PEOPLE OF MI V HARRIETT SPENCER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 29, 2004
Plaintiff-Appellee,
v
No. 248099
Wayne Circuit Court
LC No. 98-011075-01
HARRIETT SPENCER,
Defendant-Appellant.
Before: Jansen, P.J., and Meter and Cooper, JJ.
PER CURIAM.
Defendant Harriett Spencer appeals as of right her jury trial convictions of possession
with intent to deliver less than fifty grams of cocaine,1 possession with intent to deliver less than
fifty grams of heroin,2 and possession of a firearm during the commission of a felony.3
Defendant was sentenced to two years’ imprisonment for her felony-firearm conviction, and
three months to twenty years’ imprisonment for each narcotics conviction. We affirm.
I. Facts
On the afternoon of September 9, 1998, Detroit police officers executed a search warrant
at 4417 Grandy. Defendant was the only person inside the home at the time of the search. At the
time of her arrest, defendant told police officers that she lived in the home and sold $200 of
cocaine that day. Defendant also admitted to the presence of a handgun and narcotics on a
dresser near the front door.
Defendant failed to appear in court on December 4, 1998, for a hearing related to this
case. A capias was issued. Defendant was arrested on a different matter nearly five years later,
and taken into custody. Her trial began on March 11, 2003. At trial, defendant recanted her
earlier statement to the police. Defendant testified that she did not live at 4417 Grandy and was
1
MCL 333.7401(2)(a)(iv).
2
MCL 333.7401(2)(a)(iv).
3
MCL 750.227b.
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homeless in 1998. Defendant testified that she used, but did not sell, drugs and that the police
were framing her.
II. Jury Instructions
Defendant argues that the trial court invaded the province of the jury to determine the
validity of the search warrant and disparaged defense counsel by instructing the jury at the
conclusion of opening statements regarding the court’s pretrial determination that the search
warrant was valid. Generally, “[w]e review jury instructions in their entirety to determine if
error requiring reversal occurred.”4 As defendant failed to object to the trial court’s instruction,
our review is limited to plain error affecting defendant’s substantial rights.5
Defendant moved for the suppression of the narcotics and the handgun in a pretrial
hearing. Defendant contended that the search warrant was invalid, because it was dated
September 10, 1998, the day after the actual raid. The trial court denied defendant’s motion,
concluding that the discrepancy in dates was an “innocent mistake.”6 However, defense counsel
implied in opening statement that the date discrepancy was not merely a typographical error.
The court allowed the comment, over the prosecutor’s objection, but informed defense counsel
that the jury would be instructed regarding its pretrial determination. Defense counsel failed to
use the opportunity to amend his opening statement accordingly. The trial court instructed the
jury at the conclusion of opening statements of the court’s pretrial determination that the search
warrant was valid. The trial court explained that the issue of validity was, therefore, not before
the jury.7
4
People v Aldrich, 246 Mich App 101, 124; 631 NW2d 67 (2001).
5
People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).
6
See People v Westra, 445 Mich 284, 285-286; 517 NW2d 734 (1994) (a technical defect on the
face of the search warrant does not invalidate the warrant).
7
Specifically, the trial court instructed the jury:
Members of the jury, during the opening statement of Mr. Rutledge he
mentioned something about a search warrant. A search warrant was executed in
this case; that is, the police took a document, took it the prosecutor’s office and
then took it to a judge to get permission to search the premises, and on that search
warrant there was a discrepancy as to the date, and Mr. Rutledge claimed the date
made the search warrant invalid.
A hearing was conducted and the Court decided that the discrepancy in the
date was a typographical error, an honest error made by the police and that the
search warrant was in fact, in fact, a valid search warrant. It was a good search
warrant.
So the issue of whether or not the search warrant was good or not good is
not an issue that you should consider. The Court has already decided that this
(continued…)
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The trial judge must instruct the jury on the applicable law and fairly present the case to
the jury in a comprehensive and understandable manner.8 The trial court is permitted to
comment in its discretion on the testimony, evidence, and character of witnesses within the
interests of justice.9 We will not reverse where the jury instructions “fairly presented the issues
to be tried and sufficiently protected the defendant’s rights.”10
As defense counsel was warned at the time of the prosecutor’s objection that the trial
court intended to instruct the jury regarding the validity of the warrant, defendant was not denied
the opportunity to address the issue in opening statement. Furthermore, the trial court properly
removed the issue from the jury’s review. The trial court properly instructed the jury that the
date discrepancy on the search warrant amounted to an honest mistake. The statement was short
and did not expound upon the court’s reasons for making this finding. The trial court did not
imply that defense counsel was trying to misrepresent the facts or deceive the jury, nor did the
trial court vouch for the credibility of police witnesses. Accordingly, the trial court properly and
fairly instructed the jury regarding the search warrant.
III. Evidentiary Issues
Generally, a trial court’s decision to admit evidence will be reversed only for an abuse of
discretion.11 We review preliminary questions of law de novo.12
A. Bad Acts Evidence
Defendant contends that the trial court erroneously admitted evidence that defendant had
another drug case pending in order to show absence of mistake or fabrication.
Evidence of other crimes, wrongs, or acts is inadmissible to show a defendant’s character
or propensity to commit the charged crime.13 Evidence of other bad acts may be admissible if
offered to prove the defendant’s “motive, opportunity, intent, preparation, scheme, plan or
system in doing an act, knowledge, identity, or absence of mistake or accident where the same is
material.”14 The trial court must also determine that the evidence is relevant pursuant to MRE
(…continued)
search warrant was valid. So you should, when you consider the case, you should
consider that the search warrant was a valid search warrant. All right. [Trial
Transcript, March 11, 2003, pp 143-144.]
8
People v Moore, 189 Mich App 315, 319; 472 NW2d 1 (1991).
9
MCR 2.516(B)(3).
10
People v Gonzalez, 256 Mich App 212, 225; 663 NW2d 499 (2003).
11
People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).
12
Id.
13
MRE 404 (b)(1).
14
Id., see also People v Sabin (After Remand), 463 Mich 43, 55; 614 NW2d 888 (2000).
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402 to a material fact,15 and that the evidence is more probative than prejudicial pursuant to
MRE 403.16 The evidence may tend to prove the defendant’s propensity to commit the crime,
but this may not be the sole purpose for presenting the evidence.17 However, the prosecution
must “provide reasonable notice in advance of trial, or during trial if the court excuses pretrial
notice on good cause shown” of the intent to use the evidence.18
As defendant asserted that she was framed and was innocent, all elements of the crimes
charged were at issue.19 Evidence of the pending charges was relevant to show defendant’s
intent or motive to sell the drugs and opportunity to possess and sell the drugs in the instant case.
It was also relevant to show an absence of mistake regarding defendant’s identity as the
perpetrator. The trial court allowed the admission of this evidence, however, without notice,
even though the prosecutor knew defendant was claiming innocence and was prosecuting the
other case as well. On defendant’s request, the trial court gave the jury a limiting instruction that
the evidence could not be used to infer that defendant was likely to commit the crime.
Although the evidence of defendant’s other pending drug case was offered for a proper
purpose, the prosecution was aware of defendant’s claim of innocence and potential testimony
before trial. Accordingly, the prosecution should have provided advance notice of its intent to
admit the evidence. As the prosecution failed to provide this notice prior to trial, the trial court
should not have admitted the evidence. However, in light of defendant’s statement to police that
she sold cocaine on the day of her arrest, defendant has failed to establish that the evidence was
more prejudicial than probative. Therefore, even if the evidence was improperly admitted, the
error did not affect the outcome of defendant’s trial.
B. Defendant’s Flight
Defendant also asserts that the trial court erroneously admitted evidence that she
absconded for five years before trial. We disagree.
Evidence of flight is admissible to show a defendant’s consciousness of guilt.20 Pursuant
to CJI2d 4.4, it is a jury’s function to determine if the evidence presented indicates a defendant’s
guilt or if an innocent explanation exists for a defendant’s flight. Flight includes fleeing from the
15
Sabin, supra at 55.
16
Id. at 55-56, quoting People v VanderVliet, 444 Mich 52, 75; 508 NW2d 114 (1993).
17
People v Martzke, 251 Mich App 282, 289; 651 NW2d 490 (2002).
18
MRE 404(b)(2); VanderVliet, supra at 89.
19
See Martzke, supra at 293-294 (finding that the defendant’s denial of the alleged offenses may
have caused intent and absence of mistake to become material issues of fact in the case).
20
People v Compeau, 244 Mich App 595, 598; 625 NW2d 120 (2001).
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scene of the crime, departing the jurisdiction, running from the police, resisting arrest, and
attempting to escape from custody.21
As evidence of flight from the jurisdiction is admissible and is probative of defendant’s
consciousness of guilt, the trial court did not abuse its discretion by permitting the prosecutor to
introduce this evidence. Moreover, the trial court properly instructed the jury to determine from
the evidence whether valid reasons existed for defendant’s flight or whether defendant’s actions
indicated a guilty mind.
IV. Prosecutorial Misconduct
Defendant further contends that the prosecutor improperly presented evidence that
defendant absconded prior to trial and improperly commented on defendant’s flight by arguing
beyond the scope of defendant’s guilt. Prosecutorial misconduct claims are reviewed case by
case, examining any remarks in context to determine if the defendant received a fair and
impartial trial.22
A prosecutor has the duty to provide a defendant with a fair trial.23 However, a
prosecutor is permitted wide latitude in his arguments.24 A prosecutor may not make an
unsupported statement of fact to the jury, but he is free to argue the evidence and any reasonable
inferences arising from the evidence.25 Furthermore, the trial court instructed the jury not to
consider the statements or arguments of counsel as evidence. A jury is presumed to follow its
instructions.26
The prosecutor sought and was granted permission to present evidence of defendant’s
flight and to request CJI2d 4.4 to demonstrate that defendant’s flight was indicative of a guilty
mind in a pretrial motion. As noted supra, the evidence of defendant’s flight was properly
admitted, and was, therefore, properly sought.
With regard to defendant’s absconding, the prosecutor commented in opening statement
that justice had been delayed. This was a proper comment on the evidence in support of the
prosecutor’s position and was not made in error. As the prosecutor’s comments were proper,
defendant was not denied a fair and impartial trial.
21
People v Coleman, 210 Mich App 1, 4; 532 NW2d 885 (1995), citing 29 Am Jur 2d, Evidence,
§ 532.
22
Aldrich, supra at 110.
23
People v Ullah, 216 Mich App 669, 678; 550 NW2d 568 (1996).
24
People v Bahoda, 448 Mich 261, 276; 531 NW2d 659 (1995).
25
People v Ackerman, 257 Mich App 434, 450; 669 NW2d 818 (2003).
26
People v Abraham, 256 Mich App 265, 279; 662 NW2d 836 (2003).
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V. Ineffective Assistance of Counsel
Defendant alleges that defense counsel was ineffective for failing to argue that the search
warrant did not identify which unit of a two-unit dwelling was to be searched and for failing to
clearly object to the admission of evidence of defendant’s flight. Absent a Ginther27 hearing, our
review is limited to plain error on the existing record affecting defendant’s substantial rights.28
Effective assistance of counsel is presumed and defendant bears a heavy burden to prove
otherwise.29 To establish ineffective assistance of counsel, defendant must prove that counsel’s
deficient performance denied him the Sixth Amendment right to counsel and that, but for
counsel’s errors, the proceedings would have resulted differently.30 Defendant must overcome
the strong presumption that counsel’s performance was sound trial strategy.31
Defense counsel failed to challenge the validity of the search warrant on the ground that
it insufficiently described the place to be searched in his motion to suppress the evidence.
Defense counsel moved in limine at the hearing to additionally challenge the scope of the search
warrant on this ground. The warrant indicated that the home was a two-family residence, but did
not specifically list the particular unit to be searched. The trial court denied the motion and
declined to consider the issue.
A search warrant must describe the place to be searched with sufficient specificity to
allow the executing officer to identify the place with reasonable effort.32 A warrant must allow
the officer to determine which apartment or unit in a multi-unit structure is to be searched.33
Although defense counsel should have challenged the search warrant on this ground in his
motion to suppress, it is unclear from the record that this error was outcome determinative.
Although such an error would require reversal under federal law, the Michigan Supreme Court
has found automatic suppression unnecessary. Even if the search warrant contains an inaccurate
address, suppression is not required where “the warrant otherwise accurately described the place
to be searched” and where the police had made “considerable efforts to ascertain the address.”34
The existing record is insufficient to determine if the warrant would be valid regardless of the
overbroad description. Even if the warrant would ultimately have been found invalid, the
existing record is insufficient to determine if the executing officers seized the evidence in
27
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
28
People v Snider, 239 Mich App 393, 423; 608 NW2d 502 (2000).
29
People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999).
30
People v Carbin, 463 Mich 590, 599-600; 623 NW2d 884 (2001).
31
Id. at 600.
32
United States v Votteller, 544 F2d 1355, 1362 (CA 6, 1976), quoting Steele v United States No.
1, 267 US 498, 503; 45 S Ct 414; 69 L Ed 757 (1925).
33
Id. at 1363. See also People v Hunt, 171 Mich App 174, 181; 429 NW2d 824 (1988); People v
Toodle, 155 Mich App 539, 545; 400 NW2d 670 (1986).
34
Westra, supra at 285.
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“reasonable, good-faith reliance” on the warrant.35 Furthermore, defendant failed to request a
Ginther hearing so that an adequate record of defense counsel’s error could be made.
Accordingly, defendant cannot establish that counsel’s error was outcome determinative
pursuant to the directives of the Michigan Supreme Court.
Defendant also argues that defense counsel failed to clearly object to the introduction of
evidence of defendant’s flight. However, we have already determined that this evidence was
properly admitted. Defense counsel is not required to raise meritless or futile objections.36
Therefore, defendant has failed to establish that defense counsel was constitutionally ineffective.
Affirmed.
/s/ Kathleen Jansen
/s/ Patrick M. Meter
/s/ Jessica R. Cooper
35
People v Goldston, ___ Mich ___; ___ NW2d ___ (Docket No. 122364, decided July 15,
2004) (adopting a good-faith exception to the exclusionary rule).
36
People v Kuplinski, 243 Mich App 8, 27; 620 NW2d 537 (2000).
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