PEOPLE OF MI V EARL LEE WALKERAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
December 22, 1998
Kent Circuit Court
LC No. 93-064078 FH
EARL LEE WALKER,
Before: Whitbeck, P.J., and Cavanagh and Neff, JJ.
Defendant appeals by right his jury conviction of possession with intent to deliver fifty or more
but less than 225 grams of cocaine, MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii). Defendant
subsequently pleaded guilty to being a third offense habitual offender, MCL 769.11; MSA 29.1083,
and was sentenced to fourteen to twenty-two years’ imprisonment. We affirm.
Acting on a tip that two men were selling cocaine and staying somewhere in the 600 block of
Adams Street in Grand Rapids, Grand Rapids police officer Richard Nawrocki and another officer
drove to that location and saw defendant exit a house, get in a vehicle matching the description the
officers had been given, and begin driving around town. Nawrocki knew that defendant was on parole,
and learned that one of the conditions of his parole was that he not drive an automobile without the
written permission of his parole officer. Nawrocki contacted Mike Hogan, the supervisor of the Grand
Rapids office of the State Parole Division, who authorized a parole detainer of defendant. Nawrocki
then obtained a picture of defendant and returned, with other officers, including Hogan, to the Adams
street residence to investigate defendant’s possible parole violation.
Defendant came to the door when Hogan knocked on it. Hogan identified himself and asked if
Earl Walker was there and defendant said, “There’s nobody named Earl here,” and stepped back into
the house. When another officer recognized defendant as being E Walker, the officers followed
defendant into the house and arrested defendant. A search of defendant revealed twenty-seven grams
of crack cocaine in his pants pocket, along with a pager and a large amount of cash.
Mavis Poindexter, who was inside the house when defendant was arrested, stated that she was
the owner of the house and gave Nawrocki her oral and written consent to search the premises.
Among the items seized pursuant to the search was a blue duffel bag discovered in the upstairs
bedroom. The duffel bag contained several documents with defendant’s name on them, a one-ounce
hand scale, and a brown paper bag with approximately $1600 in cash. Directly beneath the duffel bag
was a large plastic bag containing some clothing, including a pair of jeans with over ninety grams of
cocaine in a pocket.
At trial, defense counsel acknowledged that defendant possessed the cocaine found in his
pocket when the police searched him. However, counsel argued that defendant was not in possession
of the cocaine found upstairs, stressing that many people had access to the upstairs room, and that there
was no relationship between the duffel bag that belonged to defendant and the plastic bag containing the
cocaine which was found underneath it.
The jury found defendant guilty of possession with intent to deliver more than fifty grams, but
less than 225 grams, of cocaine. After being sentenced to twelve to twenty years’ imprisonment,
defendant pursued an appeal. The appeal was eventually dismissed, and defendant pleaded guilty to the
charge of third offense habitual offender and was resentenced to fourteen to twenty-two years
imprisonment. A second claim of appeal was filed, and this Court remanded the case for a Ginther1
hearing regarding defendant’s allegation that his trial counsel was ineffective because of a lack of
preparation. People v Walker, unpublished order of the Court of Appeals, entered December 12,
1996 (Docket No. 196333). After the evidentiary hearing, the trial court determined that defendant
had failed to meet his burden of establishing that counsel was ineffective. This appeal followed.
We first address defendant’s claim that he was denied the effective assistance of counsel.
Defendant argues that because of a lack of time for trial preparation, defense counsel’s conduct at trial
was completely deficient, effectively depriving him of counsel in violation of the Sixth Amendment.
United States v Cronic, 466 US 648, 658-659; 104 S Ct 2039; 80 L Ed 2d 657 (1984). We
Defense counsel Fred Johnson was assigned as trial counsel in November 1993 and trial did not
begin until February 1994. The record reveals that Johnson both prepared for trial and conducted
himself as defendant’s advocate during trial. He adequately cross-examined the prosecution’s witnesses
and presented an appropriate opening and closing argument. In sum, we find no basis to conclude that
defendant suffered a functional or constructive denial of counsel.
We now turn to defendant’s claim in light of the Strickland2 test. Unlike the Cronic test, which
addresses counsel’s overall performance, the Strickland test addresses specific errors made by
[T]he Strickland test applied in Michigan requires that a defendant claiming ineffective
assistance based on defective performance has the burden of showing that counsel’s
performance fell below an objective standard of reasonableness and that there is a
reasonable probability that but for the unprofessional errors the result of the proceeding
would have been different. [People v Mitchell, 454 Mich 145, 157-158; 560 NW2d
Defendant claims that because counsel failed to obtain the preliminary examination transcript
before trial, counsel was unable to use it to conduct critical impeachment of prosecution witnesses at
trial. We find this argument unpersuasive, as the alleged discrepancies cited by defendant are
insignificant and there is no reasonable probability that they made a difference to the outcome of his trial.
Defendant argues that counsel’s failure to file a motion to suppress the cocaine found on
defendant and upstairs in the house constitutes ineffective assistance. After a careful review of the
record, we agree with the trial court that probable cause existed for defendant’s arrest, and that the
search of his person was appropriate incident to that arrest. MCL 791.239; MSA 28.2309; MCL
764.15(1)(g); MSA 28.784(1)(g); People v Solomon, 220 Mich App 527, 529-530; 560 NW2d 651
(1996).3 Regarding the subsequent search of the home, during which the ninety grams of cocaine were
discovered underneath defendant’s duffel bag, we find that defendant has failed to establish that
Poindexter’s consent to search the home was involuntary. Because the record fails to support
defendant’s assertion that a motion to suppress would have been successful, we cannot conclude that
defense counsel’s performance in this regard fell below an objective standard of reasonableness or that
the representation prejudiced defendant.
Defendant next asserts that counsel’s lack of preparation resulted in counsel’s failure to review
connected police reports that, according to defendant, would have led to exculpatory evidence
implicating another individual whom officers had seen dealing cocaine outside of Poindexter’s house
prior to defendant’s arrest. At trial, defense counsel argued to the jury that the cocaine found upstairs
did not belong to defendant and could have belonged to any number of people who were in the house
that night and who may have gone upstairs. It is unlikely that any failure to suggest that the cocaine
found under defendant’s duffel bag belonged to this one specific person would have changed the
outcome of the trial. Therefore, defendant’s argument must fail.
Defendant also claims that defense counsel’s failure to file a motion in limine to exclude a
handgun constitutes ineffective assistance of counsel. At trial, the prosecutor offered into evidence a
revolver (which appeared not to be in working order) that was found underneath the cushion of a couch
during the search of Poindexter’s home. A police officer testified that it was not known who owned the
gun and that everyone present during the search had disavowed knowledge of it. The trial court
sustained defense counsel’s objection on relevancy grounds. Although a defense motion in limine likely
would have been successful, and we cannot condone the prosecutor’s attempt to admit the weapon into
evidence, we cannot say that the jury’s viewing of the inoperable gun before being told by the court that
it was irrelevant was outcome determinative here. Accordingly, defendant’s argument on this ground is
Defendant’s final argument is that trial counsel was ineffective for failing to challenge a police
officer juror for cause. We disagree, as the potential juror was excused peremptorily by the defense.
Defendant next complains that he was not properly arraigned. Specifically, defendant contends
that his waiver of arraignment was signed before any information existed and that the waiver was filed
by his first assigned counsel after substitute counsel had been appointed. Because defendant failed to
raise this issue until after his conviction on the underlying charge, it has not been preserved for our
review. People v Grant, 445 Mich 535, 546; 520 NW2d 123 (1994).
Notwithstanding this, however, we find that defendant’s waiver of arraignment became effective
when the information was filed. See People v Swayne, 139 Mich App 258, 263-264; 361 NW2d
788 (1984).4 Although defendant argues that he was not afforded sufficient notice of the supplemental
charges against him, the record reveals that the supplemental information was filed over six weeks prior
to trial. Defendant thus received sufficient notice of the supplemental charges to adequately prepare for
trial and negotiate with the prosecutor, and cannot now claim otherwise. People v Walters, 109 Mich
App 734, 738-739; 311 NW2d 461 (1981), rev’d on other grounds 412 Mich 879, 313 NW2d 283
(1981). In sum, we find no support for defendant’s claim that he was denied his rights to due process
and to the effective assistance of counsel on this basis.
Defendant argues that there was insufficient evidence to sustain his conviction for possession
with intent to deliver more than fifty but less than 225 grams of cocaine. The elements of this offense are
(1) the defendant knowingly possessed a controlled substance; (2) the defendant
intended to deliver this substance to someone else; (3) the substance possessed was
cocaine and the defendant knew it was cocaine; and (4) the substance was in a mixture
that weighed between 50 and 225 grams. [People v Crawford, 458 Mich. 376, 389;
582 NW2d 785 (1998).]
On appeal, as he did at trial, defendant concedes that he possessed the twenty-seven grams of cocaine
found in his pocket when he was arrested. However, he argues that the prosecution presented
insufficient evidence of constructive possession regarding the ninety-three grams of cocaine found
upstairs in the bedroom of the house. We disagree.
As defendant correctly notes, a person’s mere presence at a place where drugs are found is
insufficient to find constructive possession. Some additional connection between the defendant and the
contraband must be shown. People v Wolfe, 440 Mich 508, 520; 489 NW2d 748 (1992), mod on
other grounds, 441 Mich 1201 (1992). In the present case, police found a blue duffel bag in the upstairs
bedroom that contained $1,600 in cash, a one-ounce scale, and several pieces of defendant’s
identification. Directly underneath the duffel bag was a plastic bag containing a pair of blue jeans, size
34 x 34,5 in the pockets of which was found the cocaine at issue. Evidence was also presented that
defendant had changed clothes before the police arrived.
Viewed in a light most favorable to the prosecution, the evidence was sufficient to allow the jury
to conclude beyond a reasonable doubt that defendant constructively possessed the cocaine found
underneath his duffel bag. Consequently, we conclude that sufficient evidence was presented to sustain
Defendant’s final argument is that the lengthy delay between the time the information was filed
charging defendant as an habitual offender and the time that the charge was ultimately resolved with a
guilty plea violated the 180-day rule contained in MCL 780.131; MSA 28.969(1) and MCR 6.004(D).
Assuming, without deciding, that the 180-day rule applies to defendant’s habitual offender charge,6 we
find that it was not violated because the record reveals that the prosecutor and the court, with
reasonable diligence and steady progress, moved defendant’s habitual offender charge to trial.
The 180-day rule does not require that trial commence within 180 days. Rather, if apparent
good-faith action is taken well within the 180-day period, and the prosecutor proceeds promptly
toward readying the case for trial, the rule is satisfied. People v Bell, 209 Mich App 273, 278; 530
NW2d 167 (1995). Here, defendant’s trial on the habitual offender charge was initially scheduled for
June 20, 1994, well within the requisite period. It is without question that a great portion of the delay in
bringing the supplemental charges to trial is attributable to defendant’s appeal; the other significant delay
resulted from defense counsel’s withdrawal in October 1995 and the subsequent stipulation by the
newly appointed counsel to adjourn trial. Our review of the record satisfies us that there was not a
violation of the 180-day rule in this case. People v Crawford, 161 Mich App 77, 83-84; 409 NW2d
/s/ William C. Whitbeck
/s/ Mark J. Cavanagh
/s/ Janet T. Neff
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
Although defendant places great emphasis on the fact that he may have been an overnight guest in
Poindexter’s home, this Court does not. First, because the record is ambiguous on this matter, it is
unclear whether defendant had a legitimate expectation of privacy in the home. Minnesota v Carter,
___ US ___; ___ S Ct ___; ___ L Ed 2d ___ (No. 97-1147, decided 12/1/98). Second, even if we
were to assume that defendant did have a legitimate expectation of privacy in Poindexter’s home, it is
clear that the police officers acted reasonably in following defendant from the threshold of the front door
into the home to effectuate his arrest. See United States v Santana, 427 US 38, 42-43; 96 S Ct
2406, 2409-2410; 49 L Ed 2d 300 (1976) (where police have probable cause, suspect may not thwart
arrest by retreating into her home).
That the waiver was filed by first assigned counsel is of no import, as defendant signed the waiver
when first counsel still represented him, and second assigned counsel testified that generally he
recommends that his clients waive arraignment unless they demand it.
The jurors were presented with evidence regarding the size of the other men in the house that evening,
and were able to observe defendant and determine whether the jeans would fit him.
We note that the 180-day rule clearly does not apply to habitual offender charges brought under the
current version of MCL 769.13; MSA 28.1085.