PEOPLE OF MI V JEFFREY BERNARD ALLISON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 26, 2000
Plaintiff-Appellee,
v
No. 216494
Oakland Circuit Court
LC No. 99-159853-FH
JEFFREY BERNARD ALLISON,
Defendant-Appellant.
Before: McDonald, P.J., and Neff and Fitzgerald, JJ.
PER CURIAM.
Following a jury trial, defendant was convicted of possession with intent to deliver less
than fifty grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), and was
sentenced as an habitual offender, third offense, MCL 769.11; MSA 28.1083, to a prison term of
two to forty years. Defendant appeals as of right. We affirm.
Defendant first contends that the trial court erred by admitting the testimony of two police
officers. Defendant failed to object to the testimony of either officer and, therefore, this issue is
unpreserved for appeal, People v Grant, 445 Mich 535, 546; 520 NW2d 123 (1994), and we
review only for plain error. People v Carines, 460 Mich 750, 761-762; 597 NW2d 130, (1999).
Three requirements must be met to withstand forfeiture under the plain error rule: (1) error must
have occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected
substantial rights. Id. at 763. A reversal is required only if plain error resulted in the conviction
of an actually innocent defendant, or where the error seriously affected the fairness, integrity, or
reputation of judicial proceedings. Id.
One officer testified as an expert in narcotics law enforcement and the defense stipulated
to his expert qualifications. On appeal, defendant contends that the facts of the case did not
warrant an expert’s opinion and that the officer gave improper profiling testimony. We disagree.
Expert testimony is generally allowed to explain the significance of items seized during a
criminal investigation. People v Murray, 234 Mich App 46, 54; 593 NW2d 690 (1999); People v
Hubbard, 209 Mich App 234, 239; 530 NW2d 130 (1995); MRE 702, and the use of expert
testimony from police officers is permissible to help the jury understand evidence in a controlled
substance case. People v Ray, 191 Mich App 706, 707; 479 NW2d 1 (1991). We find no plain
error in the use of the police officer’s expert testimony because he provided helpful information
relating to the trafficking of crack cocaine that was not within the knowledge of the average
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person. Id. at 708. The fact that the testimony embraced the ultimate issue of intent to deliver
did not render the evidence inadmissible. Id.; see also People v Griffin, 235 Mich App 27, 4445; 597 NW2d 176 (1999).
Further, although the police officer’s testimony that drug dealers usually carry cocaine in
a readily accessible spot so that they can discard it without being too noticeable and that they
usually carry the drugs in the waistband of their shorts may have been improper “profile
evidence” to establish that defendant intended to deliver the cocaine, Murray, supra, we find that
reversal is not required because the officer also testified that one of the rocks of crack cocaine
found by defendant’s foot exceeded a personal use amount. Hence, any error did not result in the
conviction of an actually innocent person, nor did the error seriously affected the fairness,
integrity, or reputation of judicial proceedings. Grant, supra at 550-551.
Defendant next contends that a second police officer gave improper opinion testimony
that the manner in which the cocaine was packaged indicated that defendant was a drug dealer.
The rule governing the admission of lay opinion provides:
If the witness is not testifying as an expert, the witness’ testimony in the
form of opinions or inferences is limited to those opinions or inferences which are
(a) rationally based on the perception of the witness and (b) helpful to a clear
understanding of the witness’ testimony or the determination of a fact in issue.
[MRE 701.]
This Court has found no abuse of discretion in allowing a police officer to offer lay opinion that a
defendant was selling crack cocaine based on the officer’s observations that he saw the defendant
run to different vehicles and lean inside the window for ten to fifteen seconds. People v Daniel,
207 Mich App 47, 57; 523 NW2d 830 (1994). The Daniel Court held that the officer was not
qualified to give an expert opinion, but that the requirements of MRE 701 were met because the
testimony was based on the officer’s perceptions and assisted the jurors in determining whether
the defendant was trafficking narcotics. Id. See also People v Oliver, 170 Mich App 38, 49; 427
NW2d 898 (1988), modified 433 Mich 862 (1989). Oliver noted “[r]ecent panels have liberally
applied MRE 701 in order to help develop a clearer understanding of facts for the trier of facts.”
Id. at 50; see also Heyler v Dixon, 160 Mich App 130, 148-149; 408 NW2d 121 (1987); Mitchell
v Steward Oldford & Sons, Inc, 163 Mich App 622, 629-630; 415 NW2d 224 (1987). In light of
Daniel and Oliver, we find no error in the admission of the testimony.
Before trial, defendant moved to exclude evidence that a gun was seized from a
codefendant. Defendant argued that evidence of the firearm was irrelevant and unfairly
prejudicial because he was not charged with possession of the gun. The prosecution argued that
possession of a firearm indicated an intent to deliver illegal drugs. The trial court admitted the
gun and gave the jury a cautionary instruction that defendant was not charged with possession of
a gun.
This issue is preserved for appeal, Grant, supra at 546, and is reviewed for an abuse of
discretion. People v Bahoda, 448 Mich 261, 289; 531 NW2d 659 (1995). An abuse of discretion
exists only when an unprejudiced person, considering the facts on which the trial court acted,
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would say that there was no justification or excuse for the ruling made. People v Rice (On
Remand), 235 Mich App 429, 439; 597 NW2d 843 (1999).
Evidence that is not relevant is inadmissible. MRE 402. Evidence is relevant if it has
“any tendency to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.” MRE 401.
Relevant evidence, then, has two components, materiality and probative value. People v Sabin
(After Remand), 463 Mich 43, 56-57; 614 NW2d 888 (2000); People v Crawford, 458 Mich 376,
388; 582 NW2d 785 (1998). “Materiality” means that the evidence relates to a fact of
consequence to the action. Id. Defendant’s intent was in issue because the prosecution was
required to prove that defendant possessed the cocaine with the specific intent to distribute it.
Crawford, supra at 389; see also CJI2d 12.3. Id. Thus, we conclude that the requirement of
materiality is met here. Id.
The second requirement to a finding of relevance, probative value, means the evidence
tends to make the existence of the legally consequential fact more probable or less probable than
it would be without the evidence. Crawford, supra at 390. Unlike this Court’s previous holding
in People v McCline, 197 Mich App 711, 717; 496 NW2d 296, vacated on other gds and
remanded, 442 Mich 127; 499 NW2d 341 (1993), the gun involved in the instant case was not
found locked away in defendant’s trunk. Instead, it was situated on the driver’s side floorboard
of defendant’s car, ready to fire. Evidence that a gun was found in defendant’s car tends to show
that defendant may have been involved in the distribution of narcotics. Hence, the evidence was
highly probative and no unfair prejudice resulted from its admission.
Finally, defendant argues that prosecutorial misconduct occurred when the prosecutor
made the following remark in the closing argument:
And we presented Officer Martinez up here because he works in drugs.
That’s what he does. He does search warrants. He does undercover operations.
He buys. He sells. He works in drugs.
A prosecutor may not vouch for the credibility of a witness to the effect that he has some
special knowledge that the witness is testifying truthfully. People v Bahoda, 448 Mich 261, 276;
531 NW2d 659 (1995). A prosecutor may not make a statement of fact to the jury that is
unsupported by the evidence, but he is free to argue the evidence and all reasonable inferences
arising from it as they relate to his theory of the case. Id. at 282. Defendant contends that the
above comment is similar to those held to be improper in People v Smith, 158 Mich App 220,
231-232; 405 NW2d 156 (1987). We disagree. The prosecutor here merely emphasized that the
expert on drug trafficking believed that the quantity of drugs found showed an intent to
distribute. The prosecution did not vouch for the credibility of the police officer’s testimony.
Accordingly, reversal on this basis is not required.
Affirmed.
/s/ Gary R. McDonald
/s/ Janet T. Neff
/s/ E. Thomas Fitzgerald
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