PEOPLE OF MI V ROBERT A BEATON
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 23, 1999
Plaintiff-Appellee,
v
Nos. 204578;204742;205327
Oakland Circuit Court
LC No. 96-148147 FH
96-146729 FH
96-149530 FH
ROBERT A. BEATON,
Defendant-Appellant.
Before: Cavanagh, P.J., and Holbrook, Jr. and Whitbeck, JJ.
PER CURIAM.
Separate juries convicted defendant of three controlled substance crimes in three different trials.
However, there was a consolidated sentencing hearing for all three convictions, and this Court
consolidated defendant’s three appeals. As there are overlapping issues of double jeopardy, sentencing
error and other alleged errors, we address the three cases separately and affirm.
I. Basic Facts
A. No 204742: The June 3 Buy
In this case, the jury convicted defendant of delivery of less than fifty grams of cocaine. MCL
333.7401(2)(a)(v); MCL 14.15(7401)(2)(a)(iv). The trial court sentenced defendant as a second
major controlled substances offender to two to forty years’ imprisonment, consecutive to his sentences
for the other two convictions at issue in this consolidated appeal.
At trial, Officer Mark Zupic testified that, in an undercover capacity, he was in Royal Oak at
about 10:30 p.m. on June 3, 1996, as he had obtained information that defendant would be in the area
of the Backstage night club with cocaine for sale and that he met defendant at that location. According
to Officer Zupic, defendant entered the officer’s car and produced a small plastic bag that contained an
off-white powder and “chunky substance” that Officer Zupic believed was cocaine. Defendant tore the
bag open and indicated that both he and Officer Zupic would “do some cocaine,” but Officer Zupic
declined. Officer Zupic testified that after defendant left the officer’s car, Officer Zupic eventually went
to a blue Geo Tracker where defendant was in the driver’s seat and another white male was in the
-1
passenger seat. Defendant handed a clear plastic baggie to the passenger who wrapped the baggie in a
piece of paper and handed it to Officer Zupic. Officer Zupic gave the passenger $500 in cash (the
“June 3 buy”). Officer Zupic described the baggie as the same baggie that defendant had previously
opened when he was in the officer’s car and testified that he recognized the baggie because its top was
ripped off. The baggie contained an off-white “powder and lumpy substance” that Officer Zupic
believed to be cocaine.1
B. No 204578: The June 6 Arrest
The trial in this case was held before a visiting judge. The jury convicted defendant 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). Another visiting judge sentenced defendant to two to forty years’ imprisonment,
consecutive to his sentences for the other two convictions at issue in this consolidated appeal.
At trial, Detective Sergeant Terry Richardson testified that on June 6, 1996, he was in the area
of 8 Mile and Southfield Road anticipating defendant’s arrival at a Burger King. According to Detective
Richardson, from an undercover vehicle parked on a side street he observed defendant and a passenger
arrive at the Burger King in a Geo Tracker; Detective Moilanen substantially corroborated Detective
Richardson’s testimony with respect to observing defendant at the Burger King.
According to Detective Richardson, the Geo Tracker pulled into a parking spot at the Burger
King and eventually left that spot and began to head for an exit, onto the public street. However, a
marked Southfield police car stopped the Geo Tracker and Detective Richardson arrested defendant
for a prior narcotics delivery (the “June 6 arrest”). Detective Richardson testified that he searched
defendant and found a clear plastic baggie in defendant’s left front pants pocket that contained another
plastic baggie that, in turn, contained a white powdery substance. Defendant Richardson also testified
that he found $495 in cash. Detective Moilanen testified that he searched defendant’s vehicle and found
a cellular telephone, a pager and a small film canister that contained “rocks” of suspected crack
cocaine.2 Detective Moilanen estimated that the value of that amount of cocaine would be from $100 to
$150, noting that the rocks were much larger than a $20 rock of crack cocaine. He also testified that
the approximate value of a gram of powder cocaine is $100.
C. No. 205327: The September 14 Search
In this case, a jury convicted defendant 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), based on the discovery of a
quantity of cocaine, in a bedroom apparently occupied by defendant, by police during a search on
September 14, 1996, at 39072 Polo Club Drive, Apartment 205 in Farmington Hills (the “September
14 search”). The trial court sentenced defendant to four to twenty years’ imprisonment for this crime.
At trial, Officer Anthony Tomasi testified that on September 13, 1996, at about 10:30 p.m., he
was at the White Castle restaurant at I-96 and Telegraph Road and that he had been requested by
Officers James Turner and Adam Pasciak to assist with the surveillance of a vehicle. Officers Turner
-2
and Pasciak were in the same vehicle, Officer Tomasi was by himself in another vehicle and Officer
Jason Haas was by himself in a third vehicle.
Officer Pasciak testified that he and Officer Turner had been observing a black Grand Prix.
Officer Pasciak said that a gray Ford Thunderbird pulled up next to the Grand Prix, that the driver of
the Grand Prix seemed somewhat nervous and that both vehicles then exited the parking lot. The
officers followed the two vehicles in their unmarked cars.
Officers Tomasi and Pasciak testified that, along a side street, the two vehicles stopped and the
passenger from the gray Thunderbird entered the dark colored Grand Prix. The police later then tried
to stop the Grand Prix, its passenger ran away and, eventually, Officer Pasciak found defendant hiding
under an evergreen tree in a back yard.
Officer Tomasi testified that he followed the gray Thunderbird and radioed to have a marked
police car stop the gray Thunderbird, which the marked police car did. Officer Tomasi searched the
gray Thunderbird and found a small “nylon-type” bag on the front passenger seat that contained a
teaspoon with a white powder residue that he believed to be cocaine. Officer Tomasi also found a
Choreboy scouring pad and a hand-held gram scale. He indicated that, from his training and
experience, such a scouring pad was quite often used in smoking crack cocaine. The scouring pad
showed a “white-type substance.” Officer Tomasi also indicated that he found a “Uno playing card,”
which he opined was sometimes used with powder cocaine “to make yourself a line to do that cocaine.”
Officer Tomasi also testified that there was a cellular telephone on the front passenger seat that
he had in his possession for about one and one-half hours. Officer Tomasi indicated that there were
about ten incoming calls on the cellular telephone during that time, sometimes the same person calling
more than once, asking if “C.C.” was there and asking to buy.
Evangelo Alexander Bageris identified defendant and testified that he knew defendant as
“Robert” or “C.C.” and that he believed that many people called defendant “C.C.” Bageris indicated
that he knew defendant and Robert Kolpacke as social acquaintances. According to Bageris, on the
evening of September 13, 1996, he first saw defendant at Robert Kolpacke’s apartment at the Polo
Club Apartments in Farmington Hills. Bageris testified that, when he went to that apartment, defendant
was there “most of the time.” Eventually, Bageris left the apartment with defendant to go to the White
Castle “on I-96, Jefferies.” Bageris testified that defendant was carrying a bag but that defendant had
told him that he did not have “anything” on him, which Bageris indicated that he took as a reference to
drugs. Bageris testified that he thought defendant might have drugs on him “[b]ecause he’s known for
that” and that was how Bageris and defendant knew each other. Bageris also indicated that he and
defendant had “partied” together with cocaine, that defendant provided the cocaine and that he
sometimes gave defendant money for the cocaine. Bageris said that he had bought cocaine from
defendant a day or two before September 13, 1996.
Bageris testified that he was driving a gray Thunderbird that belonged to his parent(s), that at the
White Castle defendant asked him to pull up next to a black car and that defendant talked to the person
in that car. Bageris testified that he and defendant stayed at the White Castle for a “couple minutes”
-3
and then the person in the black car asked them to follow him. Bageris further testified that they drove
out on a service drive and stopped at the light, that defendant “jumped out of the car,” that defendant
left his bag in the car and that none of the items in the bag belonged to Bageris.
On September 14, 1996, the police executed a search warrant at 39072 Polo Club Drive,
Apartment 205. In the south bedroom, Officer Tomasi testified that he found mail addressed to
“Robert Beaton” and a duffel bag that contained a jewelry box that in turn contained small “zip-lock”
bags. The bag also contained a shoe box that had a package full of “snow seals” or “econo seals” that
are used to hold cocaine and two bottles of Inositol, which is used as a cutting agent with cocaine. The
bag also contained more mail addressed to defendant, as well as a small amount of loose marijuana.
Officer Tomasi testified that one of the bottles of Inositol was empty, while the other was about three
quarters full. Officer Tomasi further testified that a box in the room contained mail and cards addressed
to defendant, as well as what may have been a “tally sheet” with names of people and numbers next to
those names.
Officer Tomasi also testified that he found a coffee grinder in the bottom cabinet of the
entertainment center in the south bedroom. When Officer Tomasi removed the lid of the grinder, he
found “quite a bit of white powder” that he believed to be cocaine.3 Officer Tomasi also found a digital
scale on the top shelf of the entertainment center. Inside a closet, Officer Tomasi found “a brown, small
bottle that had a clear liquid in it.” Officer Tomasi opined that the person who possessed the cocaine in
the south bedroom did so with the intent to sell it based on the amount of packaging material found, the
Inositol powder which was used “for cutting the cocaine” and the scale.
Officer Turner testified that he searched the area of the apartment between the living room and
kitchen. He found a note on a shelf that stated, “Robbie, thanks as always, maybe less cut?” and was
signed, “Love, Robbie, Robert, Bob, Bert” [and one other name that was apparently illegible]. Officer
Turner testified that he had heard the word “cut” used “to mean an agent used to greaten [sic] a
quantity of something such as cocaine.”
Officer Jason Haas testified that he was assigned to search the north bedroom of the apartment.
In that bedroom, Officer Hass found “Papers of Residency” for Robert Kolpacke. He also found a
black plate with visible white powder residue and a cut drinking straw.
Officer Valentino Zavala testified that, in December 1994 and January 1995, he was assigned
to the Michigan State Police Down River Area Narcotics Organization. Officer Zavala testified that, on
December 5, 1994, he contacted a person via pager and/or telephone about buying narcotics and
spoke with that person. According to Officer Zavala, the next day he received a telephone call from the
same person, who identified himself as “C.C.” Officer Zavala said that he made arrangements to meet
“C.C.” at a gas station in Southgate, Michigan, to buy cocaine. Eventually, Officer Zavala met
defendant at that location. Defendant was in the driver’s seat of a white Chevrolet Cavalier and had a
female passenger. Defendant indicated to Officer Zavala that he was “C.C.” Defendant then directed
Officer Zavala to drive Officer Zavala’s vehicle with defendant as a passenger to the back of a Ramada
Inn a short distance away, which Officer Zavala did. After Officer Zavala parked the car as directed,
defendant produced a bag that contained other bags, known as “snow seals, or bindles,” that held an
-4
off-white, powdery substance that Officer Zavala believed to be cocaine.4 Officer Zavala described
defendant using a pen, without an ink cartridge, to ingest some of the white powder and offering it to
Officer Zavala to do the same. Officer Zavala declined with the excuse that he was “already messed
up” and had to drive a long way. Eventually, Officer Zavala asked defendant “how much for the
packages,” defendant wrote “65” on a newspaper that was inside the vehicle and Officer Zavala then
gave defendant $60 in pre-marked Michigan State Police funds, which defendant took without
complaint. After placing the money in his pocket, defendant directed Officer Zavala to drive him back
to his vehicle. Before exiting the vehicle, defendant encouraged Officer Zavala to call him again. Officer
Zavala also indicated that he learned that defendant was living at 20209 Newman in the Brownston area
at that time.
Detective Sergeant Tyrone Mitchell, employed with the Michigan State Police, testified that he
participated in the execution of a search warrant at 20209 Newman Street in Brownston Township on
January 17, 1995 and that he spoke with defendant, who was under arrest at the time, in connection
with that search. Detective Mitchell also testified that defendant told him that defendant had been the
sole occupant of that residence and that he had some cocaine in the top dresser drawer in his bedroom.
Officer Zavala, who acted as the evidence officer during the search, testified that he located about nine
and one-half grams of cocaine in a bedroom. Three grams of marijuana were also located in the same
bedroom and the “cutting agent” Inositol was located in a kitchen cabinet. Somewhere in the residence,
“snow seal paper wafers” and a scale that was “like a gram, ounce scale” were also found. A coffee
grinder was also found from which .78 grams of white powder, suspected to be cocaine, was scraped.
There were also paper bundles inside a dresser that contained a white powdery substance.
II. Defendant’s Claims
A. No. 204742
(1) Prior Bad Acts Evidence
Defendant argues that, in cross-examination by defense counsel, a police officer improperly
injected “other acts” evidence regarding an investigation of defendant a month prior to the date of the
alleged incident. Further, defendant argues, the prosecution similarly made an improper argument in
closing argument by referring to defendant having delivered cocaine a few days earlier.
This issue was not preserved below. This Court ordinarily reviews an unpreserved evidentiary
issue for manifest injustice. See, e.g. In re Snyder, 223 Mich App 85, 92; 566 NW2d 18 (1997). We
conclude that, in light of the overwhelming evidence of guilt, any possible error connected with this issue
does not involve manifest injustice warranting a reversal of defendant’s conviction.
Defendant’s argument is unfocused, but apparently is based on the testimony of Officer Zupic
about an earlier drug related transaction that Officer Zupic had with defendant. Prior to this testimony,
Officer Zupic testified on cross-examination by defense counsel that he knew defendant was gay. In
particular, defense counsel elicited testimony about “Paula” introducing defendant and Officer Zupic at a
bar. Defense counsel also asked Officer Zupic if he discussed his “sexual preferences” with defendant
-5
or led defendant on “that you were gay and may be interested in a sexual context [sic] with him,” both
of which Officer Zupic denied. Apparently as part of a response to this, the prosecution elicited more
detailed testimony from Officer Zupic about what occurred at the meeting between defendant, Officer
Zupic and “Paula,” including testimony to the effect that defendant sold Officer Zupic cocaine on that
earlier occasion.
Apparently, defense counsel’s motivation for going into this area was to suggest that Officer
Zupic unfairly or inappropriately enticed defendant into selling him cocaine by suggesting the possibility
of a romantic relationship or sexual contact between the two of them. This testimony was immaterial to
the jury trial and should not have been offered by the defense since a claim of entrapment as a bar to
prosecution is properly raised by and decided by a trial court as a legal issue with no input from a jury.
People v Patrick, 178 Mich App 152, 160-161; 443 NW2d 499 (1989). In our view, therefore,
while the “other acts” testimony from the prosecution does not appear to have been offered for a
proper purpose, the fact that the prosecution was responding to a “defense” outside the province of the
jury is a substantial factor weighing against a finding of manifest injustice.
Most importantly, we conclude that any possible error in connection with this issue was
harmless beyond a reasonable doubt, given the key testimony from Officer Zupic that defendant and the
passenger in his vehicle provided Officer Zupic with a baggie that contained suspected cocaine in
connection with the officer giving the passenger $500. Quite obviously, the jury believed this testimony
to be truthful in reaching its verdict. We see no reasonable basis on which the testimony at issue would
have significantly bolstered the extent to which Officer Zupic appeared credible to the jury. Thus, we
find no manifest injustice from the admission of the prior bad acts evidence or the prosecution’s
argument based on that evidence.
(2) Double Jeopardy
Defendant repeats the same argument that he raises in No. 204578, below. As stated there,
defendant’s convictions in each of these three consolidated cases did not violate the right against double
jeopardy because each conviction was based on a separate and discrete incident or transaction.
(3) Amendment Of The Information
On the first day of trial, the trial court granted the prosecution’s motion to amend the information
from a charge of possession of less than fifty grams of cocaine with intent to deliver to a charge of actual
delivery. Defendant argues that this prejudiced him, violated his rights to due process and was “a
profound change requiring an entirely new defense.”
We hold that the trial court did not err by granting the prosecution’s motion to amend the
information. The charge against defendant was based on his alleged participation in selling cocaine to an
undercover police officer. Accordingly, he was on notice that he had to defend against such a charge.
We conclude that the formal change of the alleged crime from possession of less than fifty grams of
cocaine with intent to deliver to the closely analogous crime of actual delivery of less than fifty grams of
cocaine did not prejudice defendant. See People v Weathersby, 204 Mich App 98, 103-104; 514
-6
NW2d 493 (1994) (no error in amending indictment where the amendment “merely reiterated what was
already known to defendant through other procedures” and no new evidence was need to support the
amendment). Thus, the trial court did not abuse its discretion by amending the information.
(4) Failure To Excuse Juror
Defendant argues that the trial court should have dismissed one of the jurors for cause.
Defendant notes that he sought to have this juror dismissed after exhausting his peremptory challenges,
that this juror had “donated a house to a charity auction to be used for a limited time and the [elected
county] Prosecutor so used it” and that this juror donated $500 to the Prosecutor’s campaign and
invited him to a party to meet people.
As will be discussed below, defense trial counsel requested the trial court to remove the juror at
issue. While it may be debatable whether this issue is preserved as trial counsel did not state that there
were grounds for removal for cause, we treat this issue as being preserved. This Court reviews a trial
court’s decision on whether to excuse a juror for cause for an abuse of discretion, except where a
prospective juror is in a category enumerated by MCR 2.511(D) and must automatically be excused for
cause. See People v Walker, 162 Mich App 60, 63-64; 412 NW2d 244 (1987).
We conclude that the trial court did not abuse its discretion in refusing to remove the juror for
cause. The juror apparently volunteered, at a point after being preliminarily selected for the jury and
after defense counsel’s ensuing exhaustion of peremptory challenges, that he was in the banking business
and that he did substantial entertaining. The juror stated that he had put the use of his property up for a
charity auction for a school, freely admitted that he gave $500 to the Prosecutor’s campaign and invited
the Prosecutor to a Christmas or holiday party.
The mere fact that a potential juror is acquainted with the prosecuting attorney does not warrant
an inference of bias. Walker, supra at 64. Thus, the fact that the juror invited the Prosecutor to a
holiday party was, in our view, not a reasonable basis to excuse that juror for cause. Further, there is
no reason to believe that the fact that the Prosecutor prevailed in the auction and therefore spent a
weekend at the juror’s Lake Tahoe home would prejudice the juror. Indeed, the juror presumably had
no way of knowing who would bid the most for this prize at the auction.
With regard to the campaign donation, inasmuch as county Prosecutors are popularly elected,
many active members of the community will presumably take sides when there is a serious electoral
contest for that position. That a juror has sided with the winning candidate and may even generally
support the polices of an incumbent Prosecutor hardly means that the juror will not fairly consider an
individual case on its merits, particularly where, as here, the Prosecutor was not directly involved in
presenting the case. In our view, it would be unreasonable to conclude that, merely because the juror
had made a significant campaign donation to the Prosecutor’s campaign, the juror would be prejudiced
for the prosecution in this case.
While defendant analogizes this case to Walker, supra, we find that case to be inapposite. This
Court in Walker concluded that a juror should have been excused for cause where that juror was a
-7
police officer who had “worked closely with the prosecutor and certain police witnesses over a course
of ten years.” Id. at 64-65. In Walker, “[t]he very nature of this relationship necessarily includes the
elements of cooperation and trust in the successful prosecution of criminal defendants.” Id. at 65.
Here, there is no indication that the juror was in any way actively involved with the prosecution in
handling criminal cases or otherwise closely connected with the governmental functions of the
Prosecutor’s office. In sum, the trial court did not abuse its discretion by refusing to excuse this juror.
(5) Hearsay
Defendant notes that Officer Zupic testified that the passenger in defendant’s car told him not to
be “sketchy” and that the trial court erred by admitting this testimony under the conspiracy exception to
the hearsay rule. Defendant preserved this issue by objecting to eliciting of testimony from Officer Zupic
about the passenger’s statement as constituting inadmissible hearsay. We review this issue for a clear
abuse of discretion. People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998).
We find that the testimony at issue did not constitute hearsay, regardless of whether it would fall
under the coconspirator exclusion from the definition of hearsay. Officer Zupic testified that the
passenger in defendant’s car said to him, “Don’t be so sketchy next time.” While defendant claims that
this was inadmissible hearsay, this testimony did not fall under the definition of hearsay at all because
the statement by the passenger was not assertive in nature. Hearsay, in part, is “offered in evidence to
prove the truth of the matter asserted” (emphasis supplied). MRE 801(c). The statement was not an
assertion, but was rather a request or command to Officer Zupic to not be “sketchy,” and is incapable
of being considered true or false. People v Jones (On Reh After Remand), 228 Mich App 191, 205;
579 NW2d 82 (1998) (a command that is incapable of being true or false is not hearsay). Thus,
defendant has not established any error because the testimony at issue was simply not hearsay.
(6) Evidence Of Flight
Defendant’s argument on this issue is virtually incoherent but, in essence, appears to be that the
admission of certain testimony from Officer Moilanen about defendant’s conduct in driving away from
his meeting with Officer Zupic was improper because it did not amount to admissible evidence of flight.
Defendant did not preserve this issue below. This Court ordinarily reviews an unpreserved evidentiary
issue for manifest injustice. See, e.g. In re Snyder, supra.
Officer Moilanen testified that he followed the vehicle being driven by defendant after it left the
area where defendant met with Officer Zupic. In this regard, Officer Moilanen testified, apparently as
evidence of flight, as follows:
I thought he was going to go south on Woodward. He got all the way over - well, not
all the way over, he got in the right center lane, and he looked like he was going to go
south on Woodward –
***
-8
[Defendant] pulled in the right center lane, at the light for Woodward. I was in the right
lane - well, actually I had to pull along side of him, but I didn’t want to, but I pulled
along side of him so I could see him again. At that time he went over three lanes of
traffic and went north on Woodward, and we decided not to follow him anymore.
While evidence of flight is insufficient to sustain a conviction, it is admissible as some evidence of
consciousness of guilt. People v Coleman, 210 Mich App 1; 532 NW2d 885 (1995). We conclude
that, if there had been an objection on the basis at issue below, the trial court would not have abused its
discretion by admitting this evidence because a reasonable juror might have inferred that defendant was
concerned that Officer Moilanen was a police officer who observed the drug transaction with Officer
Zupic. Thus, the testimony at issue was somewhat probative as evidence of consciousness of guilt.
However, more importantly, we conclude that any possible error with regard to this issue did
not amount to manifest injustice, In re Snyder, supra, as it was harmless beyond a reasonable doubt.
Given that Officer Zupic expressly testified to a transaction in which defendant, with the cooperation of
his passenger, provided Officer Zupic with cocaine in return for $500, the testimony at issue was of
virtually no significance. Plainly, the jury credited the crucial testimony from Officer Zupic, and we see
no reason that the testimony at issue here would have reasonably contributed to that assessment. Thus,
we will not disturb defendant’s conviction based on this issue.
(7) Alleged Sentencing Errors
Defendant repeats the same argument that he raises in No. 204578, below. For the same basic
reasons, we conclude that his sentence was not disproportionately severe. Indeed the two-year
minimum sentence in this case might be regarded as lenient, particularly in light of defendant’s record of
drug crimes. Otherwise, defendant has not established error, except that, as conceded by the
prosecution, the case should be remanded for preparation of a sentencing information report.
(8) Vouching For Witnesses
Defendant argues that the prosecutor improperly vouched for the credibility of police testimony
in closing argument. This issue was not preserved at trial. This Court’s review of unpreserved
prosecutorial remarks is precluded unless any prejudicial effect could not be cured by a cautionary
instruction or failure to consider the issue would result in a miscarriage of justice. People v Warren
(After Remand), 200 Mich App 586, 589; 504 NW2d 907 (1993).
Near the beginning of closing argument, the prosecution stated:
And there’s no reason to doubt the creditability of the Officer’s [sic] in this case. In
watching you throughout the course of the trial, and watching the witnesses testify in this
matter, I don’t think any of you do doubt the credibility. There was no reason for
Officer Zupic to be dishonest in any way. And he honestly answered the questions, to
the best of his ability, throughout the course of the trial.
-9
We conclude that this argument did not constitute improper vouching for the police officers’ testimony.
The prosecution may not vouch for the credibility of a witness or suggest that the government has
special knowledge that a witness is testifying truthfully but may argue from the facts that a witness is
credible. People v Howard, 226 Mich App 528, 548; 575 NW2d 16 (1997). In this case, soon
before the remarks at issue, the prosecution stated to the jurors that they would “judge the credibility of
the witnesses.” In context, the prosecution was not improperly expressing a mere personal belief in the
credibility of Officers Zupic and Moilanen. Rather, in our view, the argument at issue was not improper
as, in essence, it was rational argument from the evidence that neither officer had a substantial motive to
lie.
Defendant also sets out in isolation the first sentence from the prosecutor’s concluding remarks
in rebuttal argument:
Ladies and gentlemen, there’s no doubt that the witnesses in this case
were honest. Any issue with regard to Susan Isley’s testimony and the chain of
evidence, if you take a look at the Exhibits, the chain of evidence in this case is
(inaudible - coughing interrupts speaker), the Officers, as well as Lab, made every
attempt to mark down every time the substance changed hands. The fact that it sat
there for a couple of months - sometimes it sits there for years - it doesn’t change the
fact that it is still cocaine. And, in fact, it was the cocaine that was exchanged hands on
June 3rd, of 1996. Ladies and gentlemen, please don’t get distracted by side-issues, by
reasons, by motives, focus on the elements of the crime, and ask yourself whether those
have been proven. And I ask you for a verdict of guilty. Thank you. [Emphasis
supplied].
In context, the emphasized remark did not constitute vouching for the credibility of witnesses, but rather
was merely an introduction to ensuing rational argument about the credibility of a prosecution witness
and the strength of the prosecution’s case. In sum, we will not reverse defendant’s conviction based on
this issue as he has not established any improper argument by the prosecution.
(9) Ineffective Assistance Of Counsel
Once again, defendant’s argument is more than a little incoherent, but he apparently is
suggesting that trial defense counsel provided ineffective assistance of counsel by failing to object or
move for a mistrial based on previous unpreserved issues. Obviously, defendant did not preserve this
issue below. Reversal based on ineffective assistance of counsel s not justified unless, in part, defendant
shows a reasonable probability that, but for the alleged unprofessional conduct by trial counsel, the
result of the proceeding would have been different. People v Pickens, 446 Mich 298, 312; 521
NW2d 797 (1994).
Here, the unopposed testimony from Officer Zupic was that defendant, with the participation of
another person, sold Officer Zupic cocaine. In our view, there is no reasonable basis to conclude that
there is a reasonable possibility, let alone a reasonable probability, Pickens, supra, that differing
performance by trial counsel with regard to any of the previous issues would have resulted in the jury
-10
disbelieving this critical testimony. Thus, in light of the overwhelming evidence of guilt, defendant has not
established that his conviction should be reversed based on ineffective assistance of counsel.
(10) Restitution
Defendant argues that he was improperly ordered to pay $500 in restitution without a hearing
regarding his ability to pay. We hold that a sentencing court is not required to conduct a separate
hearing or make express findings of fact regarding a defendant’s ability to pay absent a timely objection
by the defendant. People v Grant, 455 Mich 221, 244; 565 NW2d 389 (1997). Because there was
no such objection below, we will not disturb the portion of defendant’s sentence requiring him to pay
restitution based on this issue.
(11) Sentencing Entrapment
Defendant repeats the same argument of “sentencing entrapment” that he presents in No.
204578, below. This argument makes no sense whatever in connection with this particular case.
Defendant claims that he was unfairly prejudiced by being allowed to commit more drug related crimes
due to the delay in his arrest after June 3. However, the crime at issue in this particular case was the
transaction that occurred on June 3. Thus, the prejudice claimed by defendant was immaterial to his
crime on June 3, that occurred before the allegedly improper delay.
(12) Conclusion
We affirm defendant’s conviction of delivery of less than fifty grams of cocaine. We also affirm
his sentence for this crime, but remand the case for preparation of a sentencing information report by the
trial court.
B. No 204578
(1) Sentencing Entrapment
Defendant argues that the police engaged in a form of entrapment by not arresting him for the
June 3 buy. Basically, he claims that the conduct of the police “escalated” the number of crimes for
which he was convicted because if he had been arrested on June 3, then he would not have committed
the crime at issue in this particular appeal.
In considering whether improper entrapment has occurred, a trial court must consider whether
the police committed (1) impermissible conduct that “would induce a law-abiding person to commit a
crime in similar circumstances” or (2) “engaged in conduct so reprehensible that it cannot be tolerated.”
People v Ealy, 222 Mich App 508, 510; 564 NW2d 168 (1997). Entrapment does not occur if “the
police do nothing more than present the defendant with the opportunity to commit the crime of which he
was convicted.” Id.
In Ealy, supra at 509, the defendant was convicted of three separate delivery of cocaine
crimes--and sentenced to three consecutive prison terms for those crimes--based on a series of five
-11
cocaine sales made to an undercover police officer. The initial sale involved one-half of a gram of
cocaine, while the final sale involved 250 grams. Id. The police officer testified that he bought larger
amounts of cocaine from the defendant to determine how much he could deliver and to find defendant’s
source. Id. This Court rejected the defendant’s claim of “sentencing entrapment” based on the police
continuing the transactions which exposed him to greater penalties:
In this case, the police did nothing more than present defendant with the
opportunity to commit the crimes of which he was convicted.
***
There is no evidence that the police continued the purchases merely to enhance
defendant’s eventual sentence. The undercover officer testified that he purchased
greater amounts of cocaine from defendant in order to determine defendant’s selling
capabilities and to discover the identity of defendant’s supplier. Although defendant
could have been arrested after any of the earlier transactions, the delay in his arrest was
justified on the ground that an earlier arrest would have impaired the ability of the police
to conduct an ongoing undercover narcotics investigation. See People v Betancourt,
120 Mich App 58, 62; 327 NW2d 390 (1982). See also United States v Calva, 979
F2d 119, 123 (CA 8, 1992) (police … must be given leeway to probe the depth and
extent of a criminal enterprise, to determine whether coconspirators exist, and to trace
the drug deeper into the distribution hierarchy). The trial court did not clearly err in
determining that there was no sentencing entrapment in this case. [Ealy, supra at 511
512.]
Here, the delay by the police in arresting defendant after the June 3 buy was far less substantial than in
Ealy in that it did not involve a repeated pattern of cocaine sales to an undercover police officer.
Further, Detective Moilanen testified that he had been following defendant on June 3 to find his supplier
“the next level up” and that this was a common practice. Thus, we conclude that defendant has not
established any improper sentencing entrapment and we will not disturb his conviction based on this
issue.
(2) Right Of Confrontation
Defendant argues that he was deprived of his right to cross-examine Detective Moilanen to
show that the alleged inability to find defendant between June 3 and 6, 1996, was a pretext. Implicit in
defendant’s argument is that it was for the jury to determine whether the police made adequate efforts to
find defendant between June 3 and 6 and, thereby, whether defendant should be acquitted in this case
based on “sentencing entrapment.” However, whether entrapment has occurred is a matter to be
decided by a trial judge without input from the jury. Patrick, supra.
-12
(3) Use Of Police Officer As An Expert
Defendant notes that Detective Moilanen was qualified as an expert in narcotics investigation by
the trial court. In this regard, Detective Moilanen testified about finding a cellular telephone, a pager and
a small film canister with rocks of crack cocaine, which he described as “definitely” showing an intent to
deliver. Detective Zupic provided similar testimony. Defendant argues that the trial court erred by
allowing Detective Moilanen to present this improper “profile evidence” as substantive evidence of
defendant’s guilt. Defendant did not object below to the questions at issue. Thus, this issue is
unpreserved. This Court ordinarily reviews an unpreserved evidentiary for manifest injustice. See, e.g.
In re Snyder, supra.
We find that, even if this issue had been preserved below, the evidence at issue would have
been properly admitted as this evidence is not the type of “profile evidence” condemned for use as
substantive evidence of guilt in People v Hubbard, 209 Mich App 234; 530 NW2d 130 (1995).
Thus, we will not disturb defendant’s conviction based on this issue.
We note that after defense counsel expressed that he had no objection, the trial court qualified
Detective Moilanen as an expert in narcotics enforcement. During direct examination by the
prosecution, Detective Moilanen testified that, after defendant was arrested, he searched defendant’s
vehicle and found a cellular telephone, a pager and a small film canister behind the driver’s seat.
Detective Moilanen testified that he opened the canister and found about six grams of rocks of
suspected crack cocaine. Detective Moilanen opined that this cocaine was “definitely” possessed with
the intent to deliver and provided the following explanation:
You have powder cocaine, approximately six grams or so. You have the crack
cocaine, which I believe the weight was a little over a gram, and the way it’s - I
remember when I opened this up, the rocks were, they were still wet. And a crack user
certainly wouldn’t cut that up into smaller pieces like they were cut up. There’s no
crack pipe found with thus stuff, no straws or anything like that to use with the powder
cocaine. There was a pager and a cellular phone, which I’ve done hundreds of deals
and I can’t remember a deal where I hadn’t used my pager or cellular phone.
Officer Zupic similarly testified that, “[b]ased on the totality of all the items that we recovered that night,
I believe that this - he was in possession of these narcotics for the sole purpose of delivery.”
In Hubbard, supra at 238, a police detective testified as an expert witness about “a profile of
drug dealers” including personal characteristics and behaviors such as drug dealers being unlikely to use
their own vehicles, usually traveling in groups of two to six people, rarely carrying identification, using
“street names” and usually carrying large amounts of cash. The prosecution in Hubbard referred to this
profile evidence as circumstantial evidence of guilt. Id. This Court, in reversing the defendant’s
conviction, disapproved the use of “drug profile evidence” as substantive evidence of guilt. Id. at 241.
This Court found the reliability of such evidence to be suspect. Id. Further, this Court observed:
-13
We note that such profile evidence often changes to meet the facts of any given case.
The broad brush painted by such profiles inevitably will cover many innocent individuals.
[Id. at 242.]
However, the Hubbard panel also noted that “courts generally have allowed expert testimony
explaining the significance of seized contraband or other items of personal property.” Id. at 239.
The testimony here was not to the effect that a person was likely to be a drug dealer based on
that person having certain personal characteristics that the police associated with drug dealers. Rather,
the testimony reached a conclusion that the nature of the cocaine seized at the time of the arrest and
other seized items of personal property were associated with an intent to distribute. Under Hubbard,
such testimony is not precluded as profile evidence. Testimony about the significance of the form or
packaging of seized illicit drugs or about the finding of other items of personal property such as a cellular
telephone or a pager in close proximity to illicit drugs pose a far lesser risk of implicating the innocent
than would the broader “drug profile” at issue in Hubbard. Accordingly, we conclude that the
testimony at issue was not precluded as “drug profile” evidence because it permissibly explained the
significance of the seized contraband and other items of personal property. Hubbard, supra at 239.
Thus, we conclude that defendant has not established that the admission of the testimony at issue was
improper, let alone that its admission resulted in manifest injustice.
(4) Alleged Sentencing Errors
(a) Introduction
Defendant makes a number of arguments with respect to alleged sentencing errors. First, he
argues that he was entitled to be sentenced by the same judge who presided at trial. He notes that,
without record explanation, d
efendant was sentenced by Judge Meyer Warshawsky rather than by
Judge Charles Nelson who presided at trial. Defendant claims that this prejudiced defendant because
Judge Nelson was acquainted with all the circumstances attending defendant’s conviction.
Second, defendant claims that it is unclear if his consecutive sentences were imposed pursuant
to the conspiracy statute. If so, he argues that this was error and claims that the prosecutor incorrectly
stated to the trial court that consecutive sentencing was required. We note that it does not appear from
the record that a sentencing information report was prepared by the trial court.
Third, defendant argues that his sentence was disproportionate. He claims that he had only a
single felony prior to “the current cocaine related crime spree.” This does not merit “a minimum of 8
years” and a maximum sentence “subject only to the vagaries of the parole board.”
Fourth, defendant argues that he should have received credit for time served in jail on all three
sentences.
-14
(b) Different Judge At Sentencing
In People v Robinson, 203 Mich App 196, 197; 511 NW2d 713 (1993), this Court stated
that a defendant is entitled to be sentenced before a judge who accepts a plea provided that the judge is
reasonably available, but that the defendant waived that right at the time of the plea and, thus,
resentencing was not required. In Robinson, defendant was informed that he would be sentenced by
the assigned judge who was unavailable at the time of the plea proceeding, and defendant and his
counsel indicated that they were aware of this and did not object. Id. at 197-198. While the case here
involved a jury trial and not a plea proceeding, we conclude that the same basic principle applies: a
defendant waives any possible error in being sentenced by a different judge than the one who presided
at the time of conviction if the defendant fails to object below. Here, we have found no indication in the
record that defendant at or prior to the sentencing proceeding objected to being sentenced by Judge
Warshawsky. Thus, we conclude that defendant waived any possible error in being sentenced by Judge
Warshawsky, rather than Judge Nelson, and is not entitled to resentencing based on this claim of error.
(c) Consecutive Sentencing -“Conspiracy” Argument
Defendant indicates that it is unclear whether the consecutive sentences imposed in this case and
the two other consolidated cases were “imposed pursuant to the Controlled Substance Act or the
conspiracy statute” and that if consecutive sentencing was based on the conspiracy statute that this was
error. This argument makes no sense whatever; none of the three convictions in these consolidated
cases were for conspiracy. Rather, two of the convictions were for possession of an amount of cocaine
with intent to distribute, while the other was for delivery of cocaine. As we outline below, consecutive
sentences for these crimes was required by the plain language of MCL 333.7401(3); MSA
14.15(7401)(3).
We further note that the only case cited by defendant in the pertinent part of the argument
section of his brief, People v Denio, 214 Mich App 647; 543 NW2d 66 (1995), rev’d 454 Mich 691
(1997), was reversed by the Michigan Supreme Court prior to the filing of defendant’s brief and further
would have been inapposite in any event as it involved the question of whether the consecutive
sentencing provision of MCL 333.7401(3); MSA 14.15(7401)(3) applies to conviction of conspiracy
to commit a controlled substance enumerated in MCL 333.7401; MSA 14.15(7401).
(d) Consecutive Sentencing - “Pending” Case Argument
We find that, contrary to defendant’s argument, the sentences in each of the three consolidated
cases were required by statute to be consecutive. MCL 333.7401(3); MSA 14.15(7401)(3) provides
in pertinent part, “A term of imprisonment imposed pursuant to subsection (2)(a) or section
7403(2)(a)(i), (ii), (iii), or (iv) [this encompasses all three of defendant’s convictions in the consolidated
cases] shall be imposed to run consecutively with any term of imprisonment imposed for the commission
of another felony.” Thus, pursuant to the plain language of § 7401(3), the three sentences of terms of
imprisonment in these consolidated cases for felony drug crimes were required to be imposed
consecutive to each other. See, e.g. People v Denio, 454 Mich 691, 701; 564 NW2d 13 (1997).
Defendant’s argument in this regard is entirely lacking in merit.
-15
(e) Failure to Complete A Sentencing Information Report
While the sentencing guidelines were inapplicable to defendant’s sentencing for a second major
controlled substances crime, under controlling precedent, we must remand this case for the
administrative task of preparing a sentencing information report. People v Yeoman, 218 Mich App
406, 423 & n, 6; 554 NW2d 577 (1996).
(f) Sentencing Proportionality
As an initial matter, defendant incorrectly indicates that the consecutive nature of his sentences
may be taken into account in reviewing their proportionality. On the contrary, each sentence is to be
reviewed separately for whether it is proportionate, without regard to its consecutive nature. People v
Miles, 454 Mich 90, 95; 559 NW2d 299 (1997).
We note that the case cited by defendant for the proposition that the consecutive nature of
sentences may be taken into account in reviewing their proportionality, People v Davis, 196 Mich App
597 (1992), was expressly overruled on that point by the Michigan Supreme Court in Miles, supra at
95, over one year before the filing of defendant’s brief.
Here, defendant was convicted of possession with intent to deliver under fifty grams of cocaine,
MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv). Generally, this crime is punishable by
imprisonment for not less than one, or more than twenty, years, a fine of up to $25,000 or probation for
life. Id. However, because defendant was being sentenced as one convicted of a second major
controlled substances crime, the trial court had discretion to impose a sentence up to twice that
otherwise authorized. MCL 333.7413(2); MSA 14.15(7413)(2). Defendant’s sentence of two to
forty years’ imprisonment reflects only a doubling of the minimum prison term generally provided for this
crime. The presentence report reflects that defendant had a prior conviction for delivery of less than
fifty grams of cocaine.
Further, the circumstances of these consolidated cases reflect three separate incidents in which
defendant was involved with cocaine trafficking. Against this background of repeated criminal behavior,
we conclude that there is no reasonable claim that defendant’s sentence is disproportionately severe.
“[T]he Legislature … intended more serious commissions of a given crime by persons with a history of
criminal behavior to receive harsher sentences than relatively less serious breaches of the same penal
statute by first-time offenders.” People v Milbourn, 435 Mich 630, 635; 461 NW2d 1 (1990).
Moreover, the trial court referred to defendant’s lack of remorse at the sentencing hearing. However,
the trial court also noted that it was “not sentencing [defendant] away for life,” and that it believed
defendant could be rehabilitated. In short, the trial court reasonably considered both mitigating5 and
aggravating factors in arriving at its sentence.
(g) Sentence Credit
We find that contrary to defendant’s position, he was not entitled to credit for time served for
each of his consecutive sentences. See People v Alexander (After Remand), 207 Mich App 227,
-16
229; 523 NW2d 653 (1994) (sentencing credit to which defendant was entitled was applicable only to
his first consecutive sentence).
(5) Prior Bad Acts Evidence
Defendant argues that the trial court improperly admitted evidence of other bad acts, apparently
challenging the admission of testimony from Officer Zupic that he purchased cocaine from defendant on
June 3. Defendant claims that the prosecution even elicited testimony that defendant had previously
been convicted in connection with the June 3 buy. Defendant preserved this issue by objecting to the
“other acts” evidence. This Court reviews a trial court’s decision as to whether evidence is admissible
for a clear abuse of discretion. Starr, supra.
We find that, while part of the testimony at issue was improperly admitted, the error was
harmless. While phrasing his argument somewhat awkwardly, defendant basically attacks the admission
of testimony from police officers about the June 3 buy as improper propensity evidence barred by MRE
404(b)(1), which provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a
person in order to show action in conformity therewith. It may, however, be admissible
for other purposes, such as proof of motive, opportunity, intent, preparation, scheme,
plan, or system in doing an act, knowledge, identity, or absence of mistake or accident
when the same is material, whether such other crimes, wrongs, or acts are
contemporaneous with, or prior or subsequent to the conduct at issue in the case.
“Other acts” evidence is not barred by MRE 404 if it is relevant on any noncharacter theory. See
People v VanderVliet, 444 Mich 52, 62-63; 508 NW2d 114 (1993), modified on other grounds 445
Mich 1205 (1994). However, evidence that is not barred by MRE 404(b) may nevertheless be
excluded by the trial court under MRE 403 if its probative value is substantially outweighed by the
danger of undue prejudice. VanderVliet, supra at 74-75.
Here, Officer Zupic testified about the June 3 buy of half an ounce of cocaine from defendant
for $500. We conclude that the trial court did not abuse its discretion in admitting this testimony. Apart
from general conclusions regarding defendant’s character, this testimony may reasonably be considered
as evidence that defendant was at the time engaged in a scheme or plan of possessing cocaine with the
intent to deliver it. This was highly probative as evidence that defendant possessed the cocaine at issue
with the intent to deliver it.
However, Officer Zupic also, in essence, replied affirmatively when the prosecution asked him if
defendant had been “convicted of the delivery of June 3rd.”6 We conclude that this testimony was
improperly elicited. While the facts surrounding the June 3 buy were admissible evidence, the fact that
defendant was convicted of a crime based on that incident simply had no legal relevance. Any findings
by another jury that tried the case based on alleged criminal activity during the June 3 buy obviously
were not binding on the jury in the present case. In our view, it was improper for the prosecution to
ask--and the trial court to allow--this questioning.
-17
Nevertheless, we conclude that this error does not require reversal of defendant’s convictions.
Unopposed testimony from Detective Richardson indicated that cocaine and $495 in cash were found
on defendant’s person and that more cocaine and items of property heavily associated with drug dealing
were found behind the driver’s seat in the vehicle that defendant had been driving. Even without the
reference to defendant’s other conviction, the unopposed testimony of the police officers about the June
6 arrest provided overwhelming evidence of defendant’s guilt. Thus, we conclude that, under the
standard for nonconstitutional7 error in a criminal case, the erroneous admission of testimony about
defendant’s prior conviction does not require reversal because it is “highly probable” that it did not
contribute to the verdict. People v Mitchell (On Remand), 231 Mich App 335, 339; __ NW2d ___
(1998). In sum, we will not disturb defendant’s conviction based on this issue.
(6) Ineffective Assistance Of Counsel
Defendant argues that he did not receive effective assistance of counsel when trial counsel failed
to move for a mistrial or correct “the errors herein mentioned.” Obviously, defendant did not preserve
this issue below. Reversal based on ineffective assistance is not justified unless, in part, defendant
shows a reasonable probability that, but for the alleged unprofessional conduct by trial counsel, the
result of the proceeding would have been different. Pickens, supra.
We find that defendant has not established that he received ineffective assistance of counsel.
Defendant has not argued specific areas where trial defense counsel failed to provide effective
assistance, but rather asserts a vague, generalized claim of ineffective assistance. We conclude that
defendant abandoned this issue by failing to seriously argue its merits. See, e.g. People v Jones (On
Reh), 201 Mich App 449, 456-457; 506 NW2d 542 (1993). Further, in light of the overwhelming
evidence of guilt, we conclude that there is no reasonable probability, Pickens, supra, that different
conduct by trial counsel would have resulted in a different verdict.
(7) Double Jeopardy
Defendant argues that his conviction of three separate crimes in three separate trials for the
related charges in these cases violated the right to be free from double jeopardy. We find that this
argument is without merit. As is evident from even a surface review of the basic facts of these three
cases, the allegations u
nderlying each of defendant’s convictions involved distinct incidents at different
times and locations. There was no double jeopardy violation. See People v Toby, 401 Mich 141,
149; 257 NW2d 537 (1977) (each incident of selling heroin to same person on different days
constituted a separate act and transaction and, thus, a separate and distinct crime that could be
prosecuted separately for double jeopardy purposes.)
(8) Transcription Of Voir Dire Proceedings
Defendant argues that he should have been provided with a transcript of the voir dire so that
appellate defense counsel could have reviewed it for possible issues to raise on appeal. Pursuant to
People v Bass (On Reh), 223 Mich App 241, 260; 565 NW2d 897 (1997), if the defendant is
indigent, the defense is entitled to a transcript of the jury voir dire because appellate defense counsel
-18
was not defendant’s trial counsel.8 However, given that the defense has not sought to file a
supplemental brief presenting issues based on that transcript or otherwise raise issues based on the jury
voir dire, we believe it is appropriate to conclude that defendant has no issues to raise in that regard
and, thus, that this issue does not involve error requiring reversal.
(9) Restitution
Defendant argues that he was deprived of his Fifth Amendment rights of due process when
restitution was ordered. We find that this issue is not sensibly raised in this particular appeal. At the
sentencing hearing, defendant was ordered to pay restitution in connection with one of his other
convictions, not the conviction at issue in this appeal.
(10) Conclusion
We affirm defendant’s conviction of possession with intent to deliver less than fifty grams of
cocaine. We also affirm his sentence for this crime, but remand the case for preparation of a sentencing
information report by the trial court.
C. No. 205327
(1) Hearsay Evidence
Defendant argues that the testimony concerning calls to the telephone “found in the searched
apartment” during the September 14 search was inadmissible hearsay. Defendant claims that allowing
this testimony to be presented to the jury virtually assured conviction without directly referencing
whether defendant was guilty of the charged crime. Defendant preserved this issue by objecting to the
testimony about statements by callers over the cellular telephone as hearsay. This Court reviews a trial
court’s decision whether evidence is admissible for a clear abuse of discretion. Starr, supra.
We find that the testimony at issue was not hearsay. Officer Tomasi testified that callers on the
cellular telephone asked whether “C.C.” was there and asked to buy cocaine. As discussed above in
No. 204742, speech that is not an assertion does not constitute hearsay. See MRE 801(c); Jones,
supra at 205 (a command incapable of being true or false is not hearsay). The inquiries of the callers
asking if “C.C.” was there were not assertions, as these inquiries could not be considered true or false.
Similarly, the requests to buy cocaine were not assertions as they could not be categorized as true or
false. While one might argue that the latter requests were implicit assertions that the callers wanted to
buy cocaine, such an “implied assertion” does not constitute hearsay. Id. at 223-224.9
(2) Unreasonable Search And Seizure
Defendant argues that the police provided an inadequate explanation to justify the stop of the
vehicle in which defendant was riding. Defendant also claims that the police went to a home “in
Trenton/Brownstown” to conduct surveillance on defendant and improperly seized and examined his
trash, finding incriminating evidence.
-19
We hold that defendant’s position on this issue is directly contrary to controlling case law that he
fails even to acknowledge. First, it is not clear whether defendant objects to the police stopping, or
attempting to stop, both the Thunderbird driven by Bageris and the Grand Prix driven by another person
or only one of those stops. However, it is evident that neither of those vehicles was owned or driven by
defendant or even used by defendant for any extended period. Thus, defendant had no standing to
challenge the police stopping the cars as he had no reasonable expectation of privacy with regard to
either car. Rakas v Illinois, 439 US 128, 134; 99 S Ct 421; 58 L Ed 2d 387 (1978) (passengers in
car they neither owned or leased lacked a reasonable expectation of privacy); see also People v
Kramer, 108 Mich App 240, 247; 310 NW2d 347 (1981).
Further, warrantless search and seizure of trash left at the curb of a private residence does not
violate the Fourth Amendment “because society is not prepared to recognize the resident’s expectation
of privacy in the trash bags as objectively reasonable.” In re Forfeiture of $10,780, 181 Mich App
761, 764-765; 450 NW2d 93 (1989).
(3) Prior Bad Acts Evidence
Defendant argues that the trial court improperly admitted “other acts” evidence related to
defendant’s involvement with cocaine dealing in 1994 and 1995. We hold that the trial court did not
abuse its discretion by admitting the testimony at issue.
MRE 404(b)(1) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may, however,
be admissible for other purposes, such as proof of motive, opportunity, intent,
preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of
mistake or accident when the same is material, whether such other crimes, wrongs, or
acts are contemporaneous with, or prior or subsequent to the conduct at issue in the
case.
Such “other acts” evidence is not barred by MRE 404 if it is relevant on any noncharacter theory. See
VanderVliet, supra at 62-63. However, evidence that is not barred by MRE 404(b) may nevertheless
be excluded by the trial court under MRE 403 if its probative value is substantially outweighed by the
danger of undue prejudice. VanderVliet, supra at 74-75.
Defendant’s argument is unfocused, but in essence appears to be an attack on the admission of
testimony from Officer Zavala and Detective Mitchell related to the circumstances underlying previous
cocaine dealing by defendant in 1994-1995. We find that aspects of Officer Zavala’s testimony about
defendant’s conduct during the prior drug dealing and items found during the search of the bedroom
used by defendant in January 1995 explain defendant’s intent with regard to his possession of the
cocaine at issue in this case apart from a naked propensity theory. Officer Zavala testified about
defendant having him drive from their initial meeting place to another location for the transaction to
occur. This testimony explains why the Thunderbird in which defendant was riding may have initially
-20
pulled up next to the Grand Prix at the White Castle, but then drove to another location where
defendant left the Thunderbird and entered the Grand Prix. That defendant was engaged in such
conduct, arguably associated with drug dealing and similar to his past drug dealing practices, could
reasonably be considered as relevant to the intent with which he possessed the cocaine at issue found in
the south bedroom of the apartment in Farmington Hills.
Further, Officer Zavala testified about finding the cutting agent Inositol, a scale, “snow seals”
and other such items in the January 17, 1995 search, while police officers testified that similar items
were found in the September 14 search. Coupled with Officer Zavala’s testimony that defendant sold
him cocaine near the time of the earlier search and Detective Mitchell’s testimony that defendant said he
possessed cocaine in the bedroom at the time of the earlier search, we conclude that this testimony was
indicative of defendant’s intent in possessing the cocaine at issue here. The testimony showed
defendant as having been in possession of items that he had a practice of using to process and package
cocaine. While this testimony of prior cocaine dealing was certainly quite prejudicial in light of the
danger of its use on an inappropriate propensity theory, one could reasonably conclude that this danger
did not substantially outweigh its legitimate probative value. Thus, we conclude that the trial court did
not abuse its discretion by admitting the testimony.
(4) Defense Witness
Defendant notes that at trial defense counsel sought to call defendant’s sister Margaret Tarr to
show that defendant resided somewhere other than where the narcotics were found. The prosecution
objected, noting that no advance notice of the witness had been supplied pursuant to its demand for
discovery. Defendant argues that the trial court’s exclusion of Tarr as a witness improperly prejudiced
the determination of defendant’s guilt or innocence. Defendant did not preserve this issue by timely
objection below. This Court reviews a trial court’s decision regarding the appropriate remedy for
noncompliance with a discovery order for an abuse of discretion. People v Davie (After Remand),
225 Mich App 592, 597-598; 571 NW2d 229 (1997).
We conclude that the trial court did not abuse its discretion by precluding defendant from calling
his sister as a witness based on his failure to provide notice of his intent to call her. We first note that on
the morning of the first day of trial (the day when, among other things, the jury was impaneled although
no trial testimony was taken), there was a discussion among counsel and the trial court before the jury
was selected regarding whether the defense should be allowed to call Tarr. Apparently, it is undisputed
that defendant failed to provide the required notice regarding this w
itness. Thus, the only issue is
whether the trial court abused its discretion by precluding defendant from calling Tarr to testify at all.
The trial court initially directed Tarr to make herself available to the prosecutor for interview
purposes during the “noon hour” break before the trial court would rule on whether she would be
allowed to testify. In the afternoon of the first day of trial, the prosecutor requested that the trial court
bar testimony from Tarr:
I had the opportunity to speak with the Defense Counsel’s potential witness, Judge, and
I do feel it would be unfair, at this time, having to proceed with the surprise of this
-21
witness for a couple reasons. Based on my conversations with this witness, Judge, and
the information that she told me, I have no way, at this late hour, to verify her
information. She indicated several things to me that seem incredible. Such as the fact
that the Defendant lived with her and that she saw him everyday, give or take one or
two days; and that he was always there at the apartment where they lived. Judge, had I
known about this witness sooner, I would have had more than enough time to have
Officers go out and interview neighbors in that apartment complex to see whether or not
they were aware of the Defendant, or ever saw him present in that location. She
indicates to me he’s not on the lease of that apartment, so there’s nothing to verify her
statement to me; other than the fact, you know, her word. And it is a bias [sic] witness;
it’s the Defendant’s sister. Had I been given the opportunity prior to today’s date to
know that she was going to testify, I certainly would have had Officers go out and
investigate, and talk to the neighbors in that location.
Judge, the Court rule states that I am to be provided with the information 14
days after I request it. I requested it in January. It is now the end of April. Defense
counsel has not shown good cause why he has not given me the name of this witness …
before this morning. And I request that you exercise your discretion and disallow this
testimony.
The trial court ultimately barred testimony from Tarr stating:
And all I can tell you, sir, you didn’t comply with Discovery. If there’s a problem with
this that she can’t rebut what your witness is going to say, I am compelled to deny your
witness’s appearance on the stand.
We conclude that the trial court did not abuse its discretion, Davie, supra, by imposing this sanction.
The lack of proper notice that defendant would seek to call Tarr as a witness deprived the prosecution
of any real opportunity to investigate her possible testimony. Tarr would apparently have provided
highly questionable testimony about defendant living with her, without objective verification. The trial
court reasonably precluded such testimony as an appropriate sanction in light of the lack of opportunity
for the prosecution to adequately investigate the truthfulness of Tarr’s testimony.
(5) Included Offense
Defendant argues that the trial court erred by failing to sua sponte instruct the jury on the
necessarily included offense of simple possession of cocaine. We conclude that the trial court had no
duty to sua sponte instruct on the lesser necessarily included offense of simple possession of less than
fifty grams of cocaine. People v Till, 115 Mich App 788, 798; 323 NW2d 14 (1982) (unless a
defendant is charged with first-degree murder, the trial court is not required to sua sponte instruct the
jury on a lesser included offense).
(6) Use Of Police Officer As An Expert
-22
As he did in No. 204578, defendant argues that the testimony of Officer Tomasi and two other
police officers was improper “profile evidence.” As we stated above, testimony about the uses of
physical objects associated with drug dealing is not the type of “profile evidence” condemned in
Hubbard, supra. We also conclude that the general testimony that users of cocaine often sell cocaine
does not amount to profile evidence.
(7) Irrelevant And Unfair Evidence
Defendant notes that the prosecution introduced a note found on a shelf in the Farmington Hills
apartment. Defendant argues that this evidence was unfair because it had an undue tendency to suggest
a decision on an emotional basis. Defendant claims that, while of minimal logical relevance, this
evidence may have been given weight by a jury substantially out of proportion to its damaging effect and
must have had a strikingly emotional impact on the jury “since it virtually confirmed Defendant as a drug
dealer.” We conclude that this issue is unpreserved. While trial defense counsel objected to the
admission of the note at issue, he presented no intelligible basis for the objection. This Court ordinarily
reviews an unpreserved evidentiary issue for manifest injustice. In re Snyder, supra.
We conclude that defendant has not established that the admission of the note was improper, let
alone that its admission resulted in manifest injustice. The note stated, “Robbie, thanks as always,
maybe less cut?” and was signed, “Love, Robbie, Robert, Bob, Bert.” We hold that this note was
relevant under MRE 401 because, coupled with the location of the cutting agent Inositol in a duffel bag
with defendant’s mail in the south bedroom of the apartment, it had a tendency to make it more
probable that defendant was delivering cocaine to others and, thus, that he possessed the cocaine at
issue with the intent to deliver it. While the fact that the note was addressed to “Robbie” may have
introduced some ambiguity--in that there were indications that both defendant and Robert Kolpacke
stayed at the apartment--the location of the Inositol in an area more closely connected with defendant
could reasonably be viewed as making it more probable that the note was intended for defendant.
With regard to MRE 403, we recognize that the implicit indication in the note that defendant had
delivered illicit drugs previously might present a risk that a juror would vote to convict regardless of
what the juror concluded about defendant’s intent with regard to the cocaine at issue here. However, in
our view, one could reasonably conclude that such a risk did not substantially outweigh the probative
value of the evidence in showing defendant’s involvement with drug dealing, particularly with respect to
the reason that he possessed the cocaine.
(8) Newly Discovered Evidence
Defendant argues that People’s Exhibit 2 – cocaine found in a planner seized by the police when
defendant was arrested – was improperly admitted as newly discovered evidence. Defendant
preserved this issue by objecting to admission of the packets of suspected cocaine based on the lack of
notice. This Court reviews a trial court’s decision as to whether evidence is admissible for a clear
abuse of discretion. Starr, supra. Further, we review a trial court’s decision regarding the
consequences of a failure to provide proper discovery for an abuse of discretion. See, e.g. Davie,
supra at 597-598.
-23
We conclude that the trial court did not abuse its discretion by admitting the suspected cocaine.
Exhibit 2 was actually the planner seized from the Thunderbird driven by Bageris. On the third day of
trial, the prosecutor explained:
Judge, I guess, this Exhibit No. 2 was found in the vehicle of Mr. Bageris. But the
Exhibit was briefly opened and closed once there was found identification. Yesterday,
or I guess it was Monday, when Defense Counsel was asking us to determine whether
or not we were in possession of a Driver’s License, Officer Turner went through the
Exhibits very thoroughly, and found two packets of cocaine inside the planner.
The prosecutor stated, without contradiction by defense counsel, that “as soon as [she] found out about
it, [she] told [defense counsel].” Ultimately, the trial court allowed testimony about finding the packets
of suspected cocaine, but would not allow testimony about the positive result for the presence of
cocaine in a field test and would not delay the trial to await laboratory testing of the suspected cocaine.
Soon thereafter, Officer Pasciak testified that he recovered Exhibit 2, the planner, from the gray
Thunderbird “owned” by Bageris. Officer Pasciak indicated that he went through the car before
releasing it to Bageris and kept the planner because in examining it he saw that “C.C. Love” was written
on one of its pages and that this was a name by which defendant had gone. Basically, Officer Pasciak
secured the planner as an item of evidence without thoroughly searching it. A later, and more thorough,
search revealed “a rock-type substance; that is similar in appearance to cocaine.”
Here, the gist of defendant’s argument is that the trial court abused its discretion by admitting the
suspected cocaine because the prosecution had not provided adequate notice. In essence, defendant is
alleging a discovery violation, albeit one that was apparently unintentional. It appears undisputed that
the prosecution first learned of the existence of the packets of suspected cocaine on the first day of trial.
We hold that the trial court did not abuse its discretion, Davie, supra, but rather acted reasonably by
declining to exclude this evidence based on its late discovery. There is no reason to conclude that the
late discovery of the evidence was the result of any intentional wrongdoing; rather its late discovery was
due to an arguably incomplete search or examination by one or more police officers. The evidence that
defendant possessed drugs at the time he was in the Thunderbird and had contact with the driver of the
Grand Prix was probative of defendant’s intent in possessing the cocaine at issue here by showing that
he was at that time involved in drug dealing. We see no unfair prejudice to defendant from the
admission of this evidence as we cannot see how further time to prepare for meeting this evidence
would have allowed defense counsel to present any plausible innocent explanation for the packets.
(9) Evidence Of Flight
Defendant notes that there was testimony that the vehicle in which defendant was riding
“accelerated away from the police” and that, a short time later, defendant jumped from the car and was
thereafter pursued and caught by the police. Defendant argues that the probative value of evidence of
flight is questionable and that this evidence should not have been admitted. We conclude that, under
controlling precedent from this Court, evidence of flight is admissible as some evidence of consciousness
of guilt. Coleman, supra. Thus, we will not disturb defendant’s conviction based on this issue.
-24
(10) Alleged Sentencing Errors
Defendant essentially raises the same type of challenge to his sentence in this case as in the prior
two of these three consolidated cases. For the same basic reasons as in the two other cases, we
conclude that defendant’s sentence should not be disturbed. Indeed, we again observe that in light of
the substantial evidence of defendant’s repeated involvement in cocaine dealing over an extended period
of time, his four-year minimum sentence could reasonably be regarded as quite lenient.
We note that one difference between this case and the prior two cases is that the prosecution
does not concede that the trial court failed to prepare a sentencing information report. The lower court
file includes a sentencing information report that is completed, except that the line for signature and
dating by the sentencing judge is blank. Because the sentencing information report is not signed by the
trial judge, we conclude that it was not properly adopted and that this case should be remanded for the
trial court to complete a sentencing information report properly, Yeoman, supra.
(11) Double Jeopardy
Defendant repeats the double jeopardy challenge to his conviction in this case that he raised in
the two other cases. As discussed above, we conclude that this claim is without merit.
(12) Ineffective Assistance Of Counsel
While his argument is somewhat jumbled, defendant apparently means to suggest that trial
defense counsel provided ineffective assistance by failing to object or move for a mistrial based on
previous unpreserved issues. Defendant did not preserve this issue below. Reversal by this Court based
on ineffective assistance is not justified unless, in part, defendant shows a reasonable probability that,
but for the alleged unprofessional conduct by trial counsel, the result of the proceeding would have been
different. Pickens, supra.
We conclude that defendant has not established a claim of ineffective assistance of counsel. The
unopposed testimony from multiple police officers and a state police laboratory analyst established that
defendant fled when the police attempted to stop a car in which he was a passenger and that cocaine
and various items associated with packaging cocaine for distribution were recovered from a bedroom in
an apartment in which mail addressed to defendant was found. Also, Bageris testified that defendant
was often present in the apartment where the cocaine was found. We conclude that, in light of the
strong evidence of guilt, there is no reasonable probability, Pickens, supra, that differing performance
by trial counsel with regard to any of the previous issues would have resulted in the jury disbelieving the
critical testimony and reaching a different verdict.
(13) Conclusion
We affirm defendant’s conviction of possession with intent to deliver less than fifty grams of
cocaine. We also affirm his sentence for this crime, but remand for proper completion of a sentencing
information report by the trial court.
-25
D. Conclusion
We affirm defendant’s convictions and sentences in each of the three consolidated cases.
However, we remand each case for preparation of a sentencing information report by the trial court in
each case.
/s/ Mark J. Cavanagh
/s/ William C. Whitbeck
1
Susan Isley, a laboratory scientist with the state police, determined that the substance at issue
contained cocaine.
2
Isley again determined that the substance at issue contained cocaine.
3
Jergon Switalski, employed by a state police laboratory, determined that the white powder at issue
contained cocaine.
4
When Officer Zavala field tested the white powder, it tested positive for the presence of cocaine.
5
While not discussed in the parties’ briefs, we note that there was repeated discussion at the sentencing
hearing regarding defendant being HIV-positive, a matter that defense counsel presented as a mitigating
factor. Defense counsel also said that defendant’s “white count, his blood count is lower than it should
be, and that he is in some danger of developing full blown AIDS.” Given the lenient nature of the
sentences imposed, it is possible that the trial court considered defendant’s HIV-positive status as a
substantial mitigating factor because of the possibility that defendant would have a shorter life span than
would an uninfected person.
6
Taken literally, the testimony was that Officer Zupic was aware of whether defendant was convicted of
a crime for the June 3 buy. However, we conclude that the message reasonably conveyed to the jury
was that defendant had been convicted of a crime based on that prior incident.
7
While defendant’s statement of this issue suggested that it is constitutional in nature, his argument
presents no reason that it should be considered to be other than a nonconstitutional evidentiary issue. In
any event, even if there was constitutional error in regard to this issue, we would conclude that it was
harmless beyond a reasonable doubt in light of the overwhelming properly admissible evidence of guilt.
People v Mitchell (On Remand), 231 Mich App 335, 339; 586 NW2d 119 (1998).
8
The record in this Court’s possession does not refer to a transcript of the jury voir dire being prepared
and forwarded to defendant personally and/or to appellate defense counsel on March 20, 1998; this is
understandable in light of the fact that the record was forwarded to this Court prior to that date.
However, we find it extremely implausible that the prosecution would misrepresent such a basic
circumstance. Thus, we presume that the defense has been provided with a copy of the jury voir dire
transcript.
9
We note that even if the requests to buy cocaine were deemed assertions that the callers wanted to
buy cocaine and thus hearsay, these requests would have been admissible under the exception to the
hearsay rule of MRE 803(3) as statements of the declarants’ then existing state of mind or intent to buy
cocaine.
-26
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
