PEOPLE OF MI V DENNIS ORR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 12, 1998
Plaintiff-Appellee,
v
No. 201146
Berrien Circuit Court
LC No. 96-002562 FH
DENNIS ORR,
Defendant-Appellant.
Before: Corrigan, C.J., and Hoekstra and Young, Jr., JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of possession with intent to deliver less than fifty
grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv). He was sentenced as an
habitual offender, third offense, to four to forty years’ imprisonment. Defendant now appeals his
conviction and sentence as of right. We affirm.
I
On appeal, defendant claims three instances of ineffective assistance of counsel. In cases such
as this, where a Ginther1 hearing has not been held, our review is limited to mistakes that are apparent
on the record. People v Price, 214 Mich App 538, 547; 543 NW2d 49 (1995). To establish that
defendant’s right to effective assistance of counsel was so undermined that it justifies reversal of an
otherwise valid conviction, this Court must find that counsel’s representation fell below an objective
standard of reasonableness and that the representation so prejudiced defendant as to deny him a fair
trial. People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994). Effective assistance of
counsel is presumed and the defendant bears a heavy burden of proving otherwise. People v
Stanaway, 446 Mich 643, 687; 521 NW2d 557 (1994).
First, defendant argues that defense counsel was ineffective when he failed to object to the
testimony of Officer Neal regarding the “Safe Streets Program.” Specifically, defendant claims that
Officer Neal’s statements led the jury to impermissibly infer that defendant fit the profile of a drug dealer
because he was standing out on the street drinking in a known drug area. Although drug dealer profile
evidence is not admissible as substantive evidence of guilt due to its speculative nature, People v
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Hubbard, 209 Mich App 234, 241; 530 NW2d 130 (1995), Officer Neal’s description of the Safe
Streets Program did not rise to the level of impermissible profile evidence. Rather, Officer Neal merely
explained that the purpose of the program was to target suspicious activity in areas known for drug
trafficking in order to slow the sale of drugs. Even if some inference could be drawn by the jurors
regarding defendant’s presence in a known drug area, it was not a sufficiently strong inference so as to
deny defendant a fair trial, even in the absence of an objection by defense counsel.
Second, defendant claims that defense counsel was ineffective when he failed to object to a
prior consistent statement made by Officer Neal. Prior consistent statements are generally not
admissible as substantive evidence because they unfairly bolster a witness’ testimony. People v
Stricklin, 162 Mich App 623, 627; 413 NW2d 457 (1987). Therefore, Officer Neal’s statement was
not admissible as a prior consistent statement; however, it was admissible under MRE 803(1) as a
present sense impression. The statement described an event or condition made while he was perceiving
the event or condition, and thus was admissible under the rule. Further, even if the officer’s statement
was inadmissible as a present sense impression, defense counsel’s failure to object would not have
denied defendant a fair trial. Two other officers also testified to the same substance of Officer Neal’s
statement. Therefore, Officer Neal’s account of the events was well corroborated notwithstanding his
prior consistent statement.
Finally, defendant claims that he was denied effective assistance of counsel because defense
counsel did not object to witness Dewey Murdick’s testimony regarding fingerprints. Murdick, the chief
analyst of the Berrien County Forensic Laboratory, was qualified as an expert in analysis of controlled
substances. In addition to testimony regarding the drug content of a baggy found at the scene of this
incident, Murdick testified that he also unsuccessfully attempted to raise fingerprints from the outside
bag. According to defendant, Murdick should not have been permitted to testify on that subject
because he was not a fingerprint expert. Defendant argues that although no fingerprints were raised,
Murdick’s testimony regarding the difficulty of raising fingerprints from plastic baggies nonetheless
denied him the ability to effectively argue that the lack of fingerprints was indicative that the package had
been lying in the area for a long period of time. We disagree.
Although Murdick was not specifically qualified as a fingerprint expert, he was trained in the
area of expertise and had performed the process hundreds of times. Defense counsel subjected
Murdick to rigorous cross-examination and sought to cast doubt on Murdick’s testimony during his
closing argument by pointing out to the jury that he was not a “fingerprint man.” Defense counsel’s
decision to not question the witness about his formal education and qualifications was likely a matter of
trial strategy, for which we will not substitute our judgment. People v Sawyer, 222 Mich App 1, 3;
564 NW2d 62 (1997). Therefore, defendant was not denied a fair trial by defense counsel’s failure to
object to Murdick’s fingerprint testimony.
II
Next, defendant claims that his sentence is disproportionate. The court sentenced defendant as
an habitual offender, third offense, MCL 769.10; MSA 28.1082, to four to forty years’ imprisonment.
The sentencing guidelines do not apply to habitual offenders, People v Gatewood, 450 Mich 1025;
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546 NW2d 252 (1996), and may not be considered by this Court in
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determining an appropriate sentence for a habitual offender, People v Gatewood (On Remand), 216
Mich App 559, 560; 550 NW2d 265 (1996). However, a sentence must be proportionate to the
seriousness of the crime and the defendant’s prior record. People v Milbourn, 435 Mich 630, 635
636, 654; 461 NW2d 1 (1990). A sentencing court abuses its discretion when it violates the principle
of proportionality. Id.
Defendant claims that his sentence should have been tailored to rehabilitation rather than simply
incarceration and, thus, violates the principle of proportionality. However, given defendant’s criminal
history, which includes two felony convictions and several probation violations over a period of 5 ½
years, defendant’s sentence is proportionate.
III
Defendant further claims on appeal that his sentence violated Michigan’s constitutional provision
against cruel or unusual punishment, Const 1963, art 1, § 16, and the United States constitutional
provision against cruel and unusual punishment, US Const, Ams V and XIV. However, because
defendant’s sentence is not disproportionate, it cannot be found cruel and unusual. People v Bullock,
440 Mich 15, 40-41; 485 NW2d 866 (1992); People v Williams (After Remand), 198 Mich App
537, 543; 499 NW2d 404 (1993). Therefore, defendant’s constitutional claim is without merit.
Affirmed.
/s/ Maura D. Corrigan
/s/ Joel P. Hoekstra
/s/ Robert P. Young, Jr.
1
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
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