PEOPLE OF MI V DEMETRIUS ALEXANDER BURKS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 31, 2009
Plaintiff-Appellee,
v
No. 284189
Emmet Circuit Court
LC No. 07-002770-FH
DEMETRIUS ALEXANDER BURKS,
Defendant-Appellant.
Before: Wilder, P.J., and Meter and Servitto, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of two counts of delivery of less than 50
grams of cocaine, MCL 333.7401(2)(a)(iv). Defendant was sentenced to two years’ probation
with the first 11 months in jail, and was granted credit for 182 days served. Defendant appeals as
of right. We affirm. This appeal has been decided without oral argument pursuant to MCR
7.214(E).
Defendant’s sole argument on appeal is that he was denied the effective assistance of
counsel at trial. Specifically, defendant argues that trial counsel’s failure to request a jury
instruction on accomplice testimony was deficient, and this deficiency prejudiced defendant and
rendered the entire proceedings fundamentally unfair. We disagree.
Defendant did not preserve the issue of ineffective assistance of counsel because he failed
to move for a new trial or an evidentiary hearing in the trial court. People v Ginther, 390 Mich
436, 443; 212 NW2d 922 (1973). We review unpreserved issues of ineffective assistance of
counsel for errors apparent on the record. People v Moseler, 202 Mich App 296, 299; 508
NW2d 192 (1993).
To succeed on a claim of ineffective assistance of counsel, a defendant must show that:
(1) the acts of trial counsel do not meet an objective standard of reasonableness, Strickland v
Washington, 466 US 668, 689; 104 S Ct 2052; 80 L Ed 2d 674 (1984); (2) but for counsel’s
error, there is a reasonable probability that the result of the proceeding would have been
different, id. at 694; and (3) that the result of the proceeding was fundamentally unfair or
unreliable. People v Odom, 276 Mich App 407, 415; 740 NW2d 557 (2007).
Trial counsel is presumed to have rendered effective assistance, and a defendant bears a
heavy burden of proving otherwise. People v LeBlanc, 465 Mich 575, 578; 640 NW2d 246
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(2002); People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004). We will not
substitute our judgment for that of trial counsel regarding matters of trial strategy, and will not
assess counsel’s competence with the benefit of hindsight. People v Matuszak, 263 Mich App
42, 58; 687 NW2d 342 (2004).
A confidential informant testified that on both March 6 and 7, 2007, defendant helped the
informant purchase cocaine. On both days, the informant was equipped with a radio transmitter,
a recording device, and $250 in pre-recorded narcotics funds. On both days, the informant drove
defendant to his cousin’s house. A surveillance team of undercover narcotics officers monitored
both trips. According to the informant, the informant gave defendant the $250 so that defendant
could buy some cocaine. Defendant met with his cousin, gave the cousin the money, and the
cousin gave defendant the cocaine. Defendant then gave the cocaine to the informant.
Ultimately, the informant handed over the cocaine to the officers. The informant, four members
of the undercover narcotics unit, a female witness, and defendant’s cousin all testified at trial.
The informant testified that she gave defendant $250 on both days, and defendant gave
her a quantity of cocaine in return. Testimony from the undercover officers established that: the
informant drove to an apartment complex and picked up defendant; the informant and defendant
drove to defendant’s cousin’s house; the informant and defendant returned to defendant’s
apartment complex; and finally, the informant returned and handed the cocaine to the command
officer. An undercover officer was able to positively identify the informant’s passenger as being
defendant. The female witness testified that on March 6, 2007, she recognized defendant as he
arrived at his cousin’s house. The female witness and defendant embraced. The informant and
an undercover officer testified to witnessing the hug.
Defendant’s cousin testified that defendant came to his house on both March 6 and 7,
2007, and gave him money on both days. The cousin testified that on March 7, 2007, he gave
defendant some marijuana. He also testified that officers searched his house on March 7, 2007,
and found a large quantity of drugs, drug paraphernalia, and money. He did not testify that he
gave cocaine to defendant.
The jury instruction concerning accomplice testimony cautions jurors to “examine an
accomplice’s testimony very closely and be very careful about accepting it.” CJI2d 5.6(1).
Jurors are also instructed that they “may think about whether the accomplice’s testimony is
supported by other evidence, because then it may be more reliable.” CJI2d 5.6(2). Virtually all
of the cousin/accomplice’s testimony was corroborated by testimony given by other witnesses.
The informant picked up defendant and drove him to his cousin’s house both days. The female
witness said that she saw defendant at the cousin-accomplice’s house on March 6, 2007. An
undercover narcotics officer positively identified defendant as the informant’s passenger on
March 7, 2007. The female witness testified that defendant hugged her in the cousin’s driveway.
The informant and an undercover narcotics officer witnessed the hug. An undercover officer
testified that some of the pre-recorded narcotics funds were found in the cousin’s wallet, and
some were found in a safe in the cousin’s house.
Defendant has not met his burden of proving that counsel rendered ineffective assistance.
Defense counsel’s strategy was to show that defendant was an innocent passenger along for the
ride, and that the informant actually bought the cocaine directly from defendant’s cousin.
Testimony showed that defendant’s cousin had a large quantity of drugs in his house, and had the
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pre-recorded narcotics funds in his possession. When defendant was arrested, he had no drugs in
his possession, and he did not have a large quantity of money. The cousin’s testimony was not
particularly damaging to defendant in that most of the testimony was corroborated by that of
other witnesses. And most importantly, the cousin did not testify that he gave cocaine to
anybody. Defense counsel had no reason to present defendant as an accomplice to a man who
stored large quantities of drugs and money in his house. The decision not to request a jury
instruction on accomplice testimony was trial strategy, and we cannot find that this strategy fell
below an objective standard of reasonableness.
Moreover, even if the decision not to request the jury instruction was unreasonable,
defendant was not prejudiced. To demonstrate prejudice, the defendant must show the existence
of a reasonable probability that, but for counsel’s error, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient to undermine confidence in
the outcome. People v Hill, 257 Mich App 126, 138; 667 NW2d 78 (2003). Here, ample
testimony exists upon which defendant could have been convicted. Defendant cannot show that
there is a reasonable probability that the result would have been different if the jury instruction
had been given.
Affirmed.
/s/ Kurtis T. Wilder
/s/ Patrick M. Meter
/s/ Deborah A. Servitto
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