PEOPLE OF MI V ADAM KEITH ANDERSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
July 14, 2011
Plaintiff-Appellee,
v
No. 298298
Montcalm Circuit Court
LC No. 2009-012653-FH
ADAM KEITH ANDERSON,
Defendant-Appellant.
Before: SAAD, P.J., and JANSEN and DONOFRIO, JJ.
PER CURIAM.
Defendant appeals by right his jury-trial convictions of possession of a firearm by a felon
(felon-in-possession), MCL 750.224f, possession of a firearm during the commission of a felony
(felony-firearm), MCL 750.227b, and possession of marijuana, MCL 333.7403(2)(d). Defendant
was sentenced to terms of imprisonment of 3 to 15 years for the felon-in-possession conviction
and 62 days for the marijuana conviction, to be served consecutively to a mandatory 2-year term
for the felony-firearm conviction. We affirm.
Defendant argues the search warrant at issue in this case was invalid and that the shotgun
recovered during the search of his home should have been excluded. We disagree.
“A trial court’s ruling on a motion to suppress evidence is reviewed for clear error, but its
conclusions of law are reviewed de novo.” People v Unger, 278 Mich App 210, 243; 749 NW2d
272 (2008). A reviewing court must give great deference to a magistrate’s determination of
probable cause. Id. “Appellate review of a magistrate’s determination whether probable cause
exists to support a search warrant ‘involves neither a de novo review nor application of an abuse
of discretion standard. Rather, the preference for warrants . . . requires the reviewing court to ask
only whether a reasonably cautious person could have concluded that there was a “substantial
basis” for the finding of probable cause.’” Id. at 243-244, quoting People v Russo, 439 Mich
584, 603; 487 NW2d 698 (1992).
“A search warrant may not be issued unless probable cause exists to justify the search.”
People v Waclawski, 286 Mich App 634, 697; 780 NW2d 321 (2009). Probable cause exists
when the facts and circumstances would allow a reasonable person to believe that contraband or
evidence of a crime will be found in a particular place. People v Keller, 479 Mich 467, 475; 739
NW2d 505 (2007); see also Unger, 278 Mich App at 244. “Probable cause must be based on
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facts presented to the issuing magistrate by oath or affirmation,” such as by means of an
affidavit. Waclawski, 286 Mich App at 698. An affidavit must be read in a realistic and
commonsense manner. Unger, 278 Mich App at 244. The standard to be applied by the
reviewing court is whether a reasonably cautious person could have concluded there was a
substantial basis for the finding of probable cause to issue the warrant. People v Mullen, 282
Mich App 14, 21; 762 NW2d 170 (2008).
In the present case, the affidavit listed several facts that would lead a reasonably cautious
person to conclude there was a substantial basis for believing that contraband or evidence of a
crime would be found at the stated property, namely the house thought to be located at 11612
South Castle Road. The police were investigating the drug-producing activities of certain
individuals. An identified witness saw these individuals in possession of drug-making
equipment while at the subject property. The witness described the property as a white, twostory house with a nearby barn. The witness’s testimony was partially corroborated when a
police officer went with the witness to the property and observed a nearby mailbox with the
address 11612, as well as a two-story white house with a nearby barn. Taken as a whole, a
reasonably cautious person could have believed that equipment used in the production of a
controlled substance would be found at the property.
Defendant argues that the witness and the police never specifically observed him engaged
in any wrongdoing or suspicious activity. Consequently, defendant asserts that the firearm
seized during the execution of the search warrant should have been excluded from evidence.
This argument, however, is immaterial. As noted above, the proper standard is whether there is
probable cause to believe that contraband or evidence of criminal activity may be found at the
described location. Keller, 479 Mich at 475.
Defendant also argues that the trial court gave a prejudicial jury instruction and that he is
therefore entitled to a new trial. While the jury instruction may appear harsh when read in
isolation, we perceive no abuse of discretion when the instruction is viewed in the overall context
of this case.
Claims of instructional error are reviewed de novo. People v McKinney, 258 Mich App
157, 162; 670 NW2d 254 (2003). The determination whether a jury instruction is applicable to
the facts of a case is within the sound discretion of the trial court. Id. at 163. “Jury instructions
are reviewed in their entirety to determine if error requiring reversal occurred.” Id. at 162.
A trial court may, in its discretion, “comment on the evidence, the testimony, and the
character of the witnesses as the interests of justice require.” MCR 2.516(B)(3); see also People
v Anstey, 476 Mich 436, 451-452; 719 NW2d 579 (2006). “The trial court’s authority to
comment on the evidence encompasses the power to summarize the evidence relating to the
issues, call the jury’s attention to particular facts, and point out the important testimony so as to
lead the jury to an understanding of its bearings.” Id. at 453 (internal quotation marks and
citations omitted). “The trial court’s comments must be fair and impartial, and the court should
not make known to the jury its own views regarding disputed factual issues, the credibility of the
witnesses, or the ultimate question to be submitted to the jury.” Id. at 453-454 (internal
quotation marks and citations omitted).
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Defendant argues that the trial court’s instruction regarding the defense witness was not
fair and impartial for two reasons. First, defendant argues that the trial court showed its bias by
telling the jury that the witness was not timely disclosed to the prosecution. Second, defendant
argues that the trial court’s instruction discredited the testimony of the witness, who was critical
to the defense.
The trial court instructed the jury:
In this case there was testimony by [a defense witness] who was not
disclosed to the People in a timely manner. You should examine this witness’s
testimony closely and be very careful about accepting it. You should think about
whether [the witness’s] testimony is supported by other evidence. When you
decide whether to believe this witness consider the following: was the witness’s
testimony falsely slanted in favor of the defendant? Does she have some bias in
favor of the defendant? In general, you should consider the testimony of this
witness more cautiously than that you would of any other witness. You should be
sure that you’ve examined it closely before you base a decision on it.
Defendant’s first point is unsupported. Defendant cites no authority for his proposition
that it was improper for the trial court to tell the jury that the witness was not timely disclosed to
the prosecution. We cannot conclude that the court abused its discretion by informing the jury of
the witness’s untimely disclosure.
With respect to defendant’s second point, we note that a party must generally disclose the
names and addresses of all lay and expert witnesses whom the party intends to call no later than
28 days before trial. MCR 6.201(A)(1). If a party violates this rule, “the court, in its discretion,
may . . . prohibit the party from introducing in evidence the material not disclosed, or enter such
other order as it deems just under the circumstances.” MCR 6.201(J). The court’s decision to
exclude evidence or enter any other order under MCR 6.201(J) is reviewable only for an abuse of
discretion. Id.
Here, defendant did not inform the prosecution of the witness until a few days before trial
began. Indeed, as the trial court recognized, defendant’s introduction of the witness was “a little
bit of a surprise” for the prosecution. It is clear that, because of defendant’s late disclosure of the
witness, the trial court could have excluded the witness’s testimony altogether. Id.; see also
People v Elkhoja, 251 Mich App 417, 439; 651 NW2d 408 (2002), vacated in part on other
grounds 467 Mich 916 (2003). But instead of completely excluding the witness’s testimony, the
trial court fashioned a less severe remedy, instructing the jury merely that the testimony of the
late-disclosed witness should be carefully scrutinized and weighed with caution.
We fully acknowledge defendant’s argument that the jury instruction in this case
constituted a “charge for conviction” in violation of People v Brown, 43 Mich App 170; 204
NW2d 72 (1972). In Brown, the trial court instructed the jury:
You will determine the factual situation here because either Emmet Evans
is a liar or this defendant, James Edward Brown, is a liar.
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In so doing, you will weigh, analyze the respective theories of each side,
and in fact, if you find that the defendant did assault Emmet Evans on this date
and this occasion, then you will convict him. Disregarding any sympathy you
may have for his cause or for the defendant himself because he does have a
physical affliction. Because in a larger sense, this is not the case of the People of
the State of Michigan on behalf of Emmett Evans, it is the peace and dignity of
the peace of the people of the State of Michigan for whom you represent [sic] that
is making the charges here today. For we are in difficult times in this country.
We are now in a situation where we are going to have the rule of law or the rule
of the mob. Because you have listened to this testimony and if an assault did take
place, this man was not assaulted because he was Emmett Evans, he was not
assaulted because he was a wrestling instructor at Wayne University. He was
assaulted, if one took place, because someone thought he was a pig. The proper
vernacular these days for a policeman.
On the other hand, if you find no matter what your personal feelings might
be, that in fact no assault and battery took place, then you will acquit the
defendant.
But, there are two diametrically opposed positions in this case. I say
someone is a liar. You will determine by your verdict who is the liar. [Id. at 173174.]
The Brown Court characterized this jury instruction as a “charge for conviction” because
the trial court had essentially issued an “exhortation[] to the jurors to convict the defendant.” Id.
at 175. The Brown Court concluded that, given the trial court’s strong language and one-sided
instruction, it was meaningless for the trial court to tell the jurors that they were the sole judges
of the facts. Id. at 175-176.
Unlike the instruction in Brown, the jury instruction given in the present case was not an
“exhortation[] . . . to convict the defendant.” It is true that the trial court brought to the jury’s
attention that there had been a late disclosure of the witness. However, the court left open the
possibility that the jurors would find the witness credible. Indeed, unlike in Brown, the trial
court in this case did not instruct the jurors that the witness was likely “a liar” or that the
witness’s testimony was “diametrically opposed” to the other evidence of the case. In contrast to
the instruction in Brown, the instruction in the instant case simply did not convey to the jurors
that they should convict defendant regardless of the evidence. See People v Bowen, 77 Mich
App 684, 687-688; 259 NW2d 189 (1977).
Considering the trial court’s right to “comment on the evidence, the testimony, and the
character of the witnesses,” MCR 2.516(B)(3), and to fashion a remedy for the late disclosure of
witnesses, MCR 6.201(J), we cannot conclude that the court abused its discretion by giving the
challenged instruction in this case. The instruction did not amount to an impermissible “charge
for conviction.”
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Affirmed.
/s/ Henry William Saad
/s/ Kathleen Jansen
/s/ Pat M. Donofrio
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