PEOPLE OF MI V DARRYL JEROME ERVIN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 20, 2004
Plaintiff-Appellee,
v
No. 243965
Oakland Circuit Court
LC No. 02-182260-FH
DARRYL JEROME ERVIN,
Defendant-Appellant.
Before: Cooper, P.J., and Griffin and Borrello, JJ.
PER CURIAM.
Defendant Darryl Jerome Ervin appeals as of right from his jury convictions of
possession with intent to deliver between 50 and 225 grams of cocaine1 and conspiracy to deliver
less than fifty grams of cocaine.2 Defendant was tried jointly with his alleged coconspirators,
Antonio Dean, Daniel Lee, and Thomas Brooks.3 Defendant was sentenced to consecutive terms
of five to twenty years’ imprisonment for possession, and one to twenty years’ imprisonment for
conspiracy. We affirm.
I. Background Facts
On November 13, 2001, Royal Oak police officer Martin Lavin arranged to meet Mr.
Dean at an Oakland County Kentucky Fried Chicken to purchase two ounces of cocaine. Mr.
Dean arrived at the meeting with his codefendants in a black Lincoln. With several surveillance
officers listening over a radio transmission, defendant, along with his codefendants, encouraged
Officer Lavin to meet them at a Wendy’s within the city of Detroit to complete the transaction.
At the subsequent meeting, Mr. Dean attempted to sell Officer Lavin approximately fifty-five
grams of cocaine contained in two clear plastic bags. The officers immediately arrested all four
1
MCL 333.7401(2)(a)(iii).
2
MCL 333.7401(2)(a)(iv).
3
All four codefendants were convicted of delivery and conspiracy. Mr. Dean has not appealed
his convictions or sentences. Our opinions in People v Lee (Docket No. 243964) and People v
Brooks (Docket No. 245252) are being released with this opinion.
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codefendants. During the arrest and booking procedure, the officers seized $415 and a cellular
telephone from Mr. Brooks and $228 from defendant.
II. Coconspirator Statements
Defendant first claims that the trial court erred in permitting the prosecution to present
hearsay statements of codefendants. Specifically, defendant complains that statements made by
codefendants to Officer Lavin were hearsay and their admission violated his constitutional right
to confront the witnesses against him. We disagree. Generally, a trial court’s decision to admit
evidence will be reversed only for an abuse of discretion.4 However, when a trial court’s
decision regarding the admission of evidence involves a preliminary question of law, this court
reviews the issue de novo.5
On direct examination, Officer Lavin testified regarding his prior arrangement to
purchase cocaine from Mr. Dean. Officer Lavin further testified to various statements made by
defendant and his codefendants during the initial meeting at Kentucky Fried Chicken. Mr. Dean
indicated that the cocaine belonged to the other men and that they were not comfortable with the
location of the transaction. Mr. Dean encouraged Officer Lavin to follow them to another
location in the city of Detroit. Defendant twice approached Officer Lavin’s vehicle. Defendant
first told Officer Lavin, “If you want this shit then you’re going to have to follow us up the
street.”6 Defendant later returned to Officer Lavin’s vehicle offering to allow him to hold onto
$2000. Defendant stated, “Man we ain’t going to rob you. I don’t care about your money. Man,
here’s two grand, you can hold it if you want to.”7 Mr. Brooks also encouraged Officer Lavin to
follow the men up the street to purchase the cocaine. The codefendants reentered the Lincoln
and drove up next to Officer Lavin’s vehicle. From the driver’s seat, Mr. Lee arranged to meet
Officer Lavin at the Wendy’s location later that evening. Mr. Lee indicated that they needed to
pick up the cocaine before the meeting.8
A statement is not hearsay under MRE 801 if made by a coconspirator of the party
against whom the statement was offered and if made during the course of and in furtherance of a
conspiracy.9 The independent proof must establish a conspiracy’s existence by a preponderance
of the evidence.10 Neither direct proof of the agreement, nor a formal agreement, need be shown
4
People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
5
Id.
6
[Trial Transcript July 2, 2002, p 62.]
7
[Trial Transcript July 2, 2002, p 66.]
8
Officer Lavin’s testimony regarding the substance of these conversations was corroborated by
the testimony of three surveillance officers.
9
MRE 801(d)(2)(E).
10
People v Vega, 413 Mich 773, 780-782; 321 NW2d 675 (1982).
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to prove the conspiracy.11 Circumstances, acts, and conduct of the parties can sufficiently
demonstrate an agreement in fact.12 Furthermore, circumstantial evidence and inference may be
used to establish a conspiracy.13
We first note that the coconspirators’ statements were made during the course of and in
furtherance of the conspiracy. The statements were made in the course of arranging the actual
transaction. However, the trial court improperly admitted the statements of defendant’s
coconspirators without first determining that a conspiracy existed. A trial judge must determine
preliminary questions regarding the admissibility of evidence rather than leaving the decision to
the jury.14 The trial court must resolve preliminary questions of fact, including the existence of a
conspiracy, before admitting the evidence.15 The trial court erred as it failed to determine
whether the prosecution had proven the existence of a conspiracy by a preponderance of the
evidence before admitting the statements of defendant’s coconspirators.
However, the trial court’s error did not amount to prejudicial error, and therefore, we
decline to reverse defendant’s convictions.16 The prosecution presented sufficient independent
evidence to prove the existence of a conspiracy. Evidence of the coconspirators’ concerted
actions, independent of their statements, demonstrates a common goal. Defendant’s own
statement requesting Officer Lavin to “follow us” in order to complete the transaction is
evidence of a combined action. Therefore, a conspiracy can be shown by evidence independent
of codefendants’ statements.
III. Severance
Defendant also alleges that the trial court abused its discretion by denying his motion to
sever his trial. We review a trial court’s decision to join or sever codefendants’ trials for an
abuse of discretion.17 Severance is mandatory “only when a defendant provides the court with a
supporting affidavit, or makes an offer of proof, that . . . demonstrates that his substantial rights
will be prejudiced and that severance is the necessary means to rectifying the potential
prejudice.”18 As defendant failed to present such proof or affidavit, defendant must show that he
11
People v Gay, 149 Mich App 468, 471; 386 NW2d 556 (1986).
12
Id.
13
Id.
14
MRE 104(a); Vega, supra at 780.
15
Bourjaily v United States, 483 US 171, 175; 107 S Ct 2775; 97 L Ed 2d 144 (1987)
(construing FRE 104(a), which is identical to the Michigan rule); Vega, supra at 779-780.
16
People v Mateo, 453 Mich 203, 215; 551 NW2d 891 (1996).
17
MCL 768.5; People v Hana, 447 Mich 325, 331; 524 NW2d 682 (1994).
18
MCR 6.121(C); Hana, supra at 346-347.
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suffered actual prejudice at trial to warrant reversal of the trial court’s determination regarding
joinder.19
Defendant claims actual prejudice as he was unable to inculpate Mr. Dean in order to
exculpate himself. However, defense counsel presented the theory that defendant was being
blamed for another’s crime. Mr. Dean defended on the basis of reasonable doubt, which did not
conflict with defendant’s defense. Furthermore, as discussed supra, the statements made by
codefendants were properly admitted into evidence, so their use against defendant was not a
result of the joined trial. Defendant suffered no actual prejudice at trial, and reversal of the trial
court’s joinder decision is unwarranted.
Affirmed.
/s/ Jessica R. Cooper
/s/ Richard Allen Griffin
/s/ Stephen L. Borrello
19
Hana, supra at 346-347.
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