PEOPLE OF MI V TANEA RENEE MCKINNEY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
June 17, 2003
APPROVED FOR
PUBLICATION
August 19, 2003
9:00 a.m.
Plaintiff-Appellee,
v
No. 238111
Kent Circuit Court
LC No. 00-004649-FH
TANEA RENEE McKINNEY,
Defendant-Appellant.
Updated Copy
October 10, 2003
Before: Smolenski, P.J., and Cooper and Fort Hood, JJ.
PER CURIAM.
Following a jury trial, defendant Tanea R. McKinney was convicted of possession of over
650 grams of cocaine, MCL 333.7403(2)(a)(i); possession with intent to deliver over 650 grams
of cocaine, MCL 333.7401(2)(a)(i); being a felon in possession of a firearm, MCL 750.224f;
maintaining a drug house, MCL 333.7405(d); and possession of a firearm during the commission
of a felony, MCL 750.227b. The trial court sentenced defendant as a second-offense habitual
offender, MCL 769.10, and as a second-offense drug offender, MCL 333.7413(2). She received
concurrent terms of 20 to 50 years' imprisonment for her possession and possession with intent to
deliver cocaine offenses; 2 to 7 years' imprisonment for being a felon in possession of a firearm;
and 1-1/2 to 3 years' imprisonment for maintaining a drug house. Defendant was also given a
consecutive two-year sentence for her felony-firearm conviction. She appeals as of right. We
affirm.
Defendant's convictions resulted from evidence discovered on March 16, 2000, when
members of the vice unit of the Grand Rapids police department executed a search warrant at 457
Howard in the city of Grand Rapids. Defendant shared this upstairs apartment with numerous
individuals, including her boyfriend of five years, codefendant John Holman.1 There were two
1
John Holman was the only suspect specified in the search warrant.
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bedrooms in the apartment and defendant admitted that she shared the southeast bedroom with
Mr. Holman.
When the police entered defendant's apartment, they confiscated over 650 grams of
cocaine. In the southeast bedroom, the police discovered two large bags of cocaine inside a
dresser that contained women's clothing.2 The police also observed a plate, with a large piece of
crack cocaine and a razor blade, sitting atop the same dresser. Another dresser in the southeast
bedroom contained $2,400 in cash. Further inspection of the bedroom revealed an open box of
sandwich bags, baking soda, and two loaded guns. At trial, Officer Peter Gavalis explained that
baking soda was commonly used to increase the quantity of cocaine. On a table in the hallway,
the police also found two small rocks of crack cocaine sitting on a digital scale.
Defendant's mother, Diane Henderson, was sitting in the living room with defendant's two
children when Officer Jon Wu brought his police dog3 through the area. The dog alerted the
officer to a black purse that was located next to Ms. Henderson. Officer Wu testified that he
discovered three bundles of money inside the purse totaling $3,000. According to Officer Wu,
defendant informed him that she had just put that money in the purse. Officer Wu testified that
he understood this statement to be an admission from defendant that the money belonged to her.
However, neither defendant nor Ms. Henderson recalled defendant making such a statement.
Rather, Ms. Henderson testified that she placed the money in her purse after observing Mr.
Holman hide it under the couch earlier that evening. Officer Wu also claimed that defendant
indicated to the police that everything they needed to find was in the southeast bedroom.
Defendant testified that she was aware that there was marijuana in the apartment.
However, she denied seeing any other drugs until shortly before the raid when she discovered the
one small bag of cocaine. Indeed, defendant expressly denied ever assisting Mr. Holman in
selling or packaging cocaine. She further asserted that she did not make a statement to the police
admitting responsibility or ownership of all the contents in her apartment.
I. Jury Array
Defendant initially contends that she was denied her constitutional right to an impartial
jury drawn from a fair cross-section of the community. Specifically, defendant claims that
African-Americans were systemically excluded from Kent County's jury venires when her jury
trial was conducted. US Const, Am VI; Const 1963, art 1, ยง 14. In support of her argument, and
2
A latent fingerprint examiner identified a fingerprint on one of these bags as belonging to
defendant.
3
We note that Officer Wu's dog is specially trained to locate heroin, cocaine, marijuana, and
methamphetamine. When Officer Wu's dog detects an odor of narcotics, the dog is trained to sit
next to that object.
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in an attempt to expand the record, defendant cites several newspaper articles chronicling a
problem with Kent County's jury selection system.4
Questions concerning the systemic exclusion of minorities in jury venires are generally
reviewed de novo. People v Hubbard (After Remand), 217 Mich App 459, 472; 552 NW2d 493
(1996). "A criminal defendant is entitled to an impartial jury drawn from a fair cross section of
the community." Id., citing Taylor v Louisiana, 419 US 522, 526-531; 95 S Ct 692; 42 L Ed 2d
690 (1975). To establish a prima facie violation of the fair cross-section requirement, the
defendant bears the burden of proving "that a distinctive group was underrepresented in his
venire or jury pool, and that the underrepresentation was the result of systematic exclusion of the
group from the jury selection process." People v Smith, 463 Mich 199, 203; 615 NW2d 1 (2000),
citing Duren v Missouri, 439 US 357, 364; 99 S Ct 664; 58 L Ed 2d 579 (1979).
However, to properly preserve a challenge to the jury array, a party must raise this issue
before the jury is empanelled and sworn. People v Dixon, 217 Mich App 400, 404; 552 NW2d
663 (1996). A review of the record in this case indicates that defendant failed to object to the
composition of her jury array. Further, there is no evidence in the lower court record to support
defendant's argument. Consequently, we have no means of conducting a meaningful review of
defendant's allegations on appeal. We note that another panel of this Court previously denied
defendant's request to remand to the trial court for an evidentiary hearing. People v McKinney,
unpublished order of the Court of Appeals, entered October 16, 2002 (Docket No. 238111).
Nevertheless, we understand the difficulties that counsel would have faced in objecting to
what was, according to defendant, a longstanding problem. Moreover, this opinion should in no
way be viewed as approving of, or minimizing, any improper jury selection practices that may
have occurred in this case. Similar to Justice Cavanagh's rationale in his concurring opinion in
Smith, supra at 228, a finding that defendant failed to properly preserve her jury array issue is not
the same as endorsing improper jury selection practices.
II. Jury Instructions
Defendant next argues that the trial court erroneously refused her request for an
instruction on the defense of duress. We disagree. This Court reviews de novo a defendant's
claim of instructional error. Hubbard, supra at 487.
Jury instructions are reviewed in their entirety to determine if error requiring reversal
occurred. People v Aldrich, 246 Mich App 101, 124; 631 NW2d 67 (2001). It is the function of
the trial court to clearly present the case to the jury and instruct on the applicable law. People v
Katt, 248 Mich App 282, 310; 639 NW2d 815 (2001). Accordingly, jury instructions must
include all the elements of the charged offenses and any material issues, defenses, and theories
4
This Court may not take judicial notice of newspaper articles because they constitute
inadmissible hearsay. See Baker v General Motors Corp (After Remand), 420 Mich 463, 511;
363 NW2d 602 (1984).
-3-
that are supported by the evidence. People v Canales, 243 Mich App 571, 574; 624 NW2d 439
(2000). "The determination whether a jury instruction is applicable to the facts of the case lies
within the sound discretion of the trial court." People v Ho, 231 Mich App 178, 189; 585 NW2d
357 (1998).
A defendant's request for a jury instruction on a theory or defense must be granted if
supported by the evidence. People v Riddle, 467 Mich 116, 124; 649 NW2d 30 (2002).
"However, if an applicable instruction was not given, the defendant bears the burden of
establishing that the trial court's failure to give the requested instruction resulted in a miscarriage
of justice." Id. Reversal for failure to provide a jury instruction is unwarranted unless it appears
that it is more probable than not that the error was outcome determinative. Id. at 124-125.
Defendant's request for a duress instruction in this case is based on allegations that Mr.
Holman was abusive. She claimed that the only reason she continued to live with Mr. Holman
was because she feared his reprisals. Counsel for defendant argued that a duress instruction was
necessary to rebut the inference that defendant must have been helping Mr. Holman given her
presence in the apartment and the amount of drugs discovered. Nevertheless, after hearing
defendant's testimony the trial court declined to provide the duress instruction. According to the
trial court:
Duress is a defense to the commission of a crime. "I committed the crime,
but I was forced to commit the crime." Duress is an excuse for the commission of
a crime, it's a societal decision that even though a crime is committed, we're going
to excuse the defendant because the defendant had no choice. It's either duress,
and they also use necessity under certain circumstances. Your client did not
commit any crime, if you believe her testimony. She discovered the cocaine either
the day before or the day of the raid.
To merit an instruction on the affirmative defense of duress, a defendant must establish a
prima facie case of the elements of duress. People v Lemons, 454 Mich 234, 248-249; 562
NW2d 447 (1997). Specifically, a defendant must present sufficient evidence from which a jury
could find that:
A) The threatening conduct was sufficient to create in the mind of a
reasonable person the fear of death or serious bodily harm;
B) The conduct in fact caused such fear of death or serious bodily harm in
the mind of the defendant;
C) The fear or duress was operating upon the mind of the defendant at the
time of the alleged act; and
D) The defendant committed the act to avoid the threatened harm. [Id. at
247.]
In Lemons, supra, the Supreme Court affirmed the trial court's refusal to give an
instruction on duress where the defendant denied that any crime took place. As noted by
-4-
Lemons, supra at 249, such testimony does not "meet the burden on the defense to come forward
with some evidence that the defendant did the act and chose to do so out of a reasonable and
actual belief that it was the lesser of two evils." In the instant case, defendant expressly denied
ever assisting Mr. Holman in the sale or packaging of narcotics. In fact, she denied seeing any
cocaine in her apartment, aside from the one bag, before the police executed the search warrant.
We further note that the jury was instructed that defendant's mere knowledge of the presence of
cocaine in the apartment was insufficient to establish possession. Accordingly, the trial court
acted within its discretion when it declined to give the requested duress instruction. See id.5
III. Sufficiency of the Evidence
Defendant ultimately claims that there was insufficient evidence to show that she either
knowingly possessed cocaine or intended to deliver it. According to defendant, the only
evidence connecting her with the cocaine in this case was her presence in the apartment. We
disagree.
In sufficiency of the evidence claims, this Court reviews the evidence in the light most
favorable to the prosecution and determines whether a rational trier of fact could find that the
essential elements of the crime were proven beyond a reasonable doubt. People v Johnson, 460
Mich 720, 723; 597 NW2d 73 (1999). However, we will not interfere with the jury's role of
determining the weight of the evidence or the credibility of witnesses. People v Avant, 235 Mich
App 499, 506; 597 NW2d 864 (1999). "[C]ircumstantial evidence and reasonable inferences
arising from that evidence can constitute satisfactory proof of the elements of a crime." People v
Lee, 243 Mich App 163, 167-168; 622 NW2d 71 (2000).
The element of possession in defendant's charges requires a showing of "'dominion or
right of control over the drug with knowledge of its presence and character.'" People v Nunez,
242 Mich App 610, 615; 619 NW2d 550 (2000), quoting People v Maliskey, 77 Mich App 444,
453; 258 NW2d 512 (1977). We note that "[p]ossession may be either actual or constructive,
and may be joint as well as exclusive." People v Fetterley, 229 Mich App 511, 515; 583 NW2d
199 (1998). The essential issue is whether the defendant exercised dominion or control over the
substance. Id.
The evidence indicates that defendant shared the southeast bedroom with Mr. Holman
and that she informed the police that everything they needed to find was in that bedroom. After
searching this room, the police recovered several large bags of cocaine from a dresser containing
women's clothing. We also note that defendant's fingerprint was found on one of these bags.
Moreover, the testimony indicates that there was a plate of crack cocaine on the dresser and other
drug paraphernalia located throughout the bedroom. Further, Officer Wu testified that defendant
5
We note that defendant also argues that she should be permitted to advance inconsistent
defenses. Lemons, supra at 245. "However, a trial court need not instruct the jury on
inconsistent theories when neither party produces a modicum of evidence in support of a
particular theory." People v Heflin, 434 Mich 482, 504; 456 NW2d 10 (1990).
-5-
claimed responsibility for the $3,000 that was discovered by his police dog. On this record, a
reasonable finder of fact could conclude that defendant was guilty of possession and possession
with intent to deliver.
Affirmed.
/s/ Michael R. Smolenski
/s/ Jessica R. Cooper
/s/ Karen M. Fort Hood
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