PEOPLE OF MI V PEDRO PAREDES-MEZA
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 8, 2010
Plaintiff-Appellee,
v
No. 291067
Wayne Circuit Court
LC No. 08-012357
PEDRO PAREDES-MEZA,
Defendant-Appellant.
Before: METER, P.J., and SERVITTO and BECKERING, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction of possession with intent to deliver
50 to 449 grams of cocaine, MCL 333.7401(2)(a)(iii). He was sentenced to 2 to 20 years’
imprisonment for the conviction. We affirm.
Defendant’s first issue on appeal is that the trial court erred in refusing to order an in
camera review of the testimony of the confidential informant (“CI”) or the CI’s file. We
disagree.
A trial court’s decision regarding whether to order the production of a confidential
informant is reviewed for an abuse of discretion. People v Poindexter, 90 Mich App 599, 608;
282 NW2d 411 (1979). An abuse of discretion occurs only when the court chooses an outcome
outside the principled range of outcomes. People v Miller, 482 Mich 540, 544; 759 NW2d 850
(2008).
Generally, a prosecutor is not required to disclose the identity or testimony of
confidential informants as a result of the “informer’s privilege.” People v Sammons, 191 Mich
App 351, 368; 478 NW2d 901 (1991). However, if the defendant demonstrates a possible need
for the informant's testimony, the trial court should order the informant produced and conduct an
in camera hearing in order to determine whether he could offer any testimony helpful to the
defense. MCR 6.201(C); People v Underwood, 447 Mich 695, 706; 526 NW2d 903 (1994).
Determining whether there is a need depends on the circumstances of the case. Underwood, 447
Mich at 705, citing Roviaro v United States, 353 US 53; 77 S Ct 623; 1 L Ed 2d 639 (1957). To
determine the need, a court should consider “the crime charged, the possible defenses, the
possible significance of the informer's testimony, and other relevant factors.” Underwood, 447
Mich at 705, citing Roviaro, 353 US at 62.
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Defendant argues that the testimony of the CI could corroborate defendant’s belief that
the alleged recording between the CI and defendant occurred between the CI and someone other
than defendant. And, furthermore, that the CI could support defendant’s argument that he was
merely present in the vehicle and did not possess the cocaine. Both arguments ignore the fact
that the trial court listened to the tape-recorded conversation and did not find it exculpatory. In
fact, the trial court noted that at least once during the recording, the CI refers to the person with
whom he is talking as “Pedro,” defendant’s first name. Moreover, defendant has provided no
evidence that the conversation was with someone other than him or that the CI’s testimony
would show that defendant was merely present when the drugs were found. In fact, Department
of Homeland Security Agent Jeffrey Schmidt testified that when he approached the vehicle in
which defendant was a passenger, he observed defendant shoving a bag of what turned out to be
cocaine into the glove compartment of the vehicle. There is direct evidence, through the
testimony of Schmidt, that defendant possessed the cocaine. The trial court did not abuse its
discretion in refusing to hear the in camera testimony of the CI or to do an in camera review of
the CI’s file.
Defendant’s next issue on appeal is that he was denied a fair trial where the trial court
refused to order the prosecution to disclose the identity of the CI, despite the fact that the CI was
actually a res gestae witness, given that he was present when defendant was arrested. We
disagree. A trial court’s decision regarding whether to order the production of a confidential
informant is reviewed for an abuse of discretion. Poindexter, 90 Mich App at 608.
Constitutional issues are reviewed de novo on appeal. People v Gillam, 479 Mich 253, 260; 734
NW2d 585 (2007).
A prosecutor is not obligated to produce res gestae witnesses, but has a continuing duty
to advise the defense of all known res gestae witnesses, and to provide reasonable assistance to
the defense in locating witnesses upon request of the defense. MCL 767.40a; People v
Kevorkian, 248 Mich App 373, 441; 639 NW2d 291 (2001).1 A res gestae witness is a person
who witnessed some event in the continuum of the criminal transaction whose testimony would
aid in developing a full disclosure of the facts at trial. People v Long, 246 Mich App 582, 585;
633 NW2d 843 (2001). The purpose of the requirement that the prosecutor list known res gestae
witnesses is to notify the defendant of the existence of the witnesses and their res gestae status.
People v Gadomski, 232 Mich App 24, 36; 592 NW2d 75 (1998). However, there is no
1
Prior to the amendments in 1986, MCL 767.40a was interpreted as requiring the prosecution to
endorse and produce all res gestae witnesses. People v Burwick, 450 Mich 281, 287; 537 NW2d
813 (1995). After the amendments, the prosecutor no longer has a duty to produce res gestae
witnesses. Burwick, 450 Mich at 289. Instead, he or she has an obligation to provide notice of
known witnesses and reasonable assistance to locate witnesses on defendant's request. Burwick,
450 Mich at 289.
The Michigan Supreme Court in Burwick held that with 1986
amendments“[t]he Legislature has thus eliminated the prosecutor's burden to locate, endorse, and
produce unknown persons who might be res gestae witnesses and has addressed defense
concerns to require the prosecution to give initial and continuing notice of all known res gestae
witnesses, identify witnesses the prosecutor intends to produce, and provide law enforcement
assistance to investigate and produce witnesses the defense requests.” Burwick, 450 Mich at
289.
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requirement that the prosecutor use due diligence to discover the names of witnesses. Gadomski,
232 Mich App at 36.
As noted above, a prosecutor need not disclose the identity of confidential informants.
People v Cadle, 204 Mich App 646, 650; 516 NW2d 520 (1994), overruled in part on other
grounds People v Perry, 460 Mich 55; 594 NW2d 477 (1999). However, a prosecutor should
disclose the identity of an informant if the disclosure of an informant's identity or the contents of
his communication is relevant and helpful to the defense, or is essential to a fair determination of
the case. Cadle, 204 Mich App at 650.
Based on the testimony of agent Schmidt, defendant argues that the CI was a res gestae
witness whose identity should have been disclosed to him. We disagree. First, there is no
evidence that the CI was a res gestae witness. Agent Schmidt testified that the CI was in the car
with him and Immigration and Customs Enforcement Agent Leslie Defreitas, but there was no
evidence presented that the CI witnessed any events leading to defendant’s arrest that were not
also witnessed by agents Schmidt and Defreitas. Thus, the CI’s testimony would not have aided
in developing a full disclosure of the facts because other witnesses addressed anything the CI
would have testified to in the continuum of the criminal transaction. Moreover, once again,
based on the 1986 amendments to MCL 767.40a, the prosecution is not required to produce all
res gestae witnesses for the defendant, but is only required to identify known res gestae
witnesses and those witnesses it intends to call at trial, and to provide reasonable assistance to
defendant to find requested witnesses. Burwick, 450 Mich at 289. The CI in this case was not
being called by the prosecution and is protected by the informer’s privilege. As the trial court
found, the disclosure was not required because it was not helpful to the defense and was not
essential to a fair determination of the case. Therefore, we conclude the prosecution did not have
a duty to disclose the CI’s identity to defendant. Defendant’s argument that disclosure is
required because the CI was a res gestae witness is without merit.
Defendant also argues that the trial court erred in allowing agent Defreitas to testify
regarding impermissible hearsay. We disagree. Generally, review of evidentiary decisions is for
an abuse of discretion. People v Starr, 457 Mich 490, 491; 577 NW2d 673 (1998). An abuse of
discretion occurs only when the court chooses an outcome outside the principled range of
outcomes. Miller, 482 Mich at 544.
Hearsay is an out-of-court statement offered in evidence to prove the truth of the matter
asserted. MRE 801(c); People v Breeding, 284 Mich App 471, 487; 772 NW2d 810 (2009).
Hearsay is inadmissible unless it falls within an exception provided in the rules of evidence.
MRE 802; People v Stamper, 480 Mich 1, 3; 742 NW2d 607 (2007). A statement not offered for
the truth of its contents is not hearsay. MRE 801(c); People v Mesik (On Reconsideration), 285
Mich App 535, 540; 775 NW2d 857 (2009). A statement offered to prove an effect on the
listener, rather than its truth, is admissible, when the effect is relevant. People v Fisher, 449
Mich 441, 449; 537 NW2d 577 (1995).
In this case, Defreitas testified, in response to a question about why he was at a specific
location on July 28, 2008, “I had received information about a narcotics transaction.” He then
went on to detail what he did after reaching the location. Agent Defreitas’s testimony did not
amount to impermissible hearsay. He did not testify to exactly what the CI stated. Moreover,
the testimony was not offered to prove the truth of the matter asserted but, instead, was offered to
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explain why Defreitas had gone to a certain area of Detroit and set up surveillance around
defendant’s home. Therefore, the trial court did not abuse its discretion in admitting the
statement into evidence.
Defendant further argues that the trial court clearly erred in denying defendant’s motion
to suppress seized evidence, as agents Schmidt and Defreitas initiated an illegal stop of the
vehicle in which defendant was a passenger. We disagree.
A trial court's findings of fact regarding a motion to suppress evidence are reviewed for
clear error, but the application of constitutional standards regarding searches and seizures to
essentially uncontested facts is entitled to less deference, and the trial court's ultimate ruling is
reviewed de novo. People v Williams, 472 Mich 308, 313; 696 NW2d 636 (2005). A finding is
clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake
was made. People v Milstead, 250 Mich App 391, 397; 648 NW2d 648 (2002).
Both the United States Constitution and the Michigan Constitution guarantee the right
against unreasonable searches and seizures. US Const, Am IV; Const 1963, art 1, § 11. The
Michigan Constitution is generally construed to provide the same protection as the federal
constitution in this regard. People v Chowdhury, 285 Mich App 509, 516; 775 NW2d 845
(2009). Whether a search or seizure is reasonable depends upon the circumstances of each case.
People v Brzezinski, 243 Mich App 431, 433; 622 NW2d 528 (2000). Generally, a search
conducted without a warrant is unreasonable unless there was both probable cause and exigent
circumstances that established an exception to the warrant requirement. Brzezinski, 243 Mich
App at 433.
Under certain circumstances, an officer may stop and briefly detain a person on the basis
of reasonable suspicion that criminal activity may be occurring. People v Oliver, 464 Mich 184,
193; 627 NW2d 297 (2001), citing Terry v Ohio, 392 US 1, 30-31; 88 S Ct 1868, 20 L Ed 2d 889
(1968). Fewer facts are needed to establish reasonable suspicion when a person is in a moving
vehicle rather than in a house, but a minimum threshold of reasonable suspicion must be
established to justify an investigatory stop, even if a person is in a vehicle or on the street.
Oliver, 464 Mich at 192. A police officer may make a stop on the basis of information provided
by a confidential informant, rather than on the basis of personal observation, if the information is
sufficiently reliable. People v Tooks, 403 Mich 568, 576; 271 NW2d 503 (1978), citing Adams v
Williams, 407 US 143; 92 S Ct 1921; 32 L Ed 2d 612 (1972). With regard to whether
information from an anonymous informant has sufficient indicia of reliability to allow police
officers to make an investigatory stop, a court should consider the reliability of the particular
informant, the nature of the particular information given, and the reliability of the suspicion.
People v Horton, 283 Mich App 105, 109; 767 NW2d 672 (2009).
Defendant argues that the CI here did not provide reasonable suspicion because he was
not a known informant, and agents Defreitas and Schmidt prior to their effectuating the stop of
the vehicle did not corroborate the information he provided. We disagree.
Agent Defreitas testified at the preliminary examination that he received information
from the CI that defendant would be leaving his residence at 2420 Livernois Avenue and
proceeding to an address to pick up a large quantity of cocaine. Agent Defreitas further testified
that he took steps to verify the information from the CI. He verified defendant’s name and the
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address given to him by the CI. Moreover, Defreitas conducted surveillance on the address
given by the CI and found a vehicle belonging to defendant, which the CI correctly stated was a
white Chevy Avalanche.2 Agent Defreitas also testified that he had tape-recorded conversations
between the CI and defendant, which further corroborated the information from the CI. The trial
court listened to these conversations through an in camera review and indicated that the CI
referred to the person he was speaking with as “Pedro,” defendant’s first name, and that there
was no exculpatory evidence in the tape recording. Agent Defreitas further testified that the
surveillance teams saw defendant leave his residence in a vehicle shortly after the CI had told
agent Defreitas defendant would be leaving. Another agent saw someone from the vehicle enter
a residence on Morrell Street. Agents Defreitas and Schmidt saw the same vehicle, empty,
parked outside of a residence on Morrell Street. They later saw defendant again as a passenger
in the same vehicle, at which time agents Defreitas and Schmidt effectuated a stop.
Defreitas and Schmidt had a reasonable suspicion that a crime was occurring, sufficient
to stop the vehicle in which defendant was a passenger. Again, the CI correctly gave them the
name and address of defendant and the make and model of defendant’s car. Moreover, the CI
told the agents when defendant would be leaving his home and for what purpose. The
information provided by the CI was further corroborated by tape-recorded conversations between
defendant and the CI. Defendant’s characterization of the evidence, that “[t]his informant could
have been anyone playing a practical joke intended to harass and embarrass [defendant], or this
informant could have been merely trying to get [defendant] in trouble with INS,” does not
comport with the evidence presented at the preliminary examination. The CI gave Defreitas and
Schmidt significant information, all of which was verified prior to the stop. It did not merely
amount to a practical joke and, given that defendant had legal status in the United States, it was
not intended to get defendant in trouble with ICE. Therefore, the trial court did not err in
denying defendant’s motion to suppress the evidence.
Finally, defendant argues that the trial court denied defendant a fair trial when it refused
defendant’s discovery request for the tape-recorded conversation. We disagree. Constitutional
issues are reviewed de novo on appeal. Gillam, 479 Mich at 260.
There is no general constitutional right to discovery in a criminal case. People v
Stanaway, 446 Mich 643, 664; 521 NW2d 557 (1994). However, defendants have a due process
right to obtain evidence in the prosecutor's possession, which is favorable to the defendant and
material to guilt or punishment. US Const, Am XIV; Const 1963, art 1, § 17; Stanaway, 446
Mich at 666, citing Brady v Maryland, 373 US 83, 87; 83 S Ct 1194; 10 L Ed 2d 215 (1963).
Exculpatory information is material if it would raise a reasonable doubt about the defendant's
guilt. Stanaway, 446 Mich at 666. The prosecutor must disclose such evidence to the defendant
regardless of any request for disclosure. Id.
2
The white Chevy Avalanche belongs to defendant, but it was not the vehicle that was stopped
by Defreitas and Schmidt. That vehicle was a green Windstar van. It is unclear from the record
who owns that vehicle.
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In order to establish a Brady violation, “a defendant must prove: (1) that the state
possessed evidence favorable to the defendant; (2) that he did not possess the evidence nor could
he have obtained it himself with any reasonable diligence; (3) that the prosecution suppressed the
favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable
probability exists that the outcome of the proceedings would have been different.” People v
Lester, 232 Mich App 262, 281; 591 NW2d 267 (1998). A “reasonable probability” is “a
probability sufficient to undermine confidence in the outcome.” Lester, 232 Mich App at 281,
citing United States v Bagley, 473 US 667, 682; 105 S Ct 3375; 87 L Ed 2d 481 (1985).
Defendant has failed to show there was a Brady violation. In particular, defendant has
failed to show that the tape-recorded conversation with the CI contained exculpatory evidence.
In fact, the trial court determined, after performing an in camera review of the recording, that it
did not contain exculpatory material and may have contained inculpatory material. As a result,
defendant cannot show a reasonable probability that the outcome of the trial would have been
different if he had received the tape-recorded evidence. Therefore, no Brady violation occurred.
Defendant further argues that Michigan allows for liberal discovery, which means that
the trial court should have allowed defendant access to potentially inculpatory material, i.e., the
tape-recorded conversation. MCR 6.201 governs discovery in criminal cases. Under MCR
6.201, while there is some mandatory discovery, not all information is discoverable. MCR
6.201(C). In fact, evidence that is protected under the constitution, a statute or a privilege is not
discoverable, unless it is reasonably probable that the evidence is necessary for the defense.
MCR 6.201(C)(1) and (C)(2). As noted above, evidence from a confidential informant is
protected by the informer’s privilege. Sammons, 191 Mich App at 368.
In this case, the tape-recording was privileged and defendant has failed to show that the
tape-recording was necessary for his defense. In fact, based on the in camera review by the trial
court, it appears that the tape-recording might have been damaging to defendant’s defense.
Therefore, the trial court did not err in refusing to produce the tape-recording.
Affirmed.
/s/ Patrick M. Meter
/s/ Deborah A. Servitto
/s/ Jane M. Beckering
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