PEOPLE OF MI V ARUONYEANI AGBO
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 25, 2004
Plaintiff-Appellee,
v
No. 247143
Oakland Circuit Court
LC No. 02-185307-FH
ARU ONYEANI AGBO,
Defendant-Appellant.
Before: Schuette, P.J., and Bandstra and Cooper, JJ.
PER CURIAM.
Defendant Aru Onyeani Agbo appeals as of right from his jury trial conviction for
possession with intent to deliver between 225 and 650 grams of heroin.1 Defendant was
sentenced to twenty to thirty years’ imprisonment. We affirm.
I. Facts
On July 9, 2002, the Oakland Macomb Interdiction Team (OMIT), a multijurisdictional
FBI drug unit, conducted surveillance at the Southfield Hampton Inn after receiving information
that defendant, a guest at the hotel, may be involved in drug trafficking. Sergeant Terrance
Mekoski and Detective David McNealy set up surveillance in the hotel lobby, but witnessed no
activity with regard to defendant’s room. Just after midnight on July 10, 2002, Detective
McNealy placed a call to defendant’s room requesting that he come to the lobby. Sergeant
Mekoski and Detective McNealy approached defendant, identified themselves as police officers,
and asked defendant general questions regarding his business in the area.
The officers asked defendant if they could continue their questioning in his hotel room.
Defendant agreed, but became nervous and stopped in front of various doors before coming to
his room. The officers asked to enter defendant’s room and, when asked, informed defendant of
his right to refuse. Defendant then allowed the officers to enter. Upon further questioning, the
officers found that defendant could not give a clear account of his business in the area.
Defendant denied having contraband and granted the officers verbal permission to search his
hotel room. Defendant agreed to sign a written consent form after the search. During the search,
1
MCL 333.7401(2)(a)(ii).
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Detective McNealy found twenty-four pods of heroin wrapped in a T-shirt inside defendant’s
suitcase. Subsequent tests revealed that each pod contained around twelve grams of heroin, with
a total weight of around 300 grams, including packaging. The prosecution theorized that
defendant ingested the pods in Nigeria to move the heroin through customs undetected. At the
end of the search, defendant signed the top of the consent to search form.
II. Motion to Suppress
Defendant contends that the trial court erred in denying his motion to suppress the
evidence against him obtained through an invalid search of his hotel room. Specifically,
defendant alleges that the officers lacked reasonable suspicion to conduct a “knock and talk” and
that his consent to the search was not given freely, if given at all.2 We disagree. We review a
trial court’s factual findings regarding a motion to suppress for clear error.3 “A decision is
clearly erroneous if, although there is evidence to support it, the Court is left with a definite and
firm conviction that a mistake has been made.”4 The trial court’s ultimate decision regarding a
motion to suppress is reviewed de novo.5
The federal and Michigan Constitutions guarantee the right of persons to be secure
against unreasonable searches and seizures.6 Warrantless searches are unreasonable per se,
“unless the police conduct falls under one of several specifically established and well-delineated
exceptions.”7 Valid consent is a recognized exception to the search warrant and probable cause
requirements, and allows search and seizure when consent is unequivocal, specific, and freely
given.8 Whether consent to search is freely given involves a question of fact based on the totality
of the circumstances.9 The use of coercive tactics or the existence of a coercive atmosphere is
relevant to determining if consent was voluntary.10 In this regard, courts must consider whether
police conduct would suggest to a reasonable person that he was free to decline their search
request and leave the area.11
2
After defendant was placed in custody, the officers recorded a reenactment of the search on
videotape. The officers did not record the circumstances surrounding defendant’s grant of
consent.
3
People v Attebury, 463 Mich 662, 668; 624 NW2d 912 (2001).
4
People v Chambers, 195 Mich App 118, 121; 489 NW2d 168 (1992).
5
People v Frohriep, 247 Mich App 692, 702; 637 NW2d 562 (2001).
6
People v Kazmierczak, 461 Mich 411, 417; 605 NW2d 667 (2000), citing US Const, Am IV;
Const 1963, art 1, § 11.
7
People v Gonzalez, 256 Mich App 212, 232; 663 NW2d 499 (2003).
8
People v Borchard-Ruhland, 460 Mich 278, 294; 597 NW2d 1 (1999).
9
Id.
10
Id.; People v Klager, 107 Mich App 812, 816; 310 NW2d 36 (1981).
11
See People v Bloxson, 205 Mich App 236, 242-243; 517 NW2d 563 (1994).
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We find that the trial court’s determination that defendant consented to the search was not
clearly erroneous. We first note that this Court upheld the use of the knock and talk procedure to
secure permission for a search in People v Frohriep.12 Defendant and the officers presented
conflicting testimony at the evidentiary hearing regarding the circumstances of the knock and
talk and of the search. Defendant testified that he did not freely give his consent to the search of
his hotel room. Defendant testified that Sergeant Mekoski drew his gun in the lobby, yelled at
defendant, and forced defendant to allow the officers into his room. Defendant denied granting
permission to the search, contending that Detective McNealy searched while Sergeant Mekoski
stood guard with a gun. Defendant admitted to signing the written consent form at the police
station only upon command. Defendant argued that he would not have consented to the search
knowing that he possessed heroin in his room.
However, the officers testified that defendant was very cooperative and agreed to being
questioned inside his hotel room. During their questioning, defendant indicated that he was
fluent in English and had a business degree from a Nigerian university. When asked, the officers
informed defendant that he had the right to deny their entrance into his hotel room. Defendant
gave verbal permission to the search after reading the written consent form and signed the form
upon the completion of the search. The officers also testified that suspects often consent to a
search, even while possessing large quantities of controlled substances, because they believe the
officers will not actually conduct a search if consent is given.
The trial court noted that defendant was intelligent and educated. However, the trial
court concluded that the officers’ testimony was more credible. We defer to the trial court’s
assessment of the credibility of witnesses at a suppression hearing.13 As such, we find that the
trial court properly denied defendant’s motion to suppress the evidence against him.
III. Prosecutorial Misconduct
Defendant contends that the prosecution improperly vouched for the credibility of its
witnesses, bolstered the validity of its case, denigrated the defense as a whole, made an improper
appeal to the jurors’ civic duty, and argued facts not in evidence in closing and rebuttal
arguments. We disagree. We review prosecutorial misconduct claims on a case by case basis,
examining any remarks in context, to determine if the defendant received a fair and impartial
trial.14 Because defendant failed to object to the alleged instances of prosecutorial misconduct,
our review is limited to plain error affecting substantial rights.15 “No error requiring reversal
will be found if the prejudicial effect of the prosecutor’s comments could have been cured by a
timely instruction.”16
12
Frohriep, supra at 697-701.
13
People v Farrow, 461 Mich 202, 209; 600 NW2d 634 (1999).
14
People v Aldrich, 246 Mich App 101, 110; 631 NW2d 67 (2001).
15
People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).
16
People v Schutte, 240 Mich App 713, 721; 613 NW2d 370 (2000).
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Defendant contends that the prosecution denigrated the defense by characterizing
defendant’s defense as an “attempt to lead [the jury] down a rabbit trail,”17 and by portraying
defendant’s allegations against the OMIT officer’s veracity in a negative light. Although
excessive, the prosecutor’s remarks did not amount to a personal attack on defense counsel or
suggest that defense counsel intentionally attempted to mislead the jury.18 Rather, the remarks
directly responded to the defense arguments that a third party placed the heroin in defendant’s
hotel room and that the police officers presented false testimony.19
Defendant also contends that the prosecutor improperly vouched for the credibility of its
witnesses. A prosecutor enjoys wide latitude in fashioning arguments and may argue the
evidence and all reasonable inferences arising from it.20 A prosecutor may not vouch for the
credibility of a witness, however, by conveying that she has some special knowledge that the
witness is testifying truthfully.21 The prosecutor’s comments were, again, properly responsive to
defendant’s allegations of improper police conduct.22
Defendant claims that the prosecutor improperly bolstered the validity of her case by
repeatedly asserting that the judge would only admit evidence that was legally seized. However,
these remarks directly responded to the defense argument that the police officers illegally
searched defendant’s hotel room, despite the fact that the legality of the search had already been
determined to the contrary.23 The prosecution concedes that it improperly bolstered its case by
arguing, “And these officers indicated that in 95 percent of their cases, they are, in fact given
consent. Officer Sergeant Mekoski indicated that he got consent in a 46 kilo case, a 15 kilo case,
and I know those cases and it did happen.”24 However, defendant has failed to establish that the
remark affected the outcome of his trial. We further note that absent an objection, the trial
court’s instruction to the jury that the remarks of counsel are not evidence was sufficient to
dispel any prejudice.25 Jurors are presumed to follow their instructions.26
We also find that the prosecutor’s remark concerning “truth and justice” was not so
overwhelming that it would have caused the jurors to suspend their powers of judgment in favor
17
[Trial Transcript December 13, 2002, p 108.]
18
See People v Phillips, 217 Mich App 489, 497-498; 552 NW2d 487 (1996); People v
Dalessandro, 165 Mich App 569, 579-580; 419 NW2d 609 (1988).
19
See People v Watson, 245 Mich App 572, 592-593; 629 NW2d 411 (2001), citing People v
Messenger, 221 Mich App 171, 181; 561 NW2d 463 (1997).
20
Id. at 721.
21
People v Knapp, 244 Mich App 361, 382; 624 NW2d 227 (2001).
22
Watson, supra at 592-593.
23
Id.
24
[Trial Transcript December 13, 2002, p 118.]
25
Schutte, supra at 721-722.
26
People v Graves, 458 Mich 476, 486-487; 581 NW2d 229 (1998).
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of civic duty.27 Whether defendant’s claims of misconduct are examined singularly or
cumulatively, we conclude that defendant has failed to show that he was deprived of a fair trial.28
Affirmed.
/s/ Bill Schuette
/s/ Richard A. Bandstra
/s/ Jessica R. Cooper
27
People v Crawford, 187 Mich App 344, 354; 467 NW2d 818 (1991).
28
People v Rice (On Remand), 235 Mich App 429, 434-435; 597 NW2d 843 (1999).
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