PEOPLE OF MI V DUJUAN I HANSPARD
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
September 4, 2001
Plaintiff-Appellee,
v
No. 218906
Wayne Circuit Court
LC No. 98-007883
DUJUAN I. HANSPARD,
Defendant-Appellant.
Before: Sawyer, P.J., and Griffin and O’Connell, JJ.
PER CURIAM.
Defendant was convicted of aiding and abetting the delivery of less than fifty grams of
cocaine, MCL 333.7401(2)(a)(iv). He was sentenced as a fourth habitual offender, MCL 769.12,
to three to twenty years’ imprisonment. Defendant appeals as of right. We affirm.
Defendant first argues that the unavailability of the transcript of the first day of trial
requires reversal of his conviction. We disagree.
Following a three-day bench trial resulting in defendant’s conviction of aiding and
abetting the delivery of less than fifty grams of cocaine, defendant filed a motion in this Court to
remand the case to the trial court in order to settle the record of the first day of trial because the
transcript of that day was unavailable. The court reporter testified in an affidavit that the tape of
the first day of the trial was blank. In view of the circumstances and consistent with MCR
7.210(B)(2), this Court ordered a remand to the trial court for settlement of the record. In
response to our remand order, the trial court read her trial notes of the first day into the record as
the certified statement of facts settling the record.1 Now, on appeal, defendant argues that the
1
Afterward, defense counsel informed the trial court that defendant wanted to read his trial notes
into the record as well and argued defendant should be permitted to participate in the proceeding.
The trial court did not allow defendant to read his notes into the record, but allowed him to
submit a copy of his notes as part of the record. The court gave defendant time to prepare a
proposed statement of facts using his notes and scheduled a future hearing on the matter.
Defendant filed a revised proposed statement of facts and a supplemental memorandum of law
with the trial court, arguing that the court could not accurately and fairly settle the record. At the
final hearing on this issue, the trial court reviewed and rejected defendant’s revised proposed
statement of facts, finding that portions of the proposed facts were mere allegations as opposed
(continued…)
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absence of the transcript precludes meaningful appellate review and requires reversal of his
conviction.
Whether the unavailability of a trial transcript denies a defendant his due process right to
proper appellate review is a constitutional issue which this Court reviews de novo on appeal.
People v Mackle, 241 Mich App 583, 602; 617 NW2d 339 (2000). While the inability to obtain
a transcript of a criminal proceeding may so impede a defendant’s right to appeal that a new trial
must be ordered, People v Horton (After Remand), 105 Mich App 329, 331; 306 NW2d 500
(1981), the unavailability of a transcript does not automatically require the vacation of a
defendant’s conviction. If the surviving record is sufficient to allow evaluation of a defendant’s
claims on appeal, the defendant’s right is satisfied. People v Audison, 126 Mich App 829, 834835; 338 NW2d 235 (1983). Furthermore, a defendant must demonstrate prejudice resulting
from the missing transcripts. Bransford v Brown, 806 F2d 83, 86 (CA 6, 1986). Although
demonstrating prejudice is difficult in the absence of transcripts, a defendant must present
something more than gross speculation that the transcripts were requisite to a fair appeal. Id.
In the instant case, defendant contends that the testimony of a key prosecution witness
(the intermediary in the drug transaction in question who purchased the cocaine for the police) is
contained in the missing transcript. Defendant argues that this witness’ testimony, by the
prosecutor’s own admission, was purportedly “rough around the edges,” and there is no way for
defendant to meaningfully challenge such questionable testimony on appeal. Defendant further
argues that “[s]ingularly absent from the trial court’s purported findings were any objections
made, the basis for such objections, and the rulings made in response to such objections,” and
“[y]et the final arguments suggest that there must have been significant objections during the
March 1st proceedings, but there is no way to reproduce the events.” However, we conclude that
defendant’s broad allegations in this regard, including his contention that the transcript might
reveal error on evidentiary rulings, are so nebulous that they constitute mere speculation that
reversible error may have occurred.
Although defendant also maintains that the transcript is necessary in order to assess
alleged error regarding the foundation for the admissibility of the marked funds used in the drug
transaction and referenced at trial, our review of the record does not substantiate defendant’s
claim. The transcript of the second day of trial reflects that defense counsel complained that he
did not receive any information during discovery regarding the denominations of the alleged prerecorded funds. With regard to the police report indicating the pre-recording of the cash used in
the transaction, the following transpired:
The Court: Didn’t you get the report with all the pre-recorded funds serial
numbers on it?
***
(…continued)
to facts and many of the proposed facts were untrue. The trial court then certified its own notes
that had been read into the record at the previous hearing as the settled statement of facts.
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The Court: Did you get that?
Mr. Hennigan (defense counsel): Yes.
The Court: Well what else would you want?
Mr. Hennigan: Well, judge, that’s after the fact.
Mr. Wenzel (assistant prosecutor): It was the inventory of what funds
were removed from what persons with serial numbers and the serial number of the
one bill that wasn’t recovered as well. That’s –
Mr. Hennigan: I want to separate something out, judge.
The point I’m making on that issue is simply that I wasn’t getting
discovery. And that this – that regarding the pre-recorded funds, I am not asking
at this point that that testimony regarding the pre-recorded funds be stricken
because there isn’t any testimony regarding any pre-recorded funds unless you
look at this report which is after the fact.
I simply mention that to illustrate the fact that I am not getting the full
discovery in this case. And in fact this one is so tardy it’s unacceptable.
[Emphasis added.]
Defendant’s proposed statement of facts alleged as follows with regard to the prerecording of the serial numbers of the cash used in the transaction:
4. Taylor Police Sergeant Dale Tamsen testified that he had provided
$200.00 for the use of Officer Jeff Patterson in attempting to buy drugs.
5. Tamsen did not know the serial numbers of the funds.
6. He claimed he had documentation of the serial numbers and
denominations of the bills, but he left the documentation at his office.
7. The prosecution used Officer Patterson’s police report for the
ostensible purpose of refreshing Sgt. Tamsen’s recollection. Sgt. Tamsen had not
indicated he had previously known the serial numbers or denominations, and that
review of Patterson’s report could have refreshed his recollection. Defense
counsel objected that this was improper refreshment of recollection, and that
using Patterson’s report to verify the denominations and serial numbers recorded
on Tamsen’s absent documentation lacked a foundation of personal knowledge,
and violated the best-evidence rule. The trial court overruled.
8. Sgt. Tamsen could not testify as to the denominations of the bills. Over
a defense objection to improper refreshment of recollection, and improper
speculation, he was permitted to rely on Officer Patterson’s report to refresh his
recollection. He had no independent knowledge as to how certain serial numbers
and bill denominations came to be listed on Patterson’s report, but Tamsen was
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allowed to speculate, “Well, I guess he got them off mine [my documentation],”
which was never produced. [Emphasis added.]
Even assuming the facts were as alleged in defendant’s proposed statement of facts, we
conclude that no error requiring a new trial occurred due to the missing transcript. MRE 612(A)
allows a witness to review a writing for the purpose of refreshing the witness’ recollection. This
was done in the present case. Defendant cites no authority for the proposition that the witness
himself must be the author of the document from which his memory is refreshed. In any event, if
error occurred on this evidentiary issue, we conclude such error was harmless. People v Lukity,
460 Mich 484; 596 NW2d 607 (1999); MCL 769.26. Ample evidence was presented from the
prosecution witnesses that defendant, by his presence during the drug transaction and the nature
of his questioning of the undercover police officer, intended to assist in the transaction and aided
and abetted the delivery of less than fifty grams of cocaine.
Defendant also argues that the trial court’s adoption of its own notes as the settled
statement of facts denied him the right to meaningfully participate in the settlement of the record.
This argument is refuted by the facts set forth in this decision, supra at p 2, n 1. As these facts
demonstrate, defendant was permitted to participate in the proceedings to settle the record; the
trial court simply disagreed with his version of the statement of facts and used its own trial notes,
which it perceived to be “an accurate, fair and complete statement of the proceedings before it,”
MCR 7.210(B)(2)(c), as the basis for the certified statement of facts.
Finally, defendant argues that the trial court’s decision to vacate the original sentence and
impose a harsher habitual offender sentence was improper. We disagree.
Although defendant’s habitual offender status was determined prior to the imposition of
his sentence on the underlying offense, the trial court mistakenly followed the procedure set forth
in an outdated, former version of MCL 769.13, whereby a defendant’s habitual offender status
was to be determined after the imposition of his sentence on the underlying offense, see,
generally, People v Green, 228 Mich App 684, 699; 580 NW2d 444 (1998), and imposed a
sentence of eighteen months to twenty years’ imprisonment. The trial court then vacated the
original sentence and imposed a habitual offender sentence of three to twenty years’
imprisonment. However, MCL 769.13 had been amended effective May 1, 1994, to provide for
the determination of a defendant’s habitual offender status at or before the sentencing hearing on
the underlying offense so as to obviate the need to vacate a defendant’s underlying sentence.
MCL 769.13(5); Green, supra at 699 ns 2 and 3.
Noting that once a valid sentence is imposed, it cannot be set aside or modified, MCR
6.429, People v Wybrecht, 222 Mich App 160, 564 NW2d 903 (1997), defendant argues that the
trial court did not have jurisdiction to vacate the initial eighteen month to twenty year sentence
and impose a harsher one. However, it is obvious from our review of the record that the trial
court intended to impose on defendant a sentence of three to twenty years’ imprisonment but was
under the misconception that it was required to first impose the eighteen-month minimum
sentence for the underlying offense before enhancing the sentence pursuant to the habitual
offender statute, MCL 769.12. The trial court’s operation under the former, pre-amended
version of MCL 769.13 was based on a misconception of law and constituted a tangible
procedural error that led to the imposition of the eighteen-month minimum sentence. People v
Miles, 454 Mich 90, 96; 559 NW2d 299 (1997); People v Thenghkam, 240 Mich App 29, 70-71;
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610 NW2d 571 (2000). As such, the original sentence was invalid. Id. Because the trial court
has the authority to correct an invalid sentence, the court’s vacation of the original sentence and
imposition of the three-year minimum sentence was not improper. MCR 6.429(A); Wybrecht,
supra; People v Lamb (After Remand), 201 Mich App 178, 181; 506 NW2d 7 (1993).
The trial court did not otherwise abuse its discretion when it sentenced defendant as an
habitual offender within the statutory limits. It is evident that the underlying felony, in the
context of previous felonies, evinced defendant’s inability to conform his conduct to the laws of
society. People v Hansford (After Remand), 454 Mich 320, 323-326; 562 NW2d 460 (1997);
People v Reynolds, 240 Mich App 250, 252; 611 NW2d 316 (2000); People v Castillo, 230 Mich
App 442, 447; 584 NW2d 606 (1998).
In light of our conclusion that the initial sentence was invalid, defendant’s argument that
the trial court’s vacation of the original sentence and imposition of a harsher sentence subjected
him to double jeopardy, two punishments for the same offense, is without merit.
Affirmed.
/s/ David H. Sawyer
/s/ Richard Allen Griffin
/s/ Peter D. O’Connell
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