PEOPLE OF MI V RONALD BERNARD JACKSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 15, 2007
Plaintiff-Appellee,
v
No. 265957
Kent Circuit Court
LC Nos. 05-000770-FH;
05-000514-FH
RONALD BERNARD JACKSON,
Defendant-Appellant.
Before: Fort Hood, P.J., and White and Borrello, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of possession with intent to deliver
less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv), possession with intent to deliver 50 to
449 grams of cocaine, MCL 333.7401(2)(a)(iii), and maintaining a drug house, MCL
333.7405(1)(d). The trial court sentenced defendant as an habitual offender, third offense, MCL
769.11, to three to forty years’ imprisonment for possession with intent to deliver less than 50
grams of cocaine, eleven to forty years’ imprisonment for possession with intent to deliver 50 to
449 grams of cocaine, and two to four years’ imprisonment for maintaining a drug house. We
affirm.
On November 4, 2004, police officers executed a search of a Burke Avenue apartment.
Drugs were found and defendant was later arrested and searched. Police found a key to the
Burke Avenue apartment and another key as well. During the search, they obtained information
that defendant had a York Creek apartment, which was leased to a person named Robert
Hendrickson. Later, Hendrickson reported that he and defendant planned to live as roommates in
the York Creek apartment. Hendrickson had signed the lease, but defendant paid the rent.
Defendant had the only key. Hendrickson had not yet moved into the apartment, believed it was
empty, and gave the police written consent to search it.
On the morning of November 5, 2004, detectives confirmed that Hendrickson leased a
York Creek apartment on Alpenhorn Drive, and that his was the only name on the lease. They
subsequently entered the apartment using one of the keys they had found in defendant’s
possession. In one of the bedrooms, inside a closet, the detectives found a duffle bag secured
with a padlock. The bag contained over 300 grams of cocaine and drug packaging paraphernalia.
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On appeal, defendant argues that the trial court abused its discretion when it denied
defendant’s motion for new trial, which asserted that trial counsel rendered ineffective assistance
of counsel in regard to his motion to suppress the evidence seized from the Alpenhorn apartment.
We review a trial court’s decision to deny a new trial for an abuse of discretion. People v Cress,
468 Mich 678, 691; 664 NW2d 174 (2003). The abuse of discretion standard acknowledges that
there are circumstances in which there is no one correct outcome. People v Babcock, 469 Mich
247, 269; 666 NW2d 231 (2003). We defer to the trial court’s judgment, and if the trial court’s
decision results in an outcome within the range of principled outcomes, it has not abused its
discretion. Id. The determination whether a defendant has been deprived of the effective
assistance of counsel presents a mixed question of fact and constitutional law. People v LeBlanc,
465 Mich 575, 579; 640 NW2d 246 (2002). We review a trial court’s factual findings for clear
error, while its constitutional determinations are reviewed de novo. Id.
To establish ineffective assistance of counsel, defendant must show that defense
counsel’s performance was so deficient that it fell below an objective standard of reasonableness
and prejudiced him to the extent that it denied him a fair trial. People v Henry, 239 Mich App
140, 145-146; 607 NW2d 767 (1999). Further, defendant must show that there is a reasonable
probability that, but for defense counsel’s error, it is likely that the proceeding’s outcome would
have been different. Id. at 146. Effective assistance of counsel is presumed; therefore, defendant
must overcome the presumption that defense counsel’s performance constituted sound trial
strategy. Id.
In order to evaluate defense counsel’s performance, we must analyze the admissibility of
the challenged evidence. Defendant first argues that the trial court erred when it stated that he
lacked standing to challenge the search of the Alpenhorn apartment. We agree. The defendant
bears the burden of establishing standing. People v Lombardo, 216 Mich App 500, 505; 549
NW2d 596 (1996). The test is whether the defendant had a reasonable expectation of privacy in
the object or area searched. People v Smith, 420 Mich 1, 21; 360 NW2d 841 (1984). The
expectation must have been actual and subjective and recognized by society as reasonable. Id. at
27. Whether the expectation exists depends on all the circumstances surrounding the alleged
intrusion. Id. at 27-28.
Here, defendant was not named on the apartment’s lease, he received mail at a different
address, there is no evidence that he spent significant time in the apartment, and he denied any
connection to the apartment after his arrest. However, the trial court believed Hendrickson’s
testimony that defendant paid the rent for the apartment and that both he and defendant intended
to reside in the apartment. Moreover, defendant possessed the only key to the apartment and the
police found the door locked. Evidence that defendant secured the apartment and that he stored
personal items, drugs, and drug paraphernalia there, supports that he believed the premises were
safe from public intrusion. Based on the totality of the circumstances, we find that defendant had
a reasonable expectation of privacy in the Alpenhorn apartment. Id.
In reaching our conclusion, we reject the argument that defendant abandoned the
apartment by denying any connection to it after his arrest. See People v Paul Taylor, 253 Mich
App 399, 406; 655 NW2d 291 (2002). Defendant’s prior actions indicated that he did not intend
to abandon the apartment. He kept the key and had possessions there. Clearly, he disavowed
connection to the apartment only to avoid incriminating himself. See United States v Perea, 848
F Supp 1101, 1103 (ED NY, 1994), quoting 4 LaFave, Search and Seizure (2d ed 1987) §
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11.3(f), p 343. Moreover, we consider a variety of factors, not a single statement made to avoid
self-incrimination, to determine whether a defendant has abandoned real property. See Paul
Taylor, supra at 407.
Defendant additionally argues that Hendrickson lacked authority to consent to the search
of the Alpenhorn apartment. Valid consent is a recognized exception to the warrant requirement.
People v Borchard-Ruhland, 460 Mich 278, 294; 597 NW2d 1 (1999). The validity of the
consent depends on the totality of the circumstances, id., and the plaintiff bears the burden of
proving that the person consenting did so freely and voluntarily, People v Farrow, 461 Mich
202, 208; 600 NW2d 634 (1999). A third party may consent to the search when he or she does
so voluntarily and possesses common authority over the premises. People v Goforth, 222 Mich
App 306, 311; 564 NW2d 526 (1997).
Common authority is, of course, not to be implied from the mere property
interest a third party has in the property. The authority which justifies the thirdparty consent . . . rests rather on mutual use of the property by persons generally
having joint access or control for most purposes, so that it is reasonable to
recognize that any of the co-inhabitants has the right to permit the inspection in
his own right and that the others have assumed the risk that one of their number
might permit the common area to be searched. [Id. at 311-312.]
In this case, Hendrickson possessed more than a mere property interest in the premises.
As the trial court indicated, this situation involved two intended roommates: “one whose name
was on the lease, and one who paid the rent.” Hendrickson, whose name was on the lease,
intended to move into the apartment within one week and could have obtained a key from the
apartment manager without difficulty. Based on this evidence, we find that Hendrickson and
defendant shared joint access to and control over the apartment. Id. Defendant assumed the risk
that Hendrickson might permit it to be searched, id., and Hendrickson had authority to authorize
the search.
Defendant additionally argues that Hendrickson lacked common authority over the
bedroom and duffle bag, and he could not consent to a search of those. In making his argument,
defendant claims that the detectives should have assumed that the bedroom and bag belonged to
defendant. We disagree. The detectives received information that the apartment was empty, not
that defendant lived there or had property there. Further, it appeared that none of the rooms were
reserved for defendant’s private or exclusive use. Therefore, Hendrickson had common
authority over all of the rooms in the apartment at the time he consented to the search, and it was
reasonable for the detectives to believe that he also possessed authority over all of the containers
on the premises. Goforth, supra at 311-312.
Because the evidence seized from the Alpenhorn apartment was admissible at trial, we
cannot conclude that defense counsel’s performance was ineffective. Although the challenged
evidence was fatal to defendant’s case, he cannot establish that defense counsel’s performance
was outcome determinative. Henry, supra at 145-146. As the trial court indicated, even if
defense counsel had presented a timely and elaborate argument on this issue, the challenged
evidence would still have been admissible at trial. Therefore, because defendant failed to
overcome the presumption of effective assistance of counsel, we find that the trial court did not
abuse its discretion in denying his motion for new trial.
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Affirmed.
/s/ Karen M. Fort Hood
/s/ Helene N. White
/s/ Stephen L. Borrello
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