PEOPLE OF MI V THOMAS EDWARD BROOKS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 20, 2004
Plaintiff-Appellee,
v
No. 245252
Oakland Circuit Court
LC No. 02-182258-FH
THOMAS EDWARD BROOKS,
Defendant-Appellant.
Before: Cooper, P.J., and Griffin and Borrello, JJ.
PER CURIAM.
Defendant Thomas Edward Brooks appeals as of right from his jury convictions for
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 Darryl Ervin.3 Defendant was sentenced to consecutive terms of
ten to forty years’ imprisonment for possession, and one to forty 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
Ervin (Docket No. 243965) 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 defendant and $228 from Mr. Ervin.
II. Coconspirator Statements
Defendant first claims that the trial court erred in permitting the prosecution to present
the 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. Mr. Ervin also approached Officer Lavin’s vehicle to encourage
him to follow the men down the street to purchase the cocaine. Mr. Ervin later returned to
Officer Lavin’s vehicle offering to allow him to hold onto $2000 as security for his safety.
Defendant approached Officer Lavin and stated, “Man, if you want this shit follow us.”6 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.7
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.8 The independent proof must establish a conspiracy’s existence by a preponderance
of the evidence.9 Neither direct proof of the agreement, nor a formal agreement, need be shown
to prove the conspiracy.10 Circumstances, acts, and conduct of the parties can sufficiently
4
People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
5
Id.
6
[Trial Transcript July 2, 2002, p 67.]
7
Officer Lavin’s testimony regarding the substance of these conversations was corroborated by
the testimony of three surveillance officers.
8
MRE 801(d)(2)(E).
9
People v Vega, 413 Mich 773, 780-782; 321 NW2d 675 (1982).
10
People v Gay, 149 Mich App 468, 471; 386 NW2d 556 (1986).
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demonstrate an agreement in fact.11 Furthermore, circumstantial evidence and inference may be
used to establish a conspiracy.12
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.13 The trial court must resolve preliminary questions of fact, including the existence of a
conspiracy, before admitting the evidence.14 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.15 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. Furthermore, Officer Lavin received several calls from Mr.
Dean placed from defendant’s cell phone before the codefendants arrived at the Wendy’s
location. 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 abuse
of discretion.16 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 prejudices and that severance is the necessary means to rectifying the potential
prejudice.”17 As defendant failed to present such proof or affidavit, defendant must show that he
11
Id.
12
Id.
13
MRE 104(a); Vega, supra at 780.
14
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.
15
People v Mateo, 453 Mich 203, 215; 551 NW2d 891 (1996).
16
MCL 768.5; People v Hana, 447 Mich 325, 331; 524 NW2d 682 (1994).
17
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.18
Defendant asserts that he was actually prejudiced as he was unable to present the defense
that he was only present during the transactions to purchase marijuana while his codefendants
conspired to deliver cocaine. However, defense counsel actually presented this defense in
closing argument. The defenses presented by codefendants did not require the jury to disbelieve
any defendant in favor of another. 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.
IV. Sufficiency of the Evidence
Defendant next alleges that the trial court abused its discretion by denying his motion for
a new trial as insufficient evidence was presented to support his conviction for conspiracy. In
sufficiency of the evidence claims, this Court reviews the evidence in the light most favorable to
the prosecution and determines whether a rational trier of fact could find that the essential
elements of the crime were proven beyond a reasonable doubt.19 “[C]ircumstantial evidence and
reasonable inferences arising from that evidence can constitute satisfactory proof of the elements
of a crime.”20
To support a conviction for conspiracy to deliver a controlled substance, the prosecution
must prove that:
(1) the defendant possessed the specific intent to deliver the statutory minimum as
charged; (2) his coconspirators possessed the specific intent to deliver the
statutory minimum as charged; and (3) the defendant and his coconspirators
possessed the specific intent to combine to deliver the statutory minimum as
charged to a third person.[21]
The prosecutor need only prove that the defendant cooperated to further the conspiracy’s object
with the knowledge that a conspiracy existed.22
Defendant was charged with conspiring to deliver less than fifty grams of cocaine, a
charge for which there is no statutory minimum amount. Therefore, a rational trier of fact must
18
Hana, supra at 346-347.
19
People v Hunter, 466 Mich 1, 6; 643 NW2d 218 (2002).
20
People v Lee, 243 Mich App 163, 167-168; 622 NW2d 71 (2000).
21
People v Mass, 464 Mich 615, 629-630, 633; 628 NW2d 540 (2001), citing People v Justice
(After Remand), 454 Mich 334, 349; 562 NW2d 652 (1997).
22
People v Meredith, 209 Mich App 403, 411-412; 531 NW2d 749 (1995), remanded on other
grounds 459 Mich 62 (1998).
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find beyond a reasonable doubt that defendant possessed the specific intent to deliver and to
combine with others to deliver some amount of cocaine.23 Mr. Dean, defendant’s coconspirator,
actually attempted to deliver approximately fifty-five grams of cocaine to Officer Lavin.
Defendant used the same language as his codefendants to refer to the cocaine. The requests of
defendant and his codefendants to Officer Lavin to follow the group suggest an intent to combine
to deliver the cocaine. It is reasonable to infer from the evidence presented that defendant was
cooperating with the others to bring about the delivery of cocaine. Therefore, sufficient evidence
was presented to support defendant’s conspiracy conviction.
V. Jury Instructions
Defendant further argues that the trial court erred in refusing to instruct the jury that
knowledge of the amount of cocaine was a necessary element of conspiracy. Claims of
instructional error are reviewed de novo on appeal.24 As a general rule, “[w]e review jury
instructions in their entirety to determine if error requiring reversal occurred.25 The trial court
must clearly present the case to the jury and instruct them on the applicable law.26
“[I]nstructions must include all the elements of the charged offense and must not exclude
material issues, defenses, and theories that are supported by the evidence.”27 Even if somewhat
imperfect, reversal is not required where the instructions fairly presented the issues to be tried
and sufficiently protected the defendant’s rights.28
As noted supra, for the charge of conspiracy with intent to deliver a controlled substance,
the prosecution must prove that the defendant had the “specific intent to deliver the statutory
minimum as charged” and “the specific intent to combine to deliver the statutory minimum as
charged to a third person.”29 Therefore, a defendant is entitled to a jury instruction requiring the
jury to find that the defendant conspired to deliver at least the statutory minimum as charged.
However, conspiracy to deliver less than fifty grams of cocaine does not include a statutory
minimum. Therefore, the jury must be instructed that defendant must have conspired to deliver
some amount of cocaine less than fifty grams in order to convict.
23
See Mass, supra at 631 (“[I]f one conspires to deliver an unspecified amount of cocaine one
would, at a minimum, be guilty of conspiring to deliver less than fifty grams of cocaine.”)
24
People v Kurr, 253 Mich App 317, 327; 654 NW2d 651 (2002).
25
People v Aldrich, 246 Mich App 101, 124; 631 NW2d 67 (2001).
26
People v Katt, 248 Mich App 282, 310; 639 NW2d 815 (2001).
27
People v Marion, 250 Mich App 446, 448; 647 NW2d 521 (2002).
28
Aldrich, supra at 224.
29
Mass, supra at 629-630, 633 (emphasis in original).
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In People v Mass, our Supreme Court found that evidence sufficient to prove delivery of
a controlled substance was sufficient to prove a defendant’s knowledge for a conspiracy
charge.30 Specifically, the Mass Court reasoned:
[I]f a conspiracy to deliver and a delivery charge are coupled (and the proofs for
the delivery demonstrate the weight of the substance delivered) such proofs may
suffice to demonstrate defendant’s knowledge of the amount for the conspiracy
charge. This is because a prosecutor is free to argue, and the jury would be free to
find, if it was persuaded, given all the circumstances, that defendant had
knowingly conspired to deliver the same amount that was actually delivered.[31]
In Mass, the trial court correctly instructed the jury regarding the elements of the delivery
charge. In order to prove delivery of 225 to 650 grams of a controlled substance, the jury was
instructed that the prosecutor must prove beyond a reasonable doubt that “the substance
delivered was in a mixture that weighed 225 or more grams, but less than 650 grams.”32
We find, based upon Mass, that the trial court properly instructed the jury with regard to
conspiracy to deliver less than fifty grams of cocaine. Although defendant was not charged
separately with the underlying delivery offense, the trial court properly instructed the jury that it
must find that “the substance was a mixture weighing less than fifty grams.”33 The jury could
infer from the evidence that defendant conspired to deliver the amount that was actually
delivered.
As we have found no error on review, defendant’s claim of cumulative error must also
fail.
Affirmed.
/s/ Jessica R. Cooper
/s/ Richard Allen Griffin
/s/ Stephen L. Borrello
30
Id. at 634.
31
Id.
32
Id. at 638.
33
[Trial Transcript July 2, 2002, p 230.]
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