PEOPLE OF MI V DALLAS LEE MADISON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 15, 2010
Plaintiff-Appellee,
v
No. 290945
Oakland Circuit Court
LC No. 2008-221795-FH
DALLAS LEE MADISON,
Defendant-Appellant.
Before: O’CONNELL, P.J., and METER and OWENS, JJ.
PER CURIAM.
After a jury trial, defendant Dallas Lee Madison was convicted of one count of
possession with intent to deliver a controlled substance (Vicodin), MCL 333.7401(2)(b)(ii); one
count of possession with intent to deliver marijuana, MCL 333.7401(2)(d)(iii); and two counts of
possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. He
was sentenced to concurrent terms of 2 to 84 months’ imprisonment for the possession with
intent to deliver Vicodin conviction and 2 to 48 months’ imprisonment for the possession with
intent to deliver marijuana conviction, and consecutively to concurrent terms of 2 years’
imprisonment for the felony-firearm convictions, with 30 days’ credit for time served.
Defendant appeals as of right. We affirm.1
On appeal, defendant first argues that his trial counsel’s failure to argue that his
inculpatory statements to Oakland County Sheriff Detective Michael Pankey were inadmissible
because the police engaged in the functional equivalent of questioning during the execution of
the search warrant constituted ineffective assistance. We disagree.
“Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law. A judge first must find the facts, and then must decide whether those
facts constitute a violation of the defendant’s constitutional right to effective assistance of
counsel.” People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). The trial court’s
findings of fact are reviewed for clear error, and constitutional issues are reviewed de novo. Id.
1
Defendant initially challenged his sentence as a separate issue on appeal. However, the parties
later stipulated that this issue be withdrawn from consideration by this Court. Accordingly, we
will not address this issue.
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“Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving
otherwise.” People v Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2001). In reviewing a
claim of ineffective assistance of counsel, “[t]his Court will not substitute its judgment for that of
counsel regarding matters of trial strategy, nor will it assess counsel’s competence with the
benefit of hindsight.” People v Rockey, 237 Mich App 74, 76-77; 601 NW2d 887 (1999).
“‘Regard shall be given to the special opportunity of the trial court to judge the credibility
of the witnesses who appeared before it.’” People v Dendel, 481 Mich 114, 130; 748 NW2d 859
(2008), amended 481 Mich 1201 (2008), quoting MCR 2.613(C). “We review a trial court’s
determination of credibility for clear error.” Id.
A suspect’s statements during custodial interrogation are inadmissible unless the suspect
voluntarily, knowingly, and intelligently waived his Fifth Amendment rights. Miranda v
Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966). “For purposes of Miranda,
interrogation refers to express questioning or its ‘functional equivalent.’” People v Kowalski,
230 Mich App 464, 479; 584 NW2d 613 (1998), quoting Rhode Island v Innis, 446 US 291, 300301; 100 S Ct 1682; 64 L Ed 2d 297 (1980). “The ‘functional equivalent’ of interrogation
includes ‘any words or actions on the part of the police (other than those normally attendant to
arrest and custody) that the police should know are reasonably likely to elicit an incriminating
response from the suspect.’” Id., quoting Innis, 446 US at 301.
The parties do not dispute that defendant initially invoked his right to counsel when
Pankey began to question him after he was arrested, and he was read his Miranda rights.
Defendant indicated he wanted an attorney, and Pankey ceased questioning. Pankey walked
back and forth between the kitchen, where defendant was seated, and the hallway area as other
officers continued to search the apartment. A short time later, defendant “waved” Pankey over
and told Pankey that he wanted to talk. Pankey reminded defendant of his Miranda rights, but
defendant nonetheless indicated that he wanted to speak with Pankey. Defendant then noted on
the Miranda form that he did not want an attorney. Pankey testified that defendant then gave
inculpatory statements.
To the contrary, at trial defendant testified that after he invoked his right to counsel,
Pankey approached him and indicated that if he did not talk, defendant and Douglas Pennell, the
other occupant of the apartment, would go to jail, and that this caused defendant to change his
mind and talk to Pankey. On appeal, defendant claims that the conduct of the police during the
execution of the search warrant, in which they continued to search the apartment and discover
evidence while defendant remained nearby, was the functional equivalent of interrogation.
We conclude that a challenge to the admission of defendant’s inculpatory statements on
grounds that the police engaged in the functional equivalent of questioning would have been
unsuccessful. The record does not support that the police knew or should have known that it was
reasonably likely that any of the police conduct that was taking place would provoke
incriminating statements by defendant. The record reflects that the police officers merely
continued to execute the search warrant, and were dressed in police gear and masks for
protection. Although Pankey remained in the proximity of defendant, the record reflects that the
apartment was tiny and there was limited room. There is no indication that Pankey stood over
defendant in an intimidating manner. Pankey was the officer in charge of the case. Defendant
cites no authority to support his assertion that the police engage in the functional equivalent of
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interrogation if an officer does not leave the premises or remove a defendant from the area being
searched. Moreover, there is no evidence in the record to support defendant’s assertion that the
police “paraded” before him any evidence that was recovered in the search.
Further, defendant’s testimony indicates that he was initially able to invoke his right to
counsel despite the fact that he was scared by the presence of the police officers searching the
apartment. Further, when defendant indicated that he wanted to talk, Pankey again reminded
him of his right to remain silent, and defendant noted on the Miranda form that he did not want
an attorney. In addition, at both at the Walker2 hearing and at trial, defendant claimed that he
was coerced into making statements to Pankey because Pankey allegedly threatened that
defendant and Pennell would go to jail if defendant did not talk, and not because police engaged
in the functional equivalent of questioning when they executed the search warrant in defendant’s
presence. Thus, a challenge on the ground that the valid police search of the apartment is the
functional equivalent of an interrogation is inconsistent with defendant’s testimony. Counsel is
not ineffective for failing to advance a meritless position. People v Snider, 239 Mich App 393,
425; 608 NW2d 502 (2000).
Next, defendant argues that his counsel was ineffective for failing to object when the
prosecutor questioned why he did not come forward with his version of events until trial.
“[W]hen a defendant chooses to exercise his right to remain silent, that silence may not be used
against him at trial.” People v Avant, 235 Mich App 499, 509; 597 NW2d 864 (1999). During
direct examination, defendant testified that Pennell came into the bedroom where defendant had
been sleeping and shoved the box of drugs into his hands just before the police entered the
apartment. Defendant also testified that Pankey had threatened him that he and Pennell would go
to jail unless defendant talked, and this threat coerced defendant into talking. Defendant
informed Pankey that he did not live at the apartment and that the drugs were Pennell’s, not his,
but he did not tell Pankey that Pennell shoved the box of drugs into his hands just before police
entered the apartment pursuant to a search warrant. This testimony contradicted Pankey’s
testimony that defendant reinitiated communication and then admitted to selling marijuana and
Vicodin, even indicating how much he sold the pills for.
We find that defendant’s right against self-incrimination was not violated in this case.
Although defendant initially invoked his right to counsel, he subsequently changed his mind and
decided to speak with Pankey, foregoing his Miranda rights, and the prosecutor’s questioning
regarding defendant’s differing version of events given during the interview and at trial was
permissible. The trial court’s determination that defendant made inculpatory statements was
supported by Pankey’s testimony, and this conclusion was not clearly erroneous. LeBlanc, 465
Mich at 579. We defer to the trial court’s opportunity to assess the credibility of Pankey and
defendant, and its finding that Pankey was more credible was not clearly erroneous. Dendel, 481
Mich at 130. This case is similar to Avant, where the defendant gave one account of events to
police at the scene, and then testified to a different version at trial, and the prosecutor was
permitted to draw out this discrepancy. See Avant, 235 Mich App at 509 (“Where a defendant
makes statements to the police after being given Miranda warnings, the defendant has not
2
People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
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remained silent, and the prosecutor may properly question and comment with regard to the
defendant’s failure to assert a defense subsequently claimed at trial.”). Because the prosecutor
did not violate defendant’s rights by his questioning, trial counsel did not render ineffective
assistance for failing to object to his proper questions. Snider, 239 Mich App at 425. Further,
once a defendant waives his Miranda rights and speaks to police, he must affirmatively and
unequivocally assert his right to remain silent. People v Davis, 191 Mich App 29, 35-36; 477
NW2d 438 (1991). See People v Catey, 135 Mich App 714, 722-723; 356 NW2d 241 (1984) (a
defendant invokes his Fifth Amendment rights by “unequivocally” asserting that he desires to
remain silent). The record is unclear whether defendant ever subsequently re-invoked his right
to remain silent after he waived this right during the search and interview.
Defendant also challenges the prosecutor’s closing argument that defendant failed to
come forward between the search and trial. However, in the challenged passage, the prosecutor
was actually referring to Pennell’s failure to come forward with his version of the events, not
defendant’s failure. Counsel cannot be ineffective for failing to raise a meritless objection.
Snider, 239 Mich App at 425.
Defendant also contends that his trial counsel provided deficient performance by failing
to introduce evidence to rebut the prosecutor’s charge that defendant’s version of events was
fabricated.
“Decisions regarding what evidence to present and whether to call or question
witnesses are presumed to be matters of trial strategy,” which we will not secondguess with the benefit of hindsight. Furthermore, the failure to call witnesses only
constitutes ineffective assistance of counsel if it deprives the defendant of a
substantial defense. [People v Dixon, 263 Mich App 393, 398; 688 NW2d 308
(2004), quoting People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999).]
Defendant claims that his counsel should have admitted into evidence a letter written by
Pennell, dated March 13, 2008, indicating that he gave defendant the box containing the drugs.
Additionally, an affidavit by Sara Prose, a law student assisting the defense attorney with
defendant’s case, indicates that an otherwise unidentified man named Ed Brady accompanied
defendant to a meeting with trial counsel where defendant and trial counsel discussed Pennell’s
confession, but trial counsel indicated that “he wanted to wait and bring it up towards the end as
a smoking gun.” On the record, defendant has failed to establish that his counsel’s performance
was deficient. MRE 801(d) states:
(d) Statements Which Are Not Hearsay. A statement is not hearsay if—
(1) Prior Statement of Witness. The declarant testifies at the trial or hearing and
is subject to cross-examination concerning the statement, and the statement is . . .
(B) consistent with the declarant’s testimony and is offered to rebut an express or
implied charge against the declarant of recent fabrication or improper influence or
motive . . . .
Accordingly, the party offering a prior consistent statement must meet the following criteria to
ensure the statement’s admission:
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“(1) the declarant must testify at trial and be subject to cross-examination; (2)
there must be an express or implied charge of recent fabrication or improper
influence or motive of the declarant’s testimony; (3) the proponent must offer a
prior consistent statement that is consistent with the declarant’s challenged incourt testimony; and, (4) the prior consistent statement must be made prior to the
time that the supposed motive to falsify arose.” [People v Jones, 240 Mich App
704, 707; 613 NW2d 411 (2000), lv den 463 Mich 920 (2000), quoting United
States v Bao, 189 F3d 860, 864 (CA 9, 1999).]
Pennell’s letter was purportedly written after the motive to falsify arose, i.e., two days
after the raid and, based on the contents of the letter, after Pennell was aware that defendant was
in trouble with the law as a result of the raid. Counsel was not ineffective for not attempting to
admit inadmissible evidence. Snider, 239 Mich App at 425. Additionally, it is questionable
whether the letter would have played a meaningful role in bolstering Pennell’s testimony, given
that the letter was not made under oath, notarized, or addressed to anyone, and given that the
letter indicated that defendant planned to move in with Pennell and kept some personal items at
the apartment. Prose’s affidavit reflects that counsel was aware of Pennell’s confession and was
considering the most strategic way in which to use it. Thus, assuming the affidavit’s contents are
true, the fact that defense counsel presented Pennell’s testimony and not the letter reflects a
strategic decision. Defendant has not overcome the presumption that counsel’s decision
regarding what evidence to present was a matter of sound trial strategy. Dixon, 263 Mich App at
398.
Defendant also argues that his counsel failed to admit testimonial evidence that he told
his mother, Sheila Madison, and Daniel Truhn after the raid that the drugs were not his and
Pennell handed defendant the box with drugs before the police entered the apartment. Again,
defendant’s purported statements to Truhn and Sheila were given between the time of the raid
and trial, and thus were not given before defendant had a motive to fabricate. Jones, 240 Mich
App at 707. Again, counsel is not ineffective for not attempting to admit inadmissible evidence.
Snider, 239 Mich App at 425. As defendant notes, their affidavits reflect that defense counsel
was aware that Sheila and Truhn could present such testimony. Sheila and Truhn testified at
trial, but defense counsel did not elicit this proposed testimony. Presumably, counsel’s decision
not to elicit the proposed testimony reflects a strategic choice, which this Court “will not secondguess with the benefit of hindsight.” Dixon, 263 Mich App at 398. Further, defense counsel
argued that the drugs belonged to Pennell, and defendant indicated that he told counsel his story
the day after the raid. Id.
Finally, defendant argues that the trial court erred in denying his motion to produce and
admit tape recordings involving a confidential informant and Pennell engaging in controlled drug
transactions, which led to the issuance of the search warrant and raid of the apartment. Again,
we disagree.
We review the trial court’s decision to admit evidence for an abuse of discretion. People
v Katt, 468 Mich 272, 278; 662 NW2d 12 (2003). The trial court abuses its discretion when it
admits evidence that is inadmissible as a matter of law. Id. The trial court’s decisions regarding
discovery matters are also reviewed for an abuse of discretion. People v Davie (After Remand),
225 Mich App 592, 597-598; 571 NW2d 229 (1997).
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We conclude that the trial court did not abuse its discretion by refusing to require
production of or allow the admission of the tape recordings. The trial court held that the tapes
were not relevant to whether defendant committed the charged offenses, and at best they showed
that someone else might have committed a different crime at a different time. The trial court
subsequently allowed defense counsel to elicit from Pennell that he was the only seller and
possessor of the drugs. Evidence that Pennell sold marijuana to the confidential informant in the
days preceding the execution of the search warrant would not tend to prove or disprove whether
defendant possessed the Vicodin and marijuana with intent to deliver on March 11, 2008. MRE
401. Defendant was not charged with any crimes arising from the controlled buys. Although the
controlled buys led to obtaining the search warrant, there was otherwise no connection between
the controlled buys, the informant, and defendant. Further, the tapes would not have sufficiently
connected Pennell with the crimes charged against defendant and they would not have proved or
disproved a material fact in issue at trial. Holmes v South Carolina, 547 US 319, 324, 327-329;
126 S Ct 1727; 164 L Ed 2d 503 (2006).
In addition, defendant has failed to establish that withholding favorable material evidence
violated his due process rights. The record does not indicate that the informant and the
controlled buy evidence would raise a reasonable doubt about defendant’s guilt for the charged
offenses. People v Stanaway, 446 Mich 643, 666; 521 NW2d 557 (1994). Additionally, the
record indicates that the requested materials were protected from disclosure. MCR 6.201(C)(1);
People v Sammons, 191 Mich App 351, 368; 478 NW2d 901 (1991). The recordings would
disclose the informant’s confidential identity and could not be redacted. The record does not
support a conclusion that the recordings would be helpful or essential to defendant’s case given
that the prosecutor affirmed that he would not introduce (and did not introduce) any information
regarding the controlled buys or the confidential informant at trial. Moreover, defendant was
able to present the defense that the drugs belonged to Pennell and that Pennell was the individual
who sold drugs; thus, defendant was not deprived of his due process right to present a defense.
A defendant’s right to present a defense may be limited by the rule precluding irrelevant
evidence. People v Unger, 278 Mich App 210, 250; 749 NW2d 272 (2008).
Affirmed.
/s/ Peter D. O’Connell
/s/ Patrick M. Meter
/s/ Donald S. Owens
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