PEOPLE OF MI V JACK LARUE BLACKAMORE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 26, 2009
Plaintiff-Appellee,
v
No. 283487
Cass Circuit Court
LC No. 07-010290-FC
JACK LARUE BLACKAMORE,
Defendant-Appellant.
Before: Donofrio, P.J., and K. F. Kelly and Beckering, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions for possession with intent to
deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv), resisting or obstructing a police
officer, MCL 750.81d(1), possession of marijuana, MCL 333.7403(2), and operating a vehicle
with a suspended license, MCL 257.904(1)(b). Defendant appeals only his conviction for
possession with intent to deliver less than 50 grams of cocaine. Because the evidentiary and
instructional issues lack merit and the trial court properly instructed the jury, defendant’s claim
of ineffective assistance of counsel also fails. We affirm.
After leaving a known drug house, defendant was found in possession of six individually
wrapped rocks of crack cocaine. Mark Burkett, a Cass County Sheriff’s Deputy, was one of the
arresting officers and was also qualified as an expert witness on narcotics dealing. Burkett
testified that it would be unusual for a drug user to possess six rocks of cocaine for personal use.
He opined that the quantity of drugs defendant possessed indicated an intent to deliver. On
cross-examination, defendant testified that if a drug addict used six rocks of cocaine in a short
period of time, it would likely result in an overdose. On redirect examination, Burkett opined
that defendant was a street-level dealer who acquired the drugs from a mid-level dealer.
On appeal, defendant argues that Burkett’s opinion testimony that he (defendant) was a
street-level dealer was based on improper drug-profile evidence. This issue is not preserved
because defendant did not object to Burkett’s testimony at trial. MRE 103(a)(1); People v
Aldrich, 246 Mich App 101, 113; 631 NW2d 67 (2001). Accordingly, we review the issue for
plain error affecting defendant’s substantial rights. People v Carines, 460 Mich 750, 763-764,
597 NW2d 130 (1999).
Generally, the term “drug profile” evidence refers to evidence of usually innocuous
characteristics that police believe to be indicative of drug-related activities, such as the use of
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pagers, the possession of large quantities of cash, and possession of tools such as razor blades
and lighters used to package drugs for sale. People v Murray, 234 Mich App 46, 52-53; 593
NW2d 690 (1999). Drug-profile evidence is not admissible as substantive evidence of guilt.
People v Hubbard, 209 Mich App 234, 241; 530 NW2d 130 (1995). Thus, an expert witness is
not permitted to testify that, “on the basis of the profile, [the] defendant is guilty,” or to
“compare the defendant's characteristics to the profile in a way that implies that the defendant is
guilty.” People v Williams, 240 Mich App 316, 321; 614 NW2d 647 (2000). Expert testimony
is admissible, however, to aid the jury in intelligently understanding the evidence in controlled
substance cases and “to explain the significance of items seized and the circumstances obtain[ed]
during the investigation of criminal activity.” Murray, supra at 53.
Here, Burkett testified that a drug user’s purchase of six rocks of crack cocaine from a
crack house fits the profile of a street-level dealer. Indeed, defendant opened the door to this
testimony by suggesting on cross-examination that a drug addict who was able to buy six rocks
of crack cocaine might use them all at once or within a short time, because of the addictive
nature of the drug. Burkett refuted this suggestion by testifying that drug-house operators utilize
street-level dealers. Burkett’s testimony was admissible for the limited purpose of helping the
jury understand that buying six rocks of crack cocaine from a crack house was more consistent
with dealing drugs than using them. Murray, supra at 53. The prosecutor stated in his closing
argument that the police considered defendant a street-level drug dealer because he had six
baggies of cocaine, which was “not consistent with one person using drugs,” but rather was
“consistent with a drug dealer.” This argument was clearly aimed at addressing and countering
defendant’s assertion that his behavior was consistent with personal drug use. Moreover,
Burkett’s description of defendant as a street-level dealer was not the only evidence of
defendant’s guilt. Burkett testified on direct examination that the quantity of drugs itself
indicated that defendant intended to deliver the packages rather than use them all himself. Other
officers familiar with drug transactions in southwestern Michigan corroborated this testimony.
Accordingly, Burkett’s testimony did not constitute plain error affecting defendant’s substantial
rights.
Defendant also argues that the trial court erred in failing to instruct the jury on the limited
use of Burkett’s testimony, and in failing to give a special instruction regarding Burkett’s dualrole as an expert witness and a police officer. Because defendant affirmatively stated that he had
no objections to the court’s jury instructions, any claim of instructional error was waived. See
People v Carter, 462 Mich 206, 215-216; 612 NW2d 144 (2000). In any event, the primary
purpose of the challenged testimony was not substantive, but rather to refute defendant’s
suggestion that a drug user is likely to buy six rocks of crack cocaine to be used within a short
period of time. The omission of a limiting instruction did not affect defendant’s substantial
rights.
We also reject defendant’s argument that reversal is required because the trial court failed
to give an instruction distinguishing between Burkett’s dual role as both a fact witness and an
expert witness. See United States v Lopez-Medina, 461 F3d 724, 743-745 (CA 6, 2006). The
trial court instructed the jury that a police officer’s testimony should be evaluated by the same
standards as any other witness. It also instructed the jury to determine whether an expert’s
opinion was credible and reliable. After reviewing the record, we conclude that the trial court’s
instructions were sufficient to protect defendant’s substantial rights.
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Finally, defendant argues that defense counsel was ineffective for failing to object to the
alleged evidentiary and instructional errors discussed above. To establish ineffective assistance
of counsel, a defendant must show (1) that his attorney's performance was objectively
unreasonable in light of prevailing professional norms, and (2) that, but for his attorney’s error or
errors, a different outcome reasonably would have resulted. People v Carbin, 463 Mich 590,
599-600; 623 NW2d 884 (2001); People v Werner, 254 Mich App 528, 534; 659 NW2d 688
(2002). Here, defendant has not established an evidentiary error, nor has he established that he
was prejudiced by the trial court’s jury instruction. Accordingly, he cannot establish a claim for
ineffective assistance of counsel.
Affirmed.
/s/ Pat M. Donofrio
/s/ Kirsten Frank Kelly
/s/ Jane M. Beckering
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