PEOPLE OF MI V KEVIN JAMES
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 3, 2008
Plaintiff-Appellee,
v
No. 270714
Wayne Circuit Court
LC No. 05-012271-01
KEVIN JAMES,
Defendant-Appellant.
Before: Kelly, P.J., and Owens and Schuette, JJ.
PER CURIAM.
Following a bench trial, defendant was convicted of possession with intent to deliver
marijuana, MCL 333.7401(2)(d)(iii), and sentenced to two years’ probation. He appeals as of
right. We affirm. This appeal is being decided without oral argument pursuant to MCR
7.214(E).
Police officers stopped defendant’s car for speeding. When Officer Graves spoke to
defendant, she noticed the odor of raw marijuana emanating from the car. Her partner, Officer
Channells, also smelled it. There was also an open bottle of beer in the car. The officers
requested identification from defendant and the passenger, defendant’s nephew Ernest Parker.
The police officers determined that there were outstanding warrants for Parker. They ordered
defendant and Parker out of the car and searched it. A black garbage bag with six gallon-size
Ziploc bags containing 2,710.6 grams of marijuana was discovered on the back seat behind the
passenger. The bag was open and its contents were visible from the top. The police confiscated
$9,750 and some loose marijuana leaves from Parker and $4,976 from defendant. Parker
claimed responsibility for the drugs in the vehicle.
Defendant testified that, as he was closing his car wash and detail business on Gratiot
Avenue, Parker rode up in another vehicle and got out. He asked defendant for a ride to his
girlfriend’s house at Gratiot and Chene, which was approximately two to three miles away.
Parker was carrying a black garbage bag tied in a knot, pants, and a jacket. Approximately five
minutes after Parker arrived, defendant and Parker left. They were on Gratiot Avenue, a mile or
two from the car wash, when the police stopped the car. Defendant denied knowing that there
was marijuana in the car. He testified that the car window was open when he was driving, and
he did not smell any marijuana. He testified that he knew the difference between burnt
marijuana and raw marijuana and agreed that “[t]hat stuff reeks.” Parker did not tell or imply
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that there was marijuana in the car. Defendant explained that part of the money he had was the
payroll money from the business.
Parker was not available to testify because he was hospitalized. The parties stipulated
that he would testify that he claimed responsibility for the drugs at the time of his arrest, that it
was his marijuana, and that he had pleaded guilty and was serving a sentence for possession with
intent to deliver marijuana.
The trial court found that the officers’ testimony was credible, that they could smell the
marijuana, and that Parker owned the bag of marijuana. The court found that defendant’s
testimony explaining why he was transporting Parker and his inability to smell the marijuana was
not credible. The court found that by knowingly driving Parker with the marijuana, defendant
aided and abetted in the commission of a crime and found him guilty because he “knowingly
possessed marijuana with the intention to deliver it to somebody else . . . .”
On appeal, defendant argues that he was denied the effective assistance of counsel.
Defendant raised this issue in a motion for a new trial, and the trial court granted defendant’s
request for an evidentiary hearing to present the testimony of Parker. However, Parker died
before the hearing took place. The court thereafter denied defendant’s motion for a new trial.
To establish ineffective assistance of counsel, a defendant must show that his counsel’s
representation “fell below an objective standard of reasonableness” and “overcome the strong
presumption that his counsel’s action constituted sound trial strategy under the circumstances.”
People v Toma, 462 Mich 281, 302; 613 NW2d 694 (2000). Defendant must also demonstrate “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different . . . .” Id., pp 302-303 (citations and internal quotation marks
omitted). In the absence of an evidentiary hearing, this Court’s review is limited to errors
apparent on the record. People v Williams, 223 Mich App 409, 414; 566 NW2d 649 (1997).
Defendant argues that trial counsel failed to investigate and prepare for trial by failing to
subpoena Parker. According to Parker’s affidavits, he would have corroborated defendant’s
testimony concerning Parker’s request for a ride, that he did not tell defendant about the
marijuana in the closed and knotted garbage bag, and that he (Parker) could not detect the scent
while it was in his possession or in the car. He told defendant’s trial counsel that he would
testify on defendant’s behalf, but he was not subpoenaed. But for his hospitalization, he would
have appeared and testified for defendant.
As is apparent from Parker’s affidavits, his failure to testify at the trial was not the result
of a mistake by trial counsel, but because of a heart condition that necessitated his
hospitalization. Defendant contends that instead of agreeing to the stipulation concerning
Parker’s testimony, trial counsel could have asked the court to take Parker’s testimony at the
hospital or to adjourn trial until Parker was released from the hospital. However, the record does
not indicate when or if Parker would have been able to testify. Therefore, defendant has not
established that counsel’s decision to stipulate to his testimony was below an objective standard
of reasonableness. Moreover, the trial court, which sat as the trier of fact, considered the
substance of the proposed testimony compared to the stipulation and concluded that there was no
reasonable probability that the result of the trial would have been different. We likewise reject
defendant’s claim that he was prejudiced by the absence of Parker’s testimony.
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Defendant also argues that counsel should have offered the testimony of defendant’s
mother, Gladys Hodge. In her affidavit, she stated that she owned a car wash on Gratiot for
which defendant was the manager. When she was not present, defendant was responsible for
closing the car wash and “taking the unbanked receipts home because there is no drop box.” On
the date of the incident, defendant closed the car wash. According to Hodge’s affidavit, trial
counsel never interviewed her or asked her to be a witness, but she had been willing to testify for
defendant. The trial court concluded that her proposed testimony that the money possessed by
defendant was business proceeds was “simply cumulative” of defendant’s testimony.
“The decision whether to call witnesses is a matter of trial strategy which can constitute
ineffective assistance of counsel only when the failure to do so deprives the defendant of a
substantial defense.” People v Hoyt, 185 Mich App 531, 537-538; 462 NW2d 793 (1990). “A
substantial defense is one that might have made a difference in the outcome of the trial.” People
v Kelly, 186 Mich App 524, 526; 465 NW2d 569 (1990). The failure to call supporting witnesses
does not inherently amount to ineffective assistance of counsel. Nor does the cumulative nature
of testimony that a defendant claims should have been presented preclude a determination that
the absence of the testimony was prejudicial. See People v Johnson, 451 Mich 115, 124; 545
NW2d 637 (1996).
The proposed testimony of defendant’s mother does not create a reasonable probability
that the result of the proceeding would have been different had she testified. Her affidavit does
not indicate what portion of the $4,976 confiscated from defendant was attributable to the
business. Moreover, in explaining the basis for the verdict, the trial court did not rely on the
money in defendant’s possession. Under the circumstances, defendant has not shown that
counsel was ineffective for failing to call defendant’s mother to testify.
Defendant argues that trial counsel was ineffective for failing to file a motion challenging
the stop of the car “on Fourth Amendment grounds.” Although his argument on this point is
undeveloped, defendant seems to contend that counsel should have argued that the police did not
have grounds to stop the car because he was not speeding. He cites Kimmelman v Morrison, 477
US 365, 384-386; 106 S Ct 2574; 91 L Ed 2d 305 (1986), for the proposition that failure to file a
motion to suppress may support a claim of ineffective assistance of counsel. However,
Kimmelman also states:
Where defense counsel’s failure to litigate a Fourth Amendment claim
competently is the principal allegation of ineffectiveness, the defendant must also
prove that his Fourth Amendment claim is meritorious and that there is a
reasonable probability that the verdict would have been different absent the
excludable evidence in order to demonstrate actual prejudice. [Id., p 375.]
Defendant has not shown that he had a meritorious Fourth Amendment claim in this case.
Defendant argues that counsel was ineffective for failing to attack the officers’
credibility, particularly with respect to whether defendant’s car nearly sideswiped them earlier in
the day, as indicated at the preliminary examination. Defendant claims that this showed a
“revenge motive for the stop” and gave them a motive to lie. According to defendant, the
officers’ credibility was essential to determining whether the scent of the marijuana was
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noticeable, and trial counsel should not have conceded that they were credible in closing
argument.
Trial counsel’s choice of the defense theory and approach to the officers’ testimony was a
reasonable trial strategy. Counsel explored the “revenge motive” at the preliminary examination
and evidently concluded that the theory was not persuasive. Instead, he attempted to reconcile
defendant’s claim that he did not smell the marijuana with the officers’ account by noting that
the average layperson may not have the same ability to recognize the odor, and that other than
the smell, there was nothing that showed that defendant had knowledge of its presence or was
linked to it. The unsuccessful result of the strategy does not establish that counsel was
ineffective for choosing it. People v Kevorkian, 248 Mich App 373, 414-415; 639 NW2d 291
(2001).
Defendant argues that trial counsel was ineffective for failing to move for a directed
verdict on the basis that the prosecution failed to establish venue in its case in chief. However,
as explained by the trial court in denying defendant’s motion for a new trial, had trial counsel
moved for a directed verdict, the court would have reopened the proofs to allow the prosecution
to establish venue. See People v Eger, 299 Mich 49, 57-58; 299 NW 803 (1941). Defendant’s
testimony at trial and the officer’s testimony at the preliminary examination indicate that venue
would have been established, and therefore, the court would have denied the motion for a
directed verdict. Defense counsel is not ineffective for failing to bring a motion that would have
been futile. People v Flowers, 222 Mich App 732, 737-738; 565 NW2d 12 (1997).
We conclude that defendant has not established that he was denied the effective
assistance of counsel. In addition, we are not persuaded that an evidentiary hearing is necessary
to resolve his claim.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Donald S. Owens
/s/ Bill Schuette
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