PEOPLE OF MI V ERIC NEUMAN SPENCER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 4, 1998
Plaintiff-Appellee,
v
ERIC NEUMAN SPENCER,
No. 203620
Genesee Circuit Court
LC No. 96-054877 FH
Defendant-Appellant.
Before: Griffin, P.J., and Gage and Danhof*, JJ.
PER CURIAM.
Defendant was charged with possession with intent to deliver less than 50 grams of cocaine,
MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), and felon-in-possession of a firearm, MCL
750.224f; MSA 28.421(6). Following a jury trial, defendant was convicted of possession of less than
25 grams of cocaine, MCL 333.7403(2)(a)(v); MSA 14.15(7403)(2)(a)(v), felon-in-possession of a
firearm and being a fourth habitual offender, MCL 769.12; MSA 28.1084, and was sentenced to two
to eight years’ imprisonment. Defendant appeals as of right. We affirm.
Defendant first argues that he was denied a fair trial by the trial court’s failure to sua sponte
sever the felon-in-possession charge from the drug charge. However, a defendant who does not move
for severance or object in the trial court fails to preserve the issue for review. People v Mayfield, 221
Mich App 656, 660; 562 NW2d 272 (1997). Therefore, we will review this issue only if necessary to
avoid manifest injustice. People v Green, 228 Mich App 684, 691; 580 NW2d 444 (1998).
In the instant case, no manifest injustice will result from our failure to review this issue. In
Green, supra, this Court detailed how the potential prejudice inherent in a felon-in-possession charge
may be avoided:
This Court has explained that “adequate safeguards” can be erected to ensure
that a defendant charged with both felon-in-possession and other charges arising from
the same incident suffers no unfair prejudice if a single trial is conducted for all the
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* Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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charges. See Mayfield, supra at 659-660. Specifically, these “safeguards” are (1) the
introduction by stipulation of the fact of the defendant’s prior conviction, (2) a limiting
instruction emphasizing that the jury must give separate consideration to each count of
the indictment, and (3) a specific instruction to consider the prior conviction only as it
relates to the felon-in-possession charge. [Green, supra at 691-692.]
Before trial, defendant moved to prevent any reference to the fact that he was previously convicted of
possession of cocaine, and the parties and trial court agreed that the jury would only be informed that he
had committed a prior felony. However, regarding safeguard one, defendant did not stipulate to the
admission of evidence that he was a felon for purposes of the felon-in-possession charge. Therefore the
prosecutor offered the testimony of defendant’s parole officer that he was convicted of a felony in 1994
and was sentenced for that offense to two to six years in prison. Although defendant now claims that
this information caused the jury to assume that he was convicted of a serious offense, the defendant
never objected at trial to the prosecutor’s questions. Nor did the jury ever learn the nature of
defendant’s prior conviction. Because defendant offered no type of stipulation below, he may not now
contend that the admission of evidence beyond the mere fact of his conviction constituted error.
Mayfield, supra at 661.
Regarding safeguard two, the trial court did emphasize that the jury must give separate
consideration to each count. The court directed that the jury first address individually the possession
with intent to deliver less than fifty grams of cocaine charge and its lesser included charges, then the
felon-in-possession charge, then the lesser charge of attempted felon-in-possession. Although, the court
failed to satisfy the third safeguard by instructing the jury to consider the prior felony only as it related to
the felon-in-possession charge, defendant failed to request such an instruction. See Green, supra at
692. In light of the trial court’s instruction to consider each charge separately, the fact that the jury
never learned that defendant’s prior conviction also resulted from possession of cocaine, and
defendant’s failure to act to limit the jury’s knowledge of his prior felony conviction, we conclude that
no manifest injustice will result from our failure to further review defendant’s due process argument.
Furthermore, substantial evidence existed independent of the evidence that defendant was
previously convicted of a felony from which the jury could determine beyond a reasonable doubt that
defendant possessed less than 25 grams of cocaine. City of Flint Police Officer Randolph Tolbert
stated that he had participated in the police raid on defendant’s home, and that the evidence taken from
there by the police included three plastic bags containing suspected crack cocaine. Thelma Morris, a
police investigator, testified that she received the three packages of drugs recovered from the search of
defendant’s home, and that they contained approximately 13.5 grams of crack cocaine. Defendant told
another police sergeant that the cocaine belonged to him and was for his personal use. Therefore, even
assuming arguendo that the trial court should have severed the possession of cocaine from the felon-in
possession charge, the error was harmless. People v Coleman, 210 Mich App 1, 7; 532 NW2d 885
(1995); People v Williamson, 205 Mich App 592, 596; 517 NW2d 846 (1994).
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Next, defendant contends that the trial court erred by refusing the jury’s request to rehear
certain witnesses’ testimony. We review the trial court’s decision regarding the rereading of testimony
for an abuse of discretion. People v Davis, 216 Mich App 47, 56; 549 NW2d 1 (1996).
A court may refuse a jury’s request to have testimony replayed as long as it does not foreclose
the possibility that the evidence may be reviewed at a later time, should the jury still require it. MCR
6.414(H). See also People v Harvey, 121 Mich App 681, 687; 329 NW2d 456 (1982). In the
instant case, the trial court responded to the jury’s request for certain trial testimony by indicating that to
rehear this testimony would take hours, and that therefore the requested testimony would not be
supplied. Thus, the court abused its discretion by clearly foreclosing the possibility of playing back the
requested testimony. Davis, supra.
However, we find it proper to apply a harmless error analysis in this case because the basis of
the jury’s confusion can reasonably be determined from the facts. See People v Smith, 396 Mich 109,
111-112; 240 NW2d 202 (1976); People v Howe, 392 Mich 670, 678; 221 NW2d 350 (1974).
Defendant was initially charged with possession with intent to deliver cocaine. The jury ultimately
convicted defendant of the lesser offense of possession of cocaine, acquitting him of possession with
intent to deliver cocaine. After approximately two and-a-half hours of deliberation, the jury requested
“[f]irst, testimony of [Sergeant John] Strickert account of the [confidential informant] buy; second,
testimony of [Officer Randolph] Tolbert; third, testimony of [O]fficer [Richard Hetherington] who
witnessed the buy; four, need Strickert first day testimony.” Sergeant Strickert and Officer Richard
Hetherington had testified regarding the confidential informant’s drug buy from defendant. Officer
Tolbert testified that he assisted in executing the search warrant at defendant’s home and was
responsible for t bulating the items seized from the home, explained his involvement in handling the
a
seized items and revealed that he found two scales in defendant’s home, the type of which in his
experience were used for weighing and packaging cocaine. The first day of Sergeant Strickert’s
testimony involved his setting up the controlled buy and the subsequent search of defendant’s home, and
his testimony that guns, cocaine and money, including the $20 bill the confidential informant used for the
controlled drug buy from defendant, were found in defendant’s home. Thus, in light of the fact that all
the testimony the jury requested involved the controlled buy and the finding of evidence linked to drug
dealing, and the fact that approximately thirty-five minutes after the judge declined its request for this
testimony the jury returned its verdict finding defendant guilty of the lesser simple possession charge, we
may reasonably assume that the jury was uncertain regarding defendant’s guilt of the possession with
intent to deliver charge. The instant case is therefore distinguishable from Smith, supra, and Howe,
supra, in which cases the courts reversed the defendants’ convictions because the extent of the jury’s
confusion was unclear. Because the jury ultimately acquitted defendant of possession with intent to
deliver cocaine, and because there was sufficient evidence besides the testimony that the jury requested
establishing defendant’s cocaine possession conviction beyond a reasonable doubt, we conclude that
the trial court’s error in refusing the jury’s request was harmless. People v Graves, 458 Mich 476,
482-483, 487; 581 NW2d 229 (1998) (nonconstitutional error does not require reversal if it is highly
probable that it did not affect the judgment).
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Affirmed.
/s/ Richard Allen Griffin
/s/ Hilda R. Gage
/s/ Robert J. Danhof
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