PEOPLE OF MI V DAVID LEE STARKS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 28, 1998
Plaintiff-Appellee,
v
No. 196691
Van Buren Circuit Court
LC No. 96-009782
DAVID LEE STARKS,
Defendant-Appellant.
Before: Gribbs, P.J., and Murphy and Gage, JJ.
PER CURIAM.
Defendant David Lee Starks was tried jointly with codefendant Sarah Prewitt, and defendant
was convicted as charged of delivery of at least 50 grams but less than 225 grams of cocaine, MCL
333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii), conspiracy to deliver at least 50 grams but less than
225 grams of cocaine, MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii); MCL 750.157a; MSA
28.354(1), and possession with intent to deliver less than 50 grams of cocaine, MCL
333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv). Defendant appeals as of right. We affirm.
Defendant argues that he was denied the effective assistance of counsel. We disagree. In order
to prevail on a claim of ineffective assistance of counsel, defendant must show that his trial counsel’s
performance was deficient and that the deficiency resulted in prejudice to defendant in the outcome of
the case. People v Stanaway, 446 Mich 643, 687-688; 521 NW2d 557 (1994). To show a
deficiency in performance, defendant must overcome a strong presumption that counsel’s assistance
constituted sound trial strategy. Id. at 687. This Court will not substitute its judgment for that of
counsel regarding matters of trial strategy, nor will it assess counsel’s competence with the benefit of
hindsight. People v Barnett, 163 Mich App 331, 338; 414 NW2d 378 (1987); People v Kvam, 160
Mich App 189, 200; 408 NW2d 71 (1987).
Defendant’s first claim of ineffective assistance is that his counsel failed to object on hearsay
grounds to statements made by codefendant Prewitt, and later provided in police officer Lucas’
testimony. Defendant argues that the statements were inadmissible under MRE 801(d)(2)(E), because
there was insufficient independent evidence of a conspiracy to bring the statements within that rule.
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Even assuming arguendo that defendant is correct, we find that the evidence was admissible as a
statement against interest.
MRE 803(b)(3 provides for admission of a statement:
which was at the time of its making so far contrary to the declarant’s pecuniary or
proprietary interest, or so far tended to subject the declarant to civil or criminal liability,
or to render invalid a claim by the declarant against another, that a reasonable person in
the declarant’s position would not have made the statement unless believing it to be true.
The rule in MRE 803(b)(3) is typically applied where the declarant makes a statement inculpating
himself. However, in this case, the question is whether Prewitt’s statements which inculpated both
Prewitt and defendant are admissible under the same rule. We conclude that they are. See People v
Poole, 444 Mich 151, 153-154; 506 NW2d 505 (1993). While Prewitt’s statements in the present
case were made to a police officer, Prewitt was not aware that Lucas was an officer and spoke to him
at her own initiative as an acquaintance. The statements were made without prompting and concerned
dealings with cocaine, which would subject her to criminal liability.
The statements were clearly against her penal interest, and a reasonable person in her position would
not have made them if she did not believe them to be true. MRE 804(b)(3
Because Prewitt’s out-of-court statements were admissible under a hearsay exception, there
was no need for defense counsel to object to their admission; to do so would have been futile. We find
no deficiency in counsel’s performance for failing to object to these statements. People v Tullie, 141
Mich App 156, 158; 366 NW2d 224 (1985).
Defendant also argues that counsel was ineffective for raising an issue during cross-examination,
thereby opening the door on redirect examination by the prosecution to testimony which would
otherwise have been inadmissible. There is no merit to this claim.
In determining whether trial counsel’s performance was deficient, a simple reasonableness test
should be applied in consideration of all the circumstances. Strickland v Washington, 466 US 668;
104 S Ct 2052; 80 L Ed 2d 674, 294 (1984). The Court’s “scrutiny of counsel’s performance must
be highly deferential . . . [and] fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. Here,
without the benefit of hindsight and the knowledge that the witness was going to give a nonresponsive
answer, it cannot be said that counsel’s conduct was unreasonable.
Next, defendant contends that there was insufficient evidence in this case of intent to deliver and
of conspiracy. We find these claims meritless. There was evidence here from which one could infer
that defendant attempted to dispose of a quantity of cocaine by flushing it down a toilet before he was
arrested, and police found a scale of a type commonly used in the sale of drugs, marked money that
was used in an earlier undercover transaction, and a large amount of money in defendant’s possession.
An intent to deliver could be inferred from this evidence. As to conspiracy, there was evidence that
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codefendent contacted defendant before each large drug purchase and that codefendant drove to the
house where defendant lived and was later arrested to pick up the drugs each time the undercover
officer arranged a purchase. Viewing the evidence in a light most favorable to the prosecution, we find
that a reasonable trier of fact could have found that the elements of the charged crimes were proven
beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748, amended on other
grounds 441 Mich 1201 (1992).
Defendant next argues that his conspiracy conviction should be reversed because of the trial
court’s error in instructing the jury on this charge. We disagree. Because defendant failed to object to
the instruction below, appellate review is waived absent manifest injustice. People v Haywood, 209
Mich App 217, 230; 530 NW2d 497 (1995). We find no manifest injustice here. In any case, there is
no merit to defendant’s claim that the jury was not adequately instructed that the cocaine must have
been delivered to a third person. Reading the instructions as a whole, the trial court repeatedly
instructed the jury that the crime of delivery requires the intent to deliver the cocaine “to someone else”.
Finally, defendant argues that the jury verdict form was incorrect and resulted in erroneous
convictions. Defendant first argues that the form resulted in an incorrect conviction of conspiracy.
There is no merit to this claim. A jury’s verdict is “not void for uncertainty if the jury’s intent can be
clearly deduced by reference to the pleadings, the court’s charge, and the entire record.” People v
Rand, 397 Mich 638, 643; 247 NW2d 508 (1976). Here, where the jury was repeatedly and
thoroughly instructed as to the elements of conspiracy, the jury verdict is not void because of the
typographical error reading “conspiracy with David Lee Starks” on the verdict form. Reviewing the
record as a whole, it is clear that the jury understood that defendant was charged with conspiring with
codefendent Prewitt rather than with himself.
Defendant also argues that for the charge of possession with intent to deliver cocaine, according
to the verdict form, the jury intended only to convict defendant of simple possession, and therefore, his
conviction must be reduced to simple possession. We disagree. The trial court adequately instructed
the jury regarding the charge of possession with intent to deliver, and advised them that their verdict
could be either guilty of possession with intent to deliver cocaine, guilty of only possession of cocaine, or
not guilty. The trial court also properly instructed the jury regarding the issues it needed to resolve in
making their determination. Viewing the record as a whole, we are satisfied that the jury understood the
verdict form choices, “guilty as charged”, “possession of less than 50 grams”, or “not guilty”, and that it
intended to find defendant guilty of possession with intent to deliver cocaine. Id.
Affirmed.
/s/ Roman S. Gribbs
/s/ William B. Murphy
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