PEOPLE OF MI V ANTHONY BERNARD IVEY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 1, 2000
Plaintiff-Appellee,
v
No. 216175
Saginaw Circuit Court
LC No. 97-014130 FH
ANTHONY BERNARD IVEY,
Defendant-Appellant.
Before: Gage, P.J., and Gribbs and Sawyer, JJ.
PER CURIAM.
After a jury trial, 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). The trial court sentenced
defendant to three to twenty years’ imprisonment. Defendant appeals as of right. We affirm.
Defendant first contends that the trial court erred in failing to suppress cocaine evidence because
the police sergeant who detained defendant and discovered the cocaine had no reasonable and
articulable suspicion that criminal activity was afoot. We review de novo the trial court’s ultimate
decision on a motion to suppress, while we review for clear error the trial court’s factual findings
regarding the motion to suppress. People v Echavarria, 233 Mich App 356, 366; 592 NW2d 737
(1999).
It is well established that brief investigative stops short of arrest are permitted where police
officers have a reasonable suspicion of ongoing criminal activity. People v Christie (On Remand), 206
Mich App 304, 308; 520 NW2d 647 (1994).
A valid investigatory stop must be justified at its inception and must be
reasonably related in scope to the circumstances that justified interference by the police
with a person’s security. Justification must be based on an objective manifestation that
the person stopped was or was about to be engaged in criminal activity as judged by
those versed in the field of law enforcement when viewed under the totality of the
circumstances. The detaining officer must have had a particularized and objective basis
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for the suspicion of criminal activity. [People v Champion, 452 Mich 92, 98-99; 549
NW2d 849 (1996).]
A vehicle stop for investigatory purposes may be based on fewer foundational facts than those
necessary to support a finding of reasonableness where the police conduct both a stop and search.
Christie, supra at 309.
By the time of the instant investigatory stop, the sergeant had observed a vehicle driven by
defendant illegally parked, observed defendant after exiting the vehicle ignore the sergeant’s order to
move the vehicle and instead walk away and into a residence, and shortly thereafter observed
defendant’s vehicle attempt to back into the street when the sergeant approached. See People v
Shields, 200 Mich App 554, 557-558; 504 NW2d 711 (1993) (Flight at police approach is a factor to
be considered in determining whether reasonable suspicion supported an investigative stop.). The
sergeant explained that he became suspicious because in his experience people normally did not ignore
police orders to move their illegally parked vehicles. People v LoCicero (After Remand), 453 Mich
496, 502; 556 NW2d 498 (1996) (noting that due weight must be given to the inferences a police
officer draws from the available facts in light of his experience). Given these circumstances and their
significance in light of the sergeant’s experience, we conclude that the sergeant possessed a sufficient,
particularized and objective basis for suspecting criminal activity and stopping the vehicle. Champion,
supra; Christie, supra.
Because the sergeant possessed reasonable suspicion warranting his investigatory stop of the
vehicle, the sergeant had authority to “perform a limited patdown search for weapons if the officer ha[d]
reasonable suspicion that the individual stopped for questioning [wa]s armed and thus pose[d] a danger
to the officer.” Champion, supra at 99. We need not consider whether the sergeant’s discovery of
cocaine within defendant’s jacket pocket falls within the limited scope of the sergeant’s authority to frisk
defendant, however, because defendant himself authorized the sergeant’s search of defendant’s person.
The consent exception to the warrant requirement permits a search when consent is
unequivocal, specific and freely and intelligently given. The validity of the consent depends on the
totality of the circumstances. People v Marsack, 231 Mich App 364, 378; 586 NW2d 234 (1998).
Despite defendant’s assertion that he did not voluntarily consent to any search, the trial court expressly
credited the sergeant’s recollections that defendant unequivocally agreed to let the sergeant search his
person and that no force or coercion rendered defendant’s consent involuntary. See People v Acoff,
220 Mich App 396, 400; 559 NW2d 103 (1996) (noting that investigative stops are not inherently
coercive in nature). According to the sergeant, he did not handcuff defendant and defendant fully
cooperated with him, never indicating any reluctance. Because we will not second guess on appeal the
credibility determination central to the trial court’s consent ruling, we conclude that the sergeant lawfully
searched defendant’s jacket pocket pursuant to defendant’s knowing and voluntary consent. People v
Farrow, 461 Mich 202, 209; 600 NW2d 634 (1999); Marsack, supra.
Defendant next claims that the admission of improper drug profile evidence deprived him of a
fair trial, and that defense counsel’s failure to object to this testimony constituted ineffective assistance of
counsel. Because defendant did not object at trial to the introduction of the drug profile evidence, this
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issue is unpreserved for appeal. To warrant reversal of defendant’s conviction, defendant must establish
that the unpreserved error affected his substantial rights, specifically that defendant was actually innocent
or that the error seriously affected the fairness, integrity or public reputation of the judicial proceedings.
People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999).
Even assuming arguendo that some of the drug profile testimony represented improper,
substantive evidence of defendant’s guilt, People v Murray, 234 Mich App 46, 52-58; 593 NW2d
690 (1999), defendant has not shown a plain error affecting his substantial rights. In light of the other
direct evidence produced at trial showing that the police search of defendant revealed a pager, nearly
$2000, mostly in $10 and $20 denominations, and two large and uncut rocks of crack, we cannot
conclude that defendant is actually innocent of the charged crime, or that any error seriously affected the
fairness, integrity or public reputation of the instant judicial proceedings. Carines, supra.
Similarly we cannot conclude that defendant was denied the effective assistance of counsel.
Even assuming that defense counsel’s failure to object to the drug profile evidence fell below an
objective standard of reasonableness, in light of the above evidence we cannot conclude that any error
by counsel affected the outcome of defendant’s trial. People v Pickens, 446 Mich 298, 303, 312; 521
NW2d 797 (1994).1
Defendant next argues that several instances of prosecutorial misconduct denied him a fair trial.
This Court determines prosecutorial misconduct issues on a case by case basis, examining the relevant
record to conclude whether the defendant was denied a fair and impartial trial. People v Rice (On
Remand), 235 Mich App 429, 435; 597 NW2d 843 (1999).
Defendant’s first claim of prosecutorial misconduct concerns the prosecutor’s comments during
closing argument that the jury should decide whether to believe defendant or the arresting sergeant and
return a verdict consistent with that determination. While defendant suggests that these statements
somehow impermissibly shifted the burden of proof to defendant, the prosecutor’s argument focused on
the credibility issue involved in this case and properly pointed out that because defendant’s and the
sergeant’s testimony could not be reconciled, one of them was lying. See People v Fields, 450 Mich
94, 107; 538 NW2d 356 (1995) (“Arguments regarding the weight and credibility of the witnesses and
evidence presented by defendant do not shift the burden to the defendant to prove his innocence, but
rather question the reliability of the testimony and evidence presented.”).
Defendant next argues that on two separate occasions during closing argument the prosecutor
argued facts not in evidence. Because defendant did not object, however, to the first alleged error,
specifically the prosecutor’s statements that “the defendant came over. He used the phone. Did
somebody page him, want to buy some more drugs? Don’t know,” he has waived this claim for review
because an appropriate instruction would have cured any prejudice. People v Avant, 235 Mich App
1
Because we do not find that the admission of the drug profile testimony deprived defendant of a fair
trial, we reject defendant’s further suggestion that the prosecutor engaged in misconduct in eliciting the
drug profile testimony. People v Rice (On Remand), 235 Mich App 429, 435; 597 NW2d 843
(1999).
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499, 512; 597 NW2d 864 (1999). Concerning defendant’s second allegation of error, the
prosecutor’s suggestion during his rebuttal argument that defendant’s companion fled from the scene in
an attempt to deflect the sergeant’s attention from defendant, this argument constituted a reasonable
inference from the evidence that related to the prosecutor’s theory of the case. People v Bahoda, 448
Mich 261, 282; 531 NW2d 659 (1995); People v Gonzalez, 178 Mich App 526, 535; 444 NW2d
228 (1989). Moreover, the trial court instructed the jury after the parties’ closing arguments that the
attorneys’ statements are not evidence. People v Solak, 146 Mich App 659, 677-679; 382 NW2d
495 (1985). Accordingly, we conclude that any purported error did not render defendant’s trial unfair.
Defendant further argues that during closing argument the prosecutor improperly denigrated the
defense and defense counsel. Having reviewed the record, we find that the prosecutor’s remarks when
viewed in context did not deny defendant a fair trial, but represented proper argument, based on the
evidence, that the defense theory that the sergeant planted drugs on defendant was unbelievable.
People v Marji, 180 Mich App 525, 540-541; 447 NW2d 835 (1989); People v Pawelczak, 125
Mich App 231, 238; 336 NW2d 453 (1983). Moreover, we again note that the trial court instructed
the jury that the attorneys’ comments and arguments were not evidence.
To the extent that defendant raises several other instances of alleged prosecutorial misconduct,
defendant did not timely object to the prosecutor’s remarks. Having reviewed each of these alleged
instances of misconduct, we conclude that either the prosecutor’s comments were proper2 or any
prejudice to defendant could have been cured by an appropriate instruction, and that therefore
defendant was not denied his right to a fair trial. Avant, supra.
Affirmed.
/s/ Hilda R. Gage
/s/ Roman S. Gribbs
/s/ David H. Sawyer
2
We note that with respect to defendant’s assertion that the prosecutor introduced bad acts evidence
(a) concerning defendant’s child support payments and (b) that defendant drove with a suspended
license, (a) this inquiry at worst constituted a minor misstep and (b) defendant himself volunteered this
information during his direct examination. People v Griffin, 235 Mich App 27, 45-46; 597 NW2d
176 (1999). While defendant alleges that the prosecutor improperly vouched for the sergeant’s
credibility, no indication exists that the prosecutor expressed some special knowledge concerning the
sergeant’s credibility. Bahoda, supra at 276. Lastly, while defendant challenges the prosecutor’s
argument that defendant lied during his trial testimony, the prosecutor’s argument was not improper
because the evidence showed that during the sergeant’s investigatory stop defendant lied to the
sergeant. People v Howard, 226 Mich App 528, 548; 575 NW2d 16 (1997); People v Wright, 58
Mich App 735, 746; 228 NW2d 807 (1975).
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