PEOPLE OF MI V PHILIP ANTHONY ANDERSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
April 30, 2009
Plaintiff-Appellee,
v
No. 282019
Oakland Circuit Court
LC No. 2007-215936-FH
PHILIP ANTHONY ANDERSON,
Defendant-Appellant.
Before: Murray, P.J., and Gleicher and M. J. Kelly, JJ.
GLEICHER, J. (concurring).
I concur with the majority’s decision to affirm defendant’s convictions, but write
separately to express deep concerns regarding the admission of the drug profile evidence and the
assistance rendered by defendant’s counsel.
I. Drug Profile Evidence
In People v Murray, 234 Mich App 46; 593 NW2d 690 (1999), this Court carefully
explained the rules governing the admission of drug profile evidence. Those rules embody the
following important concepts: (1) a drug profile expert may not “opine that the defendant is
guilty merely because he fits the drug profile,” id. at 54; (2) the expert should not “expressly
compare the defendant’s characteristics to the profile in such a way that guilt is necessarily
implied,” id. at 57; and (3) “[a]ttorneys and courts must clearly maintain the distinction between
the profile and the substantive evidence,” including by utilizing an instruction cautioning the jury
with respect to its limited permissible use of an expert’s drug profile testimony. Id. The instant
record demonstrates that the prosecutor and the trial court utterly disregarded these concepts, and
that defense counsel took no apparent notice of the serious evidentiary violations unfolding
around him.
During direct examination conducted by the prosecutor, Sergeant Bart Wilson repeatedly
combined without demarcation his factual testimony and expert drug profile opinions. For
example, in Wilson’s role as an expert witness “in the filed of narcotics trafficking,” he
described that narcotics dealers “take a large amount of substance” and break it down into “street
size quantities, for users to buy.” Wilson seamlessly segued into a description of defendant’s
narcotic enterprise: “In this case, what they do is they break it down into bindle form.” During
an uninterrupted narrative immediately following Wilson’s reference to “this case,” he explained
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that dealers use folded lottery tickets to package the drugs for sale and scales to weigh the
product, concluding, “So we look for measurements like that, scales, packaging, anything to
break larger amounts down. We also look for proofs.” Wilson’s direct examination then
proceeded as follows:
Q. Let’s talk about proofs. Did you find any indications of delivery or
items that be [sic] could used in delivery in the upstairs area[?]
A. Yes.
***
Q. Starting with the top form, which I believe is People’s Proposed
Exhibit 3. Do you recognize what I’ve handed you?
A. Yes, I do.
Q. What is it?
A. Exhibit 3 is bag of sandwich Baggies. You also have a small quantity
of—they’re like little Baggies, but they’re no bigger than my fingernail and you
also have numerous—these are a sample of the numerous lottery tickets that were
also taken out of there.
Q. When you say sample, were those all of the lottery tickets taken out of
there?
A. No. There were hundreds through and throughout both rooms, the
sitting room and the bedroom. [J]ust tons of them.
Q. And where did you find the Baggie or sandwich Baggie?
A. This would be in the sitting room. Most packaging was in the sitting
room. However, the lottery tickets were found in the bedroom.
After setting the stage to portray those who possess digital scales, lottery tickets and
baggies as narcotics dealers, Wilson assigned defendant the role of leading drug dealer, precisely
the testimonial structure that this Court condemned in Murray:
[D]ifficult as it may sometimes be, courts must take into consideration the
particular circumstances of a case and enable profile testimony that aids the jury
in intelligently understanding the evidentiary backdrop of the case, and the modus
operandi of drug dealers, but stop short of enabling profile testimony that purports
to comment directly or substantively on a defendant’s guilt. [Murray, supra at
56.]
The prosecutor also made no effort to delimit Wilson’s expert testimony concerning a
connection between narcotic sales and weapons possession. Because the police found only one
“bindle” containing narcotics in defendant’s bedroom area, the prosecutor sought to link
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defendant with the 25 bindles of heroin found in the hollow trunk of a backyard tree. The guns
found in defendant’s bedroom and living areas supplied the linchpin for this connection. In a
manner echoing his method of questioning regarding narcotics packaging, the prosecutor first
elicited Wilson’s expert explanation for narcotic dealers’ possession of weapons, and
immediately asked that Wilson directly apply the prototype weapons scenario to the facts of
defendant’s case:
Q. Now if someone wanted to protect an area where drugs were, like in
the backyard, what would be a better tool to show someone that you have to be
able to protect yourself? What would be something you could threaten someone
at that distance?
A. Obviously a long gun, being rifle and a scope and everybody knows
what a scope is. Everybody knows what a long rifle is. They’re accurate. A
scope basically is a binocular for the gun. You can close right in on a target. A
.22 is a great weapon. There’s no kick, no nothing. It’s just like shooting a BB
gun. You just boom, boom, boom.
Q. Could that cause damage?
A. It can kill you. It’s a bad round. The way it was explained to me, is
once it enters your body, the bad thing about a .22 round, it bounces all over. So
it rips out all the sort of weapons—I mean, all sort of vital organs. It doesn’t just
go straight through, like a high powered rifle. A .22 is a bad firearm.
Q. Would a .22 with a scope be able to cover the area around where the
drugs were held?
A. Most certainly.
Q. Better or worse than a handgun?
A. Better.
Q. Now, let’s talk about the tree itself. In addition to the dealers being
afraid of being robbed, what else is he afraid of or having happen?
A. Of getting arrested by the police.
Q. And what methods do they have that you have encountered, at least, to
protect themselves when they’re dealing from getting caught?
A. Hiding drugs, deceiving people, deceiving the police.
Q. What effect would putting drugs in a tree have in a dealer’s mind in
protecting themselves from being caught?
A. Well, he put it in a tree to basically put it away from his bedroom. But
yet it’s protected within the curtilage, within the area of his control. And if he
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were to lose it, he’s not out that much, but he’s out. I mean, that’s his business.
But the mind set there is away from me, you don’t have me. However, it’s a
sloppy case. There’s everything else that was found.
Wilson additionally opined that it would be “pretty brazen” for a neighbor or passerby to
walk into someone’s backyard and look inside the tree trunk. The prosecutor again requested
that Wilson affix his profile opinions to defendant, and Wilson obliged:
Q. . . . What have you found that tells you that even those [sic] were in a
tree the defendant he is connected to those items?
A. Well, you have the packaging, which is distribution. You not only
have the lottery tickets. I call them cracks. You’ve got numerous of those. You
have numerous plastic Baggies in a bedroom. There’s no sandwich stuff, there’s
no peanut butter or jelly. Along with the other stuff, you have scales. You have
weapons. The distribution center is his house.
There’s a reason for that. You take a large quantity. You break it up in
your house. There’s no wind, A; you’re not going to do this stuff outside. There
are no witnesses. You’re going to do it in a concealed area. The police aren’t
there, and then he just stashes it outside.
Q. How does the fact that there’s an identical bindle in the dresser from
the 25 on the site, how does that help you?
A. You found Heroin inside the house, you found Heroin outside. I mean,
you’ve got a pretty good case.
Q. What would your opinion be regarding the ownership of the items in
the tree or possession?
A. Hands down Mr. Anderson.
Q. What about possession with intent to deliver the controlled substances
found, do you believe that is possession with the intent to deliver or possess for
personal use?
A. Certainly it’s with intent to deliver.
Q. And what are some of your basic reasons? I know we talked about
some.
A. The scale, the packaging, the quantity and it’s basically in more than
one spot. All those put together and the weapons, all those put together are pretty
classic as far as distribution.
Q. And regarding the rifles that were found, were those reasonably
accessible to the area where you found upstairs the packaging, the scale, Baggies,
and such?
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A. The one was right next to the bed loaded and the other one in the crawl
space, my deputy had no problem getting to that either. It was right there and
then the swords, of course, were right there.
By structuring the direct examination to combine Wilson’s factual discoveries during the
raid with Wilson’s expert opinions, the prosecutor effectively blurred any potential distinction
between Wilson’s detective persona and his expert witness role.1 Wilson’s direct examination
testimony, as orchestrated by the prosecutor, flagrantly disregarded this Court’s admonition in
Murray that
when the testimony at issue is a drug profile, the expert may not move beyond an
explanation of the typical characteristics of drug dealing—in an effort to provide
context for the jury in assessing an alleged episode of drug dealing—and opine
that the defendant is guilty merely because he fits the drug profile. Such
testimony is inherently prejudicial and constitutes an inappropriate use of the
profile as substantive evidence of guilt. [Id. at 54 (footnote omitted).]
Rather than “stop[ping] short of enabling profile testimony that purports to comment directly or
substantively on a defendant’s guilt,” id. at 56, the prosecutor, defense counsel and the trial court
allowed Wilson unfettered license to repeatedly opine that defendant had committed the charged
offenses.
II. Cautionary Instruction
The majority correctly observes that the trial court read the jury a cautionary instruction
concerning Wilson’s expert testimony. The instruction substantially conformed to CJI2d 5.10,
titled “Expert Witness.” The trial court provided this instruction as a part of the multiple jury
instruction package delivered at the conclusion of the trial. However, the trial court neglected to
read CJI2d 4.17, titled “Drug Profile Evidence,” which cautions as follows:
You have heard testimony from [name witness(es)] about [his/her/their]
training or experience concerning other drug cases. This testimony is not to be
used to determine whether the defendant committed the crime charged in this
case. [Emphasis supplied]. This testimony may be considered by you only for
the purpose of [state purpose for which evidence was offered and admitted].
In my view, the trial court failed to fulfill its obligation to “make clear what is and what
is not an appropriate use of the profile evidence” when it gave only the expert witness jury
instruction. Id. at 57. The instruction given advised the jurors that they “[did] not have to
believe an expert’s opinion,” but did not inform them that they should not consider Wilson’s
1
See United States v Quigley, 890 F2d 1019, 1023-1024 (CA 8, 1989): “This point by point
examination of profile characteristics with specific reference to Quigley constitutes use of the
profile not as background to explain or justify an investigative stop, but as substantive evidence
that Quigley fits the profile and, therefore, must have intended to distribute the cocaine in his
possession.” This Court cited Quigley with approval in Murray, supra at 55.
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drug dealer profile testimony “as substantive evidence of defendant’s guilt.” Id. at 61. In United
States v Lopez-Medina, 461 F3d 724, 744 (CA 6, 2006), the Sixth Circuit clearly distinguished
between a general instruction addressing expert testimony and a specific admonishment
regarding the proper use of a police officer’s opinion:
A general instruction on weighing officer testimony does not guard against
a jury mistakenly weighing opinion testimony as if the opinion were fact, nor does
it instruct the jury that they are free to reject the opinions given. Nor does such a
general instruction regarding possible law enforcement bias address the additional
risk of bias in forming expert conclusions regarding one’s own investigation.
In my estimation, the trial court bore an obligation to properly instruct the jury with
respect to its limited permissible use of Wilson’s profile testimony, despite defense counsel’s
complete silence throughout Wilson’s direct examination. Our Supreme Court has repeatedly
emphasized that trial courts must serve as the “gatekeepers” of expert testimony. In Gilbert v
DaimlerChrysler Corp, 470 Mich 749, 782; 685 NW2d 391 (2004), the Supreme Court
explained that “[t]his gatekeeper role applies to all stages of expert analysis. MRE 702 mandates
a searching inquiry, not just of the data underlying expert testimony, but also of the manner in
which the expert interprets and extrapolates from those data.” (Emphasis in original). Had the
trial court conducted the assessment described in Gilbert, it might have recognized and curtailed
the prosecutor’s improper use of Wilson’s testimony as substantive evidence, instructed the
prosecutor to observe a demarcation between Wilson’s roles as an expert and as an investigator,
and supplied a jury instruction sufficient “to guard against the risk of confusion inherent when a
law enforcement agent testifies as both a fact witness and as an expert witness.” Lopez-Medina,
supra at 744.
III. Ineffective Assistance of Counsel
Because defendant’s appellate counsel did not properly preserve this issue by moving for
a new trial or a Ginther2 hearing, this Court limits its review only to any plain error evident on
the existing record. People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). To
demonstrate ineffectiveness of counsel, a defendant must satisfy the two-part test described by
the United States Supreme Court in Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L
Ed 2d 674 (1984). The first part of that test mandates a showing that counsel “made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, supra at 687. The effective assistance of counsel is presumed, and the
defendant must overcome a heavy burden to demonstrate otherwise. People v Carbin, 463 Mich
590, 599-600; 623 NW2d 884 (2001). The second part of the Strickland test requires a showing
that counsel’s deficient performance prejudiced the defense. “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.” Carbin, supra at 600.
2
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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I cannot conceive of any strategic explanation for defense counsel’s complete failure to
object to Wilson’s expressions of opinion regarding defendant’s guilt, or counsel’s failure to
timely request an instruction specifically addressing the probative limits of Wilson’s expert drug
profile opinions. I cannot characterize trial counsel’s silence throughout Wilson’s direct
examination as a reasonable exercise of professional judgment, because no possible harm would
have resulted to defendant’s case had his counsel simply voiced an objection premised on the
principles described in Murray. This Court issued its comprehensive, detailed opinion in Murray
a decade ago. A minimally competent attorney should have been aware that drug profile
testimony “is inherently prejudicial to the defendant because the profile may suggest that
innocuous events indicate criminal activity.” Murray, supra at 53, quoting United States v Lim,
984 F2d 331, 334-335 (CA 9, 1993). An attorney functioning as the counsel required by the
Sixth Amendment would have objected to Wilson’s blatantly improper hearsay statements and
highly prejudicial expert conclusions that defendant was guilty. But, as discussed briefly below,
counsel’s errors did not alter the outcome of defendant’s trial.
IV. Prejudice
This Court recognized in Murray that the testimony of a law enforcement witness
offering both expert opinions and recitations of fact qualifies as potentially uniquely prejudicial.
But despite the plain errors committed here, I agree with the majority that after examining the
record in its entirety, the errors did not alter the outcome of defendant’s trial. People v Carines,
460 Mich 750, 763-764; 597 NW2d 130 (1999). The evidence indisputably revealed that
defendant resided in the upstairs living area of the home, where the police found guns, narcotics,
and narcotic packaging materials. Because the search warrant’s execution yielded direct
evidence that would certainly have resulted in defendant’s conviction, even without
supplementation by Wilson’s improper opinions, I concur in the affirmance of defendant’s
convictions.
/s/ Elizabeth L. Gleicher
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