PEOPLE OF MI V DEMAR LEWIS GARVIN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 14, 2004
Plaintiff-Appellee,
v
No. 248427
Oakland Circuit Court
LC No. 1999-166151-FC
RODERICK DEWAYNE LEE,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 248428
Oakland Circuit Court
LC No. 1999-166152-FC
SHEDRICK LEE,
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 248954
Oakland Circuit Court
LC No. 1999-166168-FC
DEMAR LEWIS GARVIN,
Defendant-Appellant.
Before: Whitbeck, C.J., and Saad and Talbot, JJ.
PER CURIAM.
Defendants Roderick Lee, Shedrick Lee, and Demar Garvin were jointly tried before a
single jury. The jury convicted each defendant of conspiracy to deliver or possess with intent to
deliver 650 or more grams of a controlled substance.1 The trial court sentenced each defendant
1
MCL 750.157a and MCL 333.7401(2)(a)(i).
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to a prison term of 30 to 60 years. Roderick Lee appeals as of right in Docket No. 248427,
Shedrick Lee appeals as of right in Docket No. 248428, and Garvin appeals as of right in Docket
No. 248954. We affirm.
I. Basic Facts And Procedural History
Defendants’ convictions arise from allegations that, from 1985 through 1998, they, along
with other family members and associates, engaged in a long-term, widespread cocaine and
heroin trafficking conspiracy in Michigan and, at times, transported drugs from out of state.
Roderick Lee and his brother Nathaniel Lee allegedly led and equally controlled the purported
Lee family organization. Shedrick Lee, another Lee brother, allegedly transported large
quantities of drugs from out of state for the organization, although another codefendant, Joe
Abraham, was allegedly the organization’s primary supplier. Roderick Lee and Nathaniel Lee,
in turn, allegedly supplied numerous individuals, including Garvin, who sold to third parties.
Helen Alexander testified that she purchased cocaine from Roderick Lee, Shedrick Lee,
and Nathaniel Lee. According to Alexander, for six months in 1987, she allowed Nathaniel Lee
to use her house to “cook up” and sell drugs, in exchange for drugs and money. Alexander stated
that in 1987 and 1988, she bought crack cocaine from Shedrick Lee and that in 1989 and 1990
she bought approximately three grams of crack cocaine from Roderick Lee bimonthly.
Alexander testified that she observed Roderick Lee give drugs to another woman in exchange for
shoplifted items. Alexander indicated that she participated in several drug transactions with
Roderick Lee at various Pontiac houses owned by the Lee brothers.
Ralph McMorris testified that, in the mid-1980s until the mid-1990s, he bought cocaine
from Roderick Lee and Nathaniel Lee who were major drug dealers in Pontiac. McMorris stated
that he typically bought smaller quantities from street sellers but that if he wanted larger
quantities, the street sellers went to Roderick Lee or Nathaniel Lee. On four or five occasions,
according to McMorris, he bought from half an ounce to three ounces of cocaine directly from
Roderick Lee. McMorris also testified that on several occasions in 1994, he gave Roderick Lee
and Nathaniel Lee stolen clothing in exchange for cocaine.
LaMark Northern testified that he first received cocaine from Roderick Lee in 1987 or
1988, and also received cocaine from Garvin who purchased his cocaine from Roderick Lee and
others. Northern said that on one occasion, in approximately 1989, he bought half a kilogram of
cocaine from Roderick Lee for $14,500. According to Northern, for years, beginning in
approximately 1993, he routinely received cocaine and heroin from Roderick Lee and Garvin,
totaling more 650 grams, that he broke down into smaller quantities and sold to third parties in
the Pontiac area. Northern testified that Roderick Lee and Garvin supplied him with drugs until
he was arrested.
Marvin Smith testified that, in 1995, he bought half an ounce of cocaine from Garvin at
Northern’s house, and purchased additional drugs from Garvin on two occasions. According to
Smith, on one occasion he and Northern combined their money and bought eighteen ounces of
cocaine from Garvin.
Eric Lee, who is the nephew of Shedrick, Roderick, and Nathaniel Lee, testified that he
began working for Roderick Lee in 1989, and continued selling cocaine and heroin for his uncles
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until 1996.2 Eric Lee testified that Roderick Lee and Nathaniel Lee led the Lee organization and
were equally in control. According to Eric Lee, in 1989 Nathaniel Lee lived with Eric Lee’s
mother and kept more than a kilogram of cocaine in their apartment. Eric Lee stated that when
he was fourteen years old, he began stealing portions of the cocaine to sell. He said that after his
activities were discovered, Roderick Lee began supplying him weekly with cocaine to sell. Eric
Lee testified that he initially began with half-ounce amounts that eventually grew to over half a
kilogram.
Eric Lee testified that in 1993, Roderick Lee sent him to Muskegon to oversee the
operation there because of payment problems. According to Eric Lee, four other Lee relatives
and associates were selling drugs for Roderick Lee in Muskegon at the time. Eric Lee said that
in 1990 or 1991 he observed Roderick Lee supply these same four men with cocaine to sell in
Pontiac. Eric Lee indicated that during the two years that he remained in Muskegon, Roderick
Lee supplied him with a quarter of a kilogram of cocaine thirty or forty times, and approximately
half a kilogram of cocaine twice. Eric Lee testified that, in turn, he distributed the drugs to
certain individuals for sale to third parties, and also sold drugs himself. Eric Lee stated that
when he returned to Pontiac, he sold heroin for Roderick Lee, who supplied him with one or two
grams of heroin several times a week. Eric Lee testified that, on one occasion, he observed over
a kilogram of powder cocaine and over a kilogram of crack cocaine at Roderick Lee’s apartment
and that Roderick Lee was in the process of converting the powder into crack cocaine. Eric Lee
said that Roderick Lee stopped supplying him with drugs after he was allegedly robbed of a large
sum of money that he owed Roderick Lee for cocaine and heroin.
Eric Lee stated that, over the years, he observed large quantities of drugs being delivered
to Roderick Lee and Nathaniel Lee. He testified that he observed Roderick Lee and one Joe
Abraham together and believed that the delivery individuals were “running” for Abraham. Eric
Lee indicated that Shedrick Lee also obtained cocaine for the organization from other states.
Eric Lee noted that Shedrick Lee had urged him to obtain his driver’s license, which he believed
was for drug trafficking purposes. Eric Lee indicated that, on one occasion, Shedrick Lee
offered him $5,000 to accompany him to New York City to purportedly obtain drugs.
Eric Lee testified the he was supplied with more than 650 grams of cocaine for sale and
distribution to third parties. Eric Lee indicated that Roderick Lee also supplied drugs to several
other people, including Garvin, Louis Laws, Willie Lee, and Northern. According to Eric Lee, in
1994 or 1995, he heard Garvin tell Roderick Lee that his prices were too high. Eric Lee
indicated that, in 1995, he saw approximately three ounces of cocaine on Garvin’s counter and
that in 1997, he went to Garvin’s house and observed him weighing about half a kilogram of
cocaine on a triple beam scale. Eric Lee stated that he distributed drugs for Roderick Lee to
Northern and Mike Robinson in exchange for $3,500. Eric Lee stated that he also saw Menion
Stimage and Anthony Hardy, who were drug dealers, go into Roderick Lee’s house on several
occasions empty handed and leave carrying paper bags and that Johnny Stanley, Laws’ uncle,
also told him on several occasions that Stanley sold cocaine for Roderick Lee.
2
Eric Lee was unavailable for trial, so the trial court admitted his preliminary examination
testimony.
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Over the years, defendants had several police contacts. In June 1987, an undercover
officer twice bought cocaine from Shedrick Lee for $125 and $250. After each buy, the officer
inquired about purchasing a larger amount of cocaine, and Shedrick Lee replied that he would
receive a large shipment in about a week.
In April 1988, the police confiscated $1,223.60 and a pager from Garvin. In February
1989, the police confiscated $1,540 and a pager from Garvin and also retrieved a package of
cocaine that he threw out of a car window. In February 1992, the police confiscated $900 from
Garvin. In June 1992, the police confiscated $1,366 and a pager from Garvin. In April 1993, the
police confiscated $1,300 that Garvin had attempted to conceal. In June 1994, Garvin was
arrested while carrying $1,480 and a pager.
In November 1993, the police executed a search warrant at a home occupied by Garvin
and Stanley Berkette. Inside the house, police officers saw Garvin attempting to hide a loaded
.45 automatic gun in a heating vent. On Garvin’s person, the police found $765, a pager, and a
tally sheet. The police also found approximately half a gram of cocaine in a plastic baggie, 1.5
grams of rock cocaine, approximately twenty-eight grams of crack cocaine, over a pound of
marijuana, a triple beam scale containing cocaine residue, various drug-packaging materials, two
pistols, more than $10,000, and a sheet of names, phone numbers, and money denominations.
In September 1994, the police executed a search warrant at a suspected drug house and
confiscated cocaine and various drug-weighing and packaging materials. While there, Adams
called and, in response to an officer’s request to buy cocaine, said that he could obtain two
ounces from “Big Nate’s” house. Adams provided directions to a house that belonged to
Roderick Lee. During the execution of a search warrant, the police found numerous weapons
and ammunition, a large amount of money, a digital scale, and more than 116 grams of cocaine.
In October 1994, Pennsylvania police stopped a car for erratic driving. The driver,
Shedrick Lee, falsely identified himself as “Nathaniel Lee,” and indicated that he was driving
from New York to Detroit. Shedrick Lee was driving Nathaniel Lee’s car. A subsequent search
of the vehicle revealed nearly three kilograms of cocaine and more than six grams of heroin
hidden in a secret compartment underneath the vehicle. The police also confiscated nearly
$1,000 from Shedrick Lee and an additional $1,350 from a duffel bag inside the car. A drug
enforcement special agent opined that, based on Shedrick Lee’s explanation of the transaction,
he was a courier for a larger drug organization, and had a previous relationship with his out-ofstate source. Eric Lee testified that the cocaine found in the car was a delivery for Roderick Lee
and Nathaniel Lee and that both were very angry that Shedrick Lee was captured because they
lost money.
In 1995, Laws worked for law enforcement and named Roderick Lee as one of his
narcotics suppliers. In January and February 1995, Laws successfully engaged in two controlled
buys of a quarter of an ounce of heroin from Roderick Lee.
In June 1998, the police executed a search warrant at Garvin’s house. The police found a
small electronic scale, various drug-packaging materials, three-eighths of an ounce of heroin,
cocaine residue, small chips of crack cocaine, marijuana, $21,249, a loaded .380 caliber semiautomatic handgun, a loaded .22 revolver, and sheets containing numbers.
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In September 1998, search warrants were executed for ten homes in the Pontiac area
purportedly connected to the Lee family organization, and numerous individuals allegedly
involved in the organization were arrested. When Garvin was arrested, the police found $1,860,
and a pager on his person. There was evidence that Garvin did not file any personal income tax
returns from 1987 through 1998.
Abraham was also arrested. In a statement made to the police, Abraham admitted that he
received large quantities of cocaine from out of state, which he brokered to different drug
organizations, including the Lee brothers and Joseph Steins. Abraham indicated that he supplied
“the Pontiac group” with drugs once or twice a week for two or three years, and that Roderick
Lee and Garvin came to his area to purchase drugs. Abraham explained that the drug
transactions added up to between fifteen and twenty multi-kilogram drug deals. Abraham
admitted that, on one occasion, he sold twenty kilograms of cocaine to Roderick Lee for
$500,000. Phone records confiscated from the search of Abraham’s residence showed several
calls between his residence and Roderick Lee’s residence.
Antonio James, a drug runner for Steins, testified that he picked up cocaine from
Abraham in quantities of between one and three kilograms for a couple of years. According to
James, in 1996 he saw a shipment of between twenty and twenty-five kilograms of cocaine
delivered to Abraham’s house. James testified that, in 1996 or 1997, he heard Abraham brag to
Steins that his “Pontiac boys,” Roderick Lee and Nathaniel Lee, were selling more drugs than the
Steins organization.
II. Roderick Lee’s Issues in Docket No. 248427
A. Grand Jury Indictment
(1) Standard Of Review
Roderick Lee, an African-American man, argues that the trial court erred in refusing to
quash his grand jury indictment, because the grand jury composition violated his Fourteenth
Amendment right to equal protection and his Sixth Amendment right to a jury drawn from a fair
cross-section of the community. We review constitutional questions de novo.3
(2) The Grand Jury
The Oakland Circuit Court ordered that a seventeen-member citizens’ grand jury be
impaneled to investigate, inter alia, conspiracies regarding controlled substances. A grand jury
venire of 124 persons was chosen from all the district courts in Oakland County. Subsequently,
Roderick Lee and several other individuals were indicted for conspiracy to deliver 650 or more
grams of a controlled substance. Roderick Lee moved to dismiss the indictment and for further
discovery, challenging the racial composition of the grand jury. The trial court granted the
request for additional discovery. Following a review, the trial court found that the grand jurors
were randomly selected from pre-approved district court jurors in proportion to the population of
3
People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).
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each district in the county, as determined by the 1990 census, which was the most current data
regarding the race and ethnicity of Oakland County. The trial court stated that, in Oakland
County:
district and circuit court venires are created on a “next come-next served” basis.
Allocations for circuit and district court venires are interspersed throughout the
year. Thus, the allocation to district court venires does not fully deplete the
available source list before jurors are allocated to circuit court venires.
The trial court concluded that Oakland County’s jury selection method “does not
systematically exclude racial/ethnic minorities,” and that the information regarding the
composition of the grand jury venire demonstrated that the grand jury was drawn from a fair
cross-section of the community.
(3) The Right To Equal Protection
The Equal Protection clause guarantees to a defendant a jury whose members are selected
by nondiscriminatory methods.4 Members of the defendant’s race shall not be excluded from the
jury venire on account of race.5 In People v Glass (After Remand),6 the Michigan Supreme
Court held:
There is no right to have a particular grand jury reflect the precise racial
composition of a community. Furthermore, discriminatory effect is insufficient to
establish a violation of the Fourteenth Amendment; defendant must show
discriminatory intent . . .
In order to establish a prima facie case of racial discrimination in the
selection of a grand jury under the Fourteenth Amendment, in addition to showing
discriminatory purpose, defendant must show that the grand jury selection
procedure resulted in a “substantial underrepresentation of his race” . . . The
defendant must show 1) that he belongs to a recognizable, distinct class singled
out for different treatment under the laws as written or as applied; 2) that there
was significant underrepresentation of that distinct class over a significant period
of time; and 3) that the selection procedure was susceptible of abuse or that it was
not racially neutral. [Citations omitted.]
We conclude that Roderick Lee has not presented a prima facie case of discrimination
under the Fourteenth Amendment. Initially, Roderick Lee has not alleged that there was a
discriminatory purpose underlying the grand jury selection process. Further, although the first
requirement is satisfied because Roderick Lee is African-American, he has not satisfied the
second requirement of demonstrating a degree of underrepresentation over a significant period of
4
Batson v Kentucky, 476 US 79, 85-86; 106 S Ct 1712; 90 L Ed 2d 69 (1986).
5
Id.
6
People v Glass (After Remand), 464 Mich 266, 284-285; 627 NW2d 261 (2001).
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time. Roderick Lee failed to proffer any evidence of the racial composition of his grand jury or
other grand juries over any period of time. Additionally, Roderick Lee failed to demonstrate that
the selection procedure is susceptible to abuse or was not racially neutral. The mere fact that,
after Roderick Lee’s grand jury indictment, Oakland County adopted a new “state of the art” jury
selection procedure does not prove that the procedure in place at the time of Roderick Lee’s
indictment was not racially neutral. In sum, Roderick Lee is not entitled to relief on this basis.
(4) A Jury Drawn from a Fair Cross-Section of the Community
The Sixth Amendment guarantees a criminal defendant an impartial jury drawn from a
fair cross-section of the community.7 Although the fair cross-section requirement does not
guarantee that any particular jury actually chosen must mirror the community, “jury wheels,
pools or names, panels, or venires from which juries are drawn must not systematically exclude
distinctive groups in the community and thereby fail to be reasonably representative therof.”8
In Glass,9 the Michigan Supreme Court recognized that a preliminary question exists
whether the fair cross-section requirement applies to state grand jury venires. In this case, as in
Glass, we need not decide whether the fair cross-section requirement applies to state grand jury
venires because Roderick Lee has failed to allege a cognizable fair cross-section claim.
In order to establish a prima facie violation of the fair cross-section requirement, the
defendant must show
(1) that the group alleged to be excluded is a “distinctive” group in the
community; (2) that the representation of this group in venires from which juries
are selected is not fair and reasonable in relation to the number of such persons in
the community; and (3) that this underrepresentation is due to systematic
exclusion of the group in the jury-selection process.10
The first requirement is satisfied because Roderick Lee contends that African-Americans
were systematically excluded from the jury venire.11 Regarding the second requirement,
Roderick Lee must show that the number of African-Americans in the jury venire is not fair and
reasonable in relation to the number of African-Americans in Oakland County. There are three
methods typically used to determine whether the representation of the group is fair and
reasonable in relation to the number of such persons in the community: (1) the absolute disparity
7
Taylor v Louisiana, 419 US 522, 527; 95 S Ct 692; 42 L Ed 2d 690 (1975); see also People v
Hubbard (After Remand), 217 Mich App 459, 472; 552 NW2d 493 (1996).
8
People v Smith, 463 Mich 199, 203, 214-215; 615 NW2d 1 (2000) (Cavanagh, J., concurring),
quoting Taylor, supra at 538.
9
Glass, supra at 287.
10
Smith, supra at 203, 215, quoting Duren v Missouri, 439 US 357, 364; 99 S Ct 664; 58 L Ed
2d 579 (1979).
11
Smith, supra at 215.
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test, (2) the comparative disparity test, and (3) the standard deviation test.12 These tests should
be used on a case-by-case basis, and the courts should consider the results of all the tests.13
Roderick Lee presented no evidence that there was any disparity between the number of
jury-eligible African-Americans and the actual number of African-American prospective jurors
generally selected to the Oakland Circuit Court jury pool list. Indeed, Roderick Lee does not
contest the trial court’s finding that there was no record kept of race of the jurors. Further, even
if Roderick Lee could show that his particular jury was underrepresented by minorities,
“[m]erely showing one case of alleged underrepresentation does not rise to a ‘general’
underrepresentation that is required for establishing a prima facie case.”14
Lastly, even if Roderick Lee could satisfy the second requirement, he must demonstrate
that the underrepresentation of African-Americans in the jury venire “was systematic, ‘that is,
inherent in the particular jury-selection process utilized.’”15 Roderick Lee has failed to present a
cogent argument discussing the jury selection process and how systematic underrepresentation of
African-Americans is inherent in that system. Additionally, the trial court fully explained the
jury selection process, which consists of the random selection of pre-approved district court
jurors in proportion to the population of each district in the county, as determined by the most
current data regarding the race and ethnicity of Oakland County. The system used does not
appear to systematically exclude African-Americans from the jury venires. Therefore, Roderick
Lee has failed to establish a prima facie case of a violation of the fair cross-section requirement.
In this regard, we decline Roderick Lee’s request to remand for a hearing. It is not apparent that
further discovery would aid Roderick Lee, and he has failed to sufficiently argue the need for a
hearing.
B. Effective Assistance of Counsel
(1) Standard Of Review
Roderick Lee argues that defense counsel was ineffective for failing to call witnesses
who would have challenged the credibility of prosecution witnesses Eric Lee and Northern,
thereby supporting an acquittal. Because Roderick Lee failed to raise this issue in the trial court
in connection with a motion for a new trial or an evidentiary hearing, this Court’s review is
limited to mistakes apparent on the record.16
12
Id. at 203-204.
13
Id. at 204.
14
People v Williams, 241 Mich App 519, 533; 616 NW2d 710 (2000).
15
Smith, supra at 224.
16
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973); People v Sabin (On Second
Remand), 242 Mich App 656, 658-659; 620 NW2d 19 (2000).
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(2) Legal Standards
Effective assistance of counsel is presumed and the defendant bears a heavy burden of
proving otherwise.17 To establish ineffective assistance of counsel, a defendant must show that
counsel’s performance was below an objective standard of reasonableness under prevailing
norms and that the representation so prejudiced the defendant that there is a reasonable
probability that, but for counsel’s error, the result of the proceedings would have been
different.18 A defendant must also overcome the presumption that the challenged action or
inaction was trial strategy.
A trial counsel’s decisions concerning what witnesses to call and what evidence to
present are matters of trial strategy.19 “In order to overcome the presumption of sound trial
strategy, the defendant must show that his counsel’s failure to call [the] witnesses deprived him
of a substantial defense that would have affected the outcome of the proceeding.”20 “This Court
will not substitute its judgment for that of counsel regarding matters of trial strategy, nor will it
assess counsel’s competence with the benefit of hindsight.”21
(3) Applying The Legal Standards
We conclude that Roderick Lee has failed to demonstrate how the proffered witnesses
were invaluable to his defense or how their testimony would have impacted the outcome of the
trial. Specifically, Roderick Lee argues that, if called, Juana McCarver would have corroborated
his wife’s testimony and contradicted Eric Lee’s testimony about where Roderick Lee resided in
January 1989. We find that the proposed witness’ testimony would have been cumulative and,
given the evidence presented against Roderick Lee and the alleged duration of the conspiracy,
would have been of little significance in this case. Roderick Lee has failed to overcome the
presumption that defense counsel, as a matter of trial strategy, reasonably refrained from
presenting this seemingly insignificant and cumulative testimony.
Roderick Lee also contends that, if called, Kenneth Lee would have contradicted the part
of Eric Lee’s testimony concerning Roderick Lee supposedly accompanying Eric Lee to Kenneth
Lee’s Muskegon home. At trial, Eric Lee testified that Kenneth Lee, a relative of the Lee
brothers, sold drugs for Roderick Lee in Pontiac and Muskegon. In light of this fact, defense
counsel could have reasonably surmised that calling Kenneth Lee would have been futile, given
a reasonable anticipation that Kenneth Lee would contradict Eric Lee’s testimony in order to
17
People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994); People v Effinger, 212
Mich App 67, 69; 536 NW2d 809 (1995).
18
Id.
19
People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999).
20
People v Daniel, 207 Mich App 47, 58; 523 NW2d 830 (1994).
21
Rockey, supra at 76-77.
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deny his own criminal culpability. As previously indicated, “[t]his Court will not substitute its
judgment for that of counsel regarding matters of trial strategy.”22
Roderick Lee also asserts that Marvin Smith, who testified at trial, provided an affidavit
that cast doubt on Northern’s testimony. It is unclear what Roderick Lee is asserting that defense
counsel failed to do in relation to Smith. Smith’s affidavit simply contradicts his own trial
testimony, and states that Northern “asked [him] to lie.” Moreover, Smith’s trial testimony
primarily involved Garvin’s drug dealings, as opposed to Roderick Lee’s. Additionally, to the
extent that Roderick Lee is suggesting that defense counsel failed to sufficiently attack
Northern’s credibility, defense counsel called two witnesses who specifically testified in that
regard. Charles Williams testified that Northern said that he accused Roderick Lee and Garvin
of being his suppliers to gain a lighter sentence. Dwayne Madden testified that Northern
routinely supplied him with drugs, and denied that the Lee brothers were involved in drug
trafficking. Accordingly, this claim is without merit.
We also reject Roderick Lee’s claim that defense counsel was ineffective for failing to
properly question Eric Lee regarding his refusal to testify. We note that Eric testified before a
grand jury and at several preliminary examinations of several coconspirators, and gave critical
evidence against the Lee family organization. Subsequently, Eric Lee claimed that he could not
recall any details about the alleged drug trafficking conspiracy or his grand jury testimony. Eric
Lee invoked his Fifth Amendment privilege not to testify and the trial court admitted Eric Lee’s
preliminary examination testimony at trial.
Roderick Lee acknowledges that defense counsel questioned Eric Lee but simply states
that the inquiry “was insufficient.” Furthermore, Roderick Lee offers no examples of questions
that defense counsel failed to ask. Additionally, Roderick Lee does not dispute that Eric Lee,
who asserted his Fifth Amendment privilege as justification for not testifying, was “unavailable”
for purposes of MRE 804(b)(1) or that the trial court abused its discretion in admitting Eric Lee’s
prior testimony.
In sum, Roderick Lee’s contention that he was deprived of a substantial defense by
defense counsel’s failure to call or adequately question certain witnesses does not overcome the
presumption that counsel’s decisions were a matter of sound trial strategy. Further, given the
overwhelming evidence in this case, Roderick Lee cannot demonstrate that there is a reasonable
probability that, but for counsel’s inaction, the result of the proceeding would have been
different.23 Roderick Lee is not entitled to a new trial on this basis.
22
Id.
23
Effinger, supra.
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C. Sentence
(1) Standard Of Review
Roderick Lee argues that he is entitled to resentencing because the sentencing judge was
not the same judge who presided at his trial. Because Roderick Lee failed to timely object to the
second judge imposing sentence or move to remand for a hearing regarding the visiting judge’s
availability, this issue is unpreserved. Accordingly, we review the issue for plain error affecting
defendant’s substantial rights.24
(2) Legal Standards
Generally, the same judge who presided over the defendant’s trial, provided that the
judge is reasonably available, should sentence a defendant.25 Here, Roderick Lee’s trial was
presided over by a visiting judge, who was assigned to handle criminal matters until
September 30, 2002, and civil cases until December 31, 2002. Roderick Lee was sentenced in
February 2003. The visiting judge was not reasonably available to sentence Roderick Lee
because he was no longer assigned to the court and, therefore, no longer had authority to act as a
circuit court judge at the time of sentencing.26 Therefore, we conclude that resentencing is not
required.27
III. Shedrick Lee’s Issues in Docket No. 248428
A. Sufficiency of the Evidence
(1) Standard Of Review
Shedrick Lee argues that the evidence was insufficient to sustain his conviction because
there was no evidence of a specific intent or agreement to deliver or possess with intent to
deliver 650 or more grams of a controlled substance. When ascertaining whether sufficient
evidence was presented at trial to support a conviction, we must view the evidence in a light
most favorable to the prosecution and determine whether a rational trier of fact could find that
the essential elements of the crime were proven beyond a reasonable doubt.28 We will not
interfere with the trier of fact’s role of determining the weight of evidence or the credibility of
24
People v Carines, 460 Mich 750, 752-753, 763-764; 597 NW2d 130 (1999).
25
People v Clemons, 407 Mich 939; 291 NW2d 927 (1979); People v Pierce, 158 Mich App
113, 115-116; 404 NW2d 230 (1987).
26
See People v Van Auker (After Remand), 132 Mich App 394, 399; 347 NW2d 466 (1984),
rev’d in part on other grounds 419 Mich 918 (1984).
27
We note that the circuit court judge who imposed Roderick Lee’s sentence was familiar with
the facts of this case because he presided over the trials of Nathaniel Lee, Johnny Stanley, and
Louis Laws.
28
People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992).
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witnesses.29 Circumstantial evidence and reasonable inferences arising from the evidence can
constitute satisfactory proof of the elements of the crime.30 All conflicts in the evidence must be
resolved in favor of the prosecution.31
(2) Legal Standards
To support a conviction for conspiracy to deliver a controlled substance, the prosecution
must prove that
(1) the defendant possessed the specific intent to deliver the statutory minimum as
charged; (2) his coconspirators possessed the specific intent to deliver the
statutory minimum as charged; and (3) the defendant and his coconspirators
possessed the specific intent to combine to deliver the statutory minimum as
charged to a third person.32
A conspiracy is a voluntary, express, or implied mutual agreement or understanding
between two or more persons to commit a criminal act or to accomplish a legal act by unlawful
means.33 To prove the intent to combine with others for an unlawful purpose, it must be shown
that the intent, including knowledge, was possessed by more than one person.34 For intent to
exist, the defendant must know of the conspiracy, know of the objective of the conspiracy, and
intend to participate cooperatively to further that objective.35 Direct proof of a conspiracy is not
essential; rather, proof may be derived from the circumstances, acts, and conduct of the parties,
and inferences may be made because such evidence sheds light on the coconspirators’
intentions.36
(3) Applying The Legal Standards
We conclude that, viewed in a light most favorable to the prosecution, the evidence was
sufficient to enable a rational trier of fact to conclude that the conspiracy was proven beyond a
reasonable doubt. The evidence, if believed, indicated that Shedrick Lee and his brothers,
Roderick Lee and Nathaniel Lee, knowingly cooperated with others to further a drug trafficking
scheme to possess and deliver numerous kilograms of cocaine. There was evidence that
29
Id. at 514.
30
People v Truong (After Remand), 218 Mich App 325, 337; 553 NW2d 692 (1996).
31
People v Terry, 224 Mich App 447, 452; 569 NW2d 641 (1997).
32
People v Mass, 464 Mich 615, 629-630, 633; 628 NW2d 540 (2001), citing People v Justice
(After Remand), 454 Mich 334, 349; 562 NW2d 652 (1997).
33
People v Blume, 443 Mich 476, 481, 485; 505 NW2d 843 (1993); People v Cotton, 191 Mich
App 377, 392-393; 478 NW2d 681 (1991).
34
Blume, supra at 482.
35
Id. at 485.
36
Justice (After Remand), supra at 347; Cotton, supra.
-12-
Shedrick Lee went out of state to pick up cocaine for the organization and, on one occasion,
offered Eric Lee $5,000 to accompany him to New York City. In 1994, Shedrick Lee was
arrested in Pennsylvania, en route to Michigan, while driving Nathaniel Lee’s car. A search of
the vehicle revealed nearly three kilograms of cocaine and more than six grams of heroin hidden
in a secret compartment underneath the vehicle. A jury could reasonably infer that the amount of
cocaine at issue was not for personal use, but intended for distribution to third parties. The
police also confiscated nearly $1,000 from Shedrick Lee, and an additional $1,350 from a duffel
bag inside the car. A drug enforcement special agent opined that Shedrick Lee was a courier for
a larger drug organization, and had a previous relationship with his out-of-state source. There
was testimony that Roderick Lee and Nathaniel Lee were angry that Shedrick Lee was caught
because they lost money. There was also evidence that Shedrick Lee twice sold cocaine to an
undercover officer and each time indicated that he would soon receive a large delivery of drugs
and could sell larger amounts.
Although Shedrick Lee asserts that the evidence was insufficient to establish his
participation in a conspiracy, the jury was entitled to accept or reject any of the evidence
presented.37 As previously indicated, we will not interfere with the jury’s determination of the
weight of the evidence or the credibility of the witnesses.38 Moreover, a prosecutor need not
negate every reasonable theory of innocence, but must only prove his own theory beyond a
reasonable doubt in the face of whatever contradictory evidence the defendant provides.39 In
sum, viewed in a light most favorable to the prosecution, the evidence was sufficient to sustain
Shedrick Lee’s conviction of conspiracy to deliver or possess with intent to deliver 650 or more
grams of a controlled substance.
B. New Trial
Shedrick Lee claims that he is entitled to a new trial because the trial court failed to
properly instruct the jury that the prosecution must prove that he specifically intended to conspire
to deliver 650 or more grams of cocaine. Shedrick Lee raised this issue before the trial court in a
motion for a new trial. Although the trial court agreed with Shedrick Lee’s argument that the
jury was not properly instructed, the prosecution appealed, and this Court reversed, concluding
that the alleged instructional error was harmless beyond a reasonable doubt.40 The Michigan
Supreme Court denied leave to appeal.41 This Court’s holding constitutes the law of the case
37
See People v Perry, 460 Mich 55, 63; 594 NW2d 477 (1999), and People v Marji, 180 Mich
App 525, 542; 447 NW2d 835 (1989).
38
Wolfe, supra.
39
People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000).
40
See People v Shedrick Lee, unpublished opinion per curiam of the Court of Appeals, issued
December 17, 2002 (Docket No. 239233).
41
People v Shedrick Lee, 468 Mich 917; 662 NW2d 753 (2001).
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with regard to Shedrick Lee’s instructional claim and he has not shown that justice would not be
served by application of the doctrine in this instance.42
C. Sentence
We also reject Shedrick Lee’s final argument that he is entitled to resentencing because
the sentencing judge was not the same judge who presided at his trial. Because Shedrick Lee did
not timely object to the second judge imposing sentence or move to remand for a hearing
regarding the visiting judge’s availability, this unpreserved claim is reviewed for plain error
affecting substantial rights.43
Our discussion of this issue above is equally applicable here. Like Roderick Lee,
Shedrick Lee was sentenced after the visiting judge who presided over his trial was no longer
assigned to the court. Therefore, because the visiting judge lacked authority to act as a circuit
court judge, he was not reasonably available to sentence defendant Shedrick.44 Resentencing is
not required.
IV. Defendant Garvin’s Issues in Docket No. 248954
A. Admission of Evidence
(1) Standard Of Review
Garvin argues that he was denied a fair trial by the admission of irrelevant and prejudicial
evidence regarding his participation in “dog fighting,” his failure to pay income taxes, and the
drug activities of other individuals to whom he was only “tangential[ly]” connected. Garvin
raised this issue in a motion for a new trial, which the trial court summarily denied. Because
Garvin failed to timely object to this evidence, we review this unpreserved issue for plain error
affecting substantial rights.45
(2) Legal Standards
Generally, all relevant evidence is admissible at trial. Evidence is relevant if it has any
tendency to make the existence of a fact that is of consequence to the determination of the action
more or less probable than it would be without the evidence.46 Under this broad definition,
evidence is admissible if it is helpful in throwing light on any material point.47 But even if
relevant, evidence may be excluded if its probative value is substantially outweighed by the
42
People v Hermiz, 235 Mich App 248, 254; 597 NW2d 218 (1999).
43
Carines, supra.
44
See Van Auker (After Remand), supra.
45
Carines, supra.
46
MRE 401.
47
People v Aldrich, 246 Mich App 101, 114; 631 NW2d 67 (2001).
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danger of unfair prejudice, confusion of the issues, misleading the jury, undue delay, waste of
time, or needless presentation of cumulative evidence.48
(3) Applying The Legal Standards
With regard to the evidence of dog fighting, we note that Garvin himself injected his
participation in dog fighting as part of his defense. In the opening statement, defense counsel
asserted that large amounts of money are exchanged during dogfights. During trial, after an
officer testified that more than $20,000 was found in Garvin’s home, defense counsel elicited
testimony that large amounts of money are exchanged in dogfights. In closing argument, defense
counsel argued that dog fighting, which “is a big money business,” was the source of the large
sums of money that Garvin possessed on several occasions. Garvin may not “assign error on
appeal to something which his own counsel deemed proper at trial.”49 Further, although some
potential jurors, during voir dire, expressed contempt for individuals who participate in dog
fighting, those individuals were excused, as Garvin acknowledges. Therefore, this claim does
not warrant reversal.
Garvin also contends that testimony regarding the “very existence of a grand jury” was
prejudicial. The challenged testimony was given by an officer who had incorrectly testified
before the grand jury that a substance found in Garvin’s home in June 1998 was cocaine,
although it was subsequently determined to be heroin. At trial, the officer’s testimony was
elicited to explain the discrepancy in his former testimony regarding the identity of the
substance. We regard it as highly unlikely that Garvin was prejudiced by the officer’s isolated
and brief reference to his “grand jury” testimony. Moreover, in its final instructions, the trial
court instructed the jurors that the fact that Garvin was charged with a crime and was on trial was
not evidence and could not be considered by the jury as demonstrating guilt. Juries are presumed
to follow their instructions.50 We conclude that Garvin is not entitled to relief on this basis.51
We also reject Garvin’s claim that evidence of his failure to file income taxes from 1987
through 1998 was irrelevant and prejudicial. At trial, the prosecution theorized that the large
sums of money that Garvin possessed on numerous occasions were drug proceeds. The evidence
that Garvin did not pay taxes from 1987 through 1998, and, thus, was likely unemployed during
those years, was relevant to the prosecution’s theory.52 Further, the probative value of the
evidence was not substantially outweighed by its prejudicial effect.53
48
MRE 403.
49
People v Roberson, 167 Mich App 501, 517; 423 NW2d 245 (1988).
50
People v Graves, 458 Mich 476, 486; 581 NW2d 229 (1998).
51
We note that defense counsel also mentioned the grand jury testimony of various witnesses
during closing argument.
52
MRE 401.
53
MRE 403.
-15-
We further reject Garvin’s claim that the evidence concerning the police surveillance of
Abraham, and drug transactions involving other individuals, was irrelevant and prejudicial. The
challenged evidence was relevant to the conspiracy charge against Garvin. The surveillance of
Abraham’s home, which showed large amounts of drugs being delivered, was relevant because
Abraham was one of the organization’s primary sources for drugs, and Garvin had direct
dealings with Abraham.
Additionally, although some of the drug transactions were not Garvin’s, they were
nonetheless relevant to show the existence and scope of a conspiracy between Garvin and
numerous other individuals to distribute large quantities of cocaine. The fact that Garvin was not
directly linked to or aware of each drug transaction involving each person is inconsequential. It
is not “necessary that one conspirator should know all of the conspirators or participate in all of
the objects of the conspiracy.”54 Moreover, the trial court instructed the jury that “defendant is
not responsible for the acts of other members of the conspiracy unless those acts are part of the
agreement or further the purposes of the agreement,” and that each defendant is entitled to have
his guilt decided individually. Therefore, we conclude that this issue does not warrant reversal.
B. Other Acts Evidence
(1) Standard Of Review
Garvin claims that he is entitled to a new trial because the trial court allowed evidence of
his “alleged prior bad acts.” Because Garvin failed to timely object to this evidence at trial, we
review this unpreserved issue for plain error affecting substantial rights.55
(2) Legal Standards
MRE 404(b) prohibits “evidence of other crimes, wrongs, or acts” to prove a defendant’s
character or propensity to commit the charged crime.56 But other acts evidence is admissible
under MRE 404(b) if it is offered for a proper purpose (that is, one other than to prove the
defendant’s character or propensity to commit the crime), is relevant to an issue or fact of
consequence at trial, and is sufficiently probative to outweigh the danger of unfair prejudice,
pursuant to MRE 403.57 In application, the admissibility of evidence under MRE 404(b)
necessarily hinges on the relationship of the elements of the charge, the theories of admissibility,
and the defenses asserted.58
54
People v Meredith (On Remand), 209 Mich App 403, 411-412; 531 NW2d 749 (1995)
(citation omitted).
55
Carines, supra.
56
MRE 404(b)(1); see also People v Knox, 469 Mich 502, 509; 674 NW2d 366 (2004).
57
People v Starr, 457 Mich 490, 496-497; 577 NW2d 673 (1998); People v VanderVliet, 444
Mich 52, 55, 63-64, 74-75; 508 NW2d 114 (1993), amended 445 Mich 1205 (1994).
58
VanderVliet, supra at 75.
-16-
(3) Applying The Legal Standards
Garvin argues that the prosecutor’s questioning of a police witness denied him a fair trial
because the elicited testimony indicated that he had outstanding warrants. During the
prosecutor’s direct examination of the officer, the following exchange occurred:
Q.
Did you put [Garvin] under arrest?
A.
Yes, he was arrested. Uh, there was [sic] outstanding warrants for his
arrest. (emphasis added).]
The record demonstrates that the witness’ response was an unsolicited answer to a
properly asked question. The prosecutor merely asked the witness if he arrested Garvin, a
question that required an affirmative or negative response. Generally, “an unresponsive,
volunteered answer to a proper question is not grounds for the granting of a mistrial.”59 Further,
when the testimony is reviewed in context, it appears that the prosecutor was not seeking to
establish that Garvin had outstanding warrants, but that, when Garvin was arrested, he possessed
a large amount of money. Additionally, the prosecutor did not ask any questions regarding the
warrants, or discuss the matter during closing argument. Accordingly, we conclude that his
claim does not warrant reversal.
We also reject Garvin’s claim that, after an officer indicated that he possessed $1,223, the
officer impermissibly testified that he had known Garvin for several years and had never known
him to be employed. Contrary to Garvin’s suggestion, the evidence was not offered to show that
he had a bad character. Rather, the evidence was probative of his intent to traffic in cocaine, and
to assist the jury in weighing the witnesses’ credibility. Particularly, it was the prosecution’s
theory that Garvin engaged in a long-term drug trafficking conspiracy with the Lee family
organization and regularly possessed drug earnings. The challenged evidence was probative of
Garvin’s identity as a distributor of drugs in light of the evidence that, on numerous occasions,
he possessed large amounts of unexplained money and also failed to pay income taxes during the
alleged duration of the conspiracy. In short, there was a legitimate, material, and contested
ground on which to offer the evidence. Moreover, the evidence was not inadmissible simply
because the very nature of the evidence is prejudicial. The danger that MRE 404(b)(1) seeks to
avoid is that of unfair prejudice, and Garvin has not demonstrated that he was unfairly
prejudiced.60 Accordingly, we conclude that this claim does not merit reversal.
C. Sufficiency of the Evidence
(1) Standard Of Review
Garvin argues that the evidence was insufficient to sustain his conviction because there
was no evidence of a specific intent or agreement to deliver or possess with intent to deliver 650
59
People v Haywood, 209 Mich App 217, 228; 530 NW2d 497 (1995).
60
See Starr, supra at 499.
-17-
or more grams of a controlled substance. As noted above, when ascertaining whether sufficient
evidence was presented at trial to support a conviction, we must view the evidence in a light
most favorable to the prosecution and determine whether a rational trier of fact could find that
the essential elements of the crime were proven beyond a reasonable doubt.61 We will not
interfere with the trier of fact’s role of determining the weight of evidence or the credibility of
witnesses.62 Circumstantial evidence and reasonable inferences arising from the evidence can
constitute satisfactory proof of the elements of the crime.63 All conflicts in the evidence must be
resolved in favor of the prosecution.64
(2) The Evidence
Viewed in a light most favorable to the prosecution, we conclude that the evidence was
sufficient to enable a rational trier of fact to conclude that the conspiracy was proven beyond a
reasonable doubt. The evidence, if believed, indicated that Garvin knowingly cooperated with
other members of the Lee family organization to further a drug trafficking scheme to possess and
deliver numerous kilograms of cocaine. There was testimony that, on one occasion, Garvin,
Roderick Lee, and Northern purchased between eight and ten kilograms of cocaine from
Abraham, and divided it between them. Abraham admitted that he sold multiple kilograms of
cocaine to Roderick Lee and Garvin for the Lee organization. There was also evidence that
Garvin and Northern pooled their money and bought cocaine from Abraham and once bought a
full kilogram. Northern testified that Garvin provided him with cocaine multiple times, which he
sold to third parties. Smith, a cocaine addict and dealer, also bought cocaine from Garvin several
times. On one occasion, Eric Lee saw Garvin weighing about half a kilogram of cocaine in his
house. On another occasion, Eric Lee saw approximately three ounces of cocaine on Garvin’s
counter. A jury could reasonably infer that the amount of cocaine at issue was not for personal
use, but was intended for distribution to third parties.
Additionally, in 1993 the police executed a search warrant at Garvin’s residence and
found approximately .5 grams of cocaine in a plastic baggie, 1.5 grams of rock cocaine, more
than twenty-eight grams of crack cocaine, a triple beam scale, various drug packaging material,
cocaine residue, weapons, ammunition, more than $20,000, and a tally sheet. In 1998 the police
again searched Garvin’s residence, and found a small electronic scale, various drug packaging
items, cocaine residue, tally sheets, three-eighths of an ounce of heroin, small chips of crack
cocaine, more than $21,000, and a loaded weapon. There was also evidence that, on several
occasions, Garvin possessed large amounts of money, although he was not employed during the
alleged duration of the drug trafficking conspiracy.
Despite this evidence, Garvin asserts that the evidence demonstrated that he was
operating alone. However, the jury was entitled to accept or reject any of the evidence
61
Wolfe, supra at 515.
62
Id. at 514.
63
Truong (After Remand), supra at 337.
64
Terry, supra at 224 Mich App 447, 452; 569 NW2d 641 (1997).
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presented65 and we will not interfere with the jury’s determination of the weight of the evidence
or the credibility of the witnesses.66 In sum, viewed in a light most favorable to the prosecution,
we conclude that the evidence was sufficient to sustain Garvin’s conviction of conspiracy to
deliver or possess with intent to deliver 650 or more grams of a controlled substance.
D. Jury Instructions
Garvin argues that the trial court erred by reading the standard jury instruction on
conspiracy, which states that the jury only has to find a conspiracy between “defendant and
someone else,” see CJI2d 10.1, and does not specify the “name of the specific conspirator.” But
the record reflects that defense counsel expressed satisfaction with the trial court’s instruction.
Because any objection was waived, there is no error to review.67 Although Garvin states that this
issue is preserved, the transcript cite provided does not reflect an objection to the challenged
instruction.
Moreover, we note that Garvin relies on this Court’s decision in People v Smith,68 to
support his claim that the trial court’s omission requires reversal. But unlike the situation in
Smith, the evidence in this case could not lead the jury to be confused about the identity of
Garvin’s coconspirators. Instead, the record supports a finding that both Garvin and the jury
were clearly aware that Garvin was charged with conspiring with numerous named members of
the Lee organization, and that the prosecutor attempted to establish the existence of a conspiracy
between Garvin and those individuals. In fact, Garvin and two of his alleged coconspirators,
Roderick Lee and Shedrick Lee, were jointly tried before a single jury. Therefore, we conclude
that the instructions fairly presented the issues to be tried.
E. Sentence
We reject Garvin’s claim that he is entitled to resentencing because the sentencing judge
was not the same judge who presided at his trial. Because Garvin did not timely object to the
second judge imposing sentence or move to remand for a hearing regarding the visiting judge’s
availability, this unpreserved claim is reviewed for plain error affecting substantial rights.69
Garvin was sentenced along with Roderick Lee and Shedrick Lee after the visiting judge who
presided over their trial was no longer assigned to the court. As we held with respect to the
65
Perry, supra at 63.
66
Wolfe, supra.
67
See People v Carter, 462 Mich 206, 214-216; 612 NW2d 144 (2000); People v Ortiz, 249
Mich App 297, 311; 642 NW2d 417 (2002).
68
People v Smith, 85 Mich App 404; 271 NW2d 252 (1978), rev’d in part on other grounds 406
Mich 945 (1979).
69
Carines, supra.
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previous defendants, because the visiting judge was not reasonably available to impose sentence,
resentencing is not required.70
F. Drug Profile Evidence
(1) Standard Of Review
Garvin’s final claim is that the trial court allowed improper drug profile evidence.
Although Garvin suggests that this issue is preserved, the record does not show that he argued
that improper drug profile evidence was presented. Because Garvin failed to object to the
admission of this evidence, we review this unpreserved issue for plain error affecting substantial
rights.71
(2) The Evidence
At trial, there was evidence that, during the course of the alleged conspiracy, two raids
were conducted at Garvin’s residence. In November 1993, the police found approximately half a
gram of cocaine in a plastic baggie, 1.5 grams of rock cocaine, approximately twenty-eight
grams of crack cocaine, a triple beam scale containing cocaine residue, five plastic baggies
missing their corners, a white powdery residue consistent with cocaine in the microwave, and a
sheet of names, phone numbers, and money denominations. An officer, who was a member of
the Narcotics Enforcement Team and had executed more than five hundred search warrants,
testified that, given the evidence and the absence of paraphernalia for ingestion of cocaine, the
amount of cocaine at issue was not consistent with personal use.
In June 1998, the police found sheets of paper with numbers on them, a box cutter, a sock
containing three corner-tie plastic baggies with a white substance consistent with heroin, half of
a kilo press, a pager, a small electronic scale, a “chore boy,” a white powder consistent with a
cutting agent, small chips of cocaine, $21,249 in a plastic bag under a bed, and a loaded weapon.
An officer, who was qualified as an expert in the methods of drug trafficking, testified that, given
this evidence, the drugs were likely intended for distribution.
(3) Legal Standards
“Drug profile evidence has been described as an ‘informal compilation of characteristics
often displayed by those trafficking drugs.’”72 Drug profile evidence may be admitted if: (1) it
is offered as background or modus operandi evidence, and not as substantive evidence of guilt;
(2) other evidence is admitted to establish the defendant’s guilt; (3) the appropriate use of the
profile evidence is made clear to the jury; and (4) no expert witness is permitted to opine that,
based on the profile, the defendant is guilty, or to compare the defendant’s characteristics with
70
See Van Auker (After Remand), supra.
71
Carines, supra.
72
People v Murray, 234 Mich App 46, 52; 593 NW2d 690 (1999).
-20-
the profile in a way which suggests guilt.73 The admission of drug profile evidence is subject to
a harmless error analysis.74
(4) Applying The Legal Standards
We conclude that Garvin has failed to demonstrate plain error affecting his substantial
rights. The expert testimony was not improper because the testimony was offered as background
or modus operandi evidence relating to the issues of possession with intent to deliver drugs and
not as substantive evidence of guilt, other evidence of Garvin’s guilt was offered, and the experts
did not specifically offer an opinion concerning his guilt. Expert police testimony regarding the
quantity of drugs found and the packaging is permitted to show that the defendant intended to
sell the drugs and not simply use them for personal consumption.75 To the extent that Garvin
argues that he is entitled to a new trial because the trial court failed to properly instruct the jury
on the proper use of drug profile evidence, the record reflects that defense counsel expressed
satisfaction with the court’s instructions. Therefore, any objection in that regard was waived.76
Moreover, even if the admission of the evidence was erroneous, Garvin cannot
demonstrate that the evidence prejudiced the outcome of the trial. The challenged testimony was
of comparatively minor importance considering the totality of the evidence against Garvin. As
discussed above, there was substantial other evidence supporting Garvin’s conviction.
Therefore, reversal is not warranted on this basis.
Affirmed.
/s/ William C. Whitbeck
/s/ Henry William Saad
/s/ Michael J. Talbot
73
People v Williams, 240 Mich App 316, 320-321; 614 NW2d 647 (2000).
74
Id. at 321.
75
See People v Ray, 191 Mich App 706, 708; 479 NW2d 1 (1991).
76
See Carter, supra; Ortiz, supra.
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