PEOPLE OF MI V JEFFREY NATHANIEL POPE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 23, 1999
Plaintiff-Appellee,
v
No. 204645
Jackson Circuit Court
LC Nos. 97-079130 FH;
97-079131 FC
JEFFREY NATHANIEL POPE,
Defendant-Appellant.
Before: Sawyer, P.J., and Fitzgerald and Saad, JJ.
PER CURIAM.
Defendant was convicted, following a jury trial, of possession with intent to deliver between 50
and 225 grams of cocaine, MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii), and possession with
intent to deliver marijuana, MCL 333.7401(2)(d)(iii); MSA 14.15(7401)(2)(d)(iii). He was sentenced
as a second drug offender on the cocaine conviction to twenty to forty years in prison and as a fourth
offender on the marijuana conviction to two to four years in prison. In a separate trial, defendant was
also convicted following a jury trial of assault with intent to murder, MCL 750.83; MSA 28.278, two
counts of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2),
resisting and obstructing a police officer, MCL 750.479; MSA 28.747, assault with intent to do great
bodily harm less than the crime of murder, MCL 750.84; MSA 28.279, and disarming a police officer,
MCL 750.479b(2); MSA 28.747(2)(2). He was sentenced as a fourth offender, MCL 769.12; MSA
28.1084, to forty to seventy years on the assault with intent to murder conviction, ten to fifteen years on
the resisting and obstructing conviction, thirty-five to seventy years on the assault with intent to do great
bodily harm conviction, fifteen to thirty years on the disarming a police officer conviction, and to the
mandatory consecutive two-year terms on the felony-firearm convictions. Defendant now appeals and
we affirm.
Defendant’s convictions, although occurring in separate trials, arise out of the same incident.
Briefly, defendant was suspected of being involved in drug dealing. An informant was sent in to make a
controlled buy. After she purchased a gram of cocaine from defendant, a search warrant was obtained
and executed on February 14, 1997. During the execution of the warrant, defendant attempted to flee.
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When caught by an officer, defendant struggled. He managed to disarm the officer and shoot the officer
before being shot himself. The search of the house resulted in the discovery of the drugs which give rise
to defendant’s drug convictions. The struggle and shooting is the basis for the other crimes for which
defendant was convicted.
Turning first to defendant’s drug convictions, he argues that he was denied a fair trial because
testimony was elicited to the effect that the police had investigated him and determined that he was a
large-scale drug dealer, as well as opinion testimony by a police officer that defendant’s intent was to
deliver the drugs. Defendant’s argument focuses on the testimony of Detective Gonzalez, who testified
regarding the activities of a regional drug task force, LAWNET, and the testimony of Detective
Saucedo who testified as to defendant’s intent, as well as associated arguments by the prosecutor.
For the most part, defendant has not properly preserved this issue for review. With respect to
any comments made by the prosecutor during opening statement or closing argument, there was no
objection. See People v Vaughn, 186 Mich App 376, 384; 465 NW2d 365 (1990). Similarly, there
was no objection to Detective Saucedo’s testimony and, therefore, it is not properly preserved for
review. People v Stimage, 202 Mich App 28, 30; 507 NW2d 778 (1993).1
With respect to Detective Gonzalez’ testimony, defendant did raise a number of objections.
Most of those objections were either sustained or resulted in the prosecutor’s voluntarily dropping or
rephrasing the question. One of the objections which was overruled did have some relationship to this
issue. Specifically, the prosecutor asked “what actually constitutes LAWNET in terms of the various
counties that you represent?” Defendant objected, arguing relevancy. The trial court overruled, stating
that it was relevant to foundation, but cautioned the prosecutor not to go to far afield.
That objection is not, in our opinion, sufficient to preserve for review the question whether
Detective Gonzalez should have been allowed to testify concerning the nature of LAWNET and its
activities, either in general or as they related to defendant. Defendant did not object to the testimony
concerning LAWNET or its investigation of defendant. Rather, he only objected to a particular
question concerning what geographic area LAWNET covered. An objection on one ground at trial is
insufficient to preserve an appellate attack on a different ground. Stimage, supra.
For the above reasons, we are not persuaded that this issue is properly before us for review.
Next, defendant argues that he was denied a fair trial because the prosecutor argued that
defendant was unemployed, as well as arguing and introducing evidence that defendant was “leaching”
off his girl friend, Jessica Ernst. Specifically, in his opening statement, the prosecutor stated that there
would be evidence that defendant was unemployed and “leaching” off his girl friend. Further, during the
girl friend’s testimony, she testified that defendant had been living with her for many months before the
raid and that he had not contributed towards the household expenses.
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With respect to the prosecutor’s opening statement, there was no objection and, therefore, the
issue is not preserved for appeal. Vaughn, supra. With respect to the girl friend’s testimony,
defendant raised two objections, one of which was overruled and the other sustained.
The first, which was overruled, was whether defendant was living with her and whether he was
paying his share of the expenses. Defendant objected on grounds of relevancy. The prosecutor argued
that it was relevant to establishing defendant’s residency in the house and, thus, the connection to the
drugs found there. The trial court agreed, though cautioned the prosecutor to quickly establish his point.
We agree that these questions were relevant to the issue of defendant’s residency in the house and,
therefore, to his possession of the drugs found in the house. While that evidence could possibly be used
in an improper manner to argue that defendant was a “deadbeat,” the objection would be to that
argument and not to the evidence itself which could be used in an appropriate manner. As noted above,
defendant has not preserved any issue with respect to how the prosecutor utilized the evidence once
obtained.
The second objection raised by defendant was in response to a question by the prosecutor
whether defendant’s girl friend was aware that at the time of defendant’s arrest the police had seized a
large sum of money. Defendant objected on grounds of relevancy; the prosecutor argued that it was
relevant that defendant was not contributing to the household. The trial court concluded that the
prosecutor had “gone too far” and sustained the objection. An answer was never obtained from the
witness, nor did the defendant request any further relief. Therefore, there is no relief for this Court to
now afford defendant. See People v Wise, 134 Mich App 82, 105; 351 NW2d 255 (1984) (where
an objection is sustained, this Court will not reverse absent manifest injustice if the defendant has not
requested a mistrial).
Defendant’s final argument with respect to the drug charges is that the trial court erred in failing
to give instructions on the lesser included misdemeanors of possession and use of marijuana. Defendant
did properly preserve this issue by requesting those instructions at trial.
The Supreme Court in People v Steele, 429 Mich 13, 19-21; 412 NW2d 206 (1987),
reviewed the requirements which must be met in order to give a lesser-included misdemeanor instruction
for a felony charge: (1) that a proper request is made; (2) that an appropriate relationship exists
between the charged offense and the requested misdemeanor, which requires a showing that the two
offenses relate to the same interests and that they are related in an evidentiary manner so that proof of
the misdemeanor is necessarily presented as part of the proof of the charged offense; (3) that the
requested misdemeanor be supported by a rational view of the evidence; (4) that if the request is by the
prosecutor, the defendant had adequate notice; and (5) that the requested instruction will not result in
undue confusion or injustice.
With respect to the requested instruction on use, that can be easily addressed. There was no
evidence in the record that defendant was engaged in use at the time of the charged offense. This is akin
to the situation in Steele, where the Supreme Court agreed that a use of LSD instruction was not
warranted where the only evidence of use was that there may have been some at a time not connected
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with the transaction for which the defendant had been charged. Id. at 24. Therefore, the trial court
properly declined to give an instruction on use of marijuana in the case at bar.
The issue of the giving of an instruction on simple possession of marijuana, however, is not so
easily dismissed. Steele provides no guidance because in that case the defendant admitted to a delivery,
but thought he was delivering mescaline rather LSD. Therefore, the Court concluded that a possession
of LSD instruction was not required. In the case at bar, however, defendant’s argument is that he did
not possess the large quantity of marijuana found in the house, but only the relatively small amount
actually found on his person.2
In any event, we are satisfied that a rational view of the evidence does not support the
misdemeanor of simple possession. Either the jury believed the marijuana belonged to defendant or it
did not so believe. If it believed that the marijuana belonged to defendant, the quantity involved
supports only an intent to deliver, not for personal use. If the jury did not believe that defendant
possessed the marijuana, then it would acquit on both possession and possession with intent to deliver.
Therefore, the trial court did not err in refusing to give an instruction on possession.
We now turn to the issues raised by defendant with respect to the non-drug convictions. First,
defendant argues that he was denied a fair trial when the prosecutor sought to introduce evidence of the
drugs which were seized as part of the execution of the search warrant. Before trial, the trial court
granted defendant’s request to have the drug charges tried separately from the remaining charges. The
prosecutor was also directed not to bring up the issue of the drugs found in the house under the warrant,
and the jury was instructed that the reason for the search was irrelevant.
Defendant complains of various attempts by the prosecutor to inject this issue into the trial.
Two such instances are properly presented for our review. First, there was a question by the
prosecutor on cross-examination of defendant concerning the discovery of drugs in the house and the
charges against defendant’s girl friend as a result. This resulted in an objection which was sustained and
for which defendant subsequently requested a mistrial. The other occurred during the questioning of
Detective Sergeant Bowman regarding defendant’s statement that he thought he was being “ripped off”
and acted in self-defense. This objection was overruled.
With respect to the motion for mistrial, we review that for an abuse of discretion. People v
Haywood, 209 Mich App 217, 228; 530 NW2d 497 (1995). The trial court denied the motion,
concluding that the cautionary instruction was sufficient. We are not persuaded that the trial court
abused its discretion. The question put to defendant specifically regarded criminal charges against his
girl friend, not against himself. Further, the specific question regarding the discovery of a large amount
of drugs in the house was never completed and no answer taken. The trial court sustained the
objection, admonished the prosecutor, and instructed the jury to ignore the question. Under the
circumstances, we are satisfied that the trial court properly handled the situation and, therefore, did not
abuse its discretion in thereafter denying the motion for mistrial.
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Turning to the testimony of Detective Bowman, the issue was raised in the context of
defendant’s statement following arrest that he did not believe the individuals entering the house were
police officers, but rather that he was being robbed. On redirect, the prosecutor asked Detective
Bowman whether “the context of that would often come up with is when drug dealers get ripped off,
correct?” Defendant immediately objected. The trial court overruled the objection, noting that
defendant had opened the door. We agree with the trial court. Defendant developed the theory that he
thought he was being robbed. Further, on cross-examination of Detective Bowman, defendant
established that defendant had been threatened by others to have the Drug Enforcement Agency raid his
home. We agree with the trial court that the prosecutor was entitled to probe into the nature of
defendant’s claim that he thought he was the victim of a robbery rather than a police raid.
Defendant next argues that the trial court erred in denying his motion for directed verdict on the
assault with intent to murder charge. We disagree. In considering a sufficiency of the evidence
question, a court must look at the evidence in the light most favorable to the prosecutor and determine
whether a rational trier of fact could reasonably conclude that the essential elements of the offense were
proven beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992).
In the case at bar, defendant claims that there was insufficient evidence to establish that he had
the intent to kill Trooper Chartrand. We disagree. Defendant’s argument on this issue essentially shows
why it would have been reasonable for the jury to conclude that he did not possess the intent to kill.
However, our concern is not with whether it would have been reasonable for the jury to conclude that
defendant did not intend to kill Trooper Chartrand. Rather, we must consider whether it was
reasonable for them to conclude that he did intend to kill Trooper Chartrand. The trooper’s testimony
at trial is that defendant knocked the trooper’s weapon from his hand, picked it up and shot the trooper
with it. Defendant argues that because the wound was to the trooper’s arm, that the jury could not infer
from the wound an intent to kill. We do not agree.
We think it is reasonable for the jury to conclude an intent to kill from the fact that defendant
fired a weapon at the trooper. A firearm, by its very nature, is a dangerous weapon which, when shot
at someone, has the likelihood of killing the person. The evidence in this case does not compel the
conclusion that defendant took care to inflict a non-fatal wound, such as intentionally shooting the officer
in the foot. Rather, defendant was engaged in a struggle with another officer when Chartrand
approached to render assistance. Defendant managed to disarm Chartrand, retrieve the weapon, and
fire at Chartrand, while continuing to struggle with the other officer. We are satisfied that a reasonable
trier of fact could conclude that defendant possessed the intent to kill Chartrand.
Next, defendant argues that the trial court erred in giving a flight instruction when the evidence
did not support it. However, defendant has not preserved this issue for appeal by raising the
appropriate objection in the trial court and, therefore, we decline to consider the issue. People v Van
Dorsten, 441 Mich 540, 544-545; 494 NW2d 737 (1993). Defendant’s argument that he did object
to the flight instruction is incorrect. In discussing the instructions, defense counsel did address this
instruction, though he ultimately conceded that the trial court was correct. Furthermore, at the end of
the discussion on the jury instructions, the trial court asked defense counsel if there were any objections
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other than to the trial court’s refusal to give the requested instruction CJI2d 7.17 (no duty to retreat in
one’s own home to claim self-defense). Defense counsel indicated that there was not. Similarly, after
the jury was instructed, the trial court again asked if there were any objections and defense counsel
indicated that there were not. Accordingly, we conclude that defendant has not preserved this issue for
appeal.
Defendant’s next argument is that the trial court erred in admitting defendant’s post-arrest
statement into evidence. Specifically, defendant argues that the prosecutor failed to establish that
defendant had knowingly and voluntarily waived his constitutional rights. We disagree. After holding
the obligatory Walker3 hearing, the trial court found that defendant knowingly and voluntarily waived his
constitutional rights and made a voluntary statement to the police. In its findings, the trial court found the
testimony of the interrogating officer, Detective Bowman, to be credible.
Defendant was interrogated at the hospital following his treatment for the gunshot wounds.
Detective Bowman testified that when interrogated defendant, defendant was awake and alert, giving
responsive answers to questions. Detective Bowman further indicated that he had been advised by the
medical personnel that defendant was in a satisfactory condition to talk to the police.
We cannot say that the trial court clearly erred in accepting Detective Bowman’s testimony as
credible. Furthermore, in light of Detective Bowman’s testimony, we are satisfied that the trial court did
not err in concluding that, under the totality of the circumstances, People v Sexton, 458 Mich 43; 580
NW2d 404 (1998), defendant knowingly and voluntarily waived his constitutional rights and chose to
speak to the police. Defendant’s argument is essentially that his waiver of rights could not have been
voluntary because it was made shortly after he had been shot and received medical treatment.
However, we are aware of no rule that states that an injured person is, by virtue of the injury,
automatically incapable of understanding or waiving his constitutional rights and choosing to speak to the
police voluntarily. Indeed, in People v Cleveland, 251 Mich 542, 547; 232 NW 384 (1930), the
Court held the mere fact that a defendant is suffering from a severe physical injury and is under great
excitement and strain does not of itself render a statement inadmissible.
In the case at bar, the totality of the circumstances indicates that defendant, despite his injuries,
was capable of understanding his constitutional rights and to knowingly and voluntarily waive those
rights, which he did. Therefore, the trial court did not err in concluding that defendant’s statement was
admissible.
Next, defendant argues that he was denied a fair trial because of the trial judge’s questioning of
a witness. We disagree. At issue is a single question posed by the trial court to Dr. Casey, one of the
physicians who attended to defendant in the emergency room following the shooting. During the
examination of Dr. Casey, the issue of the bullet wounds inflicted on defendant and their trajectory was
developed. Essentially, defendant was endeavoring to establish that his wounds were consistent with his
description of the events and inconsistent with Officer Gonzalez’ description. At the end of the
examination, the trial court posed a single question to Dr. Casey:
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Q: Would what you observed concerning the wounds be consistent with
somebody walking up the stairs where, perhaps, the shot went in the leg that would
have been foremost; that is, going up the stairs at the time and the body leading
forward?
A: That could occur.
The trial court’s question, is essence, was whether the wounds could be consistent with Officer
Gonzalez’ version of the events.
This Court, in People v Cheeks, 216 Mich App 470, 480; 549 NW2d 584 (1996), discussed
the principle that, while a trial judge may question a witness, it must take care in doing so:
A defendant in a criminal trial is entitled to expect a “neutral and detached
magistrate.” People v Moore, 161 Mich App 615, 619; 411 NW2d 797 (1987).
While a trial court may question witnesses to clarify testimony or elicit additional
relevant information, the trial court must exercise caution and restraint to ensure that its
questions are not intimidating, argumentative, prejudicial, unfair, or partial. People v
Conyers, 194 Mich App 395, 404-405; 487 NW2d 787 (1992). The test is whether
the judge’s questions and comments may have unjustifiably aroused suspicion in the
mind of the jury concerning a witness’ credibility and whether partiality quite possibly
could have influenced the jury to the detriment of the defendant’s case. Id., 405.
We are not persuaded the trial court demonstrated any form of partiality in front of the jury or damaged
the witness’ credibility by its single question. Undoubtedly the question and answer benefited the
prosecutor rather defendant. However, it did not demonstrate any bias or prejudice against defendant.
While the answer to the question may have influenced the jury’s decision, we cannot say that the mere
fact that the trial court posed the question influenced the jury against defendant. That is, any harm to
defendant was done by the information in the answer, not because the trial court demonstrated to the
jury that it favored the prosecutor. Therefore, we cannot say that the trial court improperly imposed
itself into the trial.
Finally, defendant argues that he was denied a fair trial by the prosecutor’s misuse of Ernst’s
out-of-court statements. We disagree. At issue is the prosecutor’s attempt to establish, through
statements by Ernst, that defendant knew the police were on their way. The first such incident that
defendant refers to is a question by the prosecutor to Ernst concerning whether she had told her
attorney that defendant knew the police were on their way. The following exchange took place:
Q: In fact, didn’t you tell your attorney that it was your understanding that Mr.
Pope knew the police were on their way there?
THE COURT: Anything she told her attorney is privileged.
BY MR. MC BAIN [PROSECUTOR], CONTINUING:
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Q: Did you know that?
THE COURT: Know what?
MR. REID [DEFENSE COUNSEL]: Your Honor.
MR. MC BAIN: Strike and rephrase.
First, we note that, to the extent that defendant objected, the objection was sustained and, therefore,
defendant is entitled to no further relief absent a motion for mistrial, which was not made. Wise, supra.
Second, we note that the privilege was held by the witness, not defendant. Therefore, neither defendant
nor the trial court could stop Ernst from the answering the question if she chose to do so. It was for her
to assert the privilege, not defendant or the trial court to do so. See People v Wood, 447 Mich 80, 89
90; 523 NW2d 477 (1994).
Similarly, defendant argues that it was improper for the prosecutor to call a witness when it is
known that the witness will refuse to testify, asserting a privilege. However, that is not the situation in
the case at bar. First, although Ernst was called by the prosecutor, it was at the request of defendant,
apparently under the res gestae rule, so that she could be cross-examined; she was not called at the
initiative of the prosecutor. Second, before she was called, the issue of her asserting her Fifth
Amendment privilege against self-incrimination was considered. Ernst acknowledged that, once she
took the witness stand and began testifying, she would not be permitted to thereafter assert the privilege
against self-incrimination and she agreed to testify without asserting that privilege. Finally, with respect
to the attorney-client privilege, she never actually asserted that privilege. It is, therefore, at best
speculative that she would have done so and that the prosecutor knew that she would have done so in
response to his question. Therefore, we cannot conclude that the prosecutor knowingly called a witness
who would assert a privilege.
Defendant also complains of the prosecutor’s questioning Ernst regarding her statement to the
police that the police had identified themselves when entering the house. At trial, Ernst testified that she
did not know who it was that was entering the house. The prosecutor questioned her on her statement
to Detective Pompey shortly after the raid that they had identified themselves as police officers and that
they possessed a search warrant. Ernst denied any recollection of making that statement to the police.
Defendant, however, did not object to this testimony and, therefore, the issue is not preserved for
appellate review. Stimage, supra.
Defendant also complains that the prosecutor improperly argued the prior statement as
substantive evidence of guilt. Specifically, the prosecutor had called Detective Pompey as a rebuttal
witness to establish Ernst’s prior statement. While defendant concedes that this would be proper
impeachment evidence, defendant claims that the prosecutor improperly argued in closing that the
statement was substantive evidence of defendant’s guilt. Defendant, however, failed to preserve this
argument for appeal by raising an objection at the time of the prosecutor’s closing argument.
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Affirmed.
/s/ David H. Sawyer
/s/ E. Thomas Fitzgerald
/s/ Henry W. Saad
1
We note that Stimage, supra at 30, also concluded that it was not improper for a police witness to
give an opinion regarding the amount of drugs found as it relates to an intent to deliver. Defendant urges
us to conclude that Stimage was incorrectly decided. We are not persuaded that it was.
2
Out of over 485 grams of marijuana found, less than 7 grams was found in defendant’s wallet. The
remainder was found elsewhere in the house, mainly in the refrigerator.
3
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
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