PEOPLE OF MI V GERALD BENNETT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 27, 2001
Plaintiff-Appellee,
v
No. 222608
Livingston Circuit Court
99-011127-FH
GERALD BENNETT,
Defendant-Appellant.
Before: Hood, P.J., and Whitbeck and Meter, JJ.
PER CURIAM.
A jury convicted defendant Gerald Bennett of breaking and entering a building with the
intent to commit larceny.1 The trial court sentenced Bennett as a third habitual offender2 to a
prison term of 10 to 20 years. Bennett appeals as of right. We remand for resentencing and
affirm in all other respects.
I. Basic Facts And Procedural History
In the early morning hours of December 18, Todd Raskin, a police officer with the Green
Oak Township Police Department in Livingston County, was patrolling M-36, driving eastbound
in a fully marked police car when he saw a 1993 Ford Ryder Truck with a burned out right
taillight. According to Officer Raskin, he stopped the vehicle because of the defective
equipment; he could not see the occupants of the truck before pulling it over. Officer Raskin
approached the truck and asked the two occupants for identification. Bennett was the driver and
a Benjamin Horton was the passenger. According to Officer Raskin, he “looked throughout the
cab of the vehicle,” while getting the identification information from Bennett and Horton, for
weapons, drugs, or anything suspicious and to make sure that there were only two people in the
vehicle.
According to Officer Raskin, the truck was composed of a passenger cab and the “box”
portion, and a door separated the two sections. Officer Raskin testified that he looked into the
1
MCL 750.110.
2
MCL 769.11.
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rear “box” portion of the truck through the door in the cab and observed approximately two or
three “objects stacked on top of each other.” The objects were “gray, silver in color” and “sort of
shaped like a flat U”; they were “flush up against the door that was open” which separated the
two sections of the truck. Officer Raskin returned to his car, called for assistance and Officer
Brandon Bullock of the Hamburg Township Police Department came to the scene. Officer
Raskin then took the identification he had been given by Bennett and Horton and ran their names
through the dispatch center, which in turn ran them through the LEIN computer. The search
revealed that Horton was wanted on multiple outstanding warrants issued by Livingston County.
Officer Raskin then asked Horton to step out of the truck and patted him down; he then
placed Horton under arrest because Horton was unable to post the bond for his warrants, and put
him in the back of his police car. Officer Raskin then asked Bennett to step out of the vehicle.
Bennett accompanied Officer Raskin to his patrol car, where Officer Raskin patted him down for
weapons. According to Officer Raskin, he then asked Bennett where he was coming from and
Bennett said that he was coming from “down the road.” Officer Raskin also asked Bennett
where he was going, to which he replied that he was going to Detroit. Officer Raskin asked
Bennett what he was doing and he replied that he was “out collecting scrap metal. Officer
Raskin also asked Bennett “if the people that he was collecting the scrap metal from knew that he
was collecting it.” Bennett said “yes.”
Officer Raskin testified that he asked Bennett if the two officers could search the truck,
and Bennett gave permission for them to do so. According to Officer Raskin, he stayed with
Bennett at the patrol car while Officer Bullock searched the interior of the truck. Officer Bullock
returned to the patrol car, Officer Raskin said, and “basically he thought there was just scrap
metal in the vehicle” so Officer Raskin gave Bennett “directions on how to get to 23 to 96 so he
could go back to Detroit which is where he said he was going” and then “released him.”
According to Officer Raskin, he then drove Horton to the Taco Bell in Wixom and turned
him over to the custody of the Livonia Police Department. Officer Raskin did not issue a citation
to Bennett for the broken taillight. At no time during this traffic stop interaction with Bennett
and Horton did Officer Raskin know that any crimes had been reported in the area.
According to Officer Raskin, at the end of his shift around 7:00 a.m., he returned to
Green Oak; where dispatch asked him to contact Officer Medbury from the Hamburg Township
Police Department “in reference to some investigative leads.” Officer Raskin spoke with Officer
Medbury, and based on their conversation, he concluded that the item that he had seen through
the door of the truck defendant was driving was a cement form and that it had been stolen from a
business, ProForm, located on M-36 approximately one mile west from where he had made the
traffic stop. According to Officer Raskin, he had not realized what he had seen in the truck,
having never seen a cement form, until speaking with Officer Medbury. Officer Raskin prepared
an incident report on the traffic stop and faxed it to Officer Medbury that morning. According to
Officer Raskin’s testimony, M-36, where he stopped Bennett and Horton, was the most direct
route from Hamburg Township, where ProForm is located, to US 23.
Officer Brandon Bullock testified that he assisted Officer Raskin in the traffic stop.
Officer Bullock stated that he searched the truck driven by Bennett and that during his search he
saw metal objects stacked in the back. He also observed cement on the objects and on the floor.
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Officer Bullock returned to the police department around 7:00 a.m. at the end of his shift and
overheard Officer Medbury on the telephone discussing a breaking and entering of a business in
which cement forms were stolen. According to Officer Bullock, he told Officer Medbury that he
believed that he had observed cement forms in the back of a truck stopped by Officer Raskin and
advised Officer Medbury to call Officer Raskin for more information.
John Cogo, the owner of ProForm, testified that the doors had been securely shut the
night the forms were stolen; someone had forced his way into the building, and no one had been
given permission to enter.
Officer Cremonte testified that he investigated the case with Officer Medbury. According
to Officer Cremonte, he and Officer Medbury set up surveillance outside the truck rental business
where Bennett had rented the truck and apprehended Horton when he returned the vehicle.
Officer Cremonte photographed the truck and took pieces of cement from the back of the truck as
evidence.
Officer Medbury testified that he received a call reporting a “break-in” from John Cogo.
After receiving information regarding the traffic stop from Officer Bullock, he contacted Officer
Raskin. Officer Medbury stated that he first went to ProForm to investigate the scene and
observed unusual footprint tracks that looked like arrows in the dirt. He then surveyed the truck
rental business, waiting for the truck to be returned. According to Officer Medbury, after Horton
returned the truck to the rental office, he looked at Horton’s shoes and they had the same soles as
the shoes which made the impressions in the dirt at the crime scene. Additionally, Amy
Michaud, of the Michigan State Police Crime Laboratory, testified that the foot impressions left
at the crime scene were consistent with the soles of Horton’s shoes. Bennett did not testify. He
now appeals his conviction for breaking and entering a building with the intent to commit
larceny.
II. Ineffective Assistance Of Counsel
A. Standard Of Review
Bennett argues that he was denied the effective assistance of counsel when his trial
counsel failed to challenge two jurors for cause. Allegations pertaining to ineffective assistance
of counsel must first be heard by the trial court to establish a record of the facts pertaining to
such allegations.3 In cases such as this, where a Ginther hearing has not been held, review by
this Court is limited to mistakes apparent on the record.4
3
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
4
People v Hurst, 205 Mich App 634, 641; 517 NW2d 858 (1994), citing People v Oswald (After
Remand), 188 Mich App 1, 13; 469 NW2d 306 (1991).
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B. Legal Standards
To establish that the defendant’s right to effective assistance of counsel was so
undermined that it justifies reversal of an otherwise valid conviction, this Court must find that
counsel’s representation fell below an objective standard of reasonableness and that the
representation so prejudiced the defendant as to deny him a fair trial.5
C. MCR 2.511(D)
(1) The Provisions Of The Rule
In arguing that counsel should have moved to remove jurors Burkhart and Brown for
cause, Bennett relies upon the following portions of MCR 2.511(D):
It is grounds for a challenge for cause that the person:
***
(7) has already sat on a trial of the same issue;
***
(13) is interested in a question like the issue to be tried.
Bennett contends that juror Burkhart sat on a trial of the same issue because she had sat on a jury
where the defendant was charged with a theft offense. Bennett contends that juror Brown was
interested in a question like the issue to be tried, because he had been the victim of a theft while
he served in the military.
(2) Juror Burkhart
Our review of the record does not indicate that Burkhart had “already sat on a trial of the
same issue” within the meaning of the rule. As the prosecution points out, citing People v
Kamischke,6 the rule refers to situations such as where a juror “had sat on a jury the day before in
the trial of the defendant’s co-accused.” The entire record of the exchange the court had with
juror Burkhart consisted of the following:
[In response to the court’s question whether any potential jurors had sat on juries
previously . . . ]
THE COURT:
Okay. Other hands? Take the microphone.
5
People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994).
6
People v Kamischke, 3 Mich App 236; 142 NW2d 21 (1966).
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JUROR BURKHART: Juror 88A. I was [sic] district court about a year ago
actually. I sat on two cases. One was guilty and one was not.
THE COURT:
What type of cases were they?
JUROR BURKHART: One was a drunk driving and the other was theft.
THE COURT:
Anything about those experiences that would affect you?
JUROR BURKHART: No.
Thus, the record does not indicate specifically what type of “theft” crime the previous case was.
Notably, the record also does not indicate which case resulted in acquittal; the defendant in the
theft case could have been acquitted. Thus, we conclude that by serving on some other totally
unrelated case involving “theft,” juror Burkhart had not already sat on a trial of the same issue.
Further, the fact that juror Burkhart had served on a jury which acquitted a defendant
demonstrated, if anything, her ability to serve as an impartial juror. For this reason, juror
Burkhart may very well have appealed to Bennett’s trial counsel, who may have wanted her on
the jury as a matter of trial strategy. This Court will not second-guess trial counsel’s decision.7
We conclude that Bennett’s trial counsel was not ineffective for failing to exercise a peremptory
challenge to remove juror Burkhart from the jury.
(3) Juror Brown
Bennett relies on People v DeHaven,8 for the proposition that juror Brown was interested
in a question like the issue to be tried. DeHaven is readily distinguishable from this situation. In
DeHaven, the jurors challenged were related to individuals who had committed similar offenses
to the defendant in the case they were to decide.9 There, the defendant was charged with
statutory rape of his thirteen-year-old stepdaughter.10 During voir dire, one juror failed to
disclose that his brother-in-law was serving a life sentence for having raped five of his daughters,
one of whom was thirteen years old.11 A second juror failed to disclose that he was the cousin
of that same man who was serving a life sentence for raping his five daughters.12 The Court
therefore granted DeHaven a new trial because it found that “the relationship of those two jurors
7
People v Henry, 239 Mich App 140, 148; 607 NW2d 767 (2000), citing People v Rice (On
Remand), 235 Mich App 429, 445; 597 NW2d 843 (1999).
8
People v DeHaven, 321 Mich 327; 32 NW2d 468 (1948).
9
Id. at 334.
10
Id. at 329.
11
Id. at 331.
12
Id.
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to one who had committed a similar crime was such that it deprived them of the capacity to act
impartially.”13
By contrast, here Bennett’s trial counsel thoroughly questioned juror Brown, who readily
admitted that he had had “some personal belongings stolen” when he served in the military, and
satisfied himself that juror Brown could be a fair and impartial juror. When asked whether his
prior experience would prevent him from being fair and impartial, juror Brown said “No, I don’t
think so” and then added “[i]t was a number of years ago.” We conclude that, unlike the difficult
situation that this Court faced in the recent case of People v Benny Johnson,14 juror Brown had
no interest in the issue to be tried.
Bennett also contends that juror Brown was “equally objectionable” under MCR
2.511(D)(4), which creates grounds for a challenge for cause of a potential juror who:
shows a state of mind that will prevent the person from rendering a just verdict, or
has formed a positive opinion on the facts of the case or on what the outcome
should be.
Based on our review of the record, we disagree.
Although Bennett claims that juror “Brown’s response was equivocal at best,” when the
entire dialogue between trial counsel and juror Brown is reviewed, juror Brown comes across as
quite certain that he will be able to serve impartially. Bennett likens the instant case to that of
People v Skinner,15 where this Court reversed a trial court’s decision to deny a challenge for
cause. However, the juror in Skinner repeatedly stated that he could not be impartial. Further,
during voir dire, the juror said that he could not be fair and that he would be not be “of any help”
to the trial; that he had a conscience that he had to live with; that he could not believe that the
victim would have fabricated such a story; and that regardless of the court’s instructions to
follow the law, he would not be able to begin with a presumption of innocence and would have
to find the defendant guilty.16 Moreover, although the juror in Skinner eventually stated that he
could be fair, he did so only after making “approximately eight statements” indicating that he
didn’t believe he could be fair.17
By stark contrast to the facts in Skinner, juror Brown in this case stated expressly and
without hesitation that he thought he could be fair and impartial. We conclude that there was no
basis for trial counsel to challenge juror Brown for cause, and nothing ineffective about his
failure to exercise a peremptory challenge to excuse him.
13
Id. at 334.
14
People v Benny Johnson, 245 Mich App 243; 631 NW2d 1 (2001).
15
People v Skinner, 153 Mich App 815, 819; 396 NW2d 544 (1986).
16
Id. at 818-819.
17
Id. at 819.
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(4) Conclusion
We conclude that Bennett has failed to show that his trial counsel’s failure to challenge
jurors Burkhart and Brown for cause or remove them peremptorily was anything but sound trial
strategy. Bennett has therefore not overcome the strong presumption that he received effective
assistance of counsel. Counsel’s questioning of both juror Burkhart and juror Brown was
reasonably diligent. Further, because there was no ground for removing the jurors for cause, the
court did not err by failing to sua sponte remove them.
D. Jury Selection Under MCR 2.511(F)
(1) Bennett’s Argument
Bennett argues that his trial counsel was ineffective for failing to object to, and even
acquiescing in, a jury selection method which did not comply with MCR 2.511(F). MCR
2.511(F) is typically the rule challenged when issues regarding alternate jury selection procedures
are addressed by the courts. The rule applies to criminal trials.18 MCR 2.511(F) provides that:
After the jurors have been seated in the jurors’ box and a challenge for cause is
sustained or a peremptory challenge exercised, another juror must be selected and
examined before further challenges are made. This juror is subject to challenge as
are other jurors.
Specifically, Bennett contends that the selection was flawed because the panel of potential jurors
seated and examined was not equal in size to the jury that heard the case. Bennett also asserts
that, “once a prospective juror was dismissed, a new prospective juror was not selected and
examined before further challenges were made.” (We observe that, more accurately, once a
prospective juror was challenged and dismissed, a new prospective juror was selected; however,
there was no further examination of the substituted juror. The substitute juror had been
examined, albeit earlier. Defendant asserts that it “could clearly be argued that prejudice resulted
from defense counsel having to bear in mind all of the background information provided by the
24 jurors, without an opportunity for further examination.”) Bennett claims that this situation is
similar to the situations in People v Miller,19 People v Colon,20 and People v Russell.21
(2) People v Miller
In Miller,22 the Michigan Supreme Court held that the “struck jury” method utilized
therein did not comply with the court rule in effect at the time, Rule 511.6. The “struck jury”
18
MCR 6.412(A).
19
People v Miller, 411 Mich 321; 307 NW2d 335 (1981).
20
People v Colon, 233 Mich App 295; 591 NW2d 692 (1999).
21
People v Russell, 182 Mich App 314; 451 NW2d 625 (1990), rev’d by 434 Mich 922 (1990).
22
Miller, supra at 326.
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method involved calling a large number of jurors at once and then having the prosecution and the
defense alternately strike the jurors until only the requisite number of jurors remain.23 In Miller,
over a month before trial, the judge entered an order describing how the alternative jury selection
would operate.24 Before jury selection began, defense counsel objected to the procedure, arguing
that calling so many jurors at once would make it “difficult to keep track of the answers given by
individual jurors to voir dire questions.”25 The trial court rejected this argument.26 Seventy-three
prospective jurors were called and questioned as a group; none was excused for cause, and then
the attorneys took turns exercising peremptory challenges until only eleven jurors remained.27
Then thirty-seven additional prospective jurors were called and questioned and the peremptory
challenge process continued “until there were no further challenges, and the 14 remaining jurors
[including two alternate jurors] with the lowest numbers were selected to hear the case.”28
On appeal, this Court found that the jury selection did not comply with Rule 511.6, but
affirmed the conviction after concluding that the evidence against the defendants was
overwhelming and the defendants’ objection to the process was untimely.29 The Michigan
Supreme Court reversed.30 It agreed with this Court that nothing in the record indicated that
defendants had been prejudiced by the selection process, but held that given the “fundamental
nature of the right to trial by an impartial jury” and the “inherent difficulty of evaluating such
claims” a defendant could not be made to show prejudice.31 The Court held that “[w]here as
here, a selection procedure is challenged before the process begins, the failure to follow the
procedure prescribed in the rule requires reversal” and that the “‘struck jury method’ or any
system patterned thereafter is disapproved and may not be used in the future.”32
We observe that the selection procedure used in this case was different from that of
Miller. Here, the entire venire was questioned as a group and as each prospective juror was
removed, a substitute immediately took his or her place. Therefore, all of the potential jurors
were questioned before any challenges were made. By contrast, in Miller a large group was
called and questioned and then the attorneys alternately removed jurors until eleven remained, at
which point an entirely new group of jurors was called and questioned. As a result, in Miller, the
attorneys used their challenges before the second group was even called and questioned, a
process which impeded the use of challenges. In this case, the entire group of potential jurors
23
Id. at 323.
24
Id.
25
Id.
26
Id.
27
Id. at 324.
28
Id.
29
Id.
30
Id. at 326.
31
Id.
32
Id.
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was questioned initially. Thus, there were no “surprises” awaiting after the attorneys had used
their challenges. We believe that the language of MCR 2.511(F) indicates the importance of the
new, substitute, replacement juror being subject to challenge, as are the other jurors. This
objective was clearly met in this case, where the replacement juror was seated before the
challenges continued and was thus subject to challenge, as the other jurors were. In fact, on more
than one occasion, before the replacement juror even reached his or her seat in the box, an
attorney would remove him from the jury, almost as if to say “don’t bother” going to the box.
Therefore, we conclude that the replacement jurors did not evade challenge.
Further, unlike in the situation in Miller, where the original venire included seventy-three
prospective jurors who were called and questioned at once, this case involved an original venire
of only twenty-four, a much more manageable number. In Miller, thirty-seven additional
prospective jurors who had not been questioned with the other seventy-three and who had not
been subject to challenge, were then introduced anew and the process began all over again.
Thus, not all potential jurors were questioned before challenges were made. Here, though, the
record reflects the fact that the attorneys were able to keep track of the information as it related to
the twenty-four potential jurors. This was evidenced by the fact that replacement jurors were
removed even before they reached their seats in the box. Clearly in this case, “another juror” was
selected before further challenges were made, in compliance with MCR 2.511(F). Although the
attorneys in this case did not examine the replacement jurors again after they were seated and
before exercising their next challenge, there was nothing in the procedure which prevented them
from doing so had they needed to refresh their memories. Also, no second group of potential
jurors was subsequently called and subjected to a separate voir dire session in this case after
challenges had begun. We conclude that Miller does not control the outcome in this case, given
the factual differences in the method of jury selection.
(3) People v Colon
In Colon,33 this Court revisited the issue. We held that the defendant had adequately
preserved the issue for appeal, despite his failure to exercise all of his peremptory challenges, for
two reasons: the defendant had objected to the selection procedure, and had not expressed
satisfaction with the jury.34 In Colon, the nonconforming selection procedure used was different
than that in Miller. In Colon, the trial court examined nineteen prospective jurors at once.35
After seven challenges were exercised and twelve prospective jurors remained, then the trial
court selected and examined seven new prospective jurors.36 Although the record did not
indicate that the defendant had suffered any prejudice as a result of the procedure used, in light of
Miller, supra, this Court reversed and remanded for a new trial.37 We reasoned that the selection
procedure utilized did not comport with MCR 2.511(F) in that “[t]he panel of potential jurors
33
Colon, supra.
34
Id. at 302.
35
Id. at 303.
36
Id.
37
Id.
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seated and examined was not equal in size to the jury that heard the case, and once a prospective
juror was dismissed, a new prospective juror was not selected and examined before further
challenges were made.”38
Again, we observe that the flawed jury selection process in Colon is different from the
situation in this case, where all potential jurors were questioned before any challenges were
made. Unlike the situation in Colon, the trial court here did not forbid further examination of the
replacement jurors. Clearly, in Colon, the second, new group of seven replacement jurors who
were selected and examined only after seven challenges were made, were not “subject to
challenge as [were] the other jurors” in accordance with the rule. Here a removed juror was
replaced before challenges continued and where all of the twenty-four-person venire was
questioned as a group.
In other words, unlike the “rotating” sessions in which venires were questioned,
challenged, and removed before a new group was questioned in both Miller and Colon, the entire
venire herein was questioned at once, and each previously examined replacement juror was
seated before further challenges were made. For these reasons, we believe that the selection
method constituted a “fair and impartial” alternative method in accordance with MCR
2.511(A)(4). We conclude that Colon does not control the outcome in this case, again given the
factual differences in the method of jury selection. We therefore need not turn, as did the Court
in Colon, to the dissent in Russell, supra.
(4) People v Green
This Court dealt recently with the issue of jury selection in People v Green (On
Remand).39 In reaching its decision to affirm the conviction, we focused on MCR 2.511(A), a
rule not considered in Colon and not in existence when Miller was decided, which provides:
(2) In an action that is to be tried before a jury, the names or corresponding
numbers of the prospective jurors shall be deposited in a container, and the
prospective jurors must be selected for examination by a random blind draw from
the container.
***
(4) Prospective jurors may be selected by any other fair and impartial method
directed by the court or agreed to by the parties.
In Green, this Court relied upon MCR 2.511(A)(4) and described it as providing “considerable
latitude” in the method used.40 We similarly rely on the latitude provided in MCR 2.511(A)(4) in
this case and find the procedure used in this matter distinguishable from that utilized in both
38
Id.
39
People v Green (On Remand), 241 Mich App 40; 613 NW2d 744 (2000).
40
Id. at 45.
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Miller and Colon. We conclude that the jury selection process used here did not violate MCR
2.511.
(5) Jury Selection In The Context Of Ineffective Assistance Of Counsel
We note that even if the jury selection had not complied with MCR 2.511, Bennett has
not established an ineffective assistance of counsel claim. Simply because, under Miller, it is
unnecessary for a defendant to show prejudice when challenging a jury selection procedure, it
does not necessarily follow that the defendant need not demonstrate prejudice when trying to
establish an ineffective assistance of counsel claim. In other words, we could find that a case
must be reversed because the procedure was flawed, but could consistently decide that the
defendant received effective assistance of counsel because he has not shown that he was
prejudiced by counsel’s acquiescence in the procedure. Simply put, prejudice remains a
prerequisite to a finding of ineffective assistance.41 In fact, in this case, Bennett’s trial counsel
may have preferred the predictability of the system used and may have felt comfortable
remembering responses to questioning given by the twenty-four potential jurors. Thus, it may
very well have been trial counsel’s strategic decision to agree to the trial court’s alternative
selection procedure, and Bennett has failed to show that the decision was unsound. Thus, we
conclude that Bennett has not shown that he received ineffective assistance of counsel.
E. Prior Bad Acts Evidence
Bennett argues that he was denied a fair trial because the prosecutor failed to give notice
of her intent to introduce prior bad acts evidence, that his trial counsel was ineffective for failing
to object, and that the trial court abused its discretion by failing to intercede sua sponte to keep
the testimony from being admitted.
We have reviewed the specific portions of testimony that Bennett cites and conclude that
they simply do not constitute “bad acts” evidence for purposes of MRE 404(b). We were unable
to identify the crime, wrong, or bad act inherent in the evidence introduced by the prosecution
which would trigger MRE 404(b) analysis. We will not speculate, as Bennett would have us
believe, that the piecemeal references by various witnesses to another, separate burglary for
which Bennett was never charged and which did not implicate him, tainted the jury. For these
reasons, we conclude that Bennett’s prior bad acts evidence-arguments are without merit.
Similarly, Bennett’s trial counsel was not ineffective for failing to object to the piecemeal
references to the other burglary. Even assuming that trial counsel found the testimony
objectionable, it could have been harmful to draw attention to the other burglary by objecting
every time a witness referred to it in passing. Presumptively, trial counsel made the sound
strategic decision not to highlight such references. Bennett has not overcome that presumption
nor shown how he was prejudiced by his counsel’s decision. Like Bennett’s substantive
argument based on MRE 404(b), his related ineffective assistance claim is based on pure
speculation and is without merit.
41
See Pickens, supra at 302-303.
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F. Motion For Nolle Prosequi
Bennett argues that the trial court abused its discretion by granting the prosecution’s
motion for nolle prosequi absent notice, and by failing to give him the opportunity to respond.
Bennett argues further that he was denied effective assistance at a critical stage of the
proceedings, resulting in the denial of due process; Bennett also makes various other arguments
related to the nolle prosequi motion. An appellant must identify his issues in his brief in the
statement of questions presented.42 Ordinarily, no point will be considered which is not set forth
in the statement of questions presented.43 Thus, although Bennett makes additional arguments in
the body of his supplemental brief, we will address the issues in the context of the question
presented. We review a trial court’s decision regarding whether to grant a motion to dismiss for
an abuse of discretion.44
Normally, a prosecutor must file notice of his intent to seek an enhanced sentence within
twenty-one days of the arraignment or the filing of the information charging the underlying
offense.45 The record here indicates that Bennett and his trial counsel had notice of the
prosecution’s intent to dismiss the charges and to reissue them, adding the supplemental
information. In fact, Bennett concedes that his trial counsel advised him that this was going to
occur. Bennett was then rearraigned, and the defense filed a second motion to suppress the
evidence in the “new case” even though an identical motion had been heard and decided. The
prosecution argued that it was unnecessary to rehear the motion but, exercising an abundance of
caution, the trial court allowed the defense to introduce any new or additional testimony. In other
words, the entire process started anew after the original charges were dismissed.
Bennett’s main concern appears to be that the prosecution prepared the motion and order
of nolle prosequi and filed it; there was no hearing and, thus, the reasons given for the motion
were not heard orally, on the record in open court. Bennett apparently wished to have the
reasons for the motion made “verbally.”
Our review of the record indicates that Bennett was in fact rearraigned and even had a
second, identical motion to dismiss heard after the original charges were dismissed. Bennett
concedes that he was rearraigned in his motion to strike the felony warrant. In fact, in his
motion, Bennett conceded that the entire process started over again. Further, there is no
requirement that the reasons for a nolle prosequi motion be made orally on the record.
42
MCR 7.212(C)(5).
43
People v Brown, 239 Mich App 735, 748; 610 NW2d 234 (2000), citing People v Yarbrough,
183 Mich App 163, 165; 454 NW2d 419 (1990).
44
People v McCartney, 72 Mich App 580, 589; 250 NW2d 135 (1976), citing People v Charles
O Wilson, 386 Mich 565; 194 NW2d 237 (1972).
45
MCL 769.13(1); People v Bollinger, 224 Mich App 491, 492; 569 NW2d 646 (1997).
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MCL 767.29 provides, in pertinent part:
A prosecuting attorney shall not enter a nolle prosequi upon an indictment, or
discontinue or abandon the indictment, without stating on the record the reasons
for the discontinuance or abandonment and without the leave of the court having
jurisdiction to try the offense charged, entered in its minutes.
As a practical matter, however, the “record” does not only include oral representations made at
hearings and captured on transcript. It also includes written documentation kept as part of
Bennett’s file. This included the motion for nolle prosequi, filed June 10, 1999, which stated the
reason for the motion. Neither the statute, nor case law, requires more. The record indicates that
there were no “proceedings . . . conducted outside of the presence of both trial counsel and the
accuse[d]” despite defendant’s belief otherwise.
Moreover, there is no requirement that there must be new evidence, new witnesses, or
different charges in order for such a motion to be granted. The decision to move for nolle
prosequi is within the prosecutor’s discretion. Bennett relies upon People v Ostafin,46 for his
inaccurate assertion that a nolle prosequi requires that the prosecution establish one of the
enumerated grounds for relief from judgment. Bennett misreads Ostafin. Ostafin involved the
setting aside of a nolle prosequi order under GCR 1963, 528.3. There is no requirement that
nolle prosequi motions be premised on mistake, inadvertence, or any other of the enumerated
grounds for relief from a final judgment. Moreover, nolle prosequi is normally a dismissal
without prejudice which does not preclude initiation of a subsequent prosecution.47 “[A]s long as
jeopardy has not attached, or the statute of limitations not run, our law permits a prosecutor to
reinstate the original charge on the basis of obtaining a new indictment and thus beginning the
process anew.”48 Further, although Bennett appears to argue that the prosecution abused its
power by filing the supplemental information after he refused to accept a plea bargain, the nolle
prosequi process is normally used in the context of plea bargaining.49
For these reasons, Bennett’s ineffective assistance of counsel claim is inapplicable under
the facts. Similarly, the trial court did not abuse its discretion by granting the motion and
allowing the prosecution to reissue the charges. We conclude that Bennett’s due process rights
were not violated and all other issues that he raises on this point in his supplemental brief are
without merit.
46
People v Ostafin, 112 Mich App 712, 716-717; 317 NW2d 235 (1982).
47
McCartney, supra at 585, citing People v Reagen, 395 Mich 306; 235 NW2d 581 (1975).
48
People v Sierb, 456 Mich 519, 531-532; 581 NW2d 219 (1998), quoting People v Curtis, 389
Mich 698, 711; 209 NW2d 243 (1973).
49
McCartney, supra at 587.
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III. Search And Seizure
A. Standard Of Review
Bennett argues that the search and seizure of his truck was unconstitutional in that the
stop was motivated by race; there was no consent to search the truck or, if there was consent, it
was “tainted;” and that the officers’ testimony regarding the stop was “inherently incredible.” A
trial court’s ruling on a motion to suppress evidence will not be reversed unless that decision is
clearly erroneous.50 A decision is said to be clearly erroneous where, after a review of the record,
this Court is left with a definite and firm conviction that a mistake had been made.51
B. Race
Bennett argues that the police officers were motivated by race when they stopped him in
his Ryder truck. There is absolutely no basis for this assertion. Bennett does not dispute that it
was the middle of the night when the police officers pulled the truck over. Thus, it is unclear
how the police officers could have seen the occupants of the truck before they pulled it over.
Officer Raskin testified that the only reason he pulled the truck over was because only one of its
taillights was working. Bennett argues that race must have motivated the stop because, although
Officer Raskin testified that a defective taillight motivated the stop, he never issued a citation.
Bennett asserts that it necessarily follows that in fact the taillight was not broken. In fact, Officer
Raskin explained that he very commonly chose not to issue citations for defective equipment
violations. We conclude that there is simply no basis to even speculate that the stop was
motivated by race.
C. Consent
Bennett argues that he never gave consent or that, if he did, the consent was “tainted.” It
appears that Bennett is denying that he gave consent and alternatively arguing that, if he did, he
did so only because he was “illegally detained.” There is no basis for this position.
Bennett argues that he was illegally detained based on the fact that Officer Raskin could
not recall how long was he “detained” before he was released during the traffic stop. Bennett
does not even suggest that he was there for any particular length of time, let alone a long while.
Bennett also implies that the consent was given involuntarily, although he fails to argue any of
the criteria generally used to determine voluntariness. Officer Raskin testified that Bennett was
“free to leave” and that he had no basis to hold him at the time he pulled the truck over. There
was evidence that Bennett gave Officer Raskin consent to search the vehicle after a LEIN search
showed that Horton had warrants pending. Officer Medbury then searched the truck, Horton was
arrested, and Bennett was free to go. Nothing was seized from Bennett, although objects, later
identified as cement forms, were seen in the back of the truck.
50
People v Burrell, 417 Mich 439, 448; 339 NW2d 403 (1983).
51
People v Armendarez, 188 Mich App 61, 65-66; 468 NW2d 893 (1991).
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The thrust of Bennett’s argument appears to be that the stop was unduly long. As trial
counsel admitted during argument, however, the record is simply “devoid” of evidence regarding
the exact length of the stop, although nothing in the record indicates that the stop was particularly
long. Furthermore, there appeared to be two grounds for searching the vehicle: the first being
that the passenger was taken into custody for outstanding warrants and the second being consent.
We conclude that there is no basis for Bennett’s challenge to the stop.
In an effort to support his arguments that the stop was motivated by race and that consent
was not given to search the truck, Bennett argues at length that the testimony of Officers Raskin
and Medbury was “inherently incredible.” Bennett compares portions of testimony taken from
his trial and Horton’s trial to support his point. Again, there is no merit to Bennett’s position.
Credibility is a matter for the trier of fact to decide. In this case the trial court was presented with
conflicting testimony which required it to make a determination concerning the credibility of
each witness and the weight to afford each witness’ testimony. For these reasons, we conclude
that the trial court’s denial of Bennett’s motion to suppress was not clear error.
IV. Probable Cause
A. Standard Of Review
Bennett argues that, because there was insufficient evidence to establish probable cause,
his motion to quash should have been granted. We review the district court magistrate’s decision
to bind over a defendant, as well as the trial court’s decision on a motion to quash an
information, for an abuse of discretion.52 The standard for determining whether probable cause
has been shown at a preliminary examination is much lower than establishing that “defendant
committed the crime,” which is the standard employed in Bennett’s analysis. Rather, the primary
function of the preliminary examination is to determine whether a crime has been committed and,
if so, whether there is probable cause to believe that the defendant has committed it.53
B. Breaking And Entering
Bennett was charged with breaking and entering with the intent to commit larceny, in
violation of MCL 750.110. In People v Toole,54 this Court explained that the elements of the
offense of breaking and entering with intent to commit larceny are: (1) the defendant broke into
a building, (2) the defendant entered the building, and (3) at the time of the breaking and
entering, the defendant intended to commit a larceny therein. The prosecution’s theory at trial
here was that Bennett aided and assisted Horton in committing the crime.
52
People v Hamblin, 224 Mich App 87, 91; 568 NW2d 339 (1997), quoting People v Hunt, 442
Mich 359, 362; 501 NW2d 151 (1993).
53
Id. at 92.
54
People v Toole, 227 Mich App 656, 658; 576 NW2d 441 (1998), citing People v Adams, 202
Mich App 385, 390; 509 NW2d 530 (1993).
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We note that MCL 767.39 abolished the distinction between accessories and principals:
Every person concerned in the commission of an offense, whether he directly
commits the act constituting the offense or procures, counsels, aids, or abets in its
commission may hereafter be prosecuted, indicted, tried and on conviction shall
be punished as if he had directly committed such offense.
Further, one need not actually do the breaking to be guilty as an aider and abettor to breaking and
entering.55 Additionally, a defendant could be guilty as an aider and abettor even if he were
merely the lookout or the driver of the car used in taking the principal to the building.56
Bennett concedes that “the evidence strongly supports that only one person entered the
building and moved these items from the shop.” His theory is that Horton must have broken into
the business and moved the cement forms himself. Even assuming that Horton hauled the forms
himself, there was still ample testimony given at the preliminary examination to establish
probable cause that Bennett aided and abetted him. Thus, we conclude that it was not an abuse
of discretion for the trial court to deny Bennett’s motion to quash.
V. Expert Testimony
A. Standard Of Review
Bennett argues that Officer Cremonte testified as an expert on the issue of cement, yet he
was never qualified as an expert witness. Thus, Bennett contends, Officer Cremonte’s testimony
invaded the province of the jury. Bennett did not preserve this issue for appeal. In order to avoid
forfeiture of an unpreserved issue on appeal, an appellant must show: 1) that an error occurred;
2) “that the error was plain, i.e., clear or obvious”; and 3) that the plain error affected substantial
rights.57 Once an appellant has satisfied these three requirements, an appellate court must
“exercise its discretion in deciding whether to reverse.”58 Reversal is warranted only when the
plain, unpreserved error resulted in “the conviction of an actually innocent defendant or when an
error seriously affected the fairness, integrity or public reputation of judicial proceedings’
independent of the defendant’s innocence.”59 Because this issue is unpreserved, this Court must
first review Bennett’s contention to determine whether the admission of Officer Cremonte’s
testimony was plain error.60 We conclude that it was not.
55
People v Davenport, 122 Mich App 159, 162; 332 NW2d 443 (1983), citing People v Clark,
34 Mich App 70; 190 NW2d 726 (1971).
56
Id., citing DeLoach v State, 142 Ga App 666; 236 SE2d 904 (1977) and State v Wilson, 221
Kan 359; 559 P2d 374 (1977).
57
People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
58
Id. at 763.
59
Id. at 763-764.
60
See People v Coy, 243 Mich App 283, 287; 620 NW2d 888 (2001).
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B. Officer Cremonte’s Testimony
Had the parties and the trial court undertaken the proper procedure for expert witness
qualification, Officer Cremonte would have qualified and his testimony would have been
admissible. If a trial court determines that recognized scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert may testify to the knowledge by opinion or otherwise.61
In this case, there is no question that Officer Cremonte’s knowledge regarding particular
types of concrete assisted the trier of fact in understanding the significance of the particular
cement pieces found in the back of Bennett’s truck. It makes no difference that Officer
Cremonte may not have held any particular degree on the subject about which he testified. A
witness may be qualified as an expert by knowledge, skill, experience, training or education; the
test of qualification is broad.62 According to Officer Cremonte, he and his family had been in the
cement business for generations; his extensive knowledge regarding concrete pouring was “just
common knowledge to him.” In addition to working on the police force, Officer Cremonte also
worked in the concrete business at the time that he testified. Had his status as an expert witness
been challenged, he would have been qualified to testify.
Most significantly, this Court recently held that the failure to challenge the qualification
of an expert within a reasonable time after learning his identity and basic qualifications
constitutes forfeiture of the issue.63 Here, trial counsel never objected specifically to Officer
Cremonte’s qualifications, and in fact based his cross-examination of Officer Cremonte upon the
assumption that Officer Cremonte was an expert.
Even, however if the admission of Officer Cremonte’s testimony had been error, Bennett
still carries the burden of establishing that it was more probable than not that the error in question
undermined the reliability of the verdict, rendering the error outcome determinative.64 Bennett
has failed to do so. There was sufficient evidence to support the verdict, so that Officer
Cremonte’s testimony did not undermine the reliability of that evidence. John Cogo, the
business owner, testified that the cement particles found in the back of the truck were of the type
generally seen on cement forms after they are used. This is the same point which Officer
Cremonte made. It is not “more probable than not” that the admission of Officer Cremonte’s
testimony was outcome determinative. Therefore, we conclude that Bennett’s argument on this
point is without merit.
61
MRE 702; People v Stiller, 242 Mich App 38, 54; 617 NW2d 697 (2000).
62
MRE 702; Grow v W A Thomas Co, 236 Mich App 696, 713; 601 NW2d 426 (1999), citing
Dudek v Popp, 373 Mich 300, 306; 129 NW2d 393 (1964).
63
Cox v Flint Bd of Hosp Mgrs (On Remand), 243 Mich App 72, 79-80; 620 NW2d 859 (2000).
64
See People v Snyder, 462 Mich 38, 45; 609 NW2d 831 (2000), citing People v Lukity, 460
Mich 484, 495-496; 596 NW2d 607 (1999).
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VI. Sentencing
Bennett argues that under People v Stoudemire,65 he was incorrectly sentenced as a third
habitual offender. We agree and remand for sentencing in accordance with the rule set forth in
Stoudemire, which provides that “multiple convictions arising out of a single incident count only
as a single prior conviction for purposes of enhancing a sentence under the habitual offender
statute.”66
We remand the case for resentencing in accordance with Stoudemire, supra and affirm in
all other respects. We do not retain jurisdiction.
/s/ Harold Hood
/s/ William C. Whitbeck
/s/ Patrick M. Meter
65
People v Stoudemire, 429 Mich 262, 278; 414 NW2d 693 (1987).
66
Id.
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