PEOPLE OF MI V LAWRENCE BUTLER JRAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
November 17, 1998
St. Joseph Circuit Court
LC No. 96-008300 FH
LAWRENCE BUTLER, JR.,
Before: Whitbeck, P.J., and Cavanagh and Neff, JJ.
A jury convicted defendant Lawrence Butler, Jr. of delivery of less than fifty grams of cocaine,
MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv). The trial court sentenced defendant as an
habitual offender, MCL 769.10; MSA 28.1082, to five and one-half to thirty years’ imprisonment. He
appeals as of right. We affirm.
I. Basic Facts
This conviction arose from a drug transaction that took place on March 21, 1996. Police
officers testified that they used a confidential informant, one Greg Jones, to make the purchase from
defendant. Before the transaction, the police searched both Jones and his car for contraband and
money. The officers then placed a transmitter on Jones and gave him $60 for the transaction. Jones
then drove to defendant’s house. Over the transmitter, the police heard conversation between
defendant and Jones, then heard what sounded like feet on stairs, after which they heard the rustling of
paper, followed by more conversation between defendant and Jones. Jones left defendant’s house and
turned over to the police three rocks of crack cocaine together with $10. Jones testified that when he
entered, defendant told him “I ain’t got any,” because defendant thought Jones was coming to collect on
drugs that defendant owed him. After Jones told defendant he had money, defendant agreed to sell him
drugs. Jones also admitted that he worked as an informant because he was facing three charges of
delivery of cocaine and one charge of conspiracy to deliver cocaine. He further admitted that, while
working for the police, he continued to both use and deliver drugs. Jones had delivered drugs for
defendant the day before the transaction in this case. Defendant, however, denied selling drugs to
Jones. He said that when he told Jones, “I ain’t got any,” he thought Jones had come to borrow
II. Standard of Review
A. Sufficiency of the Evidence
This Court reviews a sufficiency challenge de novo. People v Medlyn, 215 Mich App 338,
340; 544 NW2d 759 (1996). In analyzing the sufficiency of the evidence, this Court’s inquiry is limited
to determining whether, evaluating the evidence in the light most favorable to the prosecution, a rational
trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v
Virginia, 443 US 307, 319; 99 S Ct 2781; 61 L Ed 2d 560 (1979); People v Wolfe, 440 Mich 508,
516; 489 NW2d 748, amended 441 Mich 1201 (1992).
B. Addict Informer Instruction
This Court reviews a claim of failure to give a preliminary instruction, when the instruction is not
mandated by statute, for abuse of discretion. See People v Lucas, 188 Mich App 554, 582; 470
NW2d 460 (1991); Coles v Galloway, 7 Mich App 93, 102; 151 NW2d 229 (1967).
C. Prosecutorial Misconduct
This Court reviews claims of prosecutorial misconduct to determine whether the defendant was
denied a fair and impartial trial. People v McElhaney, 215 Mich App 269, 283; 545 NW2d 18
In determining whether a sentence is disproportionate, this Court must determine whether the
trial court abused its discretion. People v Milbourn, 435 Mich 630, 653; 461 NW2d 1 (1990).
III. Sufficiency of the Evidence
Defendant contends that the evidence was insufficient to support the jury’s verdict. We
disagree. Jones testified that defendant delivered the drugs to him. His testimony was corroborated by
the police officers, who listened to the transaction taking place. Defendant argues that Jones was not
credible and that the police work in this case was sloppy. Defendant’s arguments all go to the
credibility of witnesses and the weight of the evidence. The determination of witness credibility is the
function of the jury and not of this Court. Wolfe, supra at 514-515; People v McFall, 224 Mich App
403, 412; 569 NW2d 828 (1997). Juries see and hear witnesses and are in a much better position to
decide the weight and credibility of testimony. Wolfe, supra at 515, citing People v Palmer, 392 Mich
370, 375-376; 220 NW2d 393 (1974). We conclude that the evidence was sufficient to support
IV. Addict Informer Instruction
Defendant contends that the court erred in denying defendant’s request to give a preliminary
instruction on Jones’ status as an addict informer. See CJI2d 5.7. We disagree. The trial court denied
defendant’s request for the preliminary instruction, saying that a general preliminary instruction that told
the jury to listen to any promises in evaluating credibility was adequate. See CJI2d 2.6. The trial court
gave the jury the addict informer instruction before the jury retired to deliberate. A trial court is advised
to give the addict informer instruction when the uncorroborated testimony of an addict informant is the
only evidence linking the accused with the offense. See Use Note, CJI2d 5.7; People v McKenzie,
206 Mich App 425, 432; 522 NW2d 661 (1994). However, in this case, Jones’ testimony was
corroborated by the police officers. As a result, the trial court was under no obligation to give the
instruction. However, the trial court chose to give the jury the instruction before it retired. We see no
abuse of discretion in doing so.
V. Prosecutorial Misconduct
A. Unpreserved Claims
Defendant contends that the prosecutor engaged in eight separate acts of misconduct. We
disagree. Six of defendant’s eight claims were not properly preserved because defendant failed to
object. We are precluded from review of unpreserved claims of prosecutorial misconduct unless a
curative instruction could not have cured the prejudicial effect or where failure to consider the issue
would result in a miscarriage of justice. People v Stanaway, 446 Mich 643, 687; 521 NW2d 557
B. The Prosecutor’s Opening Statement
Four of defendant’s claims focus on the prosecutor’s opening statement. Defendant cites no
authority in support of his claims on two of the four claims. Generally, this Court will not review a claim
not supported by citation to authority. See People v Smith, 203 Mich App 136, 137; 512 NW2d 5
(1993). We decline to depart from this general rule in this case.
In the third claim, defendant argues that, by saying, “You will hear rustling of paper indicating
the transaction took place,” and characterizing a conversation on the tape, saying, “[I]t’s very difficult to
understand. I think you’ll have trouble understanding it,” the prosecutor provided testimony and
minimized the cross-examination of Jones and the police witnesses concerning the audiotape. However,
opening argument is the appropriate time for the prosecutor to make a statement of the people’s case
and the facts to be presented at trial. MCR 6.414(B); People v Johnson, 187 Mich App 621, 626;
468 NW2d 307 (1991). The prosecutor is not limited to reciting physical facts; he or she may properly
relate and draw reasonable inferences from such information. People v Nard, 78 Mich App 365, 375;
260 NW2d 98 (1977). The quality of the tape was the subject of testimony, and one of the officers
testified that, in his experience, the rustling sound on the tape was consistent with the sound of money.
Even if this statement was improper, an instruction to disregard could have cured the prejudicial effect.
Johnson, supra at 627.
Defendant’s fourth claim with respect to the opening statement is that, by saying that “[T]here
may or may not be a defense. Mr. Butler is under absolutely no obligation to make any defense, and if
he does there will be a defense,” the prosecutor improperly shifted the burden of proof. A prosecutor
may not comment on the defendant’s failure to testify or otherwise improperly shift the burden of proof.
See People v Dean, 103 Mich App 1, 6; 302 NW2d 317 (1981). Viewed in context, the statement
by the prosecutor served as a guide for the jury as to the order in which trial would proceed. Even if
erroneous, any prejudicial effect could have been cured by an instruction to disregard. Johnson, supra
C. Testimony As To A Street Name
Defendant claims that, by eliciting testimony that he had a nickname, “Buggy,” the prosecutor
prejudiced the jury by suggesting that, by using a street name, he was involved in criminal activity. He
cites no authority in support of this argument. We decline to review this claim in the absence of citation
to authority. Smith, supra.
D. Agreement With The Informant
Defendant claims that the prosecutor committed misconduct by eliciting evidence of the nature
of the agreement between Jones and the police, that included a promise to testify truthfully. Defendant
characterizes this testimony as improperly suggesting to the jury that the prosecutor has special
knowledge of Jones’ truthfulness. We disagree. The prosecutor has a duty to disclose promises made
to obtain an accomplice’s testimony. See People v Atkins, 397 Mich 163, 173; 243 NW2d 292
(1976). The simple reference to an agreement containing a promise to testify truthfully is not in itself
grounds for reversal. People v Bahoda, 448 Mich 261, 276; 531 NW2d 659 (1995). Error is
committed only if the prosecutor conveys to the jury a message that the prosecutor has some special
knowledge or facts indicating the witness’ truthfulness. Id. at 277. Nothing in the record supports this
E. “Expert” Testimony
Defendant contends that the prosecutor committed misconduct when he elicited from James
Hart, the officer in charge of the investigation, testimony about the cocaine trade in Three Rivers. At
trial, defendant objected to this testimony, contending that Hart was getting into opinion testimony and
was not qualified as a “DEA expert.” On appeal, defendant contends that the prosecutor’s questions
amounted to vouching for a prosecution witness. An objection based on one ground is insufficient to
preserve an appellate attack on a different ground. People v Winchell, 171 Mich App 662, 665; 430
NW2d 812 (1988). Therefore, this issue is unpreserved. In any event, the prosecutor in this case
questioned Hart about his experience, then elicited testimony about his field of expertise. Nothing in the
record can be construed as the prosecutor vouching for Hart’s credibility.
F. Failure To Bring Witnesses To Testify
In his remaining claim of misconduct, defendant contends that the prosecutor committed
misconduct when he cross-examined defendant extensively about his failure to bring witnesses to testify
on his behalf. Defendant had testified that two men, Donald Workman and Brian Burton, were in the
house when Jones came over. This contradicted Jones’ testimony that Workman was not at the house.
The prosecutor then examined defendant about his failure to obtain the presence of Burton. The
prosecution may cross-examine a defendant as to the defendant’s excuse for not producing a witness.
People v Fields, 450 Mich 94, 115; 538 NW2d 356 (1995). We see no evidence of misconduct in
any of the actions raised by defendant.
Defendant contends that the court abused its discretion in assessing a sentence of five and one
half to thirty years’ imprisonment because the sentence is disproportionate to the crime committed. In
assessing sentence, the trial court may consider, among other issues, (1) the severity of the offense,
People v Hunter, 176 Mich App 319, 320-321; 439 NW2d 334 (1989); (2) the nature of the crime,
id.; (3) the circumstances surrounding the criminal behavior, People v Ross, 145 Mich App 483, 495;
378 NW2d 517 (1985); (4) the defendant’s attitude toward his criminal behavior, id.; and (5) the
defendant’s criminal history, id. The trial court must articulate on the record its reasons for the sentence
assessed. People v Coles, 417 Mich 523, 550; 339 NW2d 440 (1983), modified in part on other
grounds, Milbourn, supra. Here, the trial court articulated its reasons for the sentence assessed as
(1) defendant’s prior record, (2) his parole status at the time of the offense, and (3) the fact that
defendant admitted when he was arrested that he had been using cocaine, then later denied it.
Defendant contends that the trial court abused its discretion because (1) it ignored the many
positive factors involving defendant, (2) the case was characterized by the trial court as “close,” and the
evidence not overwhelming and (3) the trial court sentenced him in part for denying he committed the
offense. We disagree. As for defendant’s first argument, the trial court expressly noted defendant’s
job, home ownership, and “acceptance or [sic] responsibility” as positive factors. Defendant contends
that the trial court should also have taken into account his honorable discharge from the Navy and the
fact that he obtained a GED while incarcerated. Both military record and education may be considered
in determining what sentence to assess. See People v Perry, 216 Mich App 277, 280, 282; 549
NW2d 42 (1996); People v Vandenboss, 25 Mich App 702, 703; 181 NW2d 622 (1970).
However, there is no per se rule for how much weight to give to these factors, or whether a trial court
need consider these particular factors at all in assessing sentence.
Defendant next argues that, because the trial court said it was a close case and the evidence
was not overwhelming or compelling, it should have taken this into account when assessing sentence. It
is not improper for a trial court to disagree with a jury verdict. See In re Hocking, 451 Mich 1, 12;
546 NW2d 234 (1996). But nothing in the judge’s comments indicate that he disagreed with the
verdict. Even if the judge did not take into account the strength of the evidence, he did not abuse his
discretion in failing to do so.
As to defendant’s claim that the trial court may have sentenced him for asserting his innocence,
the judge noted that defendant was “in denial.” Defendant’s argument ignores the trial court’s express
language. The statement by the trial court was that defendant had admitted that he had been using
cocaine, but later, when being interviewed for the presentence investigation report, he was “in denial of
cocaine.” The trial court clearly referred to defendant’s use of cocaine, not the delivery of cocaine.
The trial court’s observation was based on the presentence investigation report, which said that
defendant first admitted to a parole officer that he was currently using cocaine, then later denied the
cocaine use. Defendant had also admitted to use of cocaine and alcohol since at least 1983. Alcohol
was a factor in defendant’s first felony conviction. At the time of the report, defendant showed a
minimum of thirteen years of drug use.
Drug abuse may be considered in assessing sentence. See People v Pohl, 202 Mich App 203, 212
213; 507 NW2d 819 (1993). The trial court did not abuse its discretion in concluding that defendant
was “in denial of cocaine.”
A trial court does not abuse its discretion in giving a sentence within the statutory limits
established by the Legislature when an habitual offender's underlying felony, in the context of his
previous felonies, evidences that the defendant has an inability to conform his conduct to the laws of
society. People v Hansford (After Remand), 454 Mich 320, 326; 562 NW2d 460 (1997). In this
case, defendant had two prior felony convictions, one for delivery of cocaine, MCL 333.7401(2)(a)(iv);
MSA 14.15(7401)(2)(a)(iv), and one for attempted carrying a firearm with unlawful intent, MCL
750.222; MSA 28.419; MCL 750.92; MSA 28.287. In addition, defendant had a prior misdemeanor
conviction for attempted absconding, MCL 750.199a; MSA 28.396(1). Furthermore, defendant was
on parole for his earlier drug conviction when he committed the offense here. A trial court may consider
parole status at the time of the offense as an aggravating factor in sentencing. See People v Maben,
208 Mich App 652, 655; 528 NW2d 850 (1995). Just as in Hansford, defendant’s conduct displays
an inability to reform.
Given defendant’s prior criminal record, his parole status at the time he committed the offense in
the present case, and his substance abuse problem together with his inability to admit his problem, the
trial court did not abuse its discretion in sentencing him to five and one-half to thirty years.
/s/ William C. Whitbeck
/s/ Mark J. Cavanagh
/s/ Janet T. Neff