PEOPLE OF MI V JAMES E WHITTAKER
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Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice
Justices
Maura D. Cor rigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
FILED NOVEMBER 21, 2001
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 115917
JAMES ELBERT WHITTAKER,
also known as
JAMES EDWARD WHITTAKER,
Defendant-Appellee.
________________________________
PER CURIAM
The defendant was found guilty by a jury of possession of
cocaine with intent to deliver. However, the Court of Appeals
reversed and remanded for a new trial.
It found an abuse of
discretion in the trial court’s decision to admit evidence of
defendant’s prior delivery of cocaine and that the error more
probably than not affected the jury’s verdict.
that
even
if
the
evidence
was
improperly
We conclude
admitted,
the
defendant did not meet his burden of demonstrating that the
error undermined the reliability of the verdict. We therefore
reverse, and remand the case to the Court of Appeals for
consideration of other issues.
I
On about November 5, 1996, a confidential informant
bought cocaine from Mack Whittaker, defendant’s cousin, at
defendant’s residence.
On the bases of this purchase and
other information Officer McLaughlin received, he sought and
obtained a search warrant for defendant’s residence.
The
search warrant was executed on November 7, 1996.
Officer McLaughlin searched the back yard and the base of
the outside of the house.
He saw some protruding vinyl
siding. Because the siding was protruding, and because he had
received information that the cocaine was being stored in the
house’s siding, he investigated and found a bag that contained
thirty-two
estimated
plastic
that
the
Baggies
value
containing
of
the
rock
cocaine
cocaine.
was
He
$6,000.
Considering the amount and the way the cocaine was packaged,
he concluded that the cocaine was intended for delivery,
rather than personal use.
Defendant and a child were the only persons in the house
at the time of the search.
addressed to defendant.
The only mail in the house was
The police found $725 in cash under
the fitted sheet on the bed where defendant had been sitting.
After the evidence had been seized, an officer read
2
defendant his Miranda1 rights.
a lawyer.
Defendant said that he wanted
After defendant’s girlfriend arrived, defendant
told the officer repeatedly that she had nothing to do with
the drugs.
Defendant asked what would happen and was told
that they would both be arrested. The defendant then admitted
that the drugs belonged to him.
Over defense objection, a police officer was permitted to
testify regarding a drug sale by the defendant in 1992 that
led to the defendant’s conviction of a drug offense.
The defendant testified at trial, denying that the drugs
were his, that he was selling drugs from the house, or that he
knew the drugs were there.
The jury found him guilty of the
charged offense of possession of between 50 and 225 grams of
cocaine with intent to deliver, and he was sentenced to ten to
forty years in prison.2
II
The defendant appealed, raising several issues, including
a challenge to the admission of the evidence regarding his
prior drug activity.
The Court of Appeals found admission of
that evidence to be error under People v Crawford, 458 Mich
376; 582 NW2d 785 (1998).3
It concluded that, as in Crawford,
1
Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d
694 (1966).
2
The maximum sentence for the offense was increased
because of the defendant’s prior conviction. MCL 333.7413(3).
3
Unpublished opinion per curiam, issued November 9,
1999 (Docket No. 208360).
3
the
evidence
regarding
defendant’s
1992
offense
was
not
probative of anything other than his propensity to commit the
crime.
The Court of Appeals also rejected the prosecutor’s
argument that the error was not prejudicial. After noting the
harmless error standard for a preserved nonconstitutional
error established in People v Lukity, 460 Mich 484, 496; 596
NW2d 607 (1999), the Court concluded that it was more probable
than
not
that
the
error
was
outcome
determinative.
It
explained:
There was no direct evidence linking defendant
to the cocaine, which was found underneath the
vinyl siding of the back of defendant’s house.
Defendant testified that the cocaine was not his,
and he only went into his backyard to mow the lawn
or take out the garbage.
Although defendant
confessed, he presented evidence that he did so
because the police threatened to arrest his
fiancée.
Thus, defendant’s credibility was at
issue, and the jury’s assessment of his testimony
was more probably than not influenced by the
evidence of his prior conviction. [Slip op, p 2.]
The Court of Appeals reversed and ordered a new trial.
The Court also said that the trial court should have
conducted an in camera hearing to determine whether the
informant could have provided testimony that was relevant or
helpful to the defense or essential to a fair determination of
the defendant’s guilt.
It directed that such a hearing be
held on remand.
The prosecutor has filed an application for leave to
appeal.
The
defendant
has
cross-appealed
4
regarding
an
ineffective assistance of counsel claim, which the Court of
Appeals
did
not
reach
because
of
its
reversal
on
the
evidentiary issue.
III
The appropriate standard of harmless error review depends
on whether the error is constitutional or nonconstitutional in
nature, and whether the appellant preserved the issue. People
v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999).
found
by
the
Court
of
Appeals,
erroneous
The error
admission
of
evidence, is nonconstitutional, and the defendant objected to
the admission of the evidence. Thus, the standard is that for
preserved nonconstitutional errors.
The standard is derived
from MCL 769.26, which provides, in part:
No judgment or verdict shall be . . . reversed
. . . in any criminal case, on the ground of . . .
the improper admission . . . of evidence, . . .
unless in the opinion of the court, after an
examination
of
the
entire
cause,
it
shall
affirmatively appear that the error complained of
has resulted in a miscarriage of justice.
In Lukity, we said:
[MCL 769.26], with its rebuttable presumption,
clearly places the burden on the defendant to
demonstrate that a preserved, nonconstitutional
error resulted in a miscarriage of justice.
* * *
[T]he bottom line is that [MCL 769.26]
presumes that a preserved, nonconstitutional error
is not a ground for reversal unless “after an
examination
of
the
entire
cause,
it
shall
affirmatively appear” that it is more probable than
not that the error was outcome determinative. [460
Mich 493-496].
5
Since
Lukity,
we
have
several
times
applied
these
principles. See People v Snyder, 462 Mich 38, 44-46; 609 NW2d
831 (2000); People v Toma, 462 Mich 281, 296-302; 613 NW2d 694
(2000); People v Rodriguez, 463 Mich 466, 473-474; 620 NW2d 13
(2000); People v Elston, 462 Mich 751, 766; 614 NW2d 595
(2000).
As we said in Elston:
In order to overcome the presumption that a
preserved nonconstitutional error is harmless, a
defendant must persuade the reviewing court that it
is more probable than not that the error in
question was outcome determinative.
People v
Lukity, 460 Mich 484, 495-496; 596 NW2d 607 (1999).
An error is deemed to have been “outcome
determinative” if it undermined the reliability of
the verdict. See People v Snyder, 462 Mich 38, 45;
605 NW2d 831 (2000), citing Lukity, supra at 495
496. In making this determination, the reviewing
court should focus on the nature of the error in
light of the weight and strength of the untainted
evidence.
See Lukity, supra at 495; People v
Mateo, 453 Mich 203, 215; 551 NW2d 891 (1996).
[462 Mich 766.]
IV
In
this
case,
even
if
the
evidence
regarding
the
defendant’s prior drug activity was improperly admitted, the
defendant has not carried his burden of establishing that it
was more probable than not that the alleged error affected the
outcome of the trial.
The evidence that the Court of Appeals
found to have been improperly admitted was that the defendant
had previously sold drugs.
However, the circumstances of the
prior sale were quite different from the charged offense,
reducing the degree to which the jury might conclude that the
defendant was guilty of the instant offense because it showed
6
a pattern with his
prior conduct.
Further, in closing
argument, the use the prosecutor made of the defendant’s prior
crime was to attack his credibility.
properly
impeached
with
three
The defendant was
theft-related
convictions,
minimizing the effect of the evidence of a prior drug offense.
Conversely, there was strong evidence of the defendant’s
guilt.
Most significantly, the defendant admitted to the
police that the drugs belonged to him.
While defendant
claimed that he made this confession only because the police
threatened to arrest his fiancée, there was evidence that,
even
before
the
police
made
this
“threat,”
defendant
repeatedly told a police officer that his girlfriend had
nothing to do with the drugs.
By making that assertion,
defendant implicitly suggested that he had been aware of the
drugs.
In addition, a substantial quantity of cocaine,
clearly packaged for sale, was under the siding of the house
in which the defendant admitted that he lived.
He was the
only adult in the house at the time of the raid.
Although
unemployed, he was literally sitting on a substantial amount
of cash hidden under a bed sheet.
While the defendant attempted to offer explanations for
a number of the items of evidence, the net effect of the
testimony was to present a convincing case of the defendant’s
guilt. In light of the strength of the prosecution’s case, it
cannot be said that the alleged error more probably than not
affected the jury’s verdict.
Accordingly, we reverse the
7
Court of Appeals decision ordering a new trial.4
V
The Court of Appeals directed that at the new trial the
circuit judge conduct an in camera inquiry regarding the
defendant’s request that the informant be produced.
It is
unclear from the Court of Appeals opinion whether the Court
would have so directed but for the reversal on the evidentiary
issue.
In addition, the Court of Appeals did not reach the
ineffective
defendant.
assistance
of
counsel
claim
raised
by
the
We, therefore, remand the case to the Court of
Appeals for consideration of those questions.
CORRIGAN , C.J., and WEAVER , TAYLOR , YOUNG , and MARKMAN , JJ.,
concurred.
4
Because we conclude that the alleged error does not
require reversal under Lukity, we decline to address whether
the evidence was properly admitted.
8
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v
No. 115917
JAMES ELBERT WHITTAKER,
also known as
JAMES EDWARD WHITTAKER,
Defendant-Appellee.
___________________________________
CAVANAGH, J. (dissenting).
I dissent and would affirm the decision of the Court of
Appeals.
The trial court improperly admitted evidence of
defendant’s 1992 drug conviction.
The Court of Appeals
correctly stated that the evidence “was not probative of
anything other than defendant’s propensity to commit the
crime.”1
was
Further, even if there were any probative value, it
substantially
outweighed
by
the
danger
of
unfair
prejudice.
1
Unpublished opinion per curiam, issued November 9,
1999 (Docket No. 208360). Slip op, p 2.
The majority fails to analyze whether the admission was
error, reasoning that even if it was, it was harmless because
of the “strength of the prosecution’s case.”
Slip op, p 7.
I disagree because I do not think the prosecution’s case was
so
strong
that
the
admission
of
defendant’s
prior
drug
conviction was harmless. There was evidence that other people
regularly visited the house.
Because the drugs were hidden
outside the house, it is possible that one of the visitors hid
the drugs there.
own
house,
elements,
possibly
when
Additionally,
subject
Why would defendant hide drugs outside his
of
he
exposing
could
defendant’s
the
the
hide
cousin,
investigation
drugs
them
not
for
to
theft
inside
his
defendant,
the
or
the
house?
was
earlier
the
sale.
Defendant’s cousin made the initial sale to an informant
outside defendant’s residence, which is why the search warrant
was for defendant’s residence.
Moreover, other people lived
in the house.
More importantly, I do think it is likely that the
admission of the prior drug offense was, more probably than
not, outcome determinative. I disagree with the majority that
because the prosecution referenced three larceny convictions
to attack defendant’s credibility, the reference to the drug
offense (also to attack defendant’s credibility) was harmless.
The jury probably did not use the prior drug offense to
2
determine defendant’s credibility.
Rather, the jury likely
considered it as evidence that defendant sold drugs in the
past and probably still sold them and, therefore, the drugs at
issue were his.2
Because I would hold that admitting evidence of the prior
conviction was error and would further hold that the error was
not harmless, I would affirm the decision of the Court of
Appeals.
KELLY , J., concurred with CAVANAGH , J.
2
Defendant did confess to the police officers that the
drugs were his, however, I agree with the Court of Appeals
that defendant presented evidence that he did so only because
the police officers threatened to arrest his fiancée.
3
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