence is within the
guideline range for the underlying offense, and a fortiori defendant has failed to overcome the
presumption that a sentence within the guideline range is proportionate to the offense and the offender.
People v Eberhardt, 205 Mich App 587; 518 NW2d 511 (1994).
Affirmed.
/s/ Hilda R. Gage
/s/ Maureen Pulte Reilly
/s/ Joel P. Hoekstra
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