PEOPLE OF MI V NANA KWASI ACQUAAH
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 13, 2008
Plaintiff-Appellee,
v
No. 279638
Oakland Circuit Court
LC No. 2007-212487-FH
NANA KWASI ACQUAAH,
Defendant-Appellant.
Before: Zahra, P.J., and Cavanagh and Meter, JJ.
PER CURIAM.
A jury convicted defendant of possession with intent to deliver 50 to 449 grams of
cocaine, MCL 333.7401(2)(a)(iii), and possession with intent to deliver marijuana, MCL
333.7401(2)(d)(iii). The trial court sentenced defendant as a fourth habitual offender, MCL
769.12, to 15 to 40 years’ imprisonment for the possession with intent to deliver 50 to 449 grams
of cocaine conviction, and three to five years’ imprisonment for the possession with intent to
deliver marijuana conviction. We affirm.
I. Other Acts Evidence
Defendant first argues that the trial court erred in admitting the testimony of Pontiac
Police Officer Charles Janczarek, who testified that while conducting surveillance during the
course of an unrelated narcotics investigation, he had observed defendant engage in actions
consistent with “hand to hand” drug transactions. Defendant contends that this testimony
constituted inadmissible evidence of defendant’s prior bad acts under MRE 404(b)(1), and
asserts that the prosecution failed to give notice of its intent to use this evidence pursuant to
MRE 404(b)(2). We disagree.
Defendant did not preserve this issue in the trial court. Unpreserved issues are reviewed
for plain error affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 763764; 597 NW2d 130 (1999).
Evidence of other bad acts may be admitted at trial so long as it is offered pursuant to
MRE 404(b):
(1) Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith. It may,
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however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
or absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
(2) The prosecution in a criminal case shall provide reasonable notice in
advance of trial, or during trial if the court excuses pretrial notice on good cause
shown, of the general nature of any such evidence it intends to introduce at trial
and the rationale, whether or not mentioned in subparagraph (b)(1), for admitting
the evidence. If necessary to a determination of the admissibility of the evidence
under this rule, the defendant shall be required to state the theory or theories of
defense, limited only to the defendant’s privilege against self-incrimination.
In addition, evidence of prior criminal acts is admissible if the evidence is presented as part of
the res gestae of the charged offense, for the purpose of setting forth a comprehensive overview
of the circumstances of the case for the jury’s consideration. People v Sholl, 453 Mich 730, 742;
556 NW2d 851 (1996). As explained by the Sholl Court:
Evidence of other criminal acts is admissible when so blended with the crime of
which defendant is accused that proof of one incidentally involves the other or
explains the circumstances of the crime. [Sholl, supra at 742, quoting People v
Delgado, 404 Mich 76, 83; 273 NW2d 395 (1978).]
Here, defendant argues that Janczarek’s testimony regarding the “hand to hand” drug
transactions was offered by the prosecution only to prove that defendant acted in conformity with
that conduct in committing the instant offense, and was not probative of any issue in the case.
We conclude that Janczarek’s testimony is admissible under MRE 404(b)(1). Testimony
regarding the “hand to hand” drug transaction was relevant to address defendant’s argument at
trial that police mistakenly searched his residence, Apartment Two, instead of Apartment Seven
pursuant to the May 3, 2005, search warrants. According to defendant, after the May 3 search of
his apartment the police specifically questioned him regarding the occupant of Apartment Seven,
and requested information regarding drug trafficking in defendant’s apartment building
generally. The testimony regarding defendant’s subsequent “hand to hand” drug transactions
was thus admissible for the purpose of showing the absence of mistake or accident, and tended to
support Officer Main’s testimony that defendant’s apartment, Apartment Two, and not
Apartment Seven, was in fact the location the police intended to search. Further, Janczarek’s
testimony is admissible under MRE 404(b)(1) because it was relevant to the issue of defendant’s
knowledge about the drugs that were discovered in his apartment on May 3, 2005, and whether
defendant intended to deliver the cocaine and marijuana that was seized from his apartment on
that date. Accordingly, Janczarek’s testimony regarding the “hand to hand” narcotics
transactions was offered for a proper purpose under MRE 404(b)(1).
The testimony regarding defendant’s “hand to hand” narcotics transactions was also
relevant as part of the res gestae of the offense. Janczarek’s testimony regarding defendant’s
deficient performance as a confidential informant was necessary to explain the circumstances
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leading to the government’s decision to subsequently seek the May 16, 2006, search warrant and
the December 22, 2006, arrest warrant.
Before trial, the trial court ruled that defendant’s other bad acts relating to the evidence
seized pursuant to the May 16, 2006, search warrant and the December 22, 2006, arrest warrant
were admissible. Defendant does not contest on appeal the admissibility of evidence of these
other bad acts, aside from the testimony regarding the “hand to hand” drug transactions. The
uncontested bad acts evidence relating to the May 16, 2006, search warrant and the December
22, 2006, arrest warrant were part of the res gestae of the charged offenses because this evidence
tended to provide a comprehensive overview of the circumstances, including an explanation of
the interaction between defendant and the police from the time of the initial, May 3, 2005, search
warrant, to defendant’s arrest on December 22, 2006. Sholl, supra at 742. In turn, Janczarek’s
testimony regarding defendant’s drug transactions while performing as a confidential informant
assisted in providing a comprehensive overview of the events that culminated in the May 16,
2006, search warrant.
Defendant’s theory was that he initially agreed to perform as a confidential informant
because the police falsely accused him of possessing drugs they had found in the common
bathroom of defendant’s apartment building. Defendant maintained that he never possessed the
drugs the police discovered in his apartment. Defendant also testified that he stopped working as
a police informant because the police insisted on compensating him with drugs, and further
testified that he had no experience with drug trafficking. Thus, the testimony regarding the
“hand to hand” drug transactions was relevant in order for the jury to assess the circumstances
relating to the issue raised by defendant, particularly whether defendant actually possessed the
cocaine and marijuana with the intent to deliver on May 3, 2005, or conversely, whether the
police planted the evidence in order to secure defendant’s services as an informant. Because we
conclude that Janczarek’s testimony is admissible under MRE 404(b)(1), and was also part of the
res gestae of the offense, the trial court did not commit plain error affecting defendant’s
substantial rights.
We reject defendant’s claim that the prosecution failed to provide proper notice of its
intent to use other acts evidence under MRE 404(b)(2). The record reveals that the prosecution
did, in fact, provide such notice. The prosecution is required only to provide notice regarding
“the general nature of any such evidence it intends to introduce at trial and the rationale . . . for
admitting the evidence.” MRE 404(b)(2).
In its pretrial motion, the prosecution sought the trial court’s leave to introduce evidence
“relating to the facts and circumstances surrounding” the May 3, 2005, search warrants, the May
16, 2006, search warrant, and the December 22, 2006, arrest warrant, and articulated a sufficient
rationale underlying its intent to use such evidence. Thus, contrary to defendant’s argument, the
prosecution did in fact provide sufficient notice of the “general nature” of Janczarek’s testimony
when it filed its motion to use other acts evidence under MRE 404(b). The trial court did not
abuse its discretion when it admitted Janczarek’s testimony as evidence. Accordingly, defendant
is not entitled to a new trial.
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II. Sentencing
Defendant next argues that the trial court abused its discretion when it scored ten points
for Offense Variable (“OV”) 19 under defendant’s sentencing guidelines because the trial court
failed to articulate which parts of defendant’s testimony were perjurious and amounted to an
attempt to interfere with the administration of justice. We disagree.
When reviewing a sentencing court’s scoring of a defendant’s sentencing guidelines, this
Court determines whether the evidence adequately supports a particular score, and whether the
sentencing court properly exercised its discretion. People v McLaughlin, 258 Mich App 635,
671; 672 NW2d 860 (2003). This Court reviews a trial court’s scoring decision under the
sentencing guidelines for an abuse of discretion. People v Hornsby, 251 Mich App 462, 468;
650 NW2d 700 (2002). A trial court does not abuse its discretion where its decision falls within
the range of principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231
(2003). The construction and application of the sentencing guidelines presents a question of law,
which is reviewed de novo. People v Johnson, 474 Mich 96, 99; 712 NW2d 703 (2006).
This issue involves the application of offense variable (OV) 19 of the statutory
sentencing guidelines, MCL 777.49. The rules of statutory construction govern the application
of the statutory sentencing guidelines. People v Morson, 471 Mich 248, 255; 685 NW2d 203
(2004). In interpreting a statute, the fundamental task of a court is to discern and give effect to
the Legislature’s intent as provided in the plain language of the statute. People v Williams, 475
Mich 245, 250; 716 NW2d 208 (2006). Where the ordinary meaning of the statutory language is
clear, further judicial construction is unnecessary and unwarranted. People v Weeder, 469 Mich
493, 497; 674 NW2d 372 (2004). Further, “[w]here a scoring error does not alter the appropriate
guidelines range, resentencing is not required.” People v Francisco, 474 Mich 82, 89 n 8; 711
NW2d 44 (2006), citing People v Davis, 468 Mich 77, 83; 658 NW2d 800 (2003).
Pursuant to MCL 777.49(c), a sentencing court allocates ten points where “[t]he offender
otherwise interfered or attempted to interfere with the administration of justice.” This Court has
recognized that perjury is a basis for assessing points under OV 19. People v Underwood, 278
Mich App 334, 338; 750 NW2d 612 (2008). The elements of the crime of perjury are: “(1) the
administration to the defendant of an oath authorized by law, by competent authority; (2) an
issue or cause to which facts sworn to are material; and (3) wilful false statements or testimony
by the defendant regarding such facts.” People v Honeyman, 215 Mich App 687, 691; 546
NW2d 719 (1996). Where a defendant elects to testify at trial, and thereby gives up his right to
remain silent, he is obligated to testify truthfully. People v Adams, 430 Mich 679, 689; 425
NW2d 437 (1988).
Defendant argues that the trial court improperly scored ten points under OV 19 based
upon the trial court’s belief that defendant committed perjury when defendant testified at trial.
Defendant also argues that the trial court failed to articulate which portions of defendant’s
testimony it believed constituted perjury. The prosecution argues that defendant’s testimony was
replete with false statements, and the jury’s rejection of defendant’s testimony, as represented by
the jury’s verdict, demonstrates that defendant testified falsely to the extent that defendant’s
description of the offense conflicted with the testimony of the police officers. Although the
prosecution does not persuade us that the jury’s verdict standing alone establishes that defendant
committed perjury, we nonetheless agree with the prosecution that there was some evidence in
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the record that defendant testified falsely, and thus, “interfered or attempted to interfere with the
administration of justice” for the purposes of scoring OV 19.
Defendant testified that he had no experience with selling drugs. However, defendant
admitted that he was, in fact, on parole for a conviction for narcotics distribution. The
prosecution argues that this testimony constitutes sufficient record evidence to justify the trial
court’s decision to assess ten points under OV 19. We agree. Our Supreme Court has concluded
that a defendant’s act is not “necessarily [required to] rise to the level of a chargeable offense”
for the purposes of scoring OV 19. People v Barbee, 470 Mich 283, 287; 681 NW2d 348 (2004).
Here, defendant’s testimony that he was on parole for a manufacture or delivery of narcotics
conviction constitutes record evidence that defendant testified falsely when he claimed he had no
prior experience with the drug trade. For purposes of scoring sentencing guidelines, these facts
establish that defendant attempted to interfere in the administration of justice. “Scoring
decisions for which there is any evidence in support will be upheld.” Hornsby, supra at 468.
Because there was evidence in support of its decision to assess ten points under OV 19, the trial
court did not abuse its discretion when it did so. In any event, the alleged scoring error does not
alter the guidelines range under which defendant was sentenced. Thus, defendant is not entitled
to resentencing. Francisco, supra at 89 n 8.
Defendant next raises several arguments attacking the constitutionality of his sentence.
We disagree with all of defendant’s arguments. Because defendant failed to preserve this
sentencing issue, we review it for plain error affecting defendant’s substantial rights. People v
McLaughlin, 258 Mich App 635, 670; 672 NW2d 860 (2003). Pursuant to MCL 769.34(10), if a
defendant’s minimum sentence falls within the proper guidelines sentence range, “the court of
appeals shall affirm that sentence and shall not remand for resentencing absent an error in
scoring the sentencing guidelines or inaccurate information relied upon in determining the
defendant’s range.” However, this Court has recognized “that MCL 769.34(10) cannot
constitutionally be applied to preclude relief for sentencing errors of constitutional magnitude.”
People v Conley, 270 Mich App 301, 316; 715 NW2d 377 (2006). Questions of constitutional
law are reviewed by this Court de novo. People v Dendel, 481 Mich 114, 124; 748 NW2d 859
(2008).
Defendant first argues that the trial court was required to articulate reasons underlying its
decision to impose defendant’s minimum and maximum sentences, and erred when it failed to do
so, citing People v Lemons, 454 Mich 234; 562 NW2d 176 (1996). However, we note that
Lemons was decided during the era of the former judicial sentencing guidelines, and does not
apply to the statutory sentencing guidelines under which defendant was sentenced here. MCL
769.34(1). Defendant’s claim fails because defendant’s sentences fall within the appropriate
sentencing guidelines range and defendant has not rebut the presumption of proportionality of his
sentences with evidence regarding “extraordinary circumstances” indicating that the sentences
were otherwise disproportionate.
Defendant next contends that the trial court abused its discretion by failing to
downwardly depart from defendant’s recommended sentencing guidelines range on the basis of
defendant’s assistance to law enforcement as an informant, defendant’s “strong family support,”
and defendant’s drug dependency problems. Contrary to defendant’s argument, nothing in MCL
769.34(10) requires a trial court to depart from the sentencing guidelines. Further, defendant’s
claims that there were substantial and compelling reasons requiring a downward departure lacks
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support in the record. Accordingly, the trial court did not abuse its discretion when it imposed a
minimum sentence that fell within the appropriate guidelines range.
Defendant next argues that the trial court was required to assess defendant’s potential for
rehabilitation through intensive alcohol, drug, and psychiatric treatment under MCR 6.425(A)(5),
and erred when it failed to do so. MCR 6.425(A)(5) applies to the probation officer’s
preparation of the presentence investigation report, and, contrary to defendant’s argument, does
not require a trial court to assess a defendant’s potential for rehabilitation.
To the extent that defendant argues that his sentences constitute cruel and unusual
punishment, this Court recently observed that “a sentence within the guidelines range is
presumptively proportionate, and a sentence that is presumptively proportionate is not cruel or
unusual punishment.” People v Powell, 278 Mich App 318, 323; 750 NW2d 607 (2008)
(citations omitted). Defendant’s argument that his sentence constitutes cruel or unusual
punishment fails.
Defendant next argues that the trial court erred when it engaged in judicial fact-finding to
score defendant’s sentencing guidelines, contrary to the principles set forth in Blakely v
Washington, 542 US 296; 124 S Ct 2531; 159 L Ed 2d 403 (2004), and Michigan case law.
However, a sentencing court does not violate a defendant’s Sixth Amendment rights by engaging
in judicial fact-finding to assess points under the offense variables of a defendant’s sentencing
guidelines. People v McCuller, 479 Mich 672, 676-677; 739 NW2d 563 (2007). Thus,
defendant’s argument fails. Further, defendant provides no legal support for his claim that the
trial court violated his federal Ninth Amendment rights “to the lawful sentencing to protect his
inherent liberty interests[.]” Because, none of defendant’s arguments that he is entitled to
resentencing are meritorious, we affirm defendant’s sentences.
Lastly, in his Standard 4 pro se brief defendant argues that he was denied the effective
assistance of counsel when counsel failed to raise arguments at a pretrial motion to quash the
warrant and suppress the evidence. We disagree.
Defendant did not bring a motion for a new trial on the basis of ineffective assistance of
counsel, and failed to request a Ginther1 hearing before the trial court. Accordingly, this Court’s
review is limited to mistakes apparent on the record. People v Davis, 250 Mich App 357, 368;
649 NW2d 94 (2002). An ineffective assistance of counsel claim is a mixed question of law and
fact. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). A trial court’s findings of
fact, if any, are reviewed for clear error, and the ultimate constitutional issue arising from an
ineffective assistance of counsel claim is reviewed by this Court de novo. Id.
An ineffective assistance of counsel claim is established only where a defendant is able to
demonstrate that trial counsel’s performance “fell below an objective standard of reasonableness
and that this was so prejudicial to him that he was denied a fair trial.” People v Toma, 462 Mich
281, 302; 613 NW2d 694 (2000). A defendant is required to overcome a strong presumption that
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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sound trial strategy motivated trial counsel’s conduct. Id. Additionally, a defendant must
demonstrate a reasonable probability that the result of the proceedings would have been different
but for the counsel’s errors. Id. at 302-303.
Counsel’s performance is “measured against an objective standard of reasonableness
under the circumstances and according to prevailing professional norms.” People v Solmonson,
261 Mich App 657, 663; 683 NW2d 761 (2004). Moreover, “this Court neither substitutes its
judgment for that of counsel regarding matters of trial strategy, nor makes an assessment of
counsel’s competence with the benefit of hindsight.” People v Matuszak, 263 Mich App 42, 58;
687 NW2d 342 (2004).
Defendant argues that he received the ineffective assistance of counsel because his
attorney failed to argue, in the motion to quash the warrant and suppress the evidence, that two
statements in the affidavit supporting the second search warrant were false, and that the “good
faith” exception to the exclusionary rule did not apply. We disagree.
The United States Supreme Court has concluded that in order to be entitled to an
evidentiary hearing, a defendant challenging the statements within an affidavit supporting a
search warrant must come forward with more than a bare allegation of falsehoods therein.
Franks v Delaware, 438 US 154, 171-172; 98 S Ct 2674, 57 L Ed 2d 667 (1978). Further, this
Court has reaffirmed the principles set forth in Franks, supra, that a defendant must make a
“substantial preliminary showing that a false statement knowingly and intentionally, or with
reckless disregard for the truth” in order to be entitled to an evidentiary hearing. People v
Sawyer, 215 Mich App 183, 194-195; 545 NW2d 6 (1996).
Here, defendant relies on his bare allegations alone to conclude that the statements set
forth in the supporting affidavit were false. Defendant offers no evidence to substantiate his
argument. Thus, we cannot conclude that offers of proof necessary to support an allegation that
the affiant had made deliberately false statements in the affidavit existed and were available to
defense counsel at the time defendant’s attorney prepared his arguments.
Defendant last contends that he received ineffective assistance of counsel because his
attorney did not argue that the “good faith exception” to allow evidence seized under a defective
warrant ought not apply. Defendant alleges that two statements in the affidavit supporting the
second search warrant were false. However, the prosecution correctly points out that defendant’s
contention that the statements in the affidavit were false are unsubstantiated; thus, defendant
cannot demonstrate that the warrant contained statements that the affiant knew or should have
known to be false. People v Goldston, 470 Mich 523, 531; 682 NW2d 479 (2004)
Affirmed.
/s/ Brian K. Zahra
/s/ Mark J. Cavanagh
/s/ Patrick M. Meter
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