PEOPLE OF MI V DANIEL C RODRIGUEZAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
November 10, 1998
Oakland Circuit Court
LC No. 95-139251 FC
LUIS A. ROSADO,
PEOPLE OF THE STATE OF MICHIGAN,
Oakland Circuit Court
LC No. 95-139250 FC
RAUL A. DAVID,
PEOPLE OF THE STATE OF MICHIGAN,
Oakland Circuit Court
LC No. 95-139252 FC
DANIEL C. RODRIGUEZ,
Before: Young, P.J., and White and Wahls, JJ.
Following a trial before separate juries, defendants were each convicted of possession with
intent to deliver at least 650 grams of cocaine, MCL 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i),
and conspiracy to deliver at least 650 grams of cocaine, MCL 750.157a; MSA 28.354(1) and MCL
333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i). They appeal as of right, and we affirm.
We first address Rosado’s and Rodriguez’ claims of error asserting the erroneous admission of
expert and profile evidence. We review the admission of evidence for an abuse of discretion. People v
Gibson, 219 Mich App 530, 532; 557 NW2d 141 (1996).
Profile evidence has been defined as “an informal compilation of characteristics often displayed
by those trafficking in drugs.” United States v McDonald, 933 F2d 1519, 1521 (CA 10, 1991),
quoted in People v Hubbard, 209 Mich App 234, 239; 530 NW2d 130 (1995), or “a listing of
characteristics that in the opinion of law enforcement officers are typical of a person engaged in a
specific illegal activity.” Id. This Court has proscribed the use of drug profile evidence as substantive
evidence of guilt because its probative value is substantially outweighed by the danger of unfair
prejudice. Hubbard, supra at 241, citing MRE 403.
In the instant case, the prosecutor questioned a police sergeant regarding a previous
investigation of Puerto Rican drug rings operating in the City of Pontiac. Rosado’s counsel objected on
the basis that the testimony was immaterial and irrelevant, and Rodriguez’ counsel joined in the
objection. The trial court sustained the objection, ordered the jury to ignore the testimony given as
irrelevant, and instructed the prosecutor to proceed with relevant testimony. The prosecutor then
questioned the sergeant regarding his general knowledge pertaining to groups or persons who deal in
kilograms of cocaine. The sergeant answered with the same answer he had given to the question
regarding the Puerto Rican drug rings.
The sergeant testified that persons who deal in kilograms of cocaine operate secretively, within a
tightly knit group of individuals. Some of these individuals provide a holding house, where kilograms of
cocaine are stored. The cocaine is seldom left in any one place for a period of time. The sergeant also
testified regarding quantities of cocaine, quality, pricing, packaging, distribution, and different levels of
We first note that defendants did not object to the testimony on the basis that it was
impermissible profile evidence, but rather on the basis that evidence concerning prior investigations of
Puerto Rican drug rings was irrelevant to the instant case because there was no evidence connecting the
instant case to that investigation. This objection was sustained, and the sergeant continued his testimony
without further objection.1 Generally, an objection at trial based on one ground is insufficient to
preserve an appellate challenge to the evidence based on a different ground. People v Maleski, 220
Mich App 518, 523; 560 NW2d 71 (1996). Because the issue is not properly preserved, we will not
consider it “unless the error could have been decisive of the outcome or it falls under the category of
cases . . . where prejudice is presumed or reversal is automatic.” People v Grant, 445 Mich 535,
553; 520 NW2d 123 (1994).
We conclude that most of the sergeant’s testimony is not properly characterized as
impermissible profile evidence, and was properly admitted expert testimony. We further conclude that
the limited profile testimony was harmless, and not decisive of the outcome of the case. There was
substantial direct evidence of defendants’ guilt, independent of the profile evidence. We conclude that
defendants were not found guilty based on profile evidence, and we find no error requiring reversal.
Rosado next argues that his conspiracy conviction was not supported by sufficient evidence.
He argues that the facts of this case establish several separate delivery transactions, rather than a
conspiracy. As a result, Rosado asserts, a conviction of conspiracy cannot survive Wharton’s rule
because each transaction involved two people, the number required for delivery. We disagree.
Wharton’s rule limits the scope of the crime of conspiracy by providing that “[a]n agreement to
commit a particular crime cannot be prosecuted as a conspiracy where the number of alleged
conspirators do not exceed the minimum number of persons logically necessary to complete the
substantive offense.” People v Blume, 443 Mich 476, 482 n 11; 505 NW2d 843 (1993). Because
delivery of a controlled substance necessarily requires a minimum of two persons, there can be no
prosecution for conspiracy where only the buyer and seller are involved.2 Id; People v Davis, 408
Mich 255, 280; 290 NW2d 366 (1980) (opinion by Levin, J.).
To determine whether the prosecution presented sufficient evidence of guilt to sustain a
conviction, we must consider the evidence in a light most favorable to the prosecution and determine
whether a rational trier of fact could have found all the elements of the offense proven beyond a
reasonable doubt. People v Wolfe, 440 Mich 508, 513-514; 489 NW2d 748, amended on other
grounds, 441 Mich 1201 (1992). To establish the existence of a conspiracy, the prosecution must
establish that two or more persons voluntarily agreed to commit a criminal offense. People v Justice
(After Remand), 454 Mich 334, 345; 562 NW2d 652 (1997). There must be evidence that the
persons “specifically intended to combine to pursue the criminal objective of their agreement.” Id.
Thus, there must be proof that the individuals “specifically intended to further, promote, advance or
pursue an unlawful objective.” Id. at 347. Proof of a conspiracy can be drawn from the circumstances,
acts and conduct of those involved, and inferences are permissible. Id. at 347. The scope of the
conspiracy must be determined through examining circumstantial evidence, but any inferences that are
drawn must be reasonable. Id. at 348. “A defendant may become a member of an existing conspiracy
if he cooperates knowingly to further the object of the conspiracy, although mere knowledge that
someone proposes unlawful action is alone not enough. For intent to exist, the defendant must know of
the conspiracy, know of the objective of the conspiracy, and intend to participate cooperatively to
further that objective.” Turner, supra at 570, citation omitted.
We conclude there was sufficient evidence to convict Rosado of conspiracy to deliver over 650
grams of cocaine, and that Wharton’s rule does not apply because the intended transferee in the
conspiracy was the informant and the conspirators were not solely in a seller/buyer relationship.
The informant testified that he contacted Rodriguez, asking Rodriguez if he could get him a
kilogram of cocaine. The informant told Rodriguez he had a buyer willing to pay $28,000, and the
informant would pay Rodriguez $26,000. Rodriguez told the informant that he would have to contact
someone and get back with the informant. Eventually, Rodriguez told the informant that he was able to
get him a kilogram from some people who would be coming in from Detroit. Following Rodriguez’
instructions, the informant picked Rodriguez up at his house and Rodriguez gave him directions to
Rosado’s house. Rodriguez introduced the informant to Rosado. They went to the basement where
Rosado presented a brick of cocaine, offering it to Rodriguez. Rodriguez would not take it, so Rosado
handed it to the informant. The informant checked the cocaine. There was a knock on the door, and
Rosado went upstairs. When Rodriguez and the informant went upstairs, leaving the cocaine behind,
Raul David was in the house. The informant asked Rodriguez if David was the man from Detroit.
Rodriguez told him he was.
Rosado gave a statement to police at the scene. He told police that Rodriguez had come to his
house the night before and had asked Rosado if he could get him a kilogram of cocaine. Rosado called
a friend in Detroit, Papito, the next morning and asked if he could find him a kilogram of cocaine. He
said he could. The price was $22,000. Rosado was planning to sell the kilogram to Rodriguez for
$23,000, and Rodriguez told him he was going to sell the cocaine to someone else for $25,000.
Papito’s brother (Raul David) brought the cocaine to Rosado’s home at 1:30 p.m. on the day of the
raid, arriving in a car. Rosado brought the cocaine into the house and then put it in his basement. David
then waited for the money. After David brought the kilogram, Rodriguez and “a black guy” (the
informant) came to Rosado’s house. Rosado showed them the cocaine, and the “black guy” tried it,
said they would be back with the money, and left with Rodriquez.
From this evidence, a rational finder of fact could conclude that Rosado entered into an
agreement to obtain a kilogram of cocaine from Papito, through David, for delivery to Rodriguez’
purchaser (the informant), who would come up with the money to pay Rosado’s supplier and provide a
profit for Rodriquez and Rosado. Although different amounts of money were arranged to be exchanged
between Rosado and Papito, Rodriguez and Rosado, and the informant and Rodriguez, a rational trier
of fact could conclude that these were not a series of separate transactions and that the conspirators
shared a common goal of delivery of the cocaine to the informant.
Further, Wharton’s rule is inapplicable because the conspiracy here involved more than just the
delivery by one of two conspirators to the other. The agreement that is essential to the crime of delivery
of a controlled substance, and which therefore cannot support a conspiracy charge under Wharton’s
rule, is the agreement between the seller and buyer, or transferor and transferee, to transfer the
substance. But this agreement is not the basis of the instant conspiracy. Here there were more than two
persons involved in the transaction that was the basis of the conspiracy, People v Weathersby, 204
Mich App 98, 107; 514 NW2d 493 (1994), and the delivery was to be to a third party.
Rosado’s final argument is that the mandatory life sentence for his conspiracy conviction is
contrary to MCL 791.234(6); MSA 28.2304(6). We disagree. This issue presents a question of law,
which we review de novo. People v Medlyn, 215 Mich App 338, 340-341; 544 NW2d 759 (1996).3
Resolution of this issue requires an examination of the interplay between several statutes. Our
primary goal in statutory interpretation is to ascertain and advance the Legislature’s intent. People v St.
Andre, 225 Mich App 187, 192; 570 NW2d 154 (1997). In determining the intent of the Legislature,
we must first examine the specific language of the statute. People v Gould, 225 Mich App 79, 83; 570
NW2d 140 (1997). We presume that the Legislature intended the meaning plainly expressed in the
statute. Where the statutory language is clear, there is no room for judicial interpretation and we must
apply the statute as written. Id. Where a statute provides definitions of terms, those definitions must be
applied. People v Chupp, 200 Mich App 45, 49; 503 NW2d 698 (1993).
MCL 791.234; MSA 28.2304 provides that “[a] prisoner under sentence for life or for a term
of years, other than a prisoner sentenced to life for murder in the first degree or sentenced for life or for
a minimum term of imprisonment for a major controlled substance offense,” is eligible for parole
consideration. The term “major controlled substance offense” is defined for purposes of MCL 791.234;
MSA 28.2304 to include conspiracy to commit a violation of MCL 333.7401(2)(a)(i); MSA
14.15(7401)(2)(a)(i), delivery of at least 650 grams of a controlled substance. MCL 791.233b;
MSA 28.2303(2). Thus, the plain language of the “lifer law,” MCL 791.234(6); MSA 28.2304(6),
excludes from parole consideration a person convicted of conspiracy to deliver at least 650 grams of
Rosado argues, however, that in light of People v Jahner, 433 Mich 490, 504; 446 NW2d
151 (1989), this Court should invoke the rule of statutory construction that justifies a departure from the
literal construction of a statute when such construction would produce an absurd and unjust result and
would be clearly inconsistent with the purposes and policies of the act. In Jahner, our Supreme Court
concluded that persons sentenced to life imprisonment for conspiracy to commit first-degree murder are
eligible for parole consideration because “the parole prohibition in the Lifer Law which expressly applies
to first degree murder does not apply to the separate and distinct crime of conspiracy to commit that
offense.” Id. at 498. Rosado argues that a literal construction of the lifer law is absurd and unjust
because such a construction punishes persons who conspire to deliver 650 grams or more of a
controlled substance more severely that those who conspire to commit the most severe crime of first
degree murder, by allowing the parole of the latter but not the former.
We are not persuaded, however, that the Legislature did not intend the result occasioned by the
literal application of the statute, including its definition of “controlled substance offense.” It is clear that
the Legislature intended to deny parole consideration to those convicted of the enumerated controlled
substance offenses, including conspiracy to deliver 650 grams or more of cocaine. Therefore, Rosado’s
argument that his sentence to nonparolable life in prison is contrary to the “lifer law” must fail.
David first argues that his motion to quash the information was erroneously denied because the
exchange between the informant and Rodriguez, indicating that David was the person from Detroit who
had brought the cocaine to the house, was not made in furtherance of the conspiracy, and was therefore
wrongly admitted in support of the bindover. We disagree.
At the preliminary examination, the informant testified that he arranged a purchase of a kilogram
of cocaine through Rodriguez, who told the informant that the cocaine was coming from a person in
Detroit to a person in Pontiac. They went to the Pontiac location and met Rosado. The three men went
into the basement of the house and the informant examined a brick of cocaine. While they were in the
basement, there was a knock at the door, and Rosado left the basement. The informant testified that
after a few seconds he became uncomfortable because he did not know who was at the door. He went
upstairs, with Rodriguez following, and saw David. The informant was not introduced to David. The
informant asked Rodriguez whether David was the man from Detroit who had brought the kilogram of
cocaine. Rodriguez answered, “yes.”
MCR 801(d)(2)(E) provides that “a statement by a coconspirator of a party during the course
and in furtherance of the conspiracy on independent proof of the conspiracy” is not hearsay and is
admissible. Both requirements—that the statement be made during the conspiracy and in furtherance of
the conspiracy—must be met. David asserts that the comment by Rodriguez, in response to the
informant’s question, was not made in furtherance of the conspiracy. We disagree.
A statement that advances or promotes an object of the conspiracy is considered made in
furtherance of the conspiracy. People v Centers, 141 Mich App 364, 376; 367 NW2d 397 (1985),
rev’d on other grounds 453 Mich 882 (1996). Statements made in furtherance of a conspiracy have
been characterized as those that “prompt the listener . . . to respond in a way that promotes or
facilitates the carrying out of a criminal activity” and may include “statements that provide reassurance,
or seek to induce a coconspirator’s assistance or serve to foster trust and cohesiveness . . . .” People
v Bushard, 444 Mich 384, 395-396; 508 NW2d 745 (1993) (Boyle, J). As explained in United
States v Monus, 128 F3d 376, 392-393 (CA 6, 1997):
“A statement is ‘in furtherance of’ a conspiracy if it is intended to promote the
objectives of the conspiracy.” We have recognized that “statements which prompt a
listener to act in a manner that facilitates the carrying out of the conspiracy are
admissible under [FRE 801](d)(2)(E).” Statements that “identify participants and their
roles in the conspiracy” also qualify as statements made in furtherance of the
conspiracy. [Citations omitted.]
Thus, the court properly concluded that Rodriguez’ statement confirming the identity of David
and that he was a participant in the transaction was made in furtherance of the conspiracy. The
informant was seeking reassurance that David was “okay,” and the statement was made in that context.
David next asserts that his statement to the police was inadmissible because it was involuntary
and not understandingly made. A trial court’s determination as to the voluntariness of a statement is
reviewed by examining the entire record and, based on the totality of the circumstances, making an
independent determination whether the statement is “‘the product of an essentially free and
unconstrained choice by its maker’ or whether the accused’s ‘will has been overborne and his capacity
for self-determination critically impaired.’” Gould, supra at 88; People v Peerenboom, 224 Mich
App 195, 198; 568 NW2d 153 (1997). We must “defer to the trial court’s superior ability to view the
evidence and witnesses” and may not disturb the trial court’s findings absent clear error. Peerenboom,
supra; Gould, supra.
At his Walker4 hearing, David testified that he requested an attorney and indicated that he did
not wish to make a statement. He claimed that his request for an attorney was denied. According to
David, the officers told him that he faced life in prison without parole and that he would never see his
family again. If he cooperated, however, he would go home that day. The interviewing officer, on the
other hand, testified that David simply waived his rights and indicated that he wanted to cooperate. The
officer stated that he never threatened or promised anything to David, and denied ever telling David that
it would be in his best interest to make a statement.
At the beginning of David’s statement, after he acknowledged that he understood his rights, the
following exchange took place:
BP (interviewing officer):
Do you wanna talk to a lawyer before answering
questions, or do you want to cooperate like we’ve been speaking, uh, like you said, uh,
you wanted to cooperate and speak to us?
RD (defendant David):
If it [sic] be better.
BP: You have to answer. Would you rather, do you want to cooperate and speak
to us like you’ve indicated?
The circuit court concluded that David’s request for counsel was at best ambiguous. We agree.
People v Granderson, 212 Mich App 673, 677-678; 538 NW2d 471 (1995). Further, the court did
not find credible David’s claims regarding his understanding of his rights, his assertion of his right to
counsel before the tape was started, and the alleged threats and promises. We will not disturb the
circuit court’s credibility determination, Peerenboom, supra, and affirm the court’s finding that David’s
statement was made voluntarily and understandingly.
Next, David argues that the trial court erred in admitting the informant’s testimony regarding
Rodriquez’ statement that defendant was the one who had brought the cocaine from Detroit. We reject
this argument for the reasons discussed in section IV, supra. The testimony was properly admitted as
regarding a statement made in furtherance of the conspiracy.
David further asserts that the court erred in admitting his statement because the corpus delicti
rule had not been satisfied. He asserts that his confession should not have been admitted because there
was no evidence to demonstrate a nexus between him and either possession of the cocaine or the
conspiracy. We disagree.
The corpus delicti rule prevents the use of a defendant’s confession to convict the defendant of
a crime that did not occur. People v Konrad, 449 Mich 263, 269; 536 NW2d 517 (1995). The rule
prohibits the admission of a defendant’s confession in the absence of “direct or circumstantial evidence
independent of the confession establishing (1) the occurrence of the specific injury and (2) some criminal
agency as the source of the injury.” Id. Significantly, the identity of the offender is not part of the
corpus delicti; “[i]t is sufficient to show that the crime was committed by someone.” Id.
There was evidence in this case, independent of David’s statement, establishing the existence of
the cocaine and that it was possessed by someone with an intent to deliver and that there was a
conspiracy to deliver it. Therefore, the corpus delicti of the offense was established without David’s
statement, and the trial court did not err in admitting the statement.
David next argues that the trial court erred in denying his motion for directed verdict based on
the insufficiency of the evidence to establish that he possessed cocaine or was involved in a conspiracy
to deliver cocaine. We disagree. Similar to a review of the evidence supporting a conviction, Wolfe,
supra, this Court reviews a trial court’s ruling on a motion for directed verdict by considering the
evidence admitted by the prosecution up to the time the motion is made in a light most favorable to the
prosecution to determine whether a rational factfinder could find the essential elements of the offense
proven beyond a reasonable doubt. People v Vincent, 455 Mich 110, 121; 565 NW2d 629 (1997),
People v Peebles, 216 Mich App 661, 664; 550 NW2d 589 (1996).
We first examine David’s argument as to the possession with intent to deliver conviction. The
elements of possession with intent to deliver 650 grams or more of cocaine require proof that (1) the
recovered substance is cocaine; (2) the cocaine is in a mixture weighing 650 grams or more; (3) the
defendant was not authorized to possess the substance; and (4) the defendant knowingly possessed the
cocaine with the intent to deliver. See Wolfe, supra at 516-517; MCL 333.7401(2)(a)(i); MSA
14.15(7401)(2)(a)(i). There is no dispute that the evidence supported a finding of the first three
elements of the offense. David argues that he did not possess the cocaine and thus did not possess it
with intent to deliver.
In establishing the possession element, the prosecution need not prove actual physical
possession; proof of constructive possession is sufficient. Konrad, supra at 271. Furthermore, the
defendant may share actual or constructive possession with another. Id. The critical element is that the
defendant have dominion or control over the substance, which requires that he have the right to possess
it. Id. To prove constructive possession, however, there must be more evidence than that the
defendant was present at the location where the substance was found. Wolfe, supra at 520. There
must be an additional connection between the defendant and the substance. Id. “[C]onstructive
possession exists when the totality of the circumstances indicates a sufficient nexus between the
defendant and the contraband,” and the finding that the defendant exercised dominion and control over
the substance may be established through inferences drawn from direct or circumstantial evidence. Id.
David was also charged on an aiding and abetting theory. An aider and abettor may be
convicted and punished as if he were a principal. MCL 767.39; MSA 28.979; People v Turner, 213
Mich App 558, 568; 540 NW2d 728 (1995). Aiding and abetting encompasses all forms of assistance
a defendant may give the principal and includes all words or conduct that might support, encourage or
incite the commission of a crime. Turner, supra. To support a conviction of a defendant as an aider
and abettor, the prosecution must prove that (1) the defendant or another person committed the offense;
(2) the defendant performed acts or gave encouragement that assisted the commission of the crime; and
(3) the defendant either intended the commission of the crime or knew that the principal intended to
commit the crime at the time the defendant gave the aid and encouragement. Id. An aider and abettor
must possess the same requisite intent as is required by the principal, People v Barrera, 451 Mich 261,
294; 547 NW2d 280 (1996), but the factfinder may infer the aider and abettor’s state of mind from the
facts and circumstances. Turner, supra. Although the principal’s guilt must be proven, he need not be
convicted. Id. at 569. The prosecutor must present sufficient evidence to demonstrate that the crime
was committed and that the defendant either committed it or aided and abetted the principal. Id.
The prosecution presented evidence that the cocaine was brought from Detroit to Rosado’s
house. The informant testified that Rodriguez told him that David was “the guy from Detroit.” Although
he denied bringing the cocaine to Rosado, David admitted through his statement that he was at
Rosado’s to collect the money for the cocaine at the request of the person who supplied Rosado with
the cocaine, and that he knew the money was in payment for the cocaine. David told police that
Rosado asked him if he wanted to take the cocaine back because Rosado thought that the buyer was
not going to go through with the deal. Further, David admitted that his fingerprints might be found on
the cocaine. Additionally, as the prosecutor argued, consideration of David’s statement in light of all the
evidence in the case could support a reasonable inference that David was at the house twice that day,
once before Rodriquez and the informant arrived, and a second time while they were there and the
house was under surveillance. From this evidence, which we must view in favor of the prosecution, the
jury could have concluded that David brought the cocaine to Rosado, thereby possessing it with intent
to deliver, or that he had constructive possession of the cocaine while he waited for the money, or that
he aided and abetted others in the possession with intent to deliver, by collecting the payment for the
cocaine, which was a prerequisite of the transaction. Therefore, the trial court did not err in denying
defendant’s motion for directed verdict on this count.
We now turn to the evidence regarding the conspiracy conviction. David told police that a man,
whose name he did not want to divulge, called him the morning of the drug raid and asked him to pick
up $23,000 from “Salo,” who was identified as Rosado. Although the unidentified man did not tell
David that the money was from a cocaine deal, David admitted that he knew that to be the case. David
had been to Rosado’s house before. When he arrived at Rosado’s house, Rosado told him that he was
waiting for someone to bring the money. David stated that he did not know that the kilogram was at
Rosado’s house when he got there, but that he figured out that it was at Rosado’s when Rosado told
him that he was waiting for another person. Rosado asked David if he wanted to take the cocaine back
to Detroit because Rosado suspected that the deal was not going to go through. According to David,
the person Rosado was waiting for pulled up when David and Rosado were on the porch. There was
sufficient evidence to support a finding that David was part of a conspiracy to deliver the cocaine in
exchange for money. The trial court did not err in denying David’s motion for directed verdict.
David’s final argument is based on the trial court’s failure to instruct the jury on accessory after
Before closing arguments, David requested an instruction on accessory after the fact.
The court stated that it would give the instruction if supported by the facts.5 In closing argument,
defendant argued that the informant was lying when he testified that he asked Rodriguez if David was
the “guy” from Detroit and that Rodriguez said “yes.” He also argued that there was no evidence that
David brought the cocaine to Rosado’s house, and he neither possessed the cocaine nor intended to
deliver it. Counsel argued that according to David’s statement, David was at Rosado’s only as a favor,
to pick up the money. Counsel further argued that because the offense was complete when David
arrived to pick up the money, he was merely an accessory after the fact. The prosecutor argued on
rebuttal that David was not an accessory after the fact because he was aware of, and participated in, the
actual offense, and did not simply arrive after the offense was completed and help cover-up.
After argument, there was further discussion regarding the instruction:
MR. SEIKALY [defense counsel]: The only thing I’ve got, your Honor, is that
I want the accessory after the fact instruction, read to the jury. I don’t have a secretary
to type it up.
I have no problem with you just reading it out of the book, if you want.
THE COURT: If I was reading it out of the book, it gives no consequences of
what happens if they wanted to find him as an accessory after the fact.
MR. SEIKALY: Well, we’d have to give them another jury verdict. They
could find him—
THE COURT: He’s not charged with anything but possession and conspiracy.
MS. GUCCIARDO [prosecutor]: Right.
THE COURT: So the question is, if they find him as an accessory, I presume
they have to find him not guilty, wouldn’t they?
MR. SEIKALY: Mm-hmm.
THE COURT: Would you agree with that?
MS. GUCCIARDO: Yes.
THE COURT: Okay.
MR. SEIKALY: Then I’d want an instruction to that.
MS. GUCCIARDO: Is that what you’re saying, that you – well, actually, let
me think about that before I—
THE COURT: We’ll discuss that. But if he’s entitled to the—and there is
evidence—if they disbelieve the evidence—
MR. SEIKALY: Then he’s just—
THE COURT: --then he is possibly—they could find his [sic] an accessory
after the fact.
MS. GUCCIARDO: Your Honor, I don’t—
THE COURT: If they disbelieve the evidence. Now don’t argue with the
strength of the evidence. No sense going into that now.
MS. GUCCIARDO: No, I understand, but I want to say one thing in relation
to that. I believe that the accessory after the fact instructions when you give it, when the
crime is completed and they do something like to hide it or something like that, that’s
THE COURT: It’s customarily given in this matter. I agree. Maybe the better
position would be that if they find that they don’t believe any of this testimony, then he’s
not guilty. That’s what you’re saying. That’s what you’re really saying.
MR. SEIKALY: After arguing that he might be guilty as an accessory after the
fact. That’s why I want the instructions.
THE COURT: Let’s look at that a little closer before we go in.
MS. GUCCIARDO: Yes, I don’t think—
(At 12:07 p.m., Court recessed)
Arguments were then presented to Rosado’s jury and then Rodriquez’ jury. The instructions were then
read to the jury without further record discussion of the accessory instruction. After the instructions
were read, the issue was again addressed:
MR. SEIKALY: Well, your Honor, I’m not satisfied with the instructions. I
think that an instruction as to accessory after the fact should have been given.
There was certainly enough evidence to show that something should have been
said about that, that at the minimum, that there should have been an instruction indicating
that if there [sic] was the jury’s belief that Mr. David was guilty of being an accessory
after the fact, that they would have to find Mr. David not guilty of the charges of
possession of over 650 grams with intent to deliver and the conspiracy count.
THE COURT: I’m satisfied, sir, that the jury was appropriate [sic] instructed.
I did indicate to the jury that if they didn’t find any of the elements on any of the charges
as listed, then that charge must be a not guilty verdict. I did so instruct them and I think
that covers that matter appropriately and I will not add to the instructions.
All right. Anything else, sir?
MR. SEIKALY: No.
David argues that the trial court’s failure to give the instruction compromised his position and
constitutes error requiring reversal because he had tailored his argument to the instruction.
In People v Clark, 453 Mich 572; 556 NW2d 820 (1996), our Supreme Court addressed a
similar, although distinguishable, situation. In three separate opinions, four justices concluded that a new
trial was required where the trial court, after the prosecutor’s argument, and with the prosecutor’s
acquiescence, erroneously agreed to the defendant’s request for a modification in the involuntary
manslaughter instruction; defense counsel argued based on the modified instruction; and the court later
determined that the instruction as modified should not be given and gave the unmodified instruction. The
lead opinion explained that not all such errors require reversal, and reversal is required only if the error
was prejudicial. Clark, supra at 587 (Mallett, J.). Prejudice is determined by the effect of the error on
substantial rights or its effect on the verdict. Id. at 588. Thus, we must determine whether David was
prejudiced by the failure to instruct on accessory after the fact.
As explained in People v Perry, 218 Mich App 520, 526; 554 NW2d 362 (1996), lv gtd 457
Mich 869 (1998):
Those who are only accessories after the fact by definition did not participate in the . . .
principal offense and did nothing in furtherance of it before or while it occurred. An
accessory after the fact is a person who with knowledge of another’s guilt gives
assistance to that felon in an effort to hinder the felon’s detection, arrest, trial or
punishment. An accessory after the fact aids a perpetrator in the concealment of
evidence of the crime or in the flight or concealment of the perpetrator. [Perry, supra
In determining whether the instruction would have been proper, we will look at the evidence as
David would have had the jury view it. There was no evidence that David merely assisted one of the
other participants to hinder his arrest, trial or punishment, or merely aided in the concealment of the
evidence. The person whose job it is to pickup the payment for the cocaine is not an accessory after
the fact. David was either guilty of the principal offenses or not guilty. While David accurately
observes that upon his arrest he concealed the identity of the supplier of the cocaine for whom he
admitted he was picking up the money, this does not make him an accessory after the fact with regard
to his participation in the principal offense. Further, he did not present this argument in support of his
request for the instruction below. We conclude that David was not entitled to the accessory instruction.
We turn then to the question whether he was nevertheless prejudiced by the court’s failure to
give the instruction because counsel’s argument assumed that the instruction would be given, as in
Clark, supra. We find Clark distinguishable in two respects. First, in Clark the trial court
unequivocally stated that it would give the modified instruction. Here, the trial court stated that the
instruction would be given if supported by the evidence. While the court should have been mindful of
the court rule requiring that instructions be settled before argument, MCR 2.516, and should have
resolved the issue finally before argument, counsel was apparently content with a ruling that was
conditioned on the propriety of giving the instruction in light of the evidence. That condition was not
met, as we have concluded that there was no evidence that David was an accessory after the fact.
Further, in Clark, the instruction at issue pertained to a crucial element of the charged offense. “There
was reliance on a mischaracterization of a critical issue that directly affected the theories argued by
defense counsel that resulted in prejudice to the defense,” id. at 587, and “the effectiveness of defense
counsel’s argument and the totality of the defense was impaired by counsel’s reliance on inaccurate
information regarding the jury instructions. Id. at 605. Here, the accessory argument was ancillary to
counsel’s argument that the informant was not credible and that the prosecution had not established
David’s guilt of the offenses. The argument was clearly intended to provide the jury with an alternative
guilty verdict, but the failure to give the instruction did not undermine counsel’s argument that David was
not guilty of the charged offenses.
Moreover, the jury found, contrary to David’s argument, that he both agreed with others to
deliver the cocaine (conspiracy), and that he possessed it, or aided and abetted the possession of it,
with the intent to deliver, thereby rejecting the theory that he did not participate in the principal offense.
Had the jury believed that David did not bring the cocaine and did not exercise control over the
cocaine, it could have found him guilty of the conspiracy count alone, on the theory that he only agreed
to pick up the drug money. Thus, we conclude that David was not prejudiced by the trial court’s
instructional error, and the trial court’s failure to instruct the jury as to accessory after the fact was not
Rodriguez first argues that there was insufficient evidence to convict him of conspiracy. We
disagree. The informant testified that he asked Rodriguez if he knew where he could get a kilo of
cocaine, and told him that he had a buyer willing to pay $26,000 and that the informant wanted to make
$2000. According to the informant’s testimony, Rodriguez apparently tried one source, who never got
back to him, and then later told the informant that he had gotten in touch with some people and the
cocaine was being brought from Detroit at about 1 p.m. Rodriguez later urged the informant to “hurry
up because they said they might leave.” Rodriguez took the informant to Rosado’s house. After
Rodriguez and the informant were shown the cocaine and announced they were leaving to get the
money, Rodriguez responded affirmatively to the informant’s inquiry whether David was the person who
brought the cocaine from Detroit. Rodriguez acknowledged to police that David was there to pick up
the money, and that he had contacted Rosado to obtain a kilo of cocaine. Viewed in a light most
favorable to the prosecution, there was sufficient evidence to support a finding that Rodriguez entered
into an agreement to have a kilogram of cocaine brought from Detroit to Rosado’s house for delivery to
Rodriguez and the informant.
Rodriguez also argues that the trial court erred in denying his motion for directed verdict as to
possession with intent to deliver because there was insufficient evidence to establish that he possessed
the cocaine. We note that the jury was instructed as to an aiding and abetting theory. The evidence
presented was sufficient to support a finding that Rodriguez aided and abetted the possession with intent
to deliver. Rosado clearly possessed the cocaine and there was clearly an intent to deliver it to the
informant. Rodriguez took part in this plan by arranging the connection between the informant and
Rosado. He directed the informant to Rosado’s house and accompanied him inside. Rodriguez told
police that he did not intend to buy the cocaine but was “just doing a favor,” “finding someone with a
connect.” Rodriguez admitted that the informant might have had a buyer, and that Rodriguez had the
source and expected to make some money. More was involved than a sale from Rosado to Rodriguez,
and the evidence was sufficient to support Rodriguez’ conviction of possession with intent to deliver.
Next, Rodriguez argues that the trial court erroneously admitted evidence of prior bad acts. We
We review a trial court’s admission of other acts evidence for an abuse of discretion. People v
Crawford, 458 Mich 376, 383; 582 NW2d 785 (1998). Evidence of an individual’s other crimes,
wrongs, or acts is inadmissible to prove a propensity to commit such acts. Id., MRE 404(b). Such
evidence may be admissible, however, for other purposes under MRE 404(b)(1), such as opportunity,
intent or knowledge. The following formulation guides admission of other acts evidence:
First, that the evidence be offered for a proper purpose under Rule 404(b); second, that
it be relevant under Rule 402 as enforced through Rule 104(b); third, that the probative
value of the evidence is not substantially outweighed by unfair prejudice; fourth, that the
trial court may, upon request, provide a limiting instruction to the jury. [Crawford,
supra, at 385, quoting People v VanderVliet, 444 Mich 52, 55; 508 NW2d 114
(1993), amended on other grounds 445 Mich 1205 (1994).]
Rodriguez argues that the trial court’s refusal to excise from his statement to the police various
remarks to the effect that he was thinking about, or wanting to, get “back in the business” resulted in
manifest injustice because the remarks were more prejudicial than probative. Rodriguez also challenges
the admission of testimony of the informant that the reason the informant contacted Rodriguez to buy
cocaine was that he had previously bought a kilo of cocaine from him. We find no error.
At trial, Rodriguez contended that both he and the informant were mere purchasers of the kilo
of cocaine, that he was not the seller, that he did not enter into a conspiracy to deliver the cocaine to the
informant, and that he was merely doing the informant a favor. The challenged evidence tended to
undermine Rodriguez’ claim that he was merely a buyer with the informant, as a favor to him. We
conclude defendant has not established manifest injustice because the evidence was more than
marginally probative and, when considered in the context of the entire trial, was unlikely to have been
given undue or preemptive weight by the jury, and thus was not unfairly prejudicial. Crawford, supra
at 397-398. Further, the trial court gave a limiting instruction immediately before the testimony
regarding the prior sale was elicited. We conclude the probative value of the evidence was not
substantially outweighed by unfair prejudice and find no abuse of discretion.
Because the prosecution elicited this testimony at the preliminary examination and Rodriguez
thus had notice of the statement, we find no reversible error in the court’s waiving a more formal pretrial
Rodriguez’ arguments regarding expert and profile testimony are addressed in part I, supra.
Rodriguez next asserts that the trial court failed to instruct the jury on his theory of the case.
However, he acknowledges that no objection was raised in the trial court, and fails to identify his theory
of the case and how the facts supported that theory. A party may not merely announce a position and
leave it to the Court to discover and rationalize the basis for the claim. People v Leonard, 224 Mich
App 569, 588; 569 NW2d 663 (1997). This issue is not preserved for appellate review.
Next, Rodriguez argues that the trial court’s refusal to instruct on Wharton’s Rule denied him a
fair trial. We disagree.
The trial court has the discretion to determine whether a jury instruction is accurate and
applicable in view of all the factors of the case, Perry, supra at 526, and we review jury instructions as
a whole to determine whether there is error requiring reversal. McFall, supra at 412. Imperfect
instructions do not necessarily require reversal, providing they fairly presented the issues to be tried and
sufficiently protected the defendant’s rights. Id.
Wharton’s Rule is inapplicable where the number of alleged coconspirators exceeds the number
required to commit the target crime. Weathersby, 204 Mich App at 107. The trial court instructed the
jury on conspiracy:
The Defendants are charged with the crime of conspiracy to deliver 650 or
more grams of cocaine. Anyone who knowingly agrees with someone else to deliver
650 or more grams of cocaine is guilty of conspiracy.
To prove the Defendants are guilty, the Prosecutor must prove each of the
following elements beyond a reasonable doubt.
First, that the Defendants knowingly agreed to deliver cocaine; [and] second,
that the Defendants specifically intended to commit or help commit that crime . . . .
Now an agreement is the coming together or meeting of the minds of two or
more people, each person intending and expressing the same purpose.
To find the Defendants guilty of conspiracy, you must be satisfied beyond a
reasonable doubt that there was an agreement to deliver cocaine.
A finding that each Defendant was merely with other people who were
members of a conspiracy is not enough by itself to prove that each Defendant was also
In addition, the fact that a person did an act that furthered the purpose of an
alleged conspiracy is not enough by itself to prove that the person was a member of the
It is not necessary for all the members to know each other or know all the
details of how the crime will be committed. But it must be shown beyond a reasonable
doubt that each Defendant agreed to commit the crime and intended to commit or help
You may consider evidence of what the other members of the alleged
conspiracy did or said before each Defendant became a member, but only in order to
determine the nature and purpose of the conspiracy after each Defendant joined.
Ladies and gentlemen, Defendant Rodriguez is not charged with being in a
conspiracy with [the informant]. You cannot find that Defendant Rodriguez conspired
with [the informant] and use that to convict him of the conspiracy count, because it is a
legal impossibility for the Defendant Rodriguez to be in a conspiracy with the informant .
Each Defendant in this case is entitled to have his guilt or innocence decided
individually. Each jury must decide whether their particular Defendant was a member of
the alleged conspiracy, just as if he were being tried separately.
To determine whether each Defendant was a member of the alleged conspiracy,
you must decide whether each individual Defendant intentionally joined with anyone else
to deliver cocaine.
Although not perfectly articulated, the instructions to the jury indicate that defendant had to have
agreed with at least one other conspirator, who could not be the informant, to deliver cocaine. The
court instructed the jury to examine the evidence as to their particular defendant to determine whether
he was in a conspiracy involving the other defendants. The prosecutor never argued that a simple
agreement between Rosado and Rodriguez for Rosado to sell cocaine to Rodriquez would constitute a
conspiracy to deliver cocaine. We conclude Rodriguez was not denied a fair trial by the court’s refusal
to give the requested instruction.
Next, Rodriguez argues that his statement was involuntary and should not have been admitted.
At the Walker hearing, the trial court assessed Rodriguez’ credibility and rejected his claim that he had
been promised leniency and was tricked and deceived into making the statement. We defer to the
ability of the trial court to assess the witnesses’ credibility and do not find its conclusion on credibility to
be clearly erroneous. Peerenboom, supra. For similar reasons, we reject Rodriguez’ argument that
his confession should have been excluded as untrustworthy.
Rodriguez argues that the court erred in rejecting his argument that he was entrapped as a
matter of law. We disagree. We review the trial court’s ruling following an evidentiary hearing on
entrapment for clear error. People v Williams, 196 Mich App 656, 661; 493 NW2d 507 (1992).
Entrapment exists if either of the following is established “(1) the police engaged in
impermissible conduct that would induce a law-abiding person to commit a crime in similar
circumstances; and [or] (2) the police engaged in conduct so reprehensible that it cannot be tolerated.”
People v Ealy, 222 Mich App 508, 510; 564 NW2d 168 (1997). It is not entrapment for the police
to present the defendant with an opportunity to commit the crime. Id. In analyzing the first prong of the
test, courts must consider:
(1) whether there existed any appeals to the defendant’s sympathy as a friend; (2)
whether the defendant had been known to commit the crime with which he was
charged; (3) whether there were any long time lapses between the investigation and the
arrest; (4) whether there existed any inducements that would make the commission of a
crime unusually attractive to a hypothetical law-abiding citizen; (5) whether there were
offers of excessive consideration or other enticement; (6) whether there was a guarantee
that the acts alleged as crimes were not illegal; (7) whether, and to what extent, any
government pressure existed; (8) whether there existed sexual favors; (9) whether there
were any threats of arrest; (10) whether there existed any government procedures that
tended to escalate the criminal culpability of the defendant; (11) whether there was
police control over any informant; and (12) whether the investigation is targeted.”
[Williams, supra at 661-662, citing People v Juillet, 439 Mich 34, 56-57; 475
NW2d 786 (1991).]
The trial court found that the circumstances of this case did not indicate that Rodriguez was
entrapped. The only witness at the entrapment hearing was the informant. The trial court noted that
after first being contacted by the informant, Rodriguez indicated that he would look into finding the
informant a kilogram of cocaine. The informant, although a friend of Rodriguez, had engaged in drug
deals with Rodriguez in the past, and Rodriguez had previously supplied the informant with a kilogram of
cocaine. The informant did not maintain constant contact with Rodriguez after asking Rodriguez if he
could get a kilogram. The two casually contacted one another relative to the transaction. Furthermore,
the informant merely told Rodriguez that he wanted to make $2,000 to buy something; he did not
appeal to Rodriguez’ sympathy and did not use their friendship to persuade Rodriguez to facilitate the
The trial court concluded that Rodriguez was not an unwilling participant, but was a person who
was likely to be involved in such a transaction. It also found that the conduct of the police was not so
reprehensible that it could not be tolerated. The court’s factual findings and its conclusion that
Rodriguez was not entrapped were based on the informant’s testimony and were not clearly erroneous.
Rodriguez argues that the failure of the prosecution to divulge, in response to a discovery order,
that the informant was compensated for cooperation with the federal drug enforcement agency
constituted error requiring reversal. We disagree. This court reviews the “trial court’s decision
regarding the appropriate remedy for noncompliance with a discovery order for an abuse of discretion.”
People v Davie (After Remand), 225 Mich App 592, 597-598; 571 NW2d 229 (1997). During
cross-examination, the informant testified that he began working with the federal drug enforcement
agency in March 1996, shortly after the incident leading to these proceedings occurred. He admitted
that he was paid $10,000 cash by the federal agency. The informant confirmed that the federal agents
indicated that they would tell the informant’s judge that he had been cooperative. Following the
informant’s testimony, Rosado’s counsel told the court that he did not know that the informant was
working for the federal agency or had been paid for his cooperation. He stated that he wanted this
information on the record because the prosecution should have divulged the information because it
related to the informant’s credibility. Rodriguez’ counsel stated that he concurred in the statement. The
court indicated that it was not going to fault the prosecution.
Rodriguez’ counsel was permitted full cross-examination as far as the testimony related to the
informant’s credibility. He offers no other basis for which this information should have been used.
There is no apparent prejudice to Rodriguez. The trial court did not abuse its discretion in refusing to
take further action in response to the prosecution’s failure to divulge the challenged information.
We reject Rodriguez’ argument that he was denied a fair trial by the court’s imposition of a time
limitation on his closing argument. “The court may impose reasonable limits on the closing arguments.”
MCR 6.414(E). The court limited Rodriguez’ closing argument, as well as those of his codefendants
and the prosecution, to twenty minutes. While the court might have been more generous in its time
allowance, we do not find this limitation unreasonable, and are unable to conclude that Rodriguez was
deprived of a fair trial.
Next, we reject Rodriquez’ contention that the trial court’s refusal to excise references in his
statement to his “getting back into the business” resulted in manifest injustice. Rodriguez’ statement was
relevant in determining the facts. The probative value was not outweighed by the prejudicial impact.
Rodriguez has failed to provide support for his assertion that manifest injustice was caused by all
jurors having a copy of his statement. This issue is therefore unpreserved. People v Piotrowski, 211
Mich App 527, 530; 536 NW2d 293 (1995).
Rodriguez argues that his sentences of life imprisonment without parole are unconstitutional as
cruel and/or unusual punishment. This argument has been rejected by our Supreme Court. People v
Lopez, 442 Mich 889; 498 NW2d 251 (1993); People v Stewart, 442 Mich 890; 498 NW2d 430
(1993); People v Fluker, 442 Mich 891; 498 NW2d 431 (1993); and People v Loy-Rafuls, 442
Mich 915; 503 NW2d 453 (1993).
Finally, Rodriguez argues that the cumulative effect of the errors resulted in manifest injustice.
Because we find no errors, there was no manifest injustice.
/s/ Robert P. Young, Jr.
/s/ Myron H. Wahls
/s/ Helene N. White
Defendants objected again only at a later point when the sergeant was asked to address the question
whether the cocaine was for distribution or possession.
The prosecutor argues that People v Betancourt, 120 Mich App 58; 327 NW2d 390 (1982),
rejected the application in People v Clifton, 70 Mich App 65; 245 NW2d 175 (1976), of Wharton’s
rule to a charge of conspiracy to deliver, concluding that delivery does not require an agreement. Our
Supreme Court impliedly rejected that view, however, in People v Blume, 443 Mich 476, 482 n 11;
505 NW2d 843 (1993).
Medlyn was criticized on other grounds in People v Carlin, 225 Mich App 480; 571 NW2d 742
People v Walker, 374 Mich 331, 338; 132 NW2d 87 (1965).
Immediately after argument on David’s motion for directed verdict, the prosecutor asked for two
minutes to prepare the black board for closing argument and defense counsel asked to look at the extra
jury instructions prepared by the prosecutor. The court allowed a short recess. When the court
reconvened, the following colloquy transpired:
THE COURT: Please be seated. Are we now ready for closing?
MR. GUCCIARDO: Your Honor, it has come to my attention that Defense
Counsel has asked for – asking for an instruction accessory after the fact. I’m objecting
to that instruction. He’s not being charged with being an accessory after the fact.
THE COURT: Accessory is a principle [sic].
MR. GUCCIARDO: Pardon?
THE COURT: Under the law, an accessory is a principle. If the facts disclose
a possibility of accessory, it would be given.
COURT CLERK: All rise for the jury please.
MR. SEIKALY: I’m going to argue that, that’s all he is.
(At 11:02 a.m., jury enters)