PEOPLE OF MI V MICHAEL ALONZO THOMPSONAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
Genesee Circuit Court
LC No. 95-052293 FH
December 15, 1998
MICHAEL ALONZO THOMPSON,
Before: White, P.J., and Saad, and Markey, JJ.
A jury convicted defendant of possession with intent to deliver marijuana, MCL
333.7401(2)(c); MSA 14.15(7401)(2)(c), conspiracy to possess with intent to deliver marijuana, MCL
750.157a; MSA 28.354(1), delivery of marijuana, MCL 333.7401(2)(c); MSA 14.15(7401)(2)(c),
possession of a weapon by a convicted felon, MCL 750.224f; MSA 28.421(6), and possession of a
weapon during the commission of a felony, MCL 750.227b; MSA 28.424(2). The trial court
sentenced defendant as a fourth habitual offender to concurrent terms of ten to fifteen years’
imprisonment on the first three counts and forty to sixty years’ imprisonment for felon-in-possession, to
be served concurrent to a two-year term for felony firearm. Defendant appeals as of right. We affirm.
There was evidence that on December 19, 1994, an informant working with the Flint Area
Narcotics Group (FANG) arranged to purchase three pounds of marijuana from defendant. The
informant had been cooperating with FANG since it raided his home in November 1994. After the
informant arranged to purchase the marijuana from defendant for $4200, he contacted Lieutenant
Compeau of FANG, informing him of the arrangement. Compeau met with the informant, giving him
$4200. The informant left the meeting place and drove to defendant’s home. The informant gave
defendant the money, and defendant told the informant that he would “take care of” the informant, but
that he had to go to his safe house and would then be at the informant’s house after a short time.
After the informant left defendant’s house, a FANG surveillance team followed defendant to a
condominium owned by Bethany Gayden.
The informant left defendant’s house and met Compeau nearby. They drove to another
location to talk. The informant told Compeau that he had to go to his house, where defendant would
bring the marijuana.
A short time after the informant returned home, defendant drove up in his car and beeped the
horn. The informant went out to the car, got in a took a grocery bag that was sitting on the
passenger-side floor. He took the bag into his home. After defendant drove away, Compeau arrived at
the informant’s home. He went inside. The informant pointed out a grocery bag. Campeau opened the
bag and saw that it contained marijuana. He made a quick search of the house and left with the bag of
After defendant left Gayden’s, FANG members searched the condominium with Gayden’s
consent. The officers found a duffel bag of marijuana and a box containing an electronic scale in a
closet in Gayden’s spare bedroom and a duffel bag containing a large sum of money, including the buy
money in a closet in Gayden’s bedroom.
Officers stopped defendant in his car shortly after he left the informant’s home around 9 p.m.
and arrested him. They found no weapons or drugs on defendant or in his car. FANG members then
met for a briefing and obtained a search warrant for defendant’s home. The home was searched at
midnight, and police seized a number of guns.
Defendant first raises an entrapment argument. He asserts that the facts demonstrate that the
conduct of FANG members and the informant induced his criminal activity. He suggests that the
informant interjected himself as a co-conspirator. We find no entrapment.
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; [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.”
[People v James Williams, 196 Mich App 656, 661-662; 493 NW2d 507 (1992),
citing People v Juillet, 439 Mich 34, 56-57; 475 NW2d 786 (1991).]
The facts demonstrate that defendant and the informant had known one another for about two
years after meeting while completing previous felony sentences at a YMCA. The informant, who
worked at a muffler shop, worked on defendant’s cars. The informant initiated the conversations to set
up the drug deal and made the arrangements, but there is no indication that he pressured defendant.
The informant began working with FANG after his drug-related arrest one month before the instant
offense. He hoped to receive some favorable treatment for his cooperation.
There is nothing in the facts to suggest that FANG’s conduct of supplying the informant with
money and securing his participation induced defendant’s criminal activity. The informant did not appeal
to defendant’s sympathy or use excessive consideration or enticement. Defendant had a history of drug
offenses. There is no indication of government pressure, threats of arrest or procedures used to
escalate defendant’s criminal culpability. The conduct in this case was not such that it would have
induced a law-abiding person to commit these offenses. There is nothing to show that the police
conduct was so reprehensible that it cannot be tolerated. Defendant’s entrapment argument fails.
Defendant argues that the trial court erred in denying his motion for directed verdict on the
counts of felon-in-possession and felony-firearm because the prosecutor failed to prove that defendant
possessed a firearm. In a related issue, defendant asserts that he was not at home or in possession of a
firearm at the time of his arrest or at the time of commission of any of the charged offenses. The trial
court properly denied defendant’s motion for directed verdict.
Defendant has failed to argue the merits of this issue with regard to the denial of his motion for
directed verdict as to the felon-in-possession conviction. Therefore, that aspect of this issue is not
preserved for review. People v Sean Jones (On Rehearing), 201 Mich App 449, 456-457; 506
NW2d 542 (1993). Our review is limited to defendant’s claimed error with respect to the trial court’s
denial of his directed verdict motion as to felony-firearm1.
Defendant asserts that the prosecution failed to present sufficient evidence of possession to
convict him of felony firearm. During the search of defendant’s home, officers seized several guns.
They found a .357 between the mattresses of the bed in the master bedroom and a .32 caliber gun in
the master bedroom closet. The officers seized other guns from a locked closet in the second story of
defendant’s home. Defendant’s wife, Bridgit, asserted that she owned the .357 caliber and typically
kept it in the locked closet. She said that the officers found the gun on her side of the bed. She also
claimed that defendant purchased the .32 caliber for his father, who ultimately gave the gun to her.
Bridgit also claimed ownership of the remaining guns.
Defendant moved for directed verdict as to these counts, relying primarily on People v Ben
Williams, 212 Mich App 607; 538 NW2d 89 (1995). The trial court denied his motion. A trial
court’s ruling on a motion for directed verdict is reviewed by this Court by considering, in a light most
favorable to the prosecution, the evidence presented by the prosecution up to the time the motion is
made to determine whether a rational trier of fact could have found the essential elements of the offense
proven beyond a reasonable doubt. People v Vincent, 455 Mich 110, 121; 565 NW2d 629 (1997),
quoting People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979); People v Peebles, 216
Mich App 661, 664; 550 NW2d 589 (1996).
To establish the offense of felony-firearm, MCL 750.227b; MSA 28.424(2), the prosecution
must prove the defendant possessed a firearm during the commission or attempt to commit a felony.
People v Passeno, 195 Mich App 91, 97; 489 NW2d 152 (1992). A defendant may have actual or
constructive possession of a firearm. Ben Williams, supra at 609. Constructive possession is
established if the defendant knows the location of the firearm and it is reasonably accessible to the
defendant. Id. at 609-610. As explained in Ben Williams, the purpose of the felony-firearm statute is
to “reduce the possibility of injury to victims, passersby and police officers. . . . The mere fact that a
felon has a firearm at his disposal, should he need it, creates a sufficient enough risk to others that it is
within the state’s power to punish its possession.” Id. at 609. On the other hand, the purpose of the
felony-firearm statute is not fulfilled by punishing a defendant for possession of a firearm that is not
accessible or at his disposal. Id. Where a defendant is far away from the location of the firearm, the
firearm is not readily accessible and a conviction for felony-firearm is improper. Id. at 610. As to the
possession element of felony-firearm, “a person away from home cannot be deemed in possession of a
firearm found in his house.” Id.
We conclude there was sufficient evidence to support the felony firearm charge. The informant
testified that he went into defendant’s house, going into the kitchen and a back room. At defendant’s
request, he gave defendant the money for the marijuana, and defendant told the informant that he would
“take care of him” shortly and that he had to go to his safe house.
While there was no evidence that defendant possessed the marijuana at his home, and no
evidence that defendant had either constructive or actual possession of a firearm while he had the
marijuana, the delivery transaction began at defendant’s home with the informant’s payment of $4200 to
defendant for the marijuana. Although the offense of delivery was not completed with the exchange of
the money, and the exchange of money is not an element of the offense of delivery, in the instant case
the acceptance of the money expressly in exchange for the marijuana that would soon be delivered was
part of the offense. One who possesses a firearm while collecting payment for a controlled substance
that will soon be delivered in exchange for that payment can be convicted of possession of a firearm
during the commission of a felony even though the controlled substance and the firearm are never
actually possessed at the same time.
Defendant moved for suppression of evidence obtained through a defective search warrant and
a suppression hearing, both of which the trial court denied. He argues that the trial court erroneously
denied this motion. We disagree.
To prevail on a claim that evidence seized pursuant to a search warrant should be suppressed
because the affidavit in support of the warrant contained false and misleading information, a defendant
must demonstrate “by a preponderance of the evidence that the affiant knowingly and intentionally, or
with reckless disregard for the truth, inserted false material into the affidavit and that the false material
was necessary to a finding of probable cause.” Ben Williams, supra at 610, citing Franks v
Delaware, 438 US 154, 171-172; 98 S Ct 2674; 57 L Ed 2d 667 (1978).
Defendant argues that the affidavit in support of the search warrant contained false and
misleading information in support of probable cause to search his home. Defendant failed to support
this allegation. He asserts that Compeau had no reason to believe that drugs or drug-related
paraphernalia would be found in his home. However, the affidavit acknowledges that Compeau
recognized that defendant likely kept his supply of marijuana at a location other than his home. The
affidavit also states that Compeau’s experience had taught him that persons who deal in drugs often
maintain drug-related items within their homes as well as “safe houses,” and recounts that officers found
marijuana residue in the trash at defendant’s home and that a month earlier the informant was seen going
to defendant’s house to pay off a drug debt. The affidavit further explained that $4200 in “buy money”
was given to the informant, who gave it to defendant in the premises to be searched, but only $3900
was recovered from the safe house, and none was found on defendant when he was arrested.
Therefore, Compeau believed the money would be found in the residence. Defendant argues that
Compeau lied when he stated in the affidavit that $300 was missing from the $4200 buy money and that
he believed officers would find the missing money at defendant’s home. Defendant asserts that when
Compeau went to the prosecutor’s office to obtain the search warrant, he did not yet know of the
missing buy money. However, there was testimony that while at the prosecutor’s office Compeau
received a telephone call from another officer, who informed Compeau about the missing buy money.
This information was included in the affidavit. It is irrelevant that Compeau was apparently seeking the
search warrant before he had knowledge of the missing buy money; the affidavit as presented and
signed was adequate to provide probable cause.
Defendant has failed to demonstrate that the statements in the affidavit were false or made with
reckless disregard for their truth. The trial court did not err in refusing to hold a hearing regarding
suppression of the evidence seized from defendant’s home.
Defendant argues that his right to be free from double jeopardy is violated by his convictions of
both felony-firearm and felon-in-possession. We disagree.
Our Supreme Court has recently ruled that a felony-firearm conviction does not violate the
protection against double jeopardy where the defendant is convicted of any felony except those
enumerated in MCL 750.227b; MSA 28.424(2)2 as the predicate offense. People v Mitchell, 456
Mich 693; 575 NW2d 283 (1998). Here, the jury was instructed that the predicate felony for the
felony-firearm charge was any of the three drug charges. The excluded felonies listed in MCL
750.227b; MSA 28.424(2) do not include these drug offenses.
Defendant further relies on People v Bonner, 116 Mich App 41; 321 NW2d 835 (1982),
People v Martin,398 Mich 303; 247 NW2d 303 (1976), and People v Stewart (On Rehearing),
400 Mich 540; 256 NW2d 31 (1977), asserting that because the same facts support both the felon-in
possession conviction and the felony-firearm conviction the double jeopardy bar was violated.
However, in People v Robideau, 419 Mich 458, 485-488; 355 NW2d 592 (1984), the Supreme
Court disavowed prior cases applying the factual test in single-trial, multiple-punishment cases, and
instead focused solely on the question of legislative intent. Here, we think it clear that the Legislature
addressed distinct social norms in the felon-in possession and felony-firearm statutes. We thus conclude
that defendant’s right to be free from double jeopardy is not violated by his convictions of both felony
firearm and felon-in-possession.
Defendant also argues that his criminal convictions violate double jeopardy because they
followed forfeiture proceedings. Again, we disagree.
Following United States v Ursery, 518 US 267; 116 S Ct 2135; 135 L Ed 2d 549 (1996),
this Court adopted a test to determine whether a criminal conviction following a civil forfeiture
constitutes a violation of the right to be free from double jeopardy. There is a presumption that a double
jeopardy analysis does not apply to forfeiture proceedings in MCL 333.7521 et seq.; MSA
14.15(7521) et seq. because such forfeiture actions are in rem civil proceedings. A defendant may
overcome the presumption only by presenting “clearest proof” that the forfeiture had “an excessive
punitive purpose or effect” so as to amount to a criminal proceeding. People v Acoff, 220 Mich App
396, 399; 559 NW2d 103 (1996).
Pursuant to MCL 333.7521(1)(d), (f); MSA 14.15(7521)(1)(d), (f), the following property
may be forfeited: vehicles used or intended to be used to transport or facilitate the transportation for
selling or receiving controlled substances and “any thing of value that is furnished or intended to be
furnished in exchange for a controlled substance . . . or that is used or intended to be used to facilitate
any violation of [the uniform controlled substances act] . . . or that is traceable to an exchange for a
controlled substance . . . or that is used or intended to be used to facilitate any violation of [the uniform
controlled substances act].” The prosecution must prove its case in a forfeiture action by a
preponderance of the evidence. In re Forfeiture of 301 Cass St, 194 Mich App 381, 384; 487
NW2d 795 (1992). For an asset to be forfeited, there must be a “substantial connection between that
asset and the underlying criminal activity. . . . [P]roperty that has only an incidental or fortuitous
connection to the unlawful activity is not subject to forfeiture.” In re Forfeiture of $1,159,420, 194
Mich App 134, 146; 486 NW2d 326 (1992). Connection to a specific drug transaction is not
required; “the assets need only be traceable to drug trafficking.” Id. at 147.
The government seized and forfeited personal property belonging to defendant, including his car,
U.S. currency, employment paychecks amounting to $1192.93, firearms and jewelry. Defendant
argues that the forfeitures in this case were clearly punitive, as evidenced by the fact that the seizure and
forfeiture of his paychecks violated the principle that there must be a substantial connection between the
asset forfeited and the underlying criminal activity.
Defendant has failed to establish that the forfeiture of his paychecks had an “excessive punitive
purpose” as required under Acoff. Defendant simply asserts that the forfeiture of the paychecks is
evidence of the punitive nature of the forfeiture proceedings, but does not demonstrate that it was
excessively punitive. Defendant has failed to overcome the presumption that the criminal proceeding
was not barred because the forfeiture action was an in rem civil proceeding.
Next, defendant argues that the 67th District Court did not have jurisdiction to bind him over.
We review de novo a trial court’s determination regarding venue in a criminal prosecution.
People v Fisher, 220 Mich App 133, 145; 559 NW2d 318 (1996). The prosecution must prove
venue beyond a reasonable doubt. Id. “Due process requires that trial of criminal prosecutions should
be by a jury of the county or city where the offense was committed, except as otherwise provided by
the Legislature.” Id., citing People v Lee, 334 Mich 217, 225-226; 54 NW2d 305 (1952).
The prosecution relies on the conspiracy charge to establish that venue was proper in the 67th
district. A case involving conspiracy may be prosecuted in any jurisdiction in which occurred an overt
act in furtherance of the conspiracy. People v Meredith (On Remand), 209 Mich App 403, 408; 531
NW2d 749 (1995). Here, the prosecution presented evidence that there was a conspiracy between
defendant and/or Gayden and/or Robert Grashan to possess with intent to deliver marijuana, and that
defendant picked up the marijuana from Gayden’s home in Grand Blanc (the 67th district) and delivered
it to the informant in Flint (the 68th district). The 67th district therefore provided proper venue.
Defendant next argues that the trial court’s denial of his motion to enforce the plea agreement
warrants reversal. We disagree.
In exchange for defendant’s introducing law enforcement authorities to a drug dealer and
pleading guilty to one four-year controlled substance felony, the prosecution agreed to dismiss the
remaining counts and another case, and not to oppose probation. After receiving the presentence
report, the court declined to go along with the agreement and refused to sentence defendant to
probation. Defendant asserts that he complied with his part of the agreement and argues that the court
should have upheld the plea agreement.
MCR 6.302(C)(3) provides:
If there is a plea agreement, and its terms provide for the defendant’s plea to be made in
exchange for a specific sentence disposition or a prosecutorial sentence
recommendation, the court may
reject the agreement; or
accept the agreement after having considered the presentence report, in
which event it must sentence the defendant to the sentence agreed to or recommended
by the prosecutor; or
accept the agreement without having considered the presentence report;
take the agreement under advisement.
If the court accepts the agreement without having considered the presentence
report or takes the plea agreement under advisement, it must explain to the defendant
that the court is not bound to follow the sentence disposition or recommendation agreed
to by the prosecutor, and that if the court chooses not to follow it, the defendant will be
allowed to withdraw from the plea agreement.
Pursuant to the court rule, the circuit court stated when the plea was offered that it would entertain the
request for probation, and if it could not go along with the request, defendant would be permitted to
withdraw his plea and go to trial on all five counts. The record reflects that the prosecutor did not
oppose probation and did not breach the plea agreement. The motion to enforce the plea agreement
did not seek to enforce the prosecutor’s obligations under the agreement,3 but rather to require the
judge to comply with the sentencing provision of the agreement. The court correctly determined that it
was not obliged to do so and that defendant was only entitled to the opportunity to withdraw his plea.
Defendant argues that because he is black, his trial counsel’s failure to make a record of the
racial composition of the jury or to object to the prosecution’s striking of potential jurors who are black
constituted ineffective assistance of counsel. We disagree.
By failing to move in the trial court for a new trial or an evidentiary hearing regarding this claim
of ineffective assistance of counsel, defendant has failed to preserve the issue for appeal unless the
record is sufficient to support defendant’s claim. People v Maleski, 220 Mich App 518, 523; 560
NW2d 71 (1996). This Court’s review is limited to the record. Id. To establish that his counsel was
ineffective, defendant must demonstrate, through the record, that his counsel’s performance fell below
an objective standard of reasonableness and the representation prejudiced defendant to the extent that
he was denied a fair trial. People v Barclay, 208 Mich App 670, 672; 528 NW2d 842 (1995), citing
People v Pickens, 446 Mich 298, 309; 521 NW2d 797 (1994).
There is nothing in the record to demonstrate that defendant’s trial counsel’s performance fell
below an objective standard of reasonableness or that his counsel’s representation prejudiced him to the
extent that he was denied a fair trial. He has failed to establish a denial of effective assistance of
Next, defendant argues that the trial court’s response to the jury’s request for the court to read
back certain witness testimony warrants reversal of his convictions. We find no error requiring reversal.
MCR 6.414(H) provides:
If, after beginning deliberation, the jury requests a review of certain testimony or
evidence, the court must exercise its discretion to ensure fairness and to refuse
unreasonable requests, but it may not refuse a reasonable request. The court may order
the jury to deliberate further without the requested review, so long as the possibility of
having the testimony or evidence reviewed at a later time is not foreclosed.
During deliberations, the jury requested a transcript of the informant’s testimony. The trial court
observed that a transcript had not yet been prepared, but that the court would have the reporter replay
the testimony for the jury. The court asked the reporter to estimate the length of the testimony. The
reporter replied that she had five tapes of the testimony, and the court told the jury that the reporter
estimated that the testimony was four hours, fifteen minutes long. The court gave the jury the option of
hearing the tapes and requested that the jury go back into the jury room, instructing them as follows:
Now, would you like to, I don’t want you to say a word, I think you should all
go back in there and then you should write me another note and say yes you wanna
hear it or no you don’t wanna hear it or whatever you want me to do, tell me and we
will proceed to accommodate you as best we can.
The jury replied that it did not want the testimony “at this time” and returned its verdict 2½ hours later,
without ever hearing a play-back of the testimony or again requesting it.
Defendant’s reliance on People v Wytcherly, 172 Mich App 213; 431 NW2d 463 (1988) is
misplaced. The trial court did not foreclose the possibility of providing the jury with the testimony or a
portion of the testimony. The trial court complied with MCR 6.414(H). Its response to the jury’s
request is not error requiring reversal.
Relying on People v Booker, 208 Mich App 163; 527 NW2d 42 (1994), defendant next
argues that the trial court’s failure to advise the parties of an erasure of a mark in a “not guilty” box on
the verdict form constituted reversible error. However, the verdict was read in the courtroom, and each
juror expressed agreement with the verdict when polled. We therefore find no merit in this argument.
Next, defendant argues that his forty- to sixty-year sentence for felon-in-possession constitutes
cruel and/or unusual punishment under both the United States Constitution and the Michigan
Constitution. Defendant essentially argues that this sentence is disproportionate under People v
Milbourn, 435 Mich 630; 461 NW2d 1 (1990), and is therefore cruel and unusual. We must disagree.
In reviewing sentences imposed for habitual offenders, this court must determine whether there
has been an abuse of discretion. People v Hansford (After Remand), 454 Mich 320, 323-324;
562NW2d 460 (1997).
The trial court sentenced defendant as a fourth habitual offender. Because the statutory
maximum sentence for felon-in-possession, MCL 750.224f; MSA 28.421(6), is five years’
imprisonment, defendant could be sentenced to life in prison, or a lesser term of years, under MCL
769.12(1)(a); MSA 28.1084(1)(a). Thus, defendant’s forty- to sixty- year sentence for felon-in
possession was within the range of sentences authorized by the sentence enhancement statute.
Defendant asserts that because the underlying offense of felon-in-possession is punishable by a
maximum of only five years; the weapons were not used in the commission of any offense, belonged to
his wife, and were for the most part found in a locked closet; and defendant had no notice that he was
not permitted to possess firearms,4 the forty to sixty year sentence is cruel and unusual.
While we agree that defendant’s forty to sixty year sentence is quite severe and would likely
have opted for a lesser minimum term ourselves, we are unable to conclude that the trial court abused its
discretion in imposing such a lengthy term. Defendant had been convicted three times of cocaine
related offenses, once of conspiracy to bring contraband into prison, and once of possession of a
fraudulent financial transaction device. The court noted that his first offense was in 1982 and that he had
had continuous involvement with the criminal justice system for fourteen years at the time of sentencing.
The court further observed that many of the offenses were committed while defendant was on
probation, parole or in prison, and that the purpose of the habitual offender provisions “is to provide for
a longer sentence where a defendant has shown a persistent commission of crime and indifference to the
In Hansford, supra, the Supreme Court focused attention on the habitual offender’s criminal
history and potential for rehabilitation, focusing more on an assessment of the offender than the offense,
id. at 325, and stated:
We believe that 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. [454 Mich at 326.]
The trial court did not abuse its discretion in determining that defendant had demonstrated an inability to
conform his conduct to the laws.
Defendant next argues that his convictions must be reversed because the prosecutor knowingly
presented false testimony. We find no error requiring reversal.
The knowing production of false testimony by the prosecution constitutes reversible error.
People v Thornton, 80 Mich App 746, 749; 265 NW2d 35 (1978). “It is inconsistent with due
process when the prosecutor, although not having solicited false testimony from a state witness, allows it
to stand uncorrected when it appears, even when false testimony goes only to the credibility of the
witness.” People v Wiese, 425 Mich 448, 453-454; 389 NW2d 866 (1986).
Defendant called the informant’s wife as a witness, after interviewing her pretrial, and
questioned her regarding the informant’s drug use. On cross-examination, the prosecutor elicited
testimony regarding her observations at the home, which testimony corroborated in part that of the
informant regarding the controlled buy. She testified that she lived with her husband at the time of the
controlled buy and was present in the house during the time that defendant delivered the marijuana and
Compeau retrieved it. One of defendant’s attorneys testified that, at a pre-trial interview with the
witness, the witness told the attorney that she and the informant were separated at the time of this
transaction and that she was not at the informant’s home on the night that the controlled buy took place.
Defendant asserts that he is entitled to a new trial because the prosecutor either presented perjured
testimony or failed to list a res gestae witness. We disagree.
The witness’ testimony may or may not have been false. The informant first testified that he was
alone at home while waiting for defendant on December 19, 1994. He then testified that he could not
remember whether anyone else was at home with him, although he was fairly certain he was alone.
Compeau testified that he searched the living room and kitchen of the informant’s home, but did not give
definitive testimony regarding the presence of any other person in the home. We cannot say the
prosecutor knowingly presented false testimony. The facts were not within the prosecutor’s knowledge.
Compare People v Cassell, 63 Mich App 226; 234 NW2d 460 (1975), relied on by defendant. It
was for the jury to determine whether the witness testified truthfully. Because the record does not
establish that the prosecution knowingly presented false testimony, we find no reversible error.
Defendant also asserts that the prosecution had a duty to endorse the informant’s wife as a res
gestae witness. MCL 767.40a; MSA 28.980(1) describes the prosecutor’s duty with regard to listing
witnesses. The prosecution has a duty to list all known witnesses who it might call at trial and all known
res gestae witnesses. MCL 767.40a(1); MSA 28.980(1)(1). It also has a continuing duty to disclose
the names of any res gestae witnesses as those witnesses become known. MCL 767.40a(2); MSA
A res gestae witness is one who witnesses an event in the continuum of the criminal transaction
and whose testimony will help in developing a full disclosure of the facts of the case. People v
O’Quinn, 185 Mich App 40, 44; 460 NW2d 264 (1990). Because the informant’s wife testified that
she witnessed some of the events regarding the transaction between the informant and defendant, she
was a res gestae witness. However, under the statute, the prosecution had an affirmative duty to list her
only if it knew she was a res gestae witness. The purpose of this listing requirement is to notify the
defendant that the witness exists and that the witness is a res gestae witness. People v Calhoun, 178
Mich App 517, 523; 444 NW2d 232 (1989).
In this case, defendant has not shown that the prosecutor knew the informant’s wife was present
at the time. More important, defendant knew that the informant was married, and defense counsel listed
the informant’s wife as a witness and interviewed her at least once before trial. Because defendant
knew of the witness, the failure of the prosecution to list her as a res gestae witness, even if it knew of
her status as such, does not constitute error requiring reversal.
Defendant claims that the prosecution improperly withheld a police report and that he learned of
the contents of the report after his conviction. The trial court denied defendant’s motion for new trial,
which he sought on the basis of prosecutorial misconduct and newly discovered evidence. Defendant
now seeks reversal of his convictions, claiming an erroneous denial of his motion for new trial. We
This Court reviews a trial court’s disposition of a motion for new trial based on newly
discovered evidence for an abuse of discretion. People v Davis, 199 Mich App 502, 515; 503
NW2d 457 (1993). The motion cannot be granted unless the defendant demonstrates that the evidence
“(1) is newly discovered, (2) is not merely cumulative, (3) would probably have caused a different
result, and (4) was not discoverable and producible at trial with reasonable diligence.” Id. Where the
evidence would be used only for impeachment purposes, it is not a basis for a new trial. Id. at 516.
Defendant asserts that the prosecution failed to provide him with pages one through eleven of a
police report, which addresses an incident involving defendant that occurred during November 1994.
Pages twelve through twenty-four of this report, which defendant received, related to the investigation of
the instant incident. Pages one through eleven involved in part the November 9, 1994, seizure of
marijuana from the informant’s wife.
Defendant and the prosecution provided affidavits regarding discovery of the report. The
prosecution presented Compeau’s affidavit in which he stated that at a meeting before the trial in this
case he presented to defense counsel all the evidence of the investigation of his case, including pages
one through twenty-four of the report and property receipts. Included in these receipts, which
Compeau stated defendant’s counsel copied, was that of the November 9, 1994, seizure of marijuana
from the informant’s wife.
In an affidavit supplied by defendant’s counsel, Kenneth Scott, Scott stated that he sought
discovery on the case and received only pages twelve through twenty-four of Compeau’s report. Scott
stated that in September 1996, after the instant trial, he received pages one through eleven of the report
during discovery in a second case against defendant. Defendant asserts that the lack of knowledge of
the information contained in pages one through eleven prejudiced him in the instant case because he
called the informant’s wife as a witness, her testimony was detrimental to defendant and the lack of this
knowledge denied him effective impeachment of the witness.
First, the trial court properly denied defendant’s motion because a motion for new trial for
newly discovered evidence cannot be granted where the evidence would be used only to impeach a
witness. Davis, supra. Moreover, there clearly is a dispute regarding whether the prosecution failed to
comply with discovery. The trial court determined that the prosecution complied with discovery. This
Court may not set aside the trial court’s factual findings unless they are clearly erroneous. MCR 2.613.
The trial court’s finding that the prosecution provided defense counsel with the entire police report
before trial is supported by the evidence and not clearly erroneous.
Defendant also asserts that he was denied a fair trial by the district court’s failure to provide him
a bill of particulars. Because this issue is not presented in defendant’s statement of questions presented,
it is not preserved for appeal. Lansing v Hartsuff, 213 Mich App 338, 351; 539 NW2d 781 (1995).
Further, defendant does not explain how he was prejudiced.
Defendant next argues that the trial court erred in denying his motion for acquittal of the
conspiracy count and the felony-firearm count. We disagree.
Defendant asserts that the prosecution presented insufficient evidence to convict defendant of a
conspiracy with Gayden and/or Grashan. Therefore, he contends, the conspiracy conviction must be
reversed and, because the conspiracy is the underlying offense for the felony-firearm conviction, the
felony-firearm conviction must be reversed.
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 (1992). To establish
the existence of a conspiracy, the prosecution must establish that two or more persons voluntarily
agreed to commit a criminal offense. Justice, supra at 345. 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. Inferences may not be based on uncertain or speculative evidence or
evidence that raises merely a conjecture or possibility. People v Fisher, 193 Mich App 284, 289; 483
NW2d 452 (1992), citing People v Orsie, 83 Mich App 42, 47; 268 NW2d 278 (1978). Defendant
suggests that his conviction for conspiracy was impermissibly based on inference piled upon inference.
However, “[t]he rule is not that an inference, no matter how reasonable, is to be rejected if it, in turn,
depends upon another reasonable inference; rather the question is merely whether the total evidence,
including reasonable inferences, when put together is sufficient to warrant a jury to conclude that
defendant is guilty beyond a reasonable doubt.” Orsie, supra at 48, quoting Dirring v United States,
328 F2d 512, 515 (CA 1, 1964).
The evidence established that defendant went to Gayden’s after meeting with the informant,
accepting $4200 from the informant and telling the informant that he had to go to his safe house.
Defendant told the informant that he would deliver the marijuana at the informant’s home. FANG
officers saw defendant leave Gayden’s house carrying a grocery bag. The informant went into
defendant’s car when defendant arrived at the informant’s house and left defendant’s car carrying a
grocery bag. The informant took the grocery bag into his house. When Compeau retrieved it he found
that it contained marijuana. Thus, it was reasonable to conclude that defendant obtained the marijuana
from Gayden’s house.
Additional evidence established that one of Gayden’s closets contained a duffel bag of
marijuana and an electronic scale in a box. Gayden testified that Robert Grashan brought duffel bags,
including the one containing marijuana, to her home and that Grahsan left the duffel bag and scale at
Gayden’s. Gayden testified that she did not know what was in the duffel bag or box. However,
Gayden signed a statement for police shortly after the search stating that defendant brought duffel bags
to her house, left them there a few days and then picked them up, and that while she did not look in the
bags, she had a good idea that marijuana was inside. While Gayden denied the truth of the statement at
trial, and the statement was admitted for impeachment only, the statement provided a reasonable basis
for disbelieving Gayden’s trial testimony. Further, officers found a large quantity of money, including the
buy money, in a bag contained in a duffel bag belonging to Gayden in a closet in Gayden’s bedroom.
Additionally, Gayden admitted pleading guilty to possession of marijuana.
This circumstantial evidence is sufficient for a fact-finder to find defendant guilty of conspiracy.
The jury could reasonably infer that defendant stored marijuana and money at Gayden’s house with
Gayden’s knowledge and consent, and that Gayden was knowingly and willingly providing a safe house
for defendant to store marijuana for future delivery and large sums of money. Defendant came and went
from Gayden’s home as he pleased and had his own key, although he had his own home. The informant
knew of the safe house’s location.
We further conclude that defendant’s claims of instructional error regarding the conspiracy
charge are unpreserved. A timely objection would have avoided any prejudice.
Defendant asserts that he was denied effective assistance of counsel through counsel’s failure to
object to the prosecutor’s sentencing memorandum, which contained damaging allegations. However,
because the court explained that defendant’s pending charges played no part in its sentencing of
defendant, defendant has failed to demonstrate prejudice. He has therefore failed to demonstrate a
denial of effective assistance of counsel. Barclay, supra.
We also reject defendant’s argument that he was denied effective assistance of counsel through
his counsel’s failure to object to the prosecutor’s questions regarding events occurring before he
committed the instant offenses. Defendant has failed to overcome the presumption that his trial
counsel’s conduct was sound trial strategy. People v Leonard, 224 Mich App 569, 592; 569 NW2d
663 (1997). Thus, his claim of ineffective assistance on this basis fails.
Defendant next argues that the trial court erred in admitting Gayden’s statement. He asserts that
the statement was not relevant and was prejudicial to his penal interest. We find no error requiring
This Court reviews the admission of evidence for an abuse of discretion. People v Gibson,
219 Mich App 530, 532; 557 NW2d 141 (1996). In general, evidence of a prior inconsistent
statement made by a witness is admissible for impeachment purposes, even when the statement tends to
directly inculpate the defendant. People v Kilbourn, 454 Mich 677, 682; 563 NW2d 669 (1997).
An exception to this rule is that a statement inculpating a defendant may not be used under the guise of
impeachment if the statement is relevant to the central issue of the case and there is no other testimony
from the particular witness for which her credibility is relevant to the case. People v Stanaway, 446
Mich 643, 692-693; 521 NW2d 557 (1994); Kilbourn, supra at 682-683.
The court properly admitted Gayden’s statement for impeachment. She provided additional
testimony for which her credibility was relevant. Moreover, the trial court instructed the jury that prior
statements by the witnesses were not to be used as substantive evidence, but only to assess credibility.
The trial court did not abuse its discretion in admitting Gayden’s statement.
Finally, defendant claims his counsel’s failure to object to the admission of Compeau’s
testimony as an expert witness constituted ineffective assistance of counsel. We disagree.
Compeau’s testimony was based on Compeau’s experience and training and was admissible to
help the jury determine defendant’s intent and guilt. It was not inadmissible merely because it addressed
the ultimate issue of intent to deliver. People v Stimage, 202 Mich App 28, 29-30; 507 NW2d 778
(1993). Defendant has failed to establish a denial of effective assistance of counsel on this basis.
/s/ Helene N. White
/s/ Henry William Saad
/s/ Jane E. Markey
Regardless of defendant’s failure to properly preserve this issue, we find the trial court properly denied
his motion for directed verdict of his felon-in-possession charge. Under MCL 750.224f; MSA
28.421(6), felons are prohibited from possessing firearms for a period of time after they have fully
completed their sentences. The purpose of the felon-in-possession statute is to “protect the public
from guns in the hands of convicted felons . . . .” People v Swint, 225 Mich App 353, 374; 572
NW2d 666 (1997). The Swint Court also noted: “The Legislature has made the determination that
felons, who have exhibited their disregard for ordered society and pose a threat to public safety, and
firearms are a lethal combination—at least for three to five years after a felon successfully completes his
term of incarceration and probation and pays all requisite fines.” Id. at 374. It is apparent that, unlike
the concern with the immediate risk posed by a person possessing a firearm during the commission of a
felony, the felon-in-possession statute is aimed at deterring the possibility of a generalized, long-term
risk to society. Under this statute, the fact that the guns were at defendant’s home while the offenses
were committed and defendant was arrested elsewhere is irrelevant. This conclusion is supported by
the fact that the statute encompasses not only possession and use, but the transport, sale, purchase,
carriage, shipment, receipt or distribution of firearms. The statute clearly covers any association a
convicted felon may have with a firearm. Thus, the trial court properly denied defendant’s motion for
directed verdict with regard to the felon-in-possession charge.
MCL 750.223; MSA 28.420 (unlawful sale of a pistol or firearm more than thirty inches long), MCL
750.227; MSA 28.424 (carrying a concealed weapon), MCL 750.227a; MSA 28.424(1) (unlawful
possession of a pistol by a licensee), and MCL 750.230; MSA 28.427 (alteration, removal or
obliteration of firearm identity marks).
Defendant could have declined the opportunity to withdraw his plea, and could have affirmed his
charge agreement with the prosecutor, leaving the sentence to the court’s discretion. Apparently, he
decided in favor of trial on all five counts.
We reject this argument on the basis that defendant’s order of probation required that he not violate
any criminal law of any unit of government.