PEOPLE OF MI V ROBERT WILLIAM DAGGETT
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 19, 2002
Plaintiff-Appellee,
v
No. 228915
Montcalm Circuit Court
LC No. 99-000224-FC
ROBERT WILLIAM DAGGETT,
Defendant-Appellant.
Before: Wilder, P.J., and Bandstra and Hoekstra, JJ.
PER CURIAM.
Defendant was convicted by jury of conspiracy to possess more than 650 grams of
cocaine, MCL 750.157a; MCL 333.7403(2)(a)(i), and the trial court sentenced him to life
imprisonment, as mandated by statute.1 Because we find that the admissible evidence presented
at trial is insufficient to support a finding that defendant and another person entered into an
agreement to possess more than 650 grams of cocaine, we reverse.
The prosecution charged that defendant entered into an agreement with Kent Johns to buy
a kilogram of cocaine from an undercover police officer (UCPO). At trial, the UCPO was the
only witness to testify. The UCPO testified as follows.2
In late June or early July of 1999, a confidential informant (CI) told the UCPO about a
large amount of marijuana that the CI had seen in Johns’ trailer. On the basis of this information,
the UCPO planned a preliminary investigation. On August 25, 1999, the UCPO and the CI went
to Johns’ trailer to purchase marijuana from Johns, to gain information, and to propose a sale of
cocaine. Johns had no marijuana at the trailer, but he placed a phone call to defendant and, using
code words, asked defendant to bring some over. While waiting for defendant to arrive with the
marijuana, the UCPO told Johns that he had a kilogram of cocaine to sell. Johns inquired about
1
Before trial, defendant pleaded no contest to delivery of marijuana, MCL 333.7401(2)(d)(iii),
and conspiracy to deliver marijuana, MCL 750.157a; MCL 333.7401(2)(d)(iii). Those
convictions are not at issue in this appeal.
2
For purposes of clarity, we use “the UCPO” instead of a pronoun when summarizing the
UCPO’s testimony.
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the price of the cocaine, and after the UCPO told him that it was $22,000, Johns stated that that
was a “good deal” and “[t]hat way I can offer it to [defendant] for $23,000 and I can get my cut.”
The UCPO then told Johns, “‘If you want I’ve got—I’ve got two kilos if you want sell [sic] it for
$21,000.’. [Johns] said, ‘At that price I think I’ll take them both.’” However, after defendant
arrived, no further discussion in the presence of the UCPO took place concerning the purchase of
cocaine. The marijuana transaction was completed and the UCPO left Johns’ trailer. The UCPO
“left the trailer because [he] knew that they probably wanted to discuss the proposed sale of
cocaine.”
Days later, on August 28, the UCPO received three pages from Johns stating that his
“lawnmowers” were ready to be picked up. The reference to lawnmowers was code, meant to
refer to the potential cocaine sale. The UCPO had not given Johns a lawnmower to repair. The
UCPO attempted to call Johns, but failed to connect with him.
On September 1, 1999, the UCPO and the CI returned to Johns’ trailer. Present near a
campfire there were Johns, defendant, and two other individuals who were unknown to the
UCPO. At that time, the UCPO was wearing a device that recorded the conversation. The tape
recording of the conversation was admitted into evidence and played to the jury.
The tape revealed that when the conversation turned to the subject of a cocaine deal,
Johns confirmed the price and defendant asked if the UCPO was interested in marijuana as part
payment. Also, there was discussion between Johns, the UCPO, and defendant about verifying
that it was cocaine and about where the transaction would take place. Although the means for
testing the cocaine was disputed, the main focus of the conversation became a disagreement
between defendant and the UCPO about the location for making the exchange. The UCPO
insisted that the exchange occur at a motel in Greenville, but defendant wanted to make the
exchange in the field where they were speaking. Eventually, after further discussions regarding
the transfer location, packaging of the cocaine, testing to verify that the substance was cocaine,
and the amount of marijuana that the UCPO would accept from defendant in partial payment,
defendant and Johns held a private conversation. Afterward, defendant informed the UCPO that
he was not going to do the deal because the UCPO required that the transfer take place in a motel
in Greenville.
Following the UCPO’s testimony, including the playing of the pager messages and the
tape recording, the prosecution rested. Immediately thereafter, the defense rested without
offering any defense witnesses. After the trial court denied defendant’s motion for a directed
verdict of acquittal and his motion for mistrial, counsel delivered their closing arguments. The
prosecution argued that Johns and defendant agreed to obtain possession of one kilogram of
cocaine by attempting to purchase the cocaine that the UCPO offered to sell to Johns on August
25. The prosecution’s theory of the case, as argued to the jury, relied heavily on Johns’
statement at that first meeting that Johns would buy the cocaine from the UCPO and sell it to
defendant. From this statement, the prosecutor maintained that it was reasonable to infer that
Johns and defendant talked about the UCPO’s offer and came to an agreement to make the
purchase. Further, he argued that the August 28 pager messages left for the UCPO stating that
the “lawnmowers” were ready and the September 1 campfire conversation confirm the existence
of an agreement between Johns and defendant.
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On appeal, defendant argues, among other things, that statements that Johns, the alleged
co-conspirator, made to the UCPO were improperly admitted into evidence, and without those
statements, there was insufficient evidence to convict defendant of conspiracy. We agree. We
review the trial court’s decision to admit or exclude evidence for an abuse of discretion. People
v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998); People v McCray, 245 Mich App 631, 641;
630 NW2d 633 (2001). When determining whether sufficient evidence has been presented to
sustain a conviction, this Court must view the evidence in a light most favorable to the
prosecution and determine whether a rational trier of fact could have found that the essential
elements of the crime were proved beyond a reasonable doubt. People v Wolfe, 440 Mich 508,
515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992); People v Godbold, 230 Mich App
508, 522; 585 NW2d 13 (1998).
Defendant is correct that the August 25 conversation between Johns and the UCPO
regarding a possible cocaine sale constituted inadmissible hearsay. Contrary to the prosecution’s
argument, the challenged testimony was offered to prove the truth of the matter asserted, as
plainly evidenced by the prosecution’s closing argument. Without a doubt, the prosecutor, in
closing, was relying on the truth of the matter asserted in this conversation as substantive
evidence of conspiracy. Because the statements were offered to prove the truth of the matter
asserted, they constitute hearsay. People v Poole, 444 Mich 151, 158-159; 506 NW2d 505
(1994); People v Washington, __ Mich App __, __; __ NW2d __ (2002) [Docket No. 221851,
decided 5/31/02]. “Hearsay is inadmissible unless there is a specific exception allowing for its
introduction.” Washington, supra. The prosecution does not set forth on appeal, nor are we
aware of, a specific hearsay exception allowing introduction of this evidence, and thus the trial
court erred in admitting this evidence.3
Additionally, the August 25 conversation between Johns and the UCPO regarding a
possible cocaine sale is not admissible under MRE 801(d)(2)(E). That subsection provides that a
statement is not hearsay if it is made “by a coconspirator of a party during the course and in
furtherance of the conspiracy on independent proof of the conspiracy.” No independent proof of
a conspiracy existed at the time the statements were admitted into evidence, People v Vega, 413
Mich 773, 780-782; 321 NW2d 675 (1982); People v Gay, 149 Mich App 468, 471; 386 NW2d
556 (1986), nor were the statements made during or in furtherance of a conspiracy, MRE
801(d)(2)(E). Nothing said by Johns to the UCPO could have been during or in furtherance of
any conspiracy for the obvious reason that this conversation between Johns and the UCPO
commenced the process whereby the UCPO hoped to make the sale of cocaine, i.e., initiate a
reverse buy, and defendant was not present, nor could he, or did he, have any awareness of the
offer made to Johns during that meeting. Consequently, no conspiracy existed at that moment in
time.
3
To the extent that the prosecution suggests that the statements were offered as “verbal acts” that
were indicative of concerted action between Johns and defendant, its argument is without merit.
Other than making this claim in a conclusory statement contained in a single sentence of its brief
on appeal without any citation to authority or further explanation of the basis for this claim, the
prosecution does not offer any support for this assertion. The prosecution’s suggestion that
conversations between coconspirators are “verbal acts” is in no way relevant to the conversation
at issue here between the UCPO and an alleged coconspirator before defendant even knew of the
UCPO’s offer to sell cocaine.
-3-
Having thoroughly reviewed the remaining evidence presented in this case, and excluding
the inadmissible hearsay statements, we conclude that there was insufficient evidence from
which a rational trier of fact could conclude, beyond a reasonable doubt, that an agreement
between defendant and Johns existed to possess more than 650 grams of cocaine. A conspiracy
is a voluntary agreement between two or more individuals to commit a criminal offense. People
v Mass, 464 Mich 615, 629, 632; 628 NW2d 540 (2001); People v Justice (After Remand), 454
Mich 334, 345; 562 NW2d 652 (1997); People v Meredith (On Remand), 209 Mich App 403,
407-408; 531 NW2d 749 (1995). It is a specific-intent crime. Mass, supra. Direct proof of the
conspiracy is not necessary; a conspiracy may be proven by the circumstances, acts, and conduct
of the parties involved. Jackson, supra at 347. Here, in this reverse buy situation, the
prosecution relied on inadmissible hearsay and speculation, rather than evidence of an agreement
to possess greater than 650 grams of cocaine. The record only reveals that defendant discussed
with the UCPO a possible purchase of cocaine and that Johns would get his “cut,” but fatally
deficient in this case is the lack of evidence that Johns and defendant, previously or during this
conversation, had reached an agreement to purchase this cocaine.
Having determined that the prosecution failed to present sufficient evidence to support
defendant’s conviction, reversal is required, and thus we need not address defendant’s other
issues on appeal.
Reversed.
/s/ Kurtis T. Wilder
/s/ Richard A. Bandstra
/s/ Joel P. Hoekstra
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