PEOPLE OF MI V ODELL RUBEN BROWN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 23, 1998
Plaintiff-Appellee,
v
No. 203128
Muskegon Circuit
LC No. 95-138785 FH
ODELL RUBEN BROWN,
Defendant-Appellant.
Before: Fitzgerald, P.J., and Holbrook, Jr., and Cavanagh, JJ.
PER CURIAM.
Defendant appeals as of right from his jury trial convictions for possession with intent to deliver
less than fifty grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), and conspiracy
to deliver more than fifty but less than 225 grams of cocaine, MCL 333.7401(2)(a)(iii); MSA
14.15(7401)(2)(a)(iii). Defendant was sentenced to serve consecutive prison terms of one to ten years
for the possession with intent to deliver conviction, and ten to twenty years for the conspiracy
conviction. We affirm.
On November 16, 1995, law enforcement officers assigned to the West Michigan Enforcement
Team (“WEMET”) conducted an unspecified number of controlled drug buys1 at a residence located in
Muskegon, Michigan. Based on the results, the officers applied for and were issued a search warrant
for the identified residence and two of its occupants. At approximately 3:30 p.m. that afternoon,
WEMET officers converged on the residence in order to execute the search warrant. Several officers
wearing either blue or black jackets emblazoned with the word “police” and the acronym “WEMET” in
bold white letters, approached the front door of the residence. The officers then knocked on the door,
and announced their presence and that they had a search warrant. Shortly thereafter, the officers gained
entry into the residence by breaking down the front door with a battering ram. Defendant was
apprehended as he attempted to flee out the kitchen door. Several minutes after defendant had been
seized, one of the officers asked defendant if the officer could search his person. Defendant responded,
“Yeah, go ahead.” The subsequent search uncovered a plastic bag containing crack cocaine in
defendant’s left front pants pocket.
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I. MOTION TO SUPRESS
Defendant first raises a three pronged attack to the trial court’s denial of his motion to suppress
the crack cocaine taken from his person. An appellate court “will not disturb a trial court’s ruling at a
suppression hearing unless that ruling is found to be clearly erroneous” People v Burrell, 417 Mich
439, 448; 339 NW2d 403 (1983). Accord People v Massey, 215 Mich App 639, 641; 546 NW2d
711, remanded on other grounds 453 Mich 873; 554 NW2d 6 (1996). “‘Clear error exists when the
reviewing court is left with the definite and firm convictions that a mistake has been made.’” Massey,
supra at 641, quoting People v Kurylczyk, 443 Mich 289, 303; 505 NW2d 528 (1993). “The trial
judge’s resolution of a factual issue is entitled to deference[,] . . . particularly . . . where a factual issue
involves the credibility of witnesses whose testimony is in conflict.” Burrell, supra at 448.
Defendant asserts that the search warrant was defective on its face because it did not describe
him with sufficient particularity. We disagree. In addition to authorizing the search of the residence, the
search warrant authorized the search of two African-American males located at the residence. One of
the males was described as being “approximately 5’9” weighing approximately 250 pounds wearing
blue jeans and a white sweatshirt and dark blue stocking cap.” According to both the search warrant
and the underlying affidavit, the above described male was observed by an informant “selling cocaine
inside [the residence] . . . within the past 48 hours.”
The problem defendant raises with respect to the description given is that there were actually
two African-American males at the residence on November 16, 1995 who were approximately five feet
nine inches in height a weighed approximately 250 pounds. While this is true, it is also true that
nd
defendant was the only one of the two men who was wearing a white sweatshirt and blue jeans. In
other words, with respect to the description at issue, defendant was the only person of that gender, that
ethnicity, that size, wearing that clothing, located at that address on November 16, 1995. Therefore,
we conclude that because the search warrant described defendant with sufficient particularity, the search
of defendant pursuant to that warrant was valid.2 See LaFave & Israel, Criminal Procedure (2nd ed), §
3.4(e), p 160 (observing that in “the infrequent cases in which a warrant is obtained to search a person,
the individual must be described with such particularity that he may be identified with reasonable
certainty”).
Defendant also asserts that the search was invalid because defendant’s consent to the search
was obtained only through duress and coercion. Given our conclusion that the search warrant
described defendant with sufficient particularity to justify the search, we need not address defendant’s
consent argument.
Defendant also argues that the cocaine should have been suppressed because the officers
conducting the raid violated MCL 750.656; MSA 28.1259(6), Michigan’s “knock-and-announce”
statute. Again, we disagree. The “knock-and-announce” statute provides:
The officer to whom a warrant is directed, or any person assisting him, may
break any outer or inner door or window of a house or building, or anything therein, in
order to execute the warrant, if, after notice of his authority and purpose, he is refused
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admittance, or when necessary to liberate himself or any other person assisting him in
execution of the warrant. [MCL 780.656; MSA 28.1259(6).]
In People v Ortiz (After Second Remand), 224 Mich App 468, 479; 569 NW2d 653 (1997),
rev’d on other grounds 456 Mich 941 (1998), we observed “that the ‘knock-and-announce’ statute
requires a person attempting to execute a search warrant to proclaim his presence and purpose in a
manner reasonably calculated to provide notice under the circumstances.” We conclude that the
officers satisfied this test in the case at bar. In Ortiz (After Second Remand), this Court noted that
factors to be considered when examining whether the “knock-and-announce” statute was complied
with “include whether the announcement was made with sufficient volume for an average person inside
to hear and the time between the announcement and a subsequent forcible entry.” Id. at 479.
The officers who testified at the motion to suppress hearing indicated that the officer who
announced their presence and purpose had firmly and loudly knocked on the front door while yelling
several times, “Police, search warrant.” Indeed, one officer who had been stationed at the rear of the
house indicated that he had heard the announcements. There was also general agreement among the
testifying officers that they had waited five to ten seconds after the final announcement before using the
battering ram.
As this Court o
bserved in People v Polidori, 190 Mich App 673, 677; 476 NW2d 482
(1991): “Because there is no formula for reasonableness, each case must be decided on its own facts.”
In the case at hand, there is no indication that there was noise coming from the residence that would
make it hard for those inside to hear the announcement. The announcement was made at approximately
3:30 p.m., a time of day when it reasonable to assume that some of the residents of the house would be
up and about. Furthermore, because the house was relatively small, it would not take much time for a
person to respond to the announcement. It was reasonable for the officers to conclude that the lack of
response to the announcement constituted a refusal of admittance. LaFave, supra at § 3.4(h). p 163
(observing that refusal of admittance may be implied by the “failure to respond to the announcement”).3
Although we acknowledge that the question of whether five to ten seconds is reasonable is a close one,
we are not left with a “definite and firm conviction” that the trial court erred when ruling that the officers
complied with the “knock-and-announce” statute.
II. MOTION TO DISQUALIFY TRIAL JUDGE
Defendant next claims that the trial judge committed error in denying defendant’s motion to
disqualify after the trial judge had admitted to having read the search warrant which theretofore had not
been admitted into evidence. However, we note that this issue is not properly before us because
defendant failed to refer this issue to the chief judge following the trial court’s denial of the motion. See
Welch v District Court, 215 Mich App 253, 258; 545 NW2d 15 (1996). In any event, because
defendant has failed to show that the trial judge was actually biased against defendant, Wayne Co Jail
Inmates v Wayne Co Chief Executive Officer, 178 Mich App 634, 663; 444 NW2d 549 (1989), or
that the trial judge had any improper prior participation in the case, People v Coones, 216 Mich App
721, 726; 550 NW2d 600 (1996), his argument is without merit.
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III. JURY INSTRUCTIONS ON FLIGHT
Defendant finally claims that the trial court committed error in instructing the jury on flight. We
disagree. “We review de novo a claim of instructional error.” People v Hubbard, 217 Mich App
459, 487; 552 NW2d 493 (1996). “We read jury instructions in their entirety to determine if error
occurred requiring reversal. Instructions which are somewhat imperfect are acceptable, so long as they
fairly present to the jury the issues to be tried and sufficiently protect the rights of the defendant.”
People v Gaydosh, 203 Mich App 235, 237; 512 NW2d 65 (1994). Accord People v Caulley, 197
Mich App 177, 184; 494 NW2d 853 (1992).
In instructing the jury on flight, the trial court stated the following:
There has been some evidence that the defendant tried to run after the alleged crime or
he was accused - or at the time of the raid. This evidence does not prove guilt. A
person may run or hide for innocent reasons such as panic, mistake or fear. However,
a person may also run or h because of a consciousness of guilt. You must decide
ide
whether the evidence is true, and if true, whether it shows hat [sic] defendant had a
guilty state of mind.4
We believe that the jury instruction adequately conveyed to the jury that defendant’s attempt to
flee out the kitchen door could have stemmed from innocent reasons. Thus, the jury could have
determined that the flight was attributable to defendant’s alleged mistaken identification of the raiding
police officers as masked gunmen, attempting to rob the residence and its occupants. As a result, the
jury instruction fairly represented the issues to be tried and sufficiently protected defendant’s rights.
Gaydosh, supra at 237. Therefore, we hold the trial court did not err in giving the instruction.
Affirmed.
/s/ E. Thomas Fitzgerald
/s/ Donald E. Holbrook, Jr.
/s/ Mark J. Cavanagh
1
One of the officers involved testified that during a controlled drug buy, a reliable confidential informant
is sent by officers to buy narcotics at a specified location, using money supplied by the officers.
2
It is unclear from defendant’s brief on appeal whether he is asserting that the search warrant was
unsupported by probable cause. In any event, we conclude that there was a substantial basis for finding
probable cause to search defendant. People v Poole, 218 Mich App 702, 705; 555 NW2d 485
(1996).
3
The fact that the inhabitants of the residence testified they did not hear the announcement is not
dispositive. As the Court noted in Ortiz (After Second Remand), “it is not necessary that the
inhabitants of a dwelling actually hear the person’s announcement, as long as the announcement was
reasonably calculated to provide notice under the circumstances.” Ortiz, supra at 479.
4
This instruction is based on CJI2d 4.4.
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