PEOPLE OF MI V REGINALD EUGENE PHASON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 21, 2005
Plaintiff-Appellee,
V
No. 252598
Kalamazoo Circuit Court
LC No. 02-001698-FH
REGINALD EUGENE PHASON,
Defendant-Appellant.
Before: O’Connell, P.J., and Schuette and Borrello, JJ.
PER CURIAM.
Defendant appeals as of right following his jury trial and conviction of possession with
intent to deliver marijuana, MCL 333.7401(2)(d)(iii), and possession of a firearm during the
commission of a felony, MCL 750.227b. He was sentenced to serve two years’ imprisonment
for felony-firearm, consecutive to four years’ probation for the marijuana conviction (the first
three months of which was to be served in jail). We affirm. This case is being decided without
oral argument pursuant to MCR 7.214(E).
Defendant asserts that his trial counsel was ineffective for failing to move to suppress the
marijuana, firearm, and other evidence obtained from his home because police searched his
home without a warrant and without his consent. We disagree. “In reviewing a defendant’s
claim of ineffective assistance of counsel, the reviewing court is to determine (1) whether
counsel’s performance was objectively unreasonable and (2) whether the defendant was
prejudiced by counsel’s defective performance.” People v Rockey, 237 Mich App 74, 76; 601
NW2d 887 (1999). We presume that a defendant’s assistance was effective, and defendant bears
the heavy burden of overcoming the presumption. Id. Defendant must demonstrate a reasonable
probability that his counsel’s ineffective assistance rendered the proceedings fundamentally
unfair or unreliable and adversely altered their outcome. People v Messenger, 221 Mich App
171, 181; 561 NW2d 463 (1997).
There is no dispute that the police officers conducted their search of defendant’s house
without a warrant, but the warrant requirement is subject to several exceptions, one of which is
“a search conducted pursuant to consent.” People v Borchard-Ruhland, 460 Mich 278, 294; 597
NW2d 1 (1999). To qualify under the exception, consent to search must be voluntary, and
coercion or duress by police will ordinarily negate voluntariness. Id.; People v Reed, 393 Mich
342, 362; 224 NW2d 867 (1975). According to police testimony, two uniformed officers
knocked on defendant’s door and were greeted first by a juvenile, then by defendant. The
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officers informed defendant that they were investigating allegations of cocaine and heroin
trafficking. The officers recounted that defendant denied dealing drugs from the home, but
admitted to smoking marijuana and having a handgun on the premises. Defendant led the police
to those items. One officer testified that, while visually confirming that there was a handgun
under a bed, he observed a wad of bills, a digital scale, and several coin wrappers in a small
plastic bag nearby. Defendant, however, testified that the police insinuated their way into the
house’s foyer, and then asserted a general right to search despite his refusal to give them consent.
Therefore, the issue of defendant’s consent boils down to a question of credibility. Defendant’s
argument that the trial court would have credited his account over that of the two police
witnesses amounts to mere speculation, especially since a jury rejected defendant’s version of
events. Because defendant fails to show that a motion to suppress would have changed the
outcome of the proceedings, his claim of ineffective assistance fails. Messenger, supra.
Affirmed.
/s/ Peter D. O’Connell
/s/ Bill Schuette
/s/ Stephen L. Borrello
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