PEOPLE OF MI V NATHANIEL LEE JR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 14, 2004
Plaintiff-Appellee,
v
No. 245455
Oakland Circuit Court
LC No. 2000-172582-FC
NATHANIEL LEE, JR.,
Defendant-Appellant.
Before: Murphy, P.J., and O’Connell and Gage, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of conspiracy to deliver or possess with
intent to deliver 650 or more grams of a controlled substance, MCL 750.157a and MCL
333.7401(2)(a)(i). He was sentenced to a prison term of 30 to 60 years. He appeals as of right.
We affirm.
From 1987 through 1998, defendant, his brothers Roderick Lee and Shedrick Lee, and
other family members and associates, primarily from Pontiac, engaged in a long-term,
widespread cocaine and heroin trafficking conspiracy in Michigan. Defendant and Roderick led
and equally controlled the Lee family organization. Codefendant Joe Abraham supplied the
organization which, in turn, supplied numerous individuals for “street” sale or use. Shedrick also
allegedly smuggled kilograms of cocaine into the state. The lengthy trial included numerous
witnesses who testified regarding their dealings with the Lee family organization.
Helen Alexander testified that she purchased cocaine from defendant and Roderick for
several years. In 1987, she allowed defendant to use her house to “cook up” and sell drugs, in
exchange for drugs and money.1 Two to three times a week for four or five months, defendant
brought between a quarter to one kilogram of cocaine to Alexander’s house. Their arrangement
ended in 1987 or 1988. Thereafter, for a few months in 1989, Alexander bought from two to six
ounces of cocaine from defendant several times each week, which she sold to a third party.
1
Defendant called Mary Willis, the owner of the house, who testified that she never leased or
sold her house to Alexander. The prosecution recalled Alexander, who showed pictures of
herself at the house. A police witness also testified that, when he arrested Willis’ grandson at the
house in 1986, Alexander was there.
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Alexander also purchased cocaine from Willie Adams, who was one of defendant’s associates,
while defendant was present. On one occasion, she observed Adams, defendant and other
individuals seated around a table of four or five kilograms of cocaine. According to Alexander,
she participated in several drug transactions at various houses owned by the Lee brothers.
Ralph McMorris testified that, from the mid-1980’s until the mid-1990’s he bought
cocaine from defendant and Roderick in Pontiac. He bought several smaller quantities from
street sellers, but if he wanted larger quantities, the street sellers went to defendant or Roderick.
In 1989, he first bought a quarter of a kilogram directly from defendant for $8,500. Sometime
after February 1994, he again bought a quarter of a kilogram directly from defendant. He also
once bought three ounces from defendant and, on several additional occasions, gave defendant
stolen clothing in exchange for cocaine.
Eric Lee, who is the nephew of defendant and Roderick, began working for Roderick in
1989, and continued selling cocaine and heroin for his uncles until 1996.2 Eric testified that
defendant and Roderick led the Lee organization and were equally in control. In 1989, defendant
lived with Eric’s mother and kept more than a kilogram of cocaine in their apartment. Eric, then
fifteen years old, began stealing portions of the cocaine to sell. After Eric’s activities were
discovered, Roderick began supplying Eric weekly with cocaine to sell. Eric initially began with
half-ounce amounts, which eventually grew to over a half kilogram. In 1993 or 1994, Roderick
sent Eric to Muskegon to oversee the operation there because there were payment problems.
Other Lee relatives were selling drugs for Roderick in Muskegon at the time. Eric remained for
two years and was given a quarter to half-kilogram of cocaine on thirty to forty occasions.
Over the years, Eric observed large quantities of drugs being delivered to defendant and
Roderick, every three to four days. Eric believed that the delivery individuals were “running”
for Abraham. Shedrick also obtained cocaine for the organization from California and New
York. Eric, himself, was supplied with more than 650 grams of cocaine, and observed Roderick
sell cocaine to several other people. On one occasion, Eric went to Roderick’s apartment and
saw him converting two or three kilograms of cocaine into crack. Defendant was also present.
In a statement made to police, Abraham admitted that he received large quantities of
cocaine from out of state, which he brokered to different drug organizations, including the Lee
brothers and Joseph Steins. Abraham admitted that, on one occasion, he sold twenty kilograms
of cocaine to Roderick for $500,000. Antonio James, a drug runner for Joseph Steins, testified
that he picked up cocaine from Abraham once or twice a week in quantities of between one and
three kilograms for a couple of years. In 1996, James saw a shipment of between twenty and
twenty-five kilograms of cocaine delivered to Abraham’s house. James testified that, in 1996 or
1997, he heard Abraham brag to Steins that his “Pontiac boys,” defendant and Roderick, were
selling more drugs than the Steins organization.
2
Because Eric was unavailable for trial, his May 2000 preliminary examination testimony was
admitted at trial. During the preliminary examination, Eric’s grand jury testimony was
substantially integrated into the record through the prosecutor’s direct examination. At the
preliminary examination, Eric Lee claimed that he did not remember his grand jury testimony or
its factual basis.
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LaMark Northern, who began selling drugs in Pontiac in the late 1980s, testified that, on
one occasion, he, Roderick, and DeMar Garvin went to Abraham’s house and purchased between
eight and ten kilograms of cocaine for $200,000. In discussing the intended allocation of the
cocaine, Garvin indicated that he was to receive one kilogram, defendant was to receive two
kilograms, Northern was to receive less than one kilogram, and Adams was to receive more than
one kilogram.
Northern testified that he first received cocaine from Roderick in 1987 or 1988. In 1988
or 1989, he bought a half-kilogram of cocaine from Roderick for $14,500. Northern routinely
received cocaine from Roderick, which he, in turn, often broke down into smaller quantities and
sold. Northern testified that, on one occasion when he was having financial problems, defendant
refused his request to “front” him a quarter of a kilogram of cocaine, indicating that he would
work with him if he “could come up with some money.” Northern purchased more than 650
grams of cocaine from Roderick or Garvin, who also purchased his cocaine from Roderick and
others. In the mid-1990s, Northern was receiving cocaine and heroin from Garvin and Roderick
every two to three days, which he broke down and sold in the Pontiac area. Roderick or Garvin
supplied Northern until he was arrested in March 1996.
Northern testified that he twice received cocaine from Larry McGee, who had also sold
cocaine to defendant. Northern testified that, in 1994, he overheard a conversation between
Garvin and McGee, who was upset with defendant because he surcharged him for a cocaine
delivery. McGee stated that, when he served as a middleman and delivered cocaine to defendant,
he did not surcharge him.3 According to Northern, in 1997, Menion Stimage indicated that
Roderick was supplying him. Also, one of Northern’s family members, Jermaine Cohen, was
receiving cocaine from Johnnie Stanley, who was being supplied by Roderick.
In September 1994, the Pontiac police executed a search warrant at a suspected drug
house, and confiscated cocaine and various drug-weighing and packaging materials. While
there, Adams called and, in response to an officer’s request to buy cocaine, said that he could
obtain two ounces from “Big Nate’s” house. The police were aware that “Big Nate” referred to
defendant. After receiving directions to defendant’s house from Adams, the police secured the
house and obtained a search warrant. During the execution of the warrant, some individuals fled
from the police. Although defendant was not present, various items of identification and receipts
belonging to him were found inside one of the bedrooms. Inside the house, police found
numerous weapons and ammunition, a large amount of money, a digital scale, and more than 116
grams of cocaine. There was no clothing, food, or toiletries in the home.
Eric Lee testified before the grand jury that, on the day of the execution of the warrant, he
was recently at the house but had been sent to the store to purchase beer. Eric testified that,
when he left, defendant and others were sitting around gambling, and drugs and several guns
3
In September 1998, police executed a search warrant at McGee’s house and confiscated, inter
alia, a digital scale, drug tally sheets, more than four hundred grams of cocaine, and nearly five
grams of heroin.
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were in the house. When he returned, the police were searching the house. Two individuals told
him that defendant “was all right” and had escaped through a window.
In October 1994, Pennsylvania police stopped a car for erratic driving. The driver,
Shedrick, falsely identified himself as “Nathaniel Lee” and produced an application for a driver’s
license in defendant’s name. A subsequent search of the vehicle revealed nearly three kilograms
of cocaine and more than six grams of heroin hidden in a secret compartment underneath the
vehicle. A drug enforcement special agent opined that, based on Shedrick’s explanation of the
transaction, Shedrick was a courier for a larger drug organization, and had a previous
relationship with his out-of-state source.
In July 1998, Shedrick had shared a jail cell with Ricky Buchanan for nearly a year.
According to Buchanan, Shedrick told him that he was being charged with additional drugrelated crimes that had continued after he was jailed in federal prison for bringing cocaine to
Michigan. Shedrick told Buchanan that he was in the drug business with his brothers, defendant
and Roderick, and that, even after being incarcerated, he “still had his part in the business . . .
because he paid his dues.” Shedrick indicated that he was supposed to receive approximately a
million dollars because defendant and Roderick had a fifteen-kilogram shipment being delivered
to Michigan from out of state. Buchanan indicated that Shedrick offered him a job as a driver
when he “got out,” because he had seen Buchanan’s police chase on the television show, “Cops.”
According to Buchanan, Shedrick was very upset with his nephew, Eric, and said that he
“wanted him dead” before he could testify against him.
In September 1998, search warrants were executed for ten homes in the Pontiac area
connected to the Lee family organization. At one of the homes, police found numerous letters to
defendant, ammunition, a weapon, a medicine bottle bearing defendant’s name, a digital scale,
and a cell phone. One letter written to defendant stated, “I must be a d*** fool to have honestly
thought you was [sic] down with me and not the product.” The letter also referred to doing
business with defendant, and contained the terms, “candy” and “kibbles and bits,” which are
common names for cocaine.
Numerous individuals purportedly involved in the Lee family organization, including
defendant, were arrested. Defendant was not employed during the duration of the drug
trafficking conspiracy, and he did not file any tax returns from 1987 though 1998.
Defendant first argues that the evidence was insufficient to sustain his conviction because
there was no evidence of a specific intent or agreement to deliver or possess with intent to
deliver 650 or more grams of a controlled substance. We disagree. When ascertaining whether
the prosecutor presented sufficient evidence to support a conviction, we “view the evidence in a
light most favorable to the prosecution and determine whether any rational trier of fact could
have found that the essential elements of the crime were proven beyond a reasonable doubt.”
People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992).
“Circumstantial evidence and reasonable inferences drawn therefrom may be sufficient to prove
the elements of a crime.” People v Jolly, 442 Mich 458, 466; 502 NW2d 177 (1993).
To be convicted of conspiracy to possess with intent to deliver a controlled
substance, the people must prove that (1) the defendant possessed the specific
intent to deliver the statutory minimum as charged, (2) his coconspirators
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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. [People v Justice
(After Remand), 454 Mich 334, 349; 562 NW2d 652 (1997).]
A prosecutor does not need to present direct proof of a conspiracy, but rather, the jury may
reasonably infer its existence “from the circumstances, acts, and conduct of the parties.” Id. at
347.
The evidence indicated that defendant, as a co-leader of the Lee family organization,
knowingly cooperated with others to further a drug trafficking scheme to possess and deliver
multiple kilograms of cocaine. There was testimony that defendant and his brother, Roderick,
led and equally controlled the Lee family organization. Testimony revealed that, as early as
1987, defendant used the house of a friend, Alexander, to “cook up” and sell a quarter to a
kilogram of cocaine each week for four or five months. There was also evidence that defendant
and Roderick received numerous kilograms of cocaine from Abraham, an admitted drug supplier,
and disbursed them to numerous individuals for sale or use. Defendant’s nephew, Eric, routinely
saw Abraham’s “runners” delivering large quantities of cocaine to defendant and Roderick every
three to four days. On one occasion, Abraham sold eight to ten kilograms of cocaine to Roderick
for $200,000, two of which were earmarked for defendant. Abraham stated that the Lee
organization, specifically referring to defendant and Roderick, sold more cocaine than another
drug organization, which obtained one to two kilograms a week for years. Alexander observed
defendant seated around a table of four to five kilograms of cocaine. A jury could reasonably
infer from this evidence that defendant did not intend to personally use these vast amounts of
cocaine, but intended to distribute them to third parties.
Although defendant asserts that the testimony of certain witnesses was self-serving or
incredible, the jury was entitled to accept or reject any of the evidence presented. People v
Jackson, 390 Mich 621, 625 n 2; 212 NW2d 918 (1973). Moreover, a prosecutor “is not
obligated to disprove every reasonable theory consistent with innocence,” but only needs to
prove his own theory beyond a reasonable doubt given the contrary evidence proffered by the
defendant. People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000). Viewed in a light most
favorable to the prosecution, the evidence presented in this case reflected a long-term conspiracy
to traffic drugs and was sufficient to sustain defendant’s conviction for conspiracy to deliver or
possess with intent to deliver 650 grams or more of a controlled substance. We similarly reject
defendant’s contention that he is entitled to a new trial because his conviction was against the
great weight of the evidence. The direct evidence against defendant was overwhelming, and
defendant substantially failed to counter it.
Defendant next argues that the trial court abused its discretion by admitting Eric Lee’s
preliminary examination and grand jury testimony at trial, because he was not “unavailable”
under MRE 804(a). Defendant first argues that the prosecution improperly revoked the witness’
immunity before trial, forcing him to invoke his privilege against self-incrimination and enabling
the prosecution to use his preliminary examination testimony rather than direct testimony. We
disagree. We review for abuse of discretion a trial court’s evidentiary rulings. People v Sabin
(After Remand), 463 Mich 43, 60; 614 NW2d 888 (2000).
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Eric, who was involved in the drug trafficking conspiracy, testified before a grand jury in
April 1998, and gave critical evidence against defendant and the Lee family organization. He
also testified at defendant’s May 2000 preliminary examination, but he claimed he could not
recall any details about the alleged drug trafficking conspiracy or his inculpating testimony
before the grand jury. Eric even denied any memory of ordinary facts, such as his previous
address. Based on this claimed lack of memory, the prosecution declined to extend its grant of
immunity to cover defendant’s 2002 trial. Eric invoked his Fifth Amendment privilege not to
testify at trial, and the court accepted it. As a result, the court properly concluded that Eric was
“unavailable” under MRE 804(a). The court allowed the prosecutor to read into the record Eric’s
testimony at the grand jury and preliminary examination.
A trial court may admit a witness’s prior testimony under MRE 804 if the witness is
unavailable because he validly asserts a privilege from testifying. However, according to MRE
804(a),
A declarant is not unavailable as a witness if exemption, refusal, claim of
lack of memory, inability, or absence is due to the procurement or wrongdoing of
the proponent of a statement for the purpose of preventing a witness from
testifying.
If the prosecution intentionally causes a witness’s failure to testify with either threats or
actual prosecution, the witness will not be deemed “unavailable” under MRE 804(a). People v
McIntosh, 142 Mich App 314, 324; 370 NW2d 337 (1985). “[T]he burden is on the prosecution
to establish that the witness whose prior recorded testimony is being offered is, in fact,
‘unavailable’ and that the prosecution has not, either intentionally or negligently, contributed to
making the witness unavailable.” Id. at 327.
In this case, the prosecution did not revoke Eric’s immunity merely to prevent him from
testifying. Rather, the prosecution reasonably surmised that Eric would not provide testimony at
trial, but would again feign a loss of memory. Because Eric had already indicated his
unwillingness to testify according to the immunity agreement he had with the prosecution, the
prosecutor’s decision to revoke Eric’s immunity was not unreasonable. Therefore, Eric could
properly invoke his right to remain silent, and was “unavailable” at trial for MRE 804 purposes.
Defendant next argues that the trial court violated defendant’s right to confront the
witnesses against him when it allowed the prosecutor to introduce Eric’s grand jury and
subsequent preliminary examination testimony. We disagree. At the preliminary examination,
defendant conceded that the grand jury testimony was admissible in that proceeding according to
MRE 801(d)(1)(A) and our holding in People v Chavies, 234 Mich App 274, 283-284; (1999).
In Chavies, we ruled that the prosecutor could introduce a pair of witnesses’ grand jury
testimony at trial because the witnesses suddenly failed to remember their earlier testimony or
the facts supporting it. Chavies, supra at 282. We held that the sudden lack of memory was
inconsistent with the earlier testimony, so MRE 801(d)(1)(A) allowed the admission of the
testimony. Chavies, supra at 282-283. The testimony did not violate the Confrontation Clause,
because defendant had an opportunity to confront the witness, despite the witness’s failure to
remember the events at issue. Id. at 284.
-6-
Because of Chavies’s clear applicability, defendant did not object to the admission of the
grand jury transcript as an exhibit at the preliminary examination. Because Eric’s grand jury
testimony was part of the record and Eric was “available” for cross-examination at the
preliminary examination, defendant had “an opportunity and similar motive to develop” the
grand jury testimony at the preliminary examination. MRE 804; but see Chavies, supra.4
Because the preliminary examination afforded defendant the opportunity to cross-examine Eric
about the facts supporting his testimony and the prior testimony he provided, and because he was
unavailable at trial, MRE 804 allowed the prosecutor to present both transcripts to the jury, and
the Confrontation Clause did not prohibit it. See Crawford v Washington, 541 US 36; 124 S Ct
1354, 1369; 158 L Ed 2d 177 (2004); see also United States v Owens, 484 US 554, 559-560; 108
S Ct 838; 98 L Ed 2d 951 (1988).5
We reject defendant’s claim that he is entitled to a new trial because the trial court failed
to properly instruct the jury that the prosecution must prove that he specifically intended to
conspire to deliver 650 or more grams of cocaine. Because defendant failed to raise this
instructional claim below, this Court reviews this unpreserved issue for plain error affecting
defendant’s substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130, reh den
461 Mich 1205 (1999).
“We review jury instructions in their entirety to determine if error requiring reversal
occurred.” People v Aldrich, 246 Mich App 101, 124; 631 NW2d 67 (2001). “The instructions
must include all the elements of the charged offense and must not exclude material issues,
defenses, and theories that are supported by the evidence.” People v Marion, 250 Mich App 446,
448; 647 NW2d 521 (2002). “Even if the instructions are somewhat imperfect, reversal is not
required as long as they fairly presented the issues to be tried and sufficiently protected the
defendant’s rights.” Aldrich, supra. Here, the trial court did not include the amount of cocaine
as an element of the offense in its initial jury instructions. Nevertheless, the trial court corrected
this omission before the jury began deliberating and properly instructed the jury with regard to
4
In Chavies, supra, we held that the testimony could not come in under MRE 804 because
defendant did not have the opportunity to cross-examine the witness at the grand jury
proceedings. While we find this issue moot for purposes of the Confrontation Clause because
defendant subjected Eric to cross-examination at the preliminary examination, we also find that
any error of the trial court in admitting the grand jury testimony under MRE 804 was necessarily
harmless. The prosecutor read straight from Eric’s grand jury testimony throughout the entire
preliminary examination proceeding, repeatedly asking him if he remembered the factual
underpinnings of his testimony, or even the fact that he had testified at all. Therefore, the
preliminary examination transcript, which contained defendant’s cross-examination and was
clearly admissible at trial under MRE 804, substantially mirrored the grand jury testimony, and
its repetition as uninterrupted grand jury testimony did not prejudice defendant in any cognizable
way. MRE 103.
5
We also note that even if the later-equivocated grand jury testimony of this one witness were
introduced into evidence contrary to the Confrontation Clause, the other overwhelming evidence
of defendant’s guilt would lead us to find the error harmless beyond a reasonable doubt. People
v McPherson, 263 Mich App 124, 131; 687 NW2d 370 (2004); see also California v Green, 399
US 149, 170; 90 S Ct 1930; 26 L Ed 2d 489 (1970).
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conspiracy to deliver or possess with intent to deliver 650 or more grams of cocaine. Viewed in
their entirety, the instructions clearly expressed that the prosecution must prove that defendant
had knowledge that the object of the conspiracy was to deliver or possess with intent to deliver
650 or more grams of cocaine. Therefore, this issue does not warrant reversal.
We reject defendant’s final claim that resentencing is required because the trial court
failed to consider the presentence investigation report (PSIR), consider all relevant sentencing
factors, articulate reasons for the sentence imposed, individualize the sentence, and impose a
proportionate sentence. Because the offense in this case occurred before January 1, 1999, the
statutory sentencing guidelines do not apply. People v Reynolds, 240 Mich App 250, 254; 611
NW2d 316 (2000). Furthermore, the former judicial sentencing guidelines do not apply in this
case because, at the time, the offense was subject to a mandatory minimum sentence, MCL
333.7401(2)(a)(i). People v Edgett, 220 Mich App 686, 690; 560 NW2d 360 (1996). We review
a defendant’s sentence for an abuse of discretion. People v Hansford (After Remand), 454 Mich
320, 323-324; 562 NW2d 460 (1997).
At the time of defendant’s sentencing, before the statute’s recent amendment, the
mandatory minimum sentence for defendant’s offense was twenty years’ imprisonment, with a
maximum of life imprisonment. MCL 333.7401(2)(a)(i). Defendant was sentenced to a prison
term of 30 to 60 years. As such, defendant’s sentence was within the court’s statutory authority
and, under the circumstances, it was appropriate. There is no claim that the court was not
provided with the PSIR and, apart from defendant’s conjecture, there is no indication in the
record that the court failed to consider the report or any other relevant factor.
Although a sentencing court “must articulate on the record the criteria considered and the
reasons supporting its sentencing decision,” it need not “expressly mention every goal of
sentencing when imposing sentence.” People v Rice (On Remand), 235 Mich App 429, 445-446;
597 NW2d 843 (1999). Here, when imposing defendant’s sentence, the trial court noted, inter
alia, the large amount of drugs brought into the community because of defendant’s actions, and
the detrimental ramifications that defendant’s drug trafficking had on the community. Although
the trial court directed its findings at defendant and his two codefendants, such an approach
should be expected in conspiracy cases. In any case, the court plainly addressed defendant and
his particular actions, and we are satisfied that the trial court took full account of defendant’s
individual role in the conspiracy when it sentenced defendant. Finally, given defendant’s coleadership of a large drug-trafficking organization that purchased and imported numerous
kilograms of drugs for more than a decade, defendant’s sentence to imprisonment for 30 to 60
years is proportionate to the grave nature of his offense.
Affirmed.
/s/ Peter D. O’Connell
I concur in the result only.
/s/ William B. Murphy
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