PEOPLE OF MI V FRANK MICHAEL FLANDERS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 11, 1997
Plaintiff-Appellee,
v
No. 182907
Kalkaska Circuit
LC No. 94-001397-FH
FRANK MICHAEL FLANDERS,
Defendant-Appellant.
Before: Sawyer, P.J., and Saad and Gage, JJ.
PER CURIAM.
Defendant appeals as of right from his jury trial convictions of conspiracy to possess with intent
to deliver more than 50 but less than 225 grams of cocaine (two counts), MCL 750.157a; MSA
28.354(1), MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii), and possession with intent to deliver
more than 50 but less than 225 grams of cocaine (two counts), MCL 333.7401(2)(a)(iii); MSA
14.15(7401)(2)(a)(iii). We affirm defendant’s convictions of two counts of possession with intent to
deliver and one count of conspiracy, but reverse his conviction for the second count of conspiracy.
Defendant was introduced to a Detroit drug dealer, Philip Belanger, through a mutual
acquaintance, Joseph Fortuna. Largely through Fortuna’s continued facilitation, defendant thereafter
obtained cocaine from Belanger on several occasions in order to sell it in Kalkaska County. These
transactions included two specific occasions that occurred in September and November of 1993, and
for which defendant was separately charged with one count each of conspiracy and possession.
Fortuna was later given complete immunity from prosecution for his participation in these transactions,
and his testimony was the primary direct evidence against defendant during the instant trial.
I
Defendant first contends that the trial court erred when it refused to sever the September and
November transactions for separate trials. We disagree. The record reveals that defendant apparently
acquired drugs from Belanger approximately six times, and that Belanger “fronted” drugs for money
during those times. As such, individual purchases from Belanger by defendant were each connected to
the next as part of a single scheme or plan: defendant would receive a quantity of drugs from Belanger,
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sell them, and use all or part of the proceeds to pay off Belanger and in turn receive more drugs. The
September and November transactions were thus not “unrelated” offenses, and their severance for
separate trials was not required. MCR 6.120; People v Tobey, 401 Mich 141, 151-152; 257 NW2d
537 (1977).
II
Defendant next argues that the trial court abused its discretion when it admitted evidence of
defendant’s stop and arrest in Saginaw County several weeks after the instant transactions occurred,
arguing that no permissible reason existed for introducing such evidence of “other acts” pursuant to
MRE 404(b). We disagree.
When evaluating the admissibility of “other acts evidence under MRE 404(b), “[t]he question is
not whether the evidence falls within an exception to a supposed rule of exclusion, but rather whether
the evidence is in any way relevant . . . other than by showing mere propensity. Put simply, [MRE
404(b)] is inclusionary rather than exclusionary.” People v VanderVliet, 444 Mich 52, 64-65, 74
75; 508 NW2d 114 (1993), modified 445 Mich 1205; 520 NW2d 338 (1994). When defendant was
arrested, he was transporting cocaine that he had obtained from Belanger. Such evidence tended to
show that defendant did indeed traffic in cocaine obtained from Belanger, and that Fortuna’s earlier
testimony to that effect was credible. The evidence, therefore, was relevant to issues other than to show
that defendant had a propensity to commit bad acts. As such, it was properly introduced pursuant to
MRE 404(b).
We note and reject defendant’s argument that it was impermissible to introduce such evidence
for the purpose of bolstering Fortuna’s credibility. Defendant fails to cite to any authority for such a
proposition. Furthermore, to the extent defendant maintains that the evidence was obtained as a result
of an unconstitutional search and seizure, we note that this Court has previously considered and rejected
defendant’s argument, finding that defendant voluntarily consented to the search of his automobile. See
People v Flanders, unpublished opinion per curiam of the Court of Appeals, issued 12/28/95 (Docket
No. 178624). Finally, we also reject defendant’s brief argument that his attorney’s failure to object to
the admission of this evidence on constitutional grounds in the instant trial constituted ineffective
assistance of counsel. Because the search and seizure was not unconstitutional, defendant cannot
demonstrate that he was prejudiced by his counsel’s failure to object on this ground. See People v
Stanaway, 446 Mich 643, 687-688; 521 NW2d 557 (1994).
III
Defendant next contends that the trial court erred when it failed to dismiss the second of the two
conspiracy charges.1 He argues that the prosecution’s de facto theory of the present case was that
there was only one conspiracy, notwithstanding that the prosecution charged him separately for each of
the September and November transactions. The prosecution concedes on appeal that the prosecutorial
position at trial was that there was a single continuing conspiracy, and that conviction of a second count
of conspiracy was “superfluous.”
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The essence of the offense of conspiracy is the agreement itself. People v Meredith (On
Remand), 209 Mich App 403, 408; 531 NW2d 749 (1995). We agree with the parties that the
prosecution argued and established at trial that defendant, Fortuna, and Belanger formed “an
agreement” over the Labor Day weekend to obtain and sell cocaine and that the evidence established a
single, continuing conspiracy. We therefore vacate defendant’s second conspiracy conviction.
IV
Defendant next contends that three separate instances of prosecutorial misconduct during
closing arguments deprived him of a fair trial. We disagree.
A
Defendant first argues that during his rebuttal argument the prosecutor improperly called the
jury’s attention to the fact that defendant did not testify at trial. We note that self-incriminating
statements given by defendant to authorities were properly introduced into evidence through the
testimony of Michigan State Police Detective Lieutenant John C. Conn. In response to statements in
defendant’s closing argument that Fortuna, an admitted drug trafficker who had been granted immunity
from prosecution, was not a credible witness, the prosecutor in his rebuttal discussed the jury’s duty to
determine the credibility of witnesses. In a reference to both Conn’s and Fortuna’s testimony, the
prosecutor commented that the jury had an opportunity to see and evaluate both of these witnesses.
The prosecutor also noted that defendant’s statements were available to the jury through the testimony
of Conn, but the jury did not have the opportunity to judge the credibility of the originator of the
statements, i.e. defendant.
Evaluated in context to determine whether d
efendant was denied a fair and impartial trial,
People v McElhaney, 215 Mich App 269, 283; 545 NW2d 18 (1996), we find that the prosecutor’s
remarks were not improper. First, the remarks were properly directed toward the jury’s obligation to
evaluate the credibility of witnesses. In particular, the prosecution was asking the jury to believe
Fortuna’s testimony, which conflicted with defendant’s statements presented to the jury through
Detective Conn. The remarks were therefore not, in fact, a comment on defendant’s failure to testify, as
defendant argues. Second, the trial court clearly instructed the jury that it was to disregard the fact that
defendant did not testify and that the lawyers’ statements and arguments were not evidence. Third, with
particular regard to defendant’s alleged statement as introduced by Detective Conn, the trial court
instructed the jury that it was required to determine whether defendant actually made the statement and
whether the statement was true in whole or in part, thereby necessitating a credibility evaluation. Finally,
in making the remarks during his rebuttal, the prosecutor was clearly responding to defendant’s closing
argument, which he was permitted to do. People v King, 210 Mich App 425, 434; 534 NW2d 534
(1995).
B
Defendant next argues that the prosecution improperly both vouched for Fortuna’s credibility
and appealed to the jurors’ civic duty. We note that defendant did not object to these remarks below,
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and we find that a curative instruction would easily have eliminated any prejudice arising from the
remarks. We therefore do not consider defendant’s arguments on appeal. McElhaney, supra at 284.
V
Finally, defendant contends that consecutive sentencing for his conspiracy conviction is
improper. We disagree. In People v Denio, ___ Mich ___; ___ NW2d ___ (1997), our Supreme
Court held that the Legislature intended the consecutive sentencing provisions of MCL 333.7401(3);
MSA 14.15(7401)(3) to fall within the term “penalty” in the conspiracy statute, MCL 750.157a; MSA
28.354(1). Moreover, the Court held that consecutive sentences for an enumerated drug offense and
for conspiracy to commit the enumerated offense do not violate double jeopardy because the
Legislature intended multiple punishments. Id. Accordingly, we affirm defendant’s consecutive
sentence for his conspiracy conviction.
Defendant’s convictions of two counts of possession with intent to deliver cocaine and one
count of conspiracy are affirmed. We vacate his conviction of a second count of conspiracy and
remand for entry of an order modifying the judgment of sentence in accordance with this opinion. We
do not retain jurisdiction.
/s/ David H. Sawyer
/s/ Henry William Saad
/s/ Hilda R. Gage
1
We note that, after making his motion for dismissal of the second conspiracy count, defendant
immediately (i.e., before the trial court ruled) also moved for directed verdicts on both conspiracy
counts based on insufficiency of the evidence regarding whether the alleged conspiracies had actually
occurred in Kalkaska County. As an apparent result of the closeness of the motions, the trial court
explicitly addressed defendant’s arguments as having been made solely for directed verdicts. The trial
court denied directed verdicts and no ruling was made on the motion for dismissal of the second
conspiracy count.
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