People of Michigan v. Earl Steven Smith ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 10, 2018
Plaintiff-Appellee,
v No. 337363
Oakland Circuit Court
EARL STEVEN SMITH, LC No. 2015-256605-FH
Defendant-Appellant.
Before: BORRELLO, P.J., and SAWYER and JANSEN, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of possession of less than 25
grams of a controlled substance (methadone), MCL 333.7403(2)(a)(v), possession of a controlled
substance analogue (alprazolam), MCL 333.7403(2)(b)(ii), and possession of marijuana, MCL
333.7403(2)(d). Defendant was sentenced, as a fourth habitual offender, MCL 769.12, to one
year of probation for the possession of less than 25 grams of a controlled substance (methadone)
and possession of a controlled substance analogue (alprazolam) convictions and to 202 days in
jail for the possession of marijuana conviction. For the reasons set forth in this opinion, we
affirm the convictions and sentences of defendant.
I. BACKGROUND
While defendant was on parole, he reported to his parole officer that he lived at an
address on Maurer Street in Pontiac, Michigan. As a condition of parole, defendant provided
written consent for the search of his person or property by a parole officer or a peace officer. On
August 26, 2015, officers went to the address provided to them by defendant and searched for
narcotics. In defendant’s bedroom, police found a razor blade and some powdery substance on
it, which was later determined to be heroin residue. On top of a nightstand were two pills that
were later found to be methadone pills as well as a small baggie containing marijuana located on
the bed. A suit was located on the back of the bedroom entry door; inside a breast pocket of the
suit was a sandwich baggie containing 23 blue pills that were later identified as alprazolam,
which is also known as Xanax. A black silk robe was located in a large pile of clothes in the
bedroom; inside the pocket of the black robe was $1,200 in cash. Another robe was hanging on a
closet door; inside this robe was a hard plastic container that had 16 methadone pills in it. The
police also found in the bedroom some mail that was addressed to defendant at that address.
Following the search, defendant was arrested.
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At trial, defendant’s brother Fred testified on August 26, 2015, defendant was living with
his girlfriend; Fred did not know on what street she lived. Fred also testified that he lived at the
Maurer Street address and kept personal belongings in defendant’s room, such as methadone,
Xanax, and marijuana.
Another person, John Jackson also testified that he was living at the Maurer Street
address. On August 26, 2015, Jackson left Maurer Street at approximately 6:30 a.m. As Jackson
was leaving, he saw Fred lying in defendant’s bed.
Defendant was convicted and sentenced in the manner described above. On May 5,
2017, defendant filed a motion for a new trial, arguing, in part, that defense counsel was
ineffective for failing to call defendant’s girlfriend, Cheryl Jones, to testify that she and
defendant spent a considerable amount of time together and that he was essentially living with
her. In an affidavit, Jones averred that she and defendant spent about 90% of their time together
when they were not working. Defendant also claimed that defense counsel was ineffective for
failing to object to repeated questioning and references to the fact that defendant was on parole
and for failing to request a limiting instruction regarding these references to defendant’s parole
status. Defendant said that the parties could have stipulated that defendant listed the Maurer
Street house as his residence. Further, defendant argued, defense counsel failed to request a
cautionary instruction regarding police officers supposedly testifying as an expert when he had
not been qualified as an expert by the trial court. Following oral argument on the motion, the
trial court denied the motion for a new trial. This appeal then ensued.
II. DEFENDANT’S PRINCIPAL APPELLATE BRIEF
On appeal, defendant argues that he was denied the effective assistance of counsel and
that the trial court therefore erred in denying defendant’s motion for a new trial based on his
ineffective assistance claims. Whether a defendant was deprived of the effective assistance of
counsel presents a mixed question of fact and constitutional law. People v Heft, 299 Mich. App.
69, 80; 829 NW2d 266 (2012). Any findings of fact are reviewed for clear error, while the legal
questions are reviewed de novo. Id. A trial court’s decision whether to grant a motion for a new
trial is reviewed for an abuse of discretion. People v Schrauben, 314 Mich. App. 181, 187; 886
NW2d 173 (2016).
“To prevail on a claim of ineffective assistance, a defendant must, at a minimum, show
that (1) counsel’s performance was below an objective standard of reasonableness and (2) a
reasonable probability [exists] that the outcome of the proceeding would have been different but
for trial counsel’s errors.” People v Ackerman, 257 Mich. App. 434, 455; 669 NW2d 818 (2003).
Defense counsel is presumed effective. People v Vaughn, 491 Mich. 642, 670; 821 NW2d 288
(2012). “Defendant must overcome a strong presumption that counsel’s performance constituted
sound trial strategy.” People v Petri, 279 Mich. App. 407, 411; 760 NW2d 882 (2008). “This
Court does not second-guess counsel on matters of trial strategy, nor does it assess counsel’s
competence with the benefit of hindsight.” People v Russell, 297 Mich. App. 707, 716; 825
NW2d 623 (2012). A defendant claiming ineffective assistance has the burden of establishing
the factual predicate for the claim. People v Carbin, 463 Mich. 590, 600; 623 NW2d 884 (2001).
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As he argued in the trial court, defendant first contends that counsel was ineffective for
failing to call his girlfriend to testify that defendant was essentially living with her. “Decisions
regarding what evidence to present and whether to call or question witnesses are presumed to be
matters of trial strategy, and this Court will not substitute its judgment for that of counsel
regarding matters of trial strategy.” People v Davis, 250 Mich. App. 357, 368; 649 NW2d 94
(2002). “In general, the failure to call a witness can constitute ineffective assistance of counsel
only when it deprives the defendant of a substantial defense.” People v Payne, 285 Mich. App.
181, 190; 774 NW2d 714 (2009) (quotation marks and citation omitted). “A substantial defense
is one that might have made a difference in the outcome of the trial.” People v Jackson (On
Reconsideration), 313 Mich. App. 409, 432; 884 NW2d 297 (2015) (quotation marks and citation
omitted).
At trial, defense counsel presented a defense that the drugs recovered from defendant’s
bedroom at the Maurer Street address belonged to Fred rather than defendant. Defense counsel
also called John Jackson, who testified that he was living “occasionally” at the Maurer Street
address and that on August 26, 2015, he saw Fred lying in defendant’s bed when Jackson left the
house at 6:30 a.m.; Jackson further testified that he did not see defendant that morning.
Therefore, defense counsel presented a defense that the drugs belonged to Fred rather than
defendant by calling Fred and Jackson as witnesses.
In support of his motion for a new trial, defendant provided an affidavit of Jones stating:
1. I am the girlfriend of [defendant]. [Defendant] and I spent a lot of time
together. I did not see any evidence that [defendant] sold or used drugs around
the time that the offenses allegedly occurred. We spent about 90% of our time
together when we were not working. I told this to [defense counsel]. I was
willing to testify to the above.
2. I have personal knowledge of the above and am willing to testify to
same if called as a witness.
Jones’s affidavit does not account for all of defendant’s time and it does not account for where
they spent their time. Hence, her affidavit provides no additional information beyond what
defense counsel presented at trial. In fact, defense counsel’s procurement of Fred’s testimony
was more definitive than Jones’s affidavit in stating that defendant was living with his girlfriend
and had not been in the bedroom at the Maurer Street address in the week before the date of the
offense. Jackson’s testimony likewise indicated that Fred was lying in defendant’s bedroom on
the date of the offense and that defendant was not seen in the house. Overall, defense counsel
advanced the defense theory by presenting the testimony of Fred and Jackson. Defendant has not
shown that the failure to call Jones as a witness deprived defendant of a substantial defense. It
also has failed to demonstrate how not calling Jones would lead us to conclude that there exists a
reasonable probability that the outcome of the proceeding would have been different but for trial
counsel’s errors. Vaughn, 491 Mich. at 670. Having failed to produce evidence sufficient for a
finding that counsel’s failure to call Jones fell below a standard of reasonableness or that there
exists a reasonable probability that the outcome of the trial would have been different, defendant
is not entitled to relief. Carbin, 463 Mich. at 600.
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Defendant next argues that defense counsel was ineffective for failing to request a
cautionary instruction concerning what defendant characterizes as the expert testimony of Robert
Ludd, the officer-in-charge. Defendant refers to Ludd’s testimony regarding his experience and
education and his testimony that drug dealers hide money. Defendant says that this testimony
gave Ludd an “aura of reliability.”
At trial, Ludd testified that “it’s very common [for] people trafficking drugs to have large
amounts of cash hidden away from other people to make sure that they know where it’s at so it’s
not stolen.” Ludd also indicated that it is a common practice to use cut-up lottery tickets to
package heroin for sale. The trial court did not qualify Ludd to testify as an expert witness.
Even if Ludd’s testimony constituted expert testimony for which he was not qualified, defendant
has not established that the failure to request a cautionary instruction constituted ineffective
assistance of counsel. Defendant was charged only with simple possession offenses; therefore,
Ludd’s testimony concerning facts that would support an inference of an intent to deliver drugs
is not relevant to the charges in this case. Given that the purported expert testimony was not
relevant to the charged offenses, defense counsel may have reasonably declined to request a
curative instruction that might have drawn further attention to the testimony at issue. Indeed,
“there are times when it is better not to object and draw attention to an improper comment[,]”
People v Bahoda, 448 Mich. 261, 287 n 54; 531 NW2d 659 (1995), and failing to request a
particular jury instruction may constitute a sound trial strategy, People v Gonzalez, 468 Mich.
636, 645; 664 NW2d 159 (2003); People v Dunigan, 299 Mich. App. 579, 584; 831 NW2d 243
(2013); People v Rice (On Remand), 235 Mich. App. 429, 444-445; 597 NW2d 843 (1999).
Further, even if we presume counsel ineffective for failing to object, defendant cannot
establish prejudice. We cannot find from this record any evidence which would lead us to
conclude that had counsel objected to the complained of testimony, the outcome of the
proceeding would have been different but for trial counsel’s errors.” Ackerman, 257 Mich. App.
at 455.
Defendant also argues that Ludd’s testimony was given an “aura of reliability,” implying
that is belied by the fact that the trial court provided a general cautionary instruction regarding
police officer testimony. The trial court instructed the jury as follows: “You’ve heard testimony
from a witness who is a police officer. That testimony is to be judged by the same standards you
use to evaluate the testimony of any other witness.” “Jurors are presumed to follow instructions,
and instructions are presumed to cure most errors.” Petri, 279 Mich. App. at 414.
Next, defendant argues that defense counsel was ineffective for failing to object to
Ludd’s testimony that he received a tip that defendant was selling heroin from the Maurer Street
address. Defendant contends that this testimony contained an inadmissible hearsay statement
and that it violated his constitutional right of confrontation.
“ ‘Hearsay’ is a statement, other than the one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the matter asserted.” MRE 801(c).
Hearsay is inadmissible except as provided by the Michigan Rules of Evidence. MRE 802. A
defendant also “has the right to be confronted with the witnesses against him or her.” People v
Chambers, 277 Mich. App. 1, 10; 742 NW2d 610 (2007), citing US Const, Am VI, Const 1963,
art 1, § 20, and Crawford v Washington, 541 U.S. 36, 42; 124 S. Ct. 1354; 158 L. Ed. 2d 177 (2004).
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The Confrontation Clause prohibits the admission of all out-of-court testimonial
statements unless the declarant was unavailable at trial and the defendant had a
prior opportunity for cross-examination. A statement by a confidential informant
to the authorities generally constitutes a testimonial statement. However, the
Confrontation Clause does not bar the use of out-of-court testimonial statements
for purposes other than establishing the truth of the matter asserted. Thus, a
statement offered to show the effect of the out-of-court statement on the hearer
does not violate the Confrontation Clause. Specifically, a statement offered to
show why police officers acted as they did is not hearsay. [Chambers, 277 Mich
App at 10-11 (citations omitted).]
At trial, the prosecutor asked Ludd if he “receive[d] a tip or something that directed [him]
to [the] Maurer[Street address.]” Ludd responded that he received a tip that defendant “was
selling heroin from the address . . . .” On the basis of that tip, Ludd and other law enforcement
personnel went to 1153 Maurer to conduct a search. Ludd’s testimony concerning the
confidential informant’s tip thus was not offered to establish that the tip was true but to explain
why the police searched defendant’s room. Given that the confidential informant’s tip was not
offered to prove the truth of the matter asserted, it did not constitute hearsay under MRE 801(c).
And “[b]ecause the Confrontation Clause does not bar the use of out-of-court testimonial
statements for purposes other than establishing the truth of the matter asserted, the testimony did
not violate defendant’s right of confrontation.” Id. at 11. Accordingly, any objection to the
testimony would have been futile, and defense counsel was not ineffective for failing to make a
futile objection. Id.
Even if an objection would have led to limiting Ludd’s testimony to the mere fact that a
tip was received, defendant has not established that such a limitation would have produced a
reasonable probability of a different outcome given the significant evidence of defendant’s guilt.
There was strong evidence tying defendant to the bedroom in the house at the Maurer Street
address in which the drugs were located. When the police went to the house and asked to see
defendant’s room, defendant’s uncle, Charles Smith (Charles), directed the police to the bedroom
where the drugs were found. In addition to the drugs, the police found in the bedroom mail
addressed to defendant at that address and a dry cleaning receipt issued to defendant. There was
no proof of residence for anyone other than defendant found in the bedroom. On the day after
the police search, defendant made incriminating statements to his parole officer, Antoinette
Hughes, including that defendant had used heroin and that he had received a lump sum payment
of $2,000 in social security benefits. The police found heroin residue and $1,200 in cash in
defendant’s bedroom. Although defendant’s brother, Fred, claimed that the drugs in the
bedroom belonged to him, Fred’s description of how the drugs were packaged and where in the
bedroom the drugs were located was not entirely consistent with what the police officers found
when they searched the room. Given the strong evidence that defendant possessed the drugs
found in the bedroom, defendant has not demonstrated that there was a reasonable probability of
a different outcome if defense counsel had objected to Ludd’s testimony concerning the
confidential informant’s tip. Carbin, 463 Mich. at 600
Next, defendant argues that defense counsel was ineffective for failing to object to the
admission of evidence concerning the fact that defendant was on parole and for asking questions
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that pertained to defendant’s parole status. Defendant’s argument is unavailing because all of the
evidence concerning the fact that he was on parole was offered for a proper purpose.
In general, all relevant evidence is admissible. MRE 402. Evidence is relevant if it has
“any tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence.” MRE 401.
Nonetheless, relevant evidence is subject to exclusion “if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay, waste of time, or needless presentation of cumulative
evidence.” MRE 403. Further, MRE 404(b)(1) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
or absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case.
The following factors are used to determine the admissibility of other acts evidence:
First, the prosecutor must offer the “prior bad acts” evidence under something
other than a character or propensity theory. Second, the evidence must be
relevant under MRE 402 . . . . Third, the probative value of the evidence must not
be substantially outweighed by unfair prejudice under MRE 403. [People v Knox,
469 Mich. 502, 509; 674 NW2d 366 (2004) (quotation marks and citation
omitted).]
Evidence of the fact that defendant was on parole was relevant to establishing
defendant’s identity as the person who possessed the drugs found in his bedroom. “[I]dentity is
an element of every offense.” People v Yost, 278 Mich. App. 341, 356; 749 NW2d 753 (2008).
Evidence that defendant lived at the Maurer Street address was therefore central to the case.
Aaron Hundt, a parole officer, testified that defendant was on parole and had registered his
address on Maurer Street. Defendant suggests that the parties could have stipulated that
defendant listed Maurer Street as his address. But such a stipulation would have undermined the
defense theory at trial, which was that defendant was living at another house with his girlfriend
and that it was Fred who possessed the drugs. Indeed, defendant adheres to this defense theory
on appeal by arguing that defense counsel was ineffective for failing to call defendant’s
girlfriend to testify in support of this defense theory.
In addition, evidence of defendant’s parole status was relevant to explain why defendant
met with Hughes, his parole agent, on the day after the search and to introduce defendant’s
incriminating statements to Hughes. The fact that Hughes was defendant’s parole agent also
served to explain how Hughes recognized defendant’s voice on a jail phone call recording. The
evidence that defendant was on parole was further relevant as a means to challenge the
credibility of defendant’s brother, Fred. Fred claimed that the drugs found in the bedroom
belonged to him. Fred admitted knowing that defendant was on parole and indicated that Fred
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himself was not on parole. Fred also acknowledged that, as defendant’s brother, he cared about
defendant and did not want defendant to be in any trouble. “The credibility of a witness is
always an appropriate subject for the jury’s consideration.” People v Coleman, 210 Mich. App. 1,
8; 532 NW2d 885 (1995).
Defendant has not demonstrated that the evidence reflecting his parole status was so
unfairly prejudicial that it substantially outweighed the probative value of the evidence. “MRE
403 does not prohibit prejudicial evidence; only evidence that is unfairly so.” People v Feezel,
486 Mich. 184, 198; 783 NW2d 67 (2010) (quotation marks and citation omitted). “[E]vidence is
unfairly prejudicial when there exists a danger that marginally probative evidence will be given
undue or preemptive weight by the jury.” Id. (quotation marks and citation omitted). Again, the
evidence was probative in numerous respects as described above, and defendant has failed to
show the existence of a danger that the jury would unduly or preemptively weigh the evidence.
Overall, defendant’s parole status was so intertwined with the facts of the case that there
was no error in admitting evidence reflecting the fact that he was on parole. See People v Sholl,
453 Mich. 730, 741; 556 NW2d 851 (1996) (noting MRE 404(b) but stating that “it is essential
that prosecutors and defendants be able to give the jury an intelligible presentation of the full
context in which disputed events took place.”). Because there was no error in admitting
evidence reflecting defendant’s parole status, defense counsel was not ineffective for failing to
raise a futile objection or advance a meritless argument. People v Ericksen, 288 Mich. App. 192,
201; 793 NW2d 120 (2010).
Accordingly, defendant has failed to show that he was denied the effective assistance of
counsel. Defendant has thus also failed to establish that the trial court abused its discretion in
denying his motion for a new trial premised on the ineffective assistance of claims discussed
above. MCR 6.431(B) provides: “On the defendant’s motion, the court may order a new trial on
any ground that would support appellate reversal of the conviction or because it believes that the
verdict has resulted in a miscarriage of justice.” Because defendant’s ineffective assistance
claims asserted in support of his motion for a new trial are unavailing, he is not entitled to
appellate reversal of his convictions, and the verdict has not resulted in a miscarriage of justice.1
Defendant further argues that he was denied a fair trial because of the cumulative effect
of the alleged instances of ineffective assistance of counsel described above. This Court reviews
1
In the statement of questions presented in his principal appellate brief, defendant refers to
prosecutorial misconduct as well as ineffective assistance of counsel in asking whether the trial
court abused its discretion in denying defendant’s motion for a new trial. However, defendant’s
appellate argument on this issue is confined to the ineffective assistance of counsel claims
discussed above; he does not discuss prosecutorial misconduct. Defendant’s motion for a new
trial filed in the trial court was likewise confined to ineffective assistance of counsel claims.
Accordingly, any claim of prosecutorial misconduct has been abandoned because defendant has
failed to brief the merits of any such issue. See People v McPherson, 263 Mich. App. 124, 136;
687 NW2d 370 (2004) (“The failure to brief the merits of an allegation of error constitutes an
abandonment of the issue.”).
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a claim of cumulative error to determine whether the combination of alleged errors denied the
defendant a fair trial. People v Dobek, 274 Mich. App. 58, 106; 732 NW2d 546 (2007). “The
cumulative effect of several minor errors may warrant reversal even where individual errors in
the case would not warrant reversal.” People v Knapp, 244 Mich. App. 361, 388; 624 NW2d 227
(2001). The cumulative effect of the errors must have been seriously prejudicial in order to
conclude that the defendant was denied a fair trial. Id. Moreover, the cumulative effect must
undermine confidence in the reliability of the verdict before a new trial is granted. Dobek, 274
Mich. App. at 106. “Absent the establishment of errors, there can be no cumulative effect of
errors meriting reversal.” Id. As discussed, each of defendant’s ineffective assistance claims is
devoid of merit. Because defendant has failed to establish any errors, there can be no cumulative
effect of errors requiring reversal. Id.
II. DEFENDANT’S STANDARD 4 BRIEF
Defendant argues that he was denied his constitutional right of confrontation because of
the admission of statements by the confidential informant and a laboratory technician who tested
the drugs recovered from defendant’s bedroom. Defendant makes a related argument that he was
denied his right to have evidence of the res gestae presented at trial. These issues are
unpreserved because defendant did not raise them below. People v Metamora Water Serv, Inc,
276 Mich. App. 376, 382; 741 NW2d 61 (2007); People v Hogan, 225 Mich. App. 431, 438; 571
NW2d 737 (1997). Unpreserved issues are reviewed for plain error affecting substantial rights.
People v Henry (After Remand), 305 Mich. App. 127, 152; 854 NW2d 114 (2014), citing People v
Carines, 460 Mich. 750, 763, 774; 597 NW2d 130 (1999).
Under the plain-error rule, a defendant must show: 1) error occurred, 2) the error,
was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights.
To show that an error affected substantial rights, a defendant must show that the
error affected the outcome of the lower court proceedings. If a defendant satisfies
these three requirements, reversal is warranted only when the plain, forfeited error
resulted in the conviction of an actually innocent defendant or when an error
seriously affected the fairness, integrity or public reputation of judicial
proceedings independent of the defendant’s innocence. [Henry, 305 Mich. App. at
152-153 (quotation marks, brackets, ellipsis, and citations omitted), citing
Carines, 460 Mich. at 763.]
Moreover, at trial, defense counsel stipulated to the admission of the laboratory reports
which indicated that particular substances recovered from defendant’s bedroom constituted
certain drugs. Defendant did not object on the record. Defense counsel’s decision to stipulate to
the admission of the laboratory reports was consistent with a reasonable trial strategy. The
defense theory at trial was that Fred rather than defendant possessed the drugs. This theory did
not require challenging that the items recovered were drugs. There is no indication of any basis
on which the laboratory findings could have been challenged. Hence, defense counsel’s
stipulation to the admission of the laboratory reports constituted a waiver that extinguished any
error and precludes appellate review regarding the admission of that evidence. People v Buie,
491 Mich. 294, 305; 817 NW2d 33 (2012) (holding, in relevant part: “Waiver is the intentional
relinquishment or abandonment of a known right.”) (Quotation marks and citation omitted).
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Defendant next argues that he was denied his constitutional right of confrontation
because the prosecutor did not call as witnesses at trial (1) the confidential informant who
provided a tip that defendant was selling heroin from the Maurer Street address or (2) the
laboratory technician who authored the laboratory reports indicating that the substances
recovered from defendant’s bedroom constituted certain drugs. Defendant’s argument is
unavailing. As explained, defense counsel’s stipulation to the admission of the laboratory
reports waived any claim that the failure to call the laboratory technician violated defendant’s
right of confrontation; any error in that regard was thus extinguished, and appellate review is
precluded. See Buie, 491 Mich. at 306, 315. Further, as explained in connection with
defendant’s ineffective assistance of counsel claim earlier, Ludd’s testimony regarding the
confidential informant’s tip was not offered to prove the truth of the matter asserted but to
explain why the police searched defendant’s room: “[b]ecause the Confrontation Clause does not
bar the use of out-of-court testimonial statements for purposes other than establishing the truth of
the matter asserted, the testimony did not violate defendant’s right of confrontation.” Chambers,
277 Mich. App. at 11. But even if Ludd’s testimony concerning the confidential informant’s tip
should have been limited such that the reference to selling heroin was excluded, any error was
not outcome-determinative given the strong evidence of guilt set forth above and the limited
inculpatory information briefly referenced in the confidential informant’s statement. Carines,
460 Mich. at 763; Henry, 305 Mich. App. at 152-153.
Defendant next argues that the prosecutor had an obligation to produce the confidential
informant as a res gestae witness. However, the prosecutor is no longer required to produce res
gestae witnesses; the prosecutor’s duty under MCL 767.40a is to provide notice of known
witnesses and reasonable assistance to locate witnesses on the defendant’s request. See People v
Perez, 469 Mich. 415, 418-419; 670 NW2d 655 (2003). In any event, defendant has not
established that the confidential informant was a res gestae witness. A res gestae witness is a
person who witnesses an event in the continuum of the criminal transaction and whose testimony
would aid in developing a full disclosure of the facts at trial. People v Long, 246 Mich. App. 582,
585; 633 NW2d 843 (2001). There is no indication that the confidential informant witnessed an
event in the continuum of defendant’s possession of methadone, alprazolam, and marijuana in
his bedroom on the date of the charged offenses or that the confidential informant could
somehow provide testimony that would aid in developing a full disclosure of the facts.
Defendant has failed to establish an error in failing to call the confidential informant or that any
error affected the outcome given the strong evidence of guilt. Accordingly, he is not entitled to
relief on this issue.
Defendant next argues that the trial court erred in admitting Ludd’s “expert” testimony
that the items recovered from defendant’s bedroom were drugs. Although framed in part as a
due process claim, defendant is challenging the admission of Ludd’s testimony concerning the
drugs found in defendant’s bedroom. Evidentiary errors are nonconstitutional, People v
Blackmon, 280 Mich. App. 253, 260; 761 NW2d 172 (2008), and a defendant’s attempt to label an
issue as constitutional in nature does not make it so, see id. at 261 (“Although any error can
potentially be argued to have deprived a defendant of his due-process fair-trial right, not every
trial error is constitutional in nature. Merely framing an issue as constitutional does not make it
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so.”) (citation omitted).2 To preserve a claim that evidence was improperly admitted, a
defendant must object at trial and specify the same ground for objection that he asserts on appeal.
People v Aldrich, 246 Mich. App. 101, 113; 631 NW2d 67 (2001). Defendant did not object
below to Ludd’s testimony on the ground asserted on appeal. Therefore, this issue is
unpreserved, and this Court’s review is for plain error affecting defendant’s substantial rights.
Carines, 460 Mich. at 763.
Defendant argues that Ludd improperly testified as an expert witness concerning the
scientific conclusion that the suspected drugs recovered from defendant’s bedroom in fact
constituted those drugs.3 A lay witness may testify on the basis of his own perceptions and
personal knowledge. See MRE 701 (a lay witness may testify about his opinion if it is rationally
based on his perceptions); MRE 602 (a witness may only testify if he has personal knowledge of
the subject matter of his testimony); People v Daniel, 207 Mich. App. 47, 57; 523 NW2d 830
(1994) (upholding the admission of lay opinion testimony by a police officer based on his
observations). Ludd testified regarding what he observed in defendant’s bedroom. Ludd’s
testimony was not overly dependent on scientific, technical, or other specialized knowledge. See
People v Oliver, 170 Mich. App. 38, 50-51; 427 NW2d 898 (1988), mod on other grounds 433
Mich. 862 (1989). Although Ludd did refer to the fact that the suspected drugs were later
determined to be certain types of drugs, this testimony was in accordance with the laboratory
reports that defense counsel had stipulated to admit. There was no suggestion that Ludd himself
was testifying as an expert concerning the contents of the laboratory reports. Indeed, Ludd
testified that he submitted the suspected drugs to the Oakland County Sheriff’s laboratory and
then received the results back from the laboratory; Ludd described the results of the laboratory
testing as indicated in the laboratory reports, without any objection by defendant. It was clear
from Ludd’s testimony that he was not the scientist who analyzed the drugs. Defendant has
failed to show the existence of a plain error affecting his substantial rights with respect to Ludd’s
testimony.
Defendant next presents additional claims of ineffective assistance of counsel. Other
than the argument that defense counsel was ineffective for failing to object to the admission of
the confidential informant’s statement, defendant failed to raise the ineffective assistance claims
discussed below in his motion for a new trial. Hence, the issue is unpreserved with respect to
2
Defendant fails to offer an adequate or coherent explanation of how he thinks the asserted
evidentiary error violated his right of due process. “An appellant may not merely announce his
position and leave it to this Court to discover and rationalize the basis for his claims, nor may he
give only cursory treatment with little or no citation of supporting authority.” People v Kelly,
231 Mich. App. 627, 640-641; 588 NW2d 480 (1998). Defendant has thus not properly presented
the claim of a due process violation for appellate review. Id.
3
We previously addressed defendant’s argument in his principal appellate brief that other
portions of Ludd’s testimony constituted improper expert testimony to which defense counsel
failed to object; the portion of Ludd’s testimony at issue here is different from the testimony
addressed earlier.
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those ineffective assistance claims, and this Court’s review is limited to mistakes apparent from
the record. Heft, 299 Mich. App. at 80.
Defendant first contends that defense counsel was ineffective for failing to object to the
admission of the laboratory reports and to the unavailability of the laboratory technician as a
witness. Defense counsel may decline to make an objection on the basis of trial strategy. See
People v Cooper, 309 Mich. App. 74, 85; 867 NW2d 452 (2015). The defense theory at trial was
that Fred rather than defendant possessed the drugs. This theory did not require challenging that
the items recovered were drugs. There is no indication of any basis on which the laboratory
findings could have been challenged. Defendant has therefore failed to overcome the
presumption that the decision to stipulate to the admission of the laboratory reports in lieu of
requiring the laboratory technician to testify constituted a sound trial strategy.
Defendant also asserts that defense counsel should have objected to the admission of the
confidential informant’s statement and have sought the production of the confidential informant
as a witness. As discussed earlier, the confidential informant’s statement was not offered to
prove the truth of the matter asserted and thus did not violate defendant’s right of confrontation.
Chambers, 277 Mich. App. at 11. Hence, any objection to the testimony would have been futile,
and defense counsel was not ineffective for failing to make a futile objection. Id. Even if there
were grounds to object, defense counsel may have reasonably declined to object as a matter of
trial strategy, given that “ ‘there are times when it is better not to object and draw attention to an
improper comment.’ ” Unger, 278 Mich. App. at 242, quoting Bahoda, 448 Mich. at 287 n 54.
Defense counsel may also have concluded that requesting the production of the confidential
informant as a witness at trial was not a sound strategy; defendant fails to explain how it would
have helped his defense to seek the informant’s production. “An appellant may not merely
announce his position and leave it to this Court to discover and rationalize the basis for his
claims, nor may he give only cursory treatment with little or no citation of supporting authority.”
People v Kelly, 231 Mich. App. 627, 640-641; 588 NW2d 480 (1998).
Defendant next argues that defense counsel was ineffective for failing to object to the
prosecutor presenting Ludd as both a lay witness and an expert witness without a demarcation
between his two roles. As explained earlier, however, Ludd did not testify as an expert witness
concerning the drugs. Defendant has thus failed to establish the factual predicate for this claim.
Carbin, 463 Mich. at 600.
Next, defendant asserts that defense counsel failed to conduct legal research and to
investigate and thoroughly comb the police reports and laboratory reports. There is no support
for this contention in the record, and defendant has thereby failed to establish the factual
predicate for this claim. Id. Defendant also fails to identify any prejudice arising from the
alleged failure to investigate, which is fatal to his claim. See People v Caballero, 184 Mich. App.
636, 640-641; 459 NW2d 80 (1990).
Defendant argues that defense counsel was ineffective for failing to challenge the
authenticity of the recorded jail phone calls and for failing to seek the production of those
recordings before trial so that defense counsel could determine if he recognized defendant’s
voice. The record is devoid of any basis for concluding that the authenticity of the recorded
phone calls could have been challenged. Hughes and defendant’s own brother, Fred, testified it
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was defendant’s voice on the recordings. Defendant has failed to show that defense counsel’s
performance was deficient or that defendant was prejudiced.4
Finally, even if defense counsel’s performance had been deficient in any of the ways
asserted by defendant, defendant has not established a reasonable probability of a different
outcome but for defense counsel’s alleged error given the strong evidence of guilt discussed
earlier.
Affirmed.
/s/ Stephen L. Borrello
/s/ David H. Sawyer
/s/ Kathleen Jansen
4
Also, the record shows that defense counsel in fact did make an objection to the admission of
one of the jail phone call recordings, and defendant’s brother, Fred, then testified outside the
presence of the jury that he recognized his and defendant’s voices on the recording.
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