People of Michigan v. Jerome Joseph Matthews ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 13, 2016
Plaintiff-Appellee,
v No. 327632
Kent Circuit Court
JEROME JOSEPH MATTHEWS, LC No. 14-011325-FH
Defendant-Appellant.
Before: MURRAY, P.J., and HOEKSTRA and BECKERING, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction of possession with intent to deliver
less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv). The trial court sentenced defendant as a
fourth-offense habitual offender, MCL 769.12, to 6 to 50 years’ imprisonment. We affirm
defendant’s conviction, but remand for Crosby1 proceedings pursuant to People v Lockridge, 498
Mich. 358; 870 NW2d 502 (2015).
On November 13, 2014, police officers and parole agents conducted a search of
defendant’s residence at 1901 Bradford in Grand Rapids. In the kitchen, authorities found a
garbage bag containing three smaller “knotted up plastic bags” filled with a “white chunky
substance.” The substance in two of the smaller bags tested positive for cocaine, while the third
bag contained a suspected cutting agent. The total amount of cocaine recovered was 26.49
grams, or approximately 260 “rocks” of crack cocaine, with a total value of approximately
$5,200. In addition to the drugs, authorities found drug paraphernalia and materials for
packaging narcotics for sale, including baggies with missing corners, a box for a digital scale,
syringes, a hypodermic needle “full of liquid,” “Chore Boy,” a spoon for heating drugs, and a
used crack pipe. In a jacket belonging to defendant, authorities also found approximately $1,680
in cash. Defendant, who was present during the search, was arrested and advised of his rights.
According to police, defendant admitted that he was a drug addict and that he was involved with
drug sales “because he is a user, and also to make ends meet.” Defendant also offered to call
someone to obtain 100 grams of cocaine, which would be “fronted” to defendant for sale.
1
United States v Crosby, 397 F3d 103 (CA 2 2005).
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At trial, an expert in street-level narcotics sales opined that the amount of cocaine found
was for delivery, not personal use. The prosecution also presented evidence of defendant’s prior
bad acts under MRE 404(b). In particular, in 2010, a police search of defendant’s apartment
resulted in the recovery of drugs, over $1,000 in cash, packaging materials, and pills. In 2008,
defendant was arrested with 20 rocks of crack cocaine, including some that were individually
packaged in the corners of baggies, as well as approximately $350 in cash.
The defense theory at trial was that the drugs, and other drug-related items recovered at
1901 Bradford, did not belong to defendant; rather, the items belonged to Nancy Deeb, who died
of a drug overdose before trial. At the time of the search, defendant had only been living in the
residence for approximately two weeks and, when the search was conducted, three other
individuals were also present in the home, including Deeb. Defendant testified that, when police
came to the door, Deeb took a bag from the bedroom and placed it in the kitchen. Further,
although defendant admitted telling police that he could call someone to obtain drugs, defendant
denied telling police that he had a drug problem or that he was selling drugs. According to
defendant, he had used drugs in the past, but he had been to drug rehabilitation and he was no
longer “messing around with drugs.” With regard to the large sum of money recovered in his
jacket, defendant testified that he saved the money working various jobs.
The jury found defendant guilty of possession with intent to deliver less than 50 grams of
cocaine.2 Defendant now appeals as of right.
I. EFFECTIVE ASSISTANCE OF COUNSEL
On appeal, defendant argues that he was deprived of the effective assistance of counsel
on several grounds. Defendant did not move for a new trial or a Ginther3 hearing. Thus,
defendant’s claims are unpreserved and our review is limited to errors apparent on the record.
People v Cox, 268 Mich. App. 440, 453; 709 NW2d 152 (2005).
The right to the effective assistance of counsel is guaranteed by the United States and
Michigan constitutions. US Const Am VI; Const 1963, art 1, § 20; People v Swain, 288 Mich
App 609, 643; 794 NW2d 92 (2010). “Effective assistance of counsel is presumed, and a
defendant bears a heavy burden to prove otherwise.” Swain, 288 Mich. App. at 643. “To prove a
claim of ineffective assistance of counsel, a defendant must establish that counsel’s performance
fell below objective standards of reasonableness and that, but for counsel’s error, there is a
reasonable probability that the result of the proceedings would have been different.” Id.
Decisions regarding what evidence to present, whether to object to evidence, whether to call
witnesses, and how to question witnesses are presumed to be matters of trial strategy. People v
Horn, 279 Mich. App. 31, 39; 755 NW2d 212 (2008); People v Unger, 278 Mich. App. 210, 253;
749 NW2d 272 (2008). “We will not second-guess matters of strategy or use the benefit of
2
Defendant was also charged with maintaining a drug house, MCL 333.7405(1)(d). The jury
found defendant not guilty of this charge.
3
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
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hindsight when assessing counsel's competence.” People v Odom, 276 Mich. App. 407, 415; 740
NW2d 557 (2007).
Defendant first argues that trial counsel was ineffective for failing to object to the
admission of other-acts evidence, i.e., police testimony concerning defendant’s 2008 and 2010
drug-related arrests. See MRE 404(b). Defendant’s argument is without merit because any such
objection would have proved futile, and counsel cannot be considered ineffective for failing to
make a futile objection. See Horn, 279 Mich. App. at 39-40. In any event, even assuming such
an objection would have succeeded, defendant has not overcome the presumption that the
decision not to object was a matter of trial strategy and, given the considerable evidence of
defendant’s guilt, defendant has not shown that he was prejudiced by counsel’s failure to object.
In particular, MRE 404(b)(1) provides that “[e]vidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show action in conformity
therewith.” While not admissible for propensity purposes, evidence of other acts may be
admissible for other purposes, including intent, knowledge, preparation, scheme, plan, or system
of doing an act. MRE 404(b)(1). To introduce evidence under MRE 404(b), the prosecutor must
satisfy a four-part standard:
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. Finally, the
trial court, upon request, may provide a limiting instruction under MRE 105.
[People v Knox, 469 Mich. 502, 509; 674 NW2d 366 (2004) (citations omitted).]
To be relevant, evidence must be both material and probative, meaning that the evidence tends
“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.” People v Crawford, 458 Mich.
376, 388-389; 582 NW2d 785 (1998) (citation omitted). When the evidence is used for purposes
of establishing intent, “logical relevance dictates only that the charged crime and the proffered
other acts ‘are of the same general category.’” People v VanderVliet, 444 Mich. 52, 80; 508
NW2d 114 (1993), amended 445 Mich. 1205 (1994) (citation omitted).
In this case, the prosecutor used the evidence of defendant’s previous drug-related arrests
to argue that defendant intended to sell the quantity of cocaine recovered at 1901 Bradford.4
4
For example, during closing arguments, the prosecutor rhetorically asked: “what evidence . . .
can you look at in this trial and say, hey well, there’s evidence of possession with intent to
deliver crack cocaine[?]” In answer to this question, the prosecutor then identified (1) the
amount of cocaine, (2) the baggies with missing corners, (3) the “insane amount of cash” in
defendant’s jacket, and (4) the testimony about the 2008 and 2010 incidents which showed the
“same method of operation,” i.e., drugs and large sums of cash. Similarly, elsewhere the
prosecutor argued that “possession with intent to deliver” is “not personal use” and that the
evidence showed defendant was “using this house to sell his crack cocaine.” To support this
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First, this was a proper, non-propensity purpose for the introduction of the evidence under MRE
404(b)(1). Second, by pleading not guilty, defendant placed all elements of the offense at issue,
including the question of his intent, and thus the evidence, which tended to make it more likely
that defendant intended to sell the drugs in question, was both material and probative. While the
past instances were not identical to defendant’s current conduct, all the instances in question
involved possession of drugs in circumstances indicative of an intent to distribute, including the
quantity of drugs in defendant’s possession, the quantity of cash involved, and the packaging of
the narcotics. See generally People v Wolfe, 440 Mich. 508, 524-525; 489 NW2d 748 (1992),
amended 440 Mich. 508 (1992). In other words, in each instance, defendant’s conduct fell within
the same “general category,” and the events were sufficiently similar to be logically relevant to
the issue of defendant’s intent in the present case. See VanderVliet, 444 Mich. at 79-80. Third,
while the evidence of defendant’s prior bad acts was prejudicial to defendant, it was not unfairly
so, and the risk of unfair prejudice did not substantially outweigh the evidence’s probative value.
See MRE 403; People v McGhee, 268 Mich. App. 600, 613-614; 709 NW2d 595 (2005). Finally,
the trial court gave a limiting instruction on the use of the prior bad acts evidence, mitigating the
risk of any prejudicial effect. See People v Orr, 275 Mich. App. 587, 593; 739 NW2d 385 (2007).
Overall, we are persuaded that the evidence in question was admissible, and counsel was not
ineffective for failing to raise a meritless objection.
Moreover, even assuming counsel could have succeeded on an objection to the MRE
404(b) evidence, defendant has not overcome the presumption that the decision not to object was
a matter of trial strategy and defendant has not established a reasonable probability that, but for
counsel’s failure to object, the outcome of the trial would have been different. At trial, part of
defendant’s testimony was that he had been “involved” with drugs all his life, but he asserted
that he had gone through rehab and that he was no longer using or selling. By admitting that he
had a history with drugs, defendant had a means of explaining some of his comments to police,
including, for example, his remark that he had the connections to call someone to obtain drugs.
Given that admitting defendant’s history with drugs appears to have been part of a trial strategy,
counsel may have reasonably concluded that there was no reason to object to the other acts
evidence and thus defendant has not overcome the presumption that counsel’s decision not to
object was a matter of strategy. In addition, with regard to the question of prejudice, there was
ample evidence to support the jury’s verdict independent of the other act testimony, including the
quantity of drugs found in the residence, the packaging materials, and the money recovered in
defendant’s jacket, as well as police testimony that defendant admitted he had a drug addiction
and sold drugs “to make ends meet.” Further, the jury acquitted defendant of maintaining a drug
house, belying defendant’s claim that the other-acts evidence caused the jury to convict
defendant merely on the basis of his criminal propensities. On this record, defendant has not
shown that he was prejudiced by counsel’s failure to object to the MRE 404(b) evidence. On the
whole, defendant has not demonstrated that he was denied the effective assistance of counsel
based on counsel’s failure to object to the prior bad acts evidence.
assertion, the prosecutor argued that “just like in 2010, when he’s got over a thousand dollars,
he’s got over a thousand dollars here. Just like in 2008, when he’s got the 20 rocks of crack
cocaine, which, by the way, were packaged how? The testimony was, hey, they’re packaged in
individual corners from the baggies, which is exactly what we have here today.”
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In his Standard 4 brief, defendant makes several additional arguments regarding the
ineffective assistance of counsel.
First, defendant argues that counsel was ineffective for waiving the preliminary
examination because if the preliminary examination been conducted, exculpatory testimony
would have been revealed. Defendant has failed to establish the factual predicate of this claim
because defendant has not asserted who would have testified on his behalf nor has he shown
what testimony these witnesses would have given. See People v Cooper, 309 Mich. App. 74, 80;
867 NW2d 452 (2015). Absent such evidence, defendant also has not shown prejudice from the
waiver of the preliminary examination. Given that defendant’s conviction “was based on proof
beyond a reasonable doubt, we can surmise that had a preliminary examination been conducted,
defendant would have been bound over to circuit court for trial since the lesser standard of
probable cause is used at preliminary examination.” People v McGee, 258 Mich. App. 683, 698;
672 NW2d 191 (2003). Quite simply, on this record, defendant has not shown that counsel was
ineffective for waiving the preliminary examination or that, absent waiver of the preliminary
examination, there was a reasonable probability of a different outcome.
Second, defendant also claims that counsel failed to obtain the “discovery package,”
which appears to refer mainly to police reports. The lower court record includes a discovery
request by defense counsel, specifically requesting police reports and numerous other items.
There is no indication on the record that counsel did not receive the police reports and other
relevant discovery materials, and thus defendant has not established the factual predicate of his
claim. See Cooper, 309 Mich. App. at 80. Further, there is no indication that any materials
purportedly not received would have benefited defendant’s case. Absent such evidence,
defendant has not established that counsel’s performance fell below objective standards of
reasonableness or that, but for these alleged errors, there is a reasonable probability of a different
outcome.
Third, defendant next argues that counsel was ineffective for failing to introduce
testimony from Leona Casteneda and Timothy Hernandez, who were also in the apartment at the
time of the search and who allegedly would have testified that the cocaine did not belong to
defendant. However, defendant failed to provide an affidavit or other offer of proof from either
witness, and there is simply no evidence in the record to support the contention that Hernandez
or Casteneda would have provided exculpatory testimony. Thus, defendant has not established
the factual predicate of his claim, he cannot establish that counsel’s failure to present their
testimony deprived him of a substantial defense, and he has not shown that counsel’s failure to
call these witnesses constituted ineffective assistance. See People v Putman, 309 Mich. App. 240,
249; 870 NW2d 593 (2015).
Fourth, defendant next argues that counsel was ineffective for failing to make an opening
statement. This argument is factually meritless because the record reveals that counsel delivered
an opening statement. In any event, whether to give an opening statement is a matter of trial
strategy. People v Payne, 285 Mich. App. 181, 190; 774 NW2d 714 (2009).
Fifth, defendant also asserts that counsel failed to “effectively” cross-examine witnesses
because he only cross-examined “1 or 2 of the prosecution witnesses and only ask[ed] one or two
questions.” In actuality, the record shows that counsel cross-examined four of the seven
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prosecution witnesses, asking numerous questions. How to cross-examine witnesses is presumed
to be a matter of trial strategy. See People v Petri, 279 Mich. App. 407, 413; 760 NW2d 882
(2008). Defendant has not explained with any specificity how counsel’s cross-examination was
deficient, and he certainly has not overcome the presumption that counsel’s cross-examination
decisions were a matter of trial strategy. Thus, defendant has not established that counsel’s
performance fell below objective standards of reasonableness or that, but for counsel’s alleged
errors, there is a reasonable probability of a different outcome.
Finally, defendant argues that counsel was ineffective for failing to object to police
testimony regarding defendant’s statement in which he admitted that he sold drugs to fund his
drug addiction and to make ends meet. Relevant to this argument, the record makes clear that
defendant was advised of his rights and that he voluntarily agreed to speak with police.
Defendant does not assert otherwise on appeal. Generally, “when a suspect has been afforded
Miranda warnings and affirmatively waives his Miranda rights, subsequent incriminating
statements may be used against him.” People v Tanner, 496 Mich. 199, 209; 853 NW2d 653
(2014). Nonetheless, defendant contends that his statement was involuntary, and thus
inadmissible, because it was obtained through means of “trickery” and “deception.” However,
defendant fails to identify this supposed trickery or deception on the part of the police, and there
is certainly nothing in the record indicative of the type of intimidation, coercion, or deception
that might render an otherwise voluntary statement involuntary. See generally People v Akins,
259 Mich. App. 545, 564-565; 675 NW2d 863 (2003); People v Hicks, 185 Mich. App. 107, 113;
460 NW2d 569 (1990). Any objection by counsel would have been futile, and counsel is not
ineffective for failing to make futile objections. Horn, 279 Mich. App. at 39-40. Overall,
defendant has not met his burden of demonstrating ineffective assistance of counsel. Swain, 288
Mich. App. at 643.
II. PAROLE STATUS
Defendant next argues through his appellate counsel that the trial court abused its
discretion in denying his motion for a mistrial after a law enforcement officer testified that he
responded to “assist parole.” Defendant further argues that the trial court abused its discretion
when, on rebuttal, it allowed testimony concerning defendant’s status as a parolee.
A trial court’s decision whether to grant a mistrial is reviewed for an abuse of discretion.
People v Alter, 255 Mich. App. 194, 205; 659 NW2d 667 (2003). Generally, an unresponsive or
volunteered answer is insufficient grounds for granting a mistrial; however, “[p]olice witnesses
have a special obligation not to venture into such forbidden areas,” and unresponsive remarks,
when made by law enforcement personnel, will be scrutinized by this Court. People v Holly, 129
Mich. App. 405, 415-416; 341 NW2d 823 (1983). “A mistrial should be granted only where the
error complained of is so egregious that the prejudicial effect can be removed in no other way.”
People v Gonzales, 193 Mich. App. 263, 266; 483 NW2d 458 (1992). Jury instructions are
“presumed to cure most errors.” Horn, 279 Mich. App. at 36.
In this case, Detective Todd Butler testified that, on the day of the search, he and his
partner “responded to assist parole with an incident” at 1901 Bradford. Considering this remark,
we conclude that the trial court did not abuse its discretion in denying defendant’s motion for a
mistrial because the officer’s reference to parole was brief and did not identify defendant as a
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parolee. The jury knew that three people other than defendant were located in the apartment at
the time of the search. Thus, to the extent the jury could infer that the statement referred to one
of the individuals in the home being a parolee, it did not establish that defendant was the parolee.
Further, the officer’s answer was also volunteered; he was not asked why he responded to the
apartment. The brief and nonspecific mention of “parole,” despite being made by a law
enforcement officer and therefore subject to additional scrutiny, was not so egregious as to
require a mistrial. Holly, 129 Mich. App. at 415-416; Gonzales, 193 Mich. App. at 266. Moreover,
the trial court twice issued a curative instruction, reminding the jurors that any mention of parole
was not relevant to whether defendant was guilty of the charged crimes. A curative instruction is
presumed to alleviate prejudice. Horn, 279 Mich. App. at 37. Accordingly, the denial of the
motion for a mistrial was not an abuse of discretion.
Defendant also argues that, during the prosecution’s rebuttal, the trial court erroneously
admitted evidence of his status as a parolee. According to defendant, this evidence of his parole
status was inadmissible because it was irrelevant and, if relevant, it was more prejudicial than
probative.
We review the trial court’s decision to admit evidence for an abuse of discretion. People
v Mardlin, 487 Mich. 609, 614; 790 NW2d 607 (2010). “An abuse of discretion occurs when the
court chooses an outcome that falls outside the range of reasonable and principled outcomes.”
Unger, 278 Mich. App. at 217. “[T]he trial court's decision on a close evidentiary question such
as this one ordinarily cannot be an abuse of discretion.” People v Sabin (After Remand), 463
Mich. 43, 67; 614 NW2d 888 (2000).
In this case, the trial court allowed rebuttal testimony from Randy Dockins regarding
Dockins’s monitoring of defendant’s employment pursuant to Dockins’s duties as defendant’s
parole officer. Specifically, Dockins identified himself as defendant’s parole officer, he noted
parolees were required to provide proof of employment, and he discussed his recordkeeping in
regard to a parolee’s employment status. Dockins then testified that, based on a review of his
records, defendant had not provided him with paystubs or check stubs. In addition, Dockins
testified that, through GPS monitoring of defendant’s location, Dockins had observed that
defendant “wasn’t working when he was telling me he was working.” The trial court allowed
this testimony after concluding that defendant opened the door to the issue of Dockins’s
knowledge of defendant’s whereabouts and employment. In this regard, defendant testified at
trial that he saved the large sum of money found in his jacket by working various jobs and taking
items to scrap yards. To support this claim, defendant testified that he “was turning in scrap yard
receipts to the guy back there, Randy Dockins.” Similarly, defendant claimed that he provided
Dockins with “flyers” advertising defendant’s offer “to pick up free scrap” and defendant also
testified that he turned in check stubs from his jobs to Dockins.
Given defendant’s testimony, we conclude that the trial court did not abuse its discretion
by allowing Dockins’s rebuttal testimony based on the conclusion that defendant opened the
door to this testimony. Even if evidence of defendant’s parole status would normally be
inadmissible and irrelevant, defendant’s testimony regarding the proofs of employment he
purportedly gave to Dockins opened the door to evidence of his relationship with Dockins and
Dockins’s monitoring of defendant’s employment and whereabouts. See People v Ericksen, 288
Mich. App. 192, 201; 793 NW2d 120 (2010). Thus, the trial court did not abuse its discretion by
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ruling that defendant opened the door and by admitting Dockins’s rebuttal testimony. See
People v Verburg, 170 Mich. App. 490, 498; 430 NW2d 775 (1988).
In addition, even assuming Dockins’s rebuttal testimony was improper, the admission of
testimony concerning defendant’s parolee status was harmless. See MCR 2.613(A)(1). The trial
court provided a cautionary instruction, informing the jury that defendant’s status as a parolee
should not affect their decision whether defendant was guilty of the charged crimes, and jurors
are presumed to follow their instructions and these instructions cured any error. See People v
Mahone, 294 Mich. App. 208, 212; 816 NW2d 436 (2011). Indeed, the jury acquitted defendant
of maintaining a drug house, demonstrating that the jury was not biased against defendant as a
result of its knowledge of his parolee status. Moreover, there was ample evidence, outside of
defendant’s status as a parolee, to support the jury’s verdict, including defendant’s admissions to
police as well as the quantity of drugs and money recovered during the search. Accordingly,
even assuming some error, mention of defendant’s parolee status was harmless and does not
require reversal. MCR 2.613(A).
III. MISSING WITNESS INSTRUCTION
In his Standard 4 brief, defendant argues that the trial court abused its discretion by
refusing to issue a missing witness instruction, M Crim JI 5.12, with regard to Casteneda and
Hernandez. According to defendant, both Casteneda and Hernandez were res gestae witnesses,
and defendant claims he was entitled to a missing witness instruction because the prosecution
failed to produce these witnesses at trial.
“We review a trial court’s determination of due diligence and the appropriateness of a
‘missing witness’ instruction for an abuse of discretion.” People v Eccles, 260 Mich. App. 379,
389; 677 NW2d 76 (2004). Under MCL 767.40a, “the prosecutor has a duty to attach to the
information a list of all witnesses the prosecutor might call at trial and of all known res gestae
witnesses, to update the list as additional witnesses became known, and to provide to the
defendant a list of witnesses the prosecution intended to call at trial.” People v Koonce, 466
Mich. 515, 520-521; 648 NW2d 153 (2002). However, the prosecutor is not necessarily required
to endorse or produce a res gestae witness for trial. People v Cook, 266 Mich. App. 290, 295; 702
NW2d 613 (2005). If a prosecutor chooses to endorse a witness under MCL 767.40a(3), the
prosecutor is obliged to exercise due diligence to produce that witness at trial. Eccles, 260 Mich
App at 388.
A prosecutor who fails to produce an endorsed witness may show that the witness
could not be produced despite the exercise of due diligence. If the trial court finds
a lack of due diligence, the jury should be instructed that it may infer that the
missing witness’s testimony would have been unfavorable to the prosecution’s
case. [Id. (citations omitted).]
With regard to a witness who is not endorsed by the prosecution, the prosecution is required to
provide “reasonable assistance” to a defendant in locating and serving process, if the defendant
requests such assistance not less than 10 days before trial. MCL 767.40a(5); Koonce, 466 Mich.
at 521. If the prosecutor fails to exercise the requisite reasonable assistance, “it might be
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appropriate to instruct a jury that the missing witness would have been unfavorable to the
prosecution.” People v Perez, 469 Mich. 415, 420; 670 NW2d 655 (2003).
In this case, Hernandez was not endorsed as a prosecution witness. MCL 767.40a(3).
Thus, even if he may be considered a res gestae witness, the prosecution had no obligation to
produce him to testify at trial. See People v Kevorkian, 248 Mich. App. 373, 441; 639 NW2d 291
(2001). Instead, the prosecution was only obligated to provide “reasonable assistance in locating
and serving process upon [Hernandez] upon the request of defendant.” Koonce, 466 Mich. at 521
(emphasis added). Defense counsel failed to request assistance in obtaining Hernandez’s
testimony in a timely manner, MCR 767.40a(5), but the prosecution nonetheless provided some
assistance. On this record, we cannot conclude that the prosecution failed in its statutory
obligation to provide defendant with reasonable assistance, and defendant was not entitled to a
missing witness instruction with respect to Hernandez.
In comparison, the prosecution concedes on appeal that Casteneda was endorsed as a
prosecution witness. Thus, the prosecution was required to exercise due diligence to secure her
presence at trial. See Eccles, 260 Mich. App. at 388. “The test [of due diligence] is one of
reasonableness and depends on the facts and circumstances of each case, i.e., whether diligent
good-faith efforts were made to procure the testimony, not whether more stringent efforts would
have produced it.” People v Bean, 457 Mich. 677, 684; 580 NW2d 390 (1998).
In this case, there is minimal evidence in the lower court record regarding the efforts to
produce Casteneda. At trial, a detective answered “no” when asked: “And the other female,
[Casteneda], were you able to locate her to serve her a subpoena?” There was no other testimony
or evidence regarding the efforts to secure her presence. The trial court, in denying defendant’s
request for a missing witness instruction with regard to Casteneda, nevertheless found that the
prosecution exercised the required due diligence: “I believe there’s already been testimony they
could not find her. I am not—reasonable efforts. I’m not going to issue the instruction.”
While the evidence of the prosecution’s efforts to locate Casteneda is sparse and we fail
to see how the trial court could have made a due diligence finding on the evidence presented, we
nonetheless conclude that defendant is not entitled to appellate relief on the basis of the trial
court’s refusal to give a missing witness instruction. First, as the appellant, defendant bears the
burden of providing this Court “with a record to verify the factual basis of any argument upon
which reversal was predicated.” People v Elston, 462 Mich. 751, 762; 614 NW2d 595 (2000).
The only available record evidence is that police were unable to locate Casteneda to serve her
with a subpoena. In connection with his request for a missing witness instruction, defendant did
not request further factual development regarding the prosecution’s efforts and he cannot point to
anything in the record that would establish that the prosecutor failed to exercise due diligence.
Cf. id. Therefore, reversal is not required.
Second, even if the trial court should have given the requested instruction, any error was
harmless. When an applicable jury instruction is not given, the defendant bears the burden of
establishing that omission of the requested instruction resulted in a miscarriage of justice.
People v McKinney, 258 Mich. App. 157, 163; 670 NW2d 254 (2003). That is, “[r]eversal for
failure to provide a jury instruction is unwarranted unless it appears that it is more probable than
not that the error was outcome determinative.” Id. At most, if the missing witness instruction
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had been given in the case, the jury could have chosen to infer that Casteneda would have
testified that the recovered cocaine did not belong to defendant. This testimony would have been
largely cumulative to defendant’s testimony, which the jury rejected. In addition, in contrast to
the assertion that the cocaine did not belong to defendant, a police officer testified about
defendant’s incriminating admissions and it was undisputed that the large sum of cash recovered
in the home was found in defendant’s jacket, further supporting the conclusion that defendant
possessed the cocaine with the intent to distribute. Given the strong evidence of defendant’s
guilt, we conclude that any error in the trial court’s refusal to give a missing witness instruction
was harmless.
IV. SUFFICIENCY OF THE EVIDENCE
Defendant next argues in his Standard 4 brief that the prosecution failed to present
sufficient evidence to support his conviction. Specifically, defendant maintains that there is no
direct evidence tying defendant to the drugs, he argues that the drugs could have belonged to
Deeb, and he emphasizes that his mere presence is not enough to establish his possession of the
cocaine. Defendant also maintains that there is no evidence the substance found was cocaine.
Whether a defendant’s conviction was supported by sufficient evidence is reviewed de
novo. People v Harverson, 291 Mich. App. 171, 177; 804 NW2d 757 (2010). “In determining
whether the prosecutor has presented sufficient evidence to sustain a conviction, an appellate
court is required to take the evidence in the light most favorable to the prosecutor. The question
on appeal is whether a rational trier of fact could find the defendant guilty beyond a reasonable
doubt.” People v Tennyson, 487 Mich. 730, 735; 790 NW2d 354 (2010) (quotation marks,
brackets, and citation omitted). “This Court will not interfere with the trier of fact's role of
determining the weight of the evidence or the credibility of witnesses.” People v Kanaan, 278
Mich. App. 594, 619; 751 NW2d 57 (2008). “Circumstantial evidence and the reasonable
inferences that arise from that evidence can constitute satisfactory proof of the elements of the
crime.” People v Henderson, 306 Mich. App. 1, 9; 854 NW2d 234 (2014).
“To convict a defendant of possession with intent to deliver, the prosecution must prove
(1) that the recovered substance is a narcotic, (2) the weight of the substance, (3) that the
defendant was not authorized to possess the substance, and (4) that the defendant knowingly
possessed the substance intending to deliver it.” McGhee, 268 Mich. App. at 622. “Possession
may be either actual or constructive.” Wolfe, 440 Mich. at 520. “Moreover, possession may be
joint, with more than one person actually or constructively possessing a controlled substance.”
Id. Constructive possession is established where the defendant “had the right to exercise control
over the cocaine and knew that it was present.” Id. (quotation marks and citation omitted).
“[C]onstructive possession exists when the totality of the circumstances indicates a sufficient
nexus between the defendant and the contraband.” Id. at 521. “Intent to deliver [may be]
inferred from the quantity of narcotics in a defendant’s possession, from the way in which those
narcotics are packaged, and from other circumstances surrounding the arrest.” Id. at 524.
In this case, contrary to defendant’s arguments, there was testimony that the substance in
two bags recovered in the apartment tested positive for cocaine in an amount totaling just over 26
grams. This evidence was sufficient to allow a rational jury to find that the recovered substance
was cocaine and weighed less than 50 grams, the first two necessary elements. McGhee, 268
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Mich App at 622. With respect to the third element, it is undisputed that defendant was not
authorized to possess cocaine. Id.
The prosecution also presented sufficient evidence to allow a rational jury to conclude
that defendant possessed the cocaine. A detective testified that defendant admitted that he sold
drugs to support his drug addiction and “to make ends meet.” While defendant denied making
such admissions, questions of witness credibility were for the jury. Unger, 278 Mich. App. at
228-229. Beyond defendant’s statements, there was additional evidence that defendant
possessed the cocaine. Defendant testified that he resided in the apartment, his clothes were
found in the only bedroom, the cocaine was found in the apartment’s kitchen, and defendant’s
jacket contained a large amount of cash in small denominations, consistent with street-level drug
sales. That the cash was with defendant’s jacket strongly supports the inference that he had
control of the recovered cocaine. See Wolfe, 440 Mich. at 520-521, 525. Under the totality of the
circumstances, a rational jury could find a sufficient nexus between defendant and the recovered
cocaine to establish constructive possession. Id. at 520-521.
Likewise, there was sufficient evidence to allow a rational jury to conclude that defendant
intended to deliver the cocaine. Two officers testified that the cocaine was present in delivery
quantities. Defendant admitted to police that he sold drugs to support his drug addiction and “to
make ends meet,” and he stated that he could call someone to obtain more drugs to sell on a
“fronted” basis. The apartment contained sandwich bags (commonly used for packaging
cocaine) and the box for a scale of the type commonly used to weigh drugs. And, the large
amount of cash found in defendant’s jacket was in small denominations, consistent with street-
level drug sales. Defendant’s possession of the money supports the conclusion that he was
involved in the sale of the drugs and, indeed, it suggests that he was a principal or primary figure
in the sale of the cocaine recovered in the home. Cf. id. at 525. Thus, a rational jury could have
inferred that defendant possessed the cocaine with the intent to deliver it. Id. at 524.
Accordingly, the evidence was sufficient to allow a rationale jury to conclude that defendant
possessed the cocaine with the intent to deliver it.5 See McGhee, 268 Mich. App. at 622.
V. OV 19
5
In relation to his sufficiency challenge, defendant also asserts that the trial court should have
given an instruction on a lesser offense and defendant also complains on appeal that the jury was
not required to specify whether its verdict was based on direct liability or a theory of aiding and
abetting. These arguments lack merit. A jury is not required to specify whether it convicted a
defendant as a principal or as an aider and abettor. See People v Smielewski, 235 Mich. App. 196,
201-202; 596 NW2d 636 (1999). Defendant was also not entitled to a lesser offense instruction
such as simple possession. Defense counsel did not request such an instruction and, a rational
view of the evidence did not support, and defendant did not contend at any point in these
proceedings, that he possessed the seized cocaine but did not intend to deliver it. See People v
Cornell, 466 Mich. 335, 357; 646 NW2d 127 (2002).
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Next, defendant argues that the trial court erred in assessing 10 points for offense variable
(OV) 19. In particular, defendant concedes that perjury provides a proper basis for scoring OV
19, but he maintains that his testimony in this case did not rise to the level of perjury.
“Under the sentencing guidelines, the circuit court’s factual determinations are reviewed
for clear error and must be supported by a preponderance of the evidence.” People v Hardy, 494
Mich. 430, 438; 835 NW2d 340 (2013). “Whether the facts, as found, are adequate to satisfy the
scoring conditions prescribed by statute, i.e., the application of the facts to the law, is a question
of statutory interpretation, which an appellate court reviews de novo.” Id.
OV 19 provides for the assessment of 10 points where the defendant “interfered or
attempted to interfere with the administration of justice.” MCL 777.49(c). The phrase interfered
or attempted to interfere with the administration of justice is “a broad phrase,” and conduct need
not result in a criminal conviction to be scored under OV 19. See People v Hershey, 303 Mich
App 330, 343; 844 NW2d 127 (2013). Perjury in a court proceeding constitutes an interference
or attempted with the administration of justice, and it is therefore a proper basis for assessing 10
points under OV 19. Id. at 344; People v Underwood, 278 Mich. App. 334, 338-339; 750 NW2d
612 (2008). By definition, perjury refers to “a willfully false statement about any matter or thing
concerning which an oath was authorized or required.” People v Lively, 470 Mich. 248, 254; 680
NW2d 878 (2004) (emphasis in original).
In this case, the trial court found that defendant perjured himself regarding his
employment history. The trial court stated:
I’m very familiar with this case, as I sat as trial judge in this matter. I had an
opportunity to listen to both the defendant’s testimony as well as the direct
testimony of the parole agent with regards to this $1,685. I think it was clear
beyond any reasonable doubt that the defendant lied with regards to his working
and making these checks. I mean, it was very clear from the record that what he
was saying trying to explain this money away instead of relating it to drugs was
contradicted directly by what the parole agent had to say. He was supposed to
keep the parole agent informed if he was making any income or money; he,
evidently, had not done that.
The trial court’s factual finding that defendant perjured himself at trial was not clearly erroneous.
Defendant testified that he worked several jobs and provided Dockins with pay stubs. In
contrast, Dockins reviewed his records and testified that he never received a pay stub from
defendant and that he reduced defendant’s free time because he had been tracked to locations
other than the work sites where he claimed to be. The trial court credited Dockins’s testimony,
and rejected defendant’s. We defer to the trial court’s assessment of credibility. MCR 2.613(C).
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Because the trial court’s factual findings were not clearly erroneous and perjury is a proper basis
for scoring OV 19, the trial court did not err by scoring OV 19 at 10 points.6
VI. LOCKRIDGE
Lastly, defendant argues that he is entitled to the Crosby remand procedures described in
Lockridge. We agree.
In Lockridge, the Court held Michigan’s sentencing guidelines violated the Sixth
Amendment right to a jury trial to the extent that “the guidelines require judicial fact-finding
beyond facts admitted by the defendant or found by the jury to score offense variables (OVs)
that mandatorily increase the floor of the guidelines minimum sentence range.” Lockridge, 498
Mich. at 364. To remedy this constitutional deficiency, the Court determined that, although the
guidelines must still be scored and taken into account at sentencing, the guidelines were now
“advisory only.” Id. at 365. Under Lockridge, an unpreserved claim, such as defendant’s, is
reviewed for plain error, and to warrant appellate relief a defendant must make a “threshold
showing of potential plain error,” which requires a defendant to demonstrate: (1) that his or her
“OV level was calculated using facts beyond those found by the jury or admitted by the
defendant and that a corresponding reduction in the defendant's OV score to account for the error
would change the applicable guidelines minimum sentence range,” and (2) that the defendant
was not subject to an upward departure. Id. at 394-395, 399.
In this case, defendant has made a threshold showing of potential plain error. In
particular, as discussed, the trial court scored OV 19 based on the determination that defendant
committed perjury about his employment. A finding of perjury required a determination that
defendant made “a willfully false statement about any matter or thing concerning which an oath
was authorized or required.” Lively, 470 Mich. at 254 (emphasis in original). While the jury
seemingly rejected defendant’s general version of events when finding him guilty, it did not
determine whether defendant made a willfully false statement under oath and, in particular, it did
not determine whether defendant made a willfully false statement about his employment.
6
On appeal, defendant also argues that “the scoring of OV 19 for perjury based upon the fact
that defendant testified as to his innocence, but was found guilty, raises constitutional concerns”
and essentially “becomes a trial penalty” in every case where a defendant chooses to exercise his
or her right to testify. We have no such concerns about the scoring of OV 19 in cases of perjury.
“[A] defendant's right to testify does not include a right to commit perjury,” and a finding that
the defendant committed perjury during trial may be properly considered during sentencing
without the risk of unnecessarily discouraging a defendant from exercising the right to testify.
See United States v Dunnigan, 507 U.S. 87, 96-97; 113 S. Ct. 1111; 122 L. Ed. 2d 445 (1993). See
also People v Longuemire, 87 Mich. App. 395, 399-400; 275 NW2d 12 (1978). Further, the
scoring of OV 19 is by no means automatic in every case where a defendant testifies; rather, it is
dependent on a finding that the defendant in fact committed perjury. Cf. Dunnigan, 507 U.S. at
96-97. The trial court made such a finding in this case and thus the scoring of OV 19 was
proper.
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Because the jury did not make a finding of perjury and defendant has not admitted to perjury, the
scoring of OV 19 at 10 points involved judicial fact-finding. Further, this 10 point score for OV
19 increased defendant’s minimum sentencing guidelines range from 10 to 46 months to 19 to 76
months, and defendant was not subject to an upward departure. On these facts, defendant has
made a threshold showing of potential plain error and he is therefore entitled to a Crosby remand
for further inquiry to determine whether the trial court would have imposed a materially different
sentence knowing that the guidelines are only advisory. See People v Jackson, 313 Mich. App.
409, __; __ NW2d __ (2015); slip op at 12. Consequently, we remand for Crosby proceedings as
set forth in Lockridge, 498 Mich. at 398.
We affirm defendant’s conviction, but remand for further proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Christopher M. Murray
/s/ Joel P. Hoekstra
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