People of Michigan v. Jarvis Lester Nolan ( 2017 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 20, 2017
Plaintiff-Appellee,
v No. 329321
Macomb Circuit Court
JARVIS LESTER NOLAN, LC No. 2015-001380-FH
Defendant-Appellant.
Before: FORT HOOD, P.J., and JANSEN and HOEKSTRA, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of possession of less than 25
grams of cocaine, MCL 333.7403(2)(a)(v), operating a motor vehicle with a suspended or
revoked license, second offense, MCL 257.904, attempted assaulting, resisting, or obstructing a
police officer, MCL 750.81d(1), and failure to stop after a collision, MCL 257.620. Defendant
was sentenced to 15 to 48 months’ imprisonment for possession of less than 25 grams of cocaine,
90 days in jail for operating a motor vehicle with a suspended or revoked license, 365 days in jail
for attempting, resisting, or obstructing a police officer, and 90 days in jail for failure to stop
after a collision. Because the evidence was sufficient to support defendant’s conviction for
possession of cocaine and defendant was not denied the effective assistance of counsel, we
affirm.
On March 15, 2015, police officers in a marked car saw defendant driving a white
Cadillac out of the Suez Motel, a location known for drug activity and prostitution. Defendant
then ran a red light and made a wide turn at a high rate of speed, crashing into another vehicle as
a result. When police approached the Cadillac, defendant jumped out of the vehicle and fled on
foot. Defendant was apprehended, and a “white rock” that appeared to be crack cocaine was
discovered on the passenger-side floor of the Cadillac. When field tested, the substance tested
positive for cocaine and subsequent laboratory testing confirmed that the “rock” contained
cocaine. At trial, defendant represented himself with standby counsel available to offer
assistance. A jury convicted defendant as noted above. Defendant now appeals as of right.
I. INSUFFICIENT EVIDENCE
On appeal, defendant first argues that the prosecutor failed to present sufficient evidence
to support his conviction for possession of cocaine. Specifically, defendant argues that one of
the testifying police officers perjured himself at trial and, in light of this purportedly perjured
-1-
testimony, defendant challenges the validity of the chain of custody relating to the “white rock”
and asserts that there is no evidence that the substance found in the car was cocaine.
Additionally, defendant emphasizes that the Cadillac belonged to someone other than defendant
and that no one actually saw defendant with the cocaine. In these circumstances, defendant
contends that there was no evidence that he possessed cocaine or that he did so knowingly.
Sufficiency of the evidence challenges are reviewed de novo. People v Ericksen, 288
Mich. App. 192, 195; 793 NW2d 120 (2010). We review the evidence in a light most favorable to
the prosecution to determine whether a reasonable jury could have found defendant guilty
beyond a reasonable doubt. People v Smith-Anthony, 494 Mich. 669, 676; 837 NW2d 415
(2013). “Circumstantial evidence and reasonable inferences that arise from such evidence can
constitute satisfactory proof of the elements of the crime.” People v Williams, 268 Mich. App.
416, 419; 707 NW2d 624 (2005). “[A] reviewing court is required to draw all reasonable
inferences and make credibility choices in support of the jury verdict.” People v Nowack, 462
Mich. 392, 400; 614 NW2d 78 (2000).
A conviction for possession of less than 25 grams of cocaine requires the prosecution to
establish beyond a reasonable doubt (1) that the substance in question was cocaine, (2) that the
amount of cocaine was less than 25 grams, (3) that the defendant knowingly possessed the
cocaine, and (4) that the defendant was not authorized to possess the cocaine. People v Wolfe,
440 Mich. 508, 516-517; 489 NW2d 748 (1992), amended 441 Mich. 1201 (1992). The element
of possession requires a showing of “dominion or right of control over the drug with knowledge
of its presence and character.” People v McKinney, 258 Mich. App. 157, 165; 670 NW2d 254
(2003) (citation and quotation marks omitted). Possession may be actual or constructive, joint or
exclusive. Williams, 268 Mich. App. at 421. “Constructive possession exists if the defendant
knew that the substance was present and had the right to exercise control over it.” Id.
In this case, defendant does not dispute that the substance in question was less than 25
grams and that he was not authorized to possess cocaine. Rather, the elements that are in dispute
are whether the substance in question was cocaine and whether defendant knowingly possessed
the cocaine. We conclude that, viewed in a light most favorable to the prosecution, the evidence
was sufficient to establish these elements beyond a reasonable doubt.
As to whether the substance at issue was cocaine, according to Officer Sevan Zayto, the
white rock field tested positive for cocaine. The test was performed in front of Officer Zayto’s
supervisor, and the sample that was tested was thrown away, per normal procedure. The
remaining cocaine was placed in an evidence bag, sealed, labeled with Officer Zayto’s initials
and badge number, date, and assigned an incident number of 15-133320. Officer Zayto
identified the substance at trial based on the assigned number and other identifying information.
According to Stephanie Grabowski, a forensic scientist with the Michigan State Police forensic
lab, she tested a substance with a designated lab number of 1513320. Grabowski determined that
the substance contained cocaine.
Based on the difference in the numbers assigned to the substance, i.e., the extra “3”
mentioned by Officer Zayto, defendant now accuses Officer Zayto of perjury and suggests that
Grabowski did not test the substance recovered in the Cadillac. However, merely pointing out an
inconsistency between the numbers does not establish that Officer Zayto committed perjury. See
-2-
People v Parker, 230 Mich. App. 677, 690; 584 NW2d 753 (1998); People v Cash, 388 Mich. 153,
162; 200 NW2d 83 (1972). Indeed, Officer Zayto’s reference to an extra “3” in the incident
number was more likely the product of misspeaking than one of perjury, given that the numbers
were almost identical. In any event, the truthfulness of Officer Zayto’s testimony is not for us to
decide. That is, this inconsistency does not undermine the sufficiency of the evidence or
establish that Grabowski did not test the substance recovered in the car. Rather, defendant has
merely identified an issue involving witness credibility and the weight of the evidence; and,
these matters were for the jury. See People v Unger, 278 Mich. App. 210, 222; 749 NW2d 272
(2008) (“It is the jury's task to weigh the evidence and decide which testimony to believe.”);
People v White, 208 Mich. App. 126, 133; 527 NW2d 34 (1994) (“[A]ny deficiencies in the chain
of custody go to the weight afforded to the evidence.”). Given the evidence presented, the jury
could reasonably conclude that the “rock” found in the Cadillac was cocaine.
As to whether defendant knowingly possessed the substance, while defendant did not
have the crack cocaine in his actual possession at the time of his arrest, circumstantial evidence
supports the conclusion that defendant constructively possessed the crack cocaine. The crack
cocaine was found on the floorboard of the passenger side of a vehicle of which defendant was
the driver and sole occupant. Although defendant emphasizes that he was not the registered
owner of the vehicle, the evidence supports the conclusion that defendant was not simply an
unwitting driver of a borrowed vehicle containing cocaine. For instance, according to Officer
Brandon Vangorder’s testimony, when he was transporting defendant to jail, defendant referred
to the vehicle that he was driving as “Casper,” “because he ghosts the police so frequently.”
Officer Vangorder explained that the term “ghosts” referred to running away from or evading the
police. That defendant had a nickname for the vehicle based on his frequent use of the vehicle to
evade the police evinces defendant’s control over the vehicle and it suggests his knowledge of
the vehicle’s contents that would necessitate evasion of the police. Indeed, defendant first caught
the attention of the police on the date of his arrest after he was seen leaving a motel known for
drug activity and prostitution. Upon leaving the motel, defendant drove in a manner indicating
that he was trying to avoid the police. Ultimately, after defendant crashed the vehicle that he
was driving, he ran away from the scene of the accident. This evidence of evasion and flight can
be seen as indicative of his consciousness of guilt as well as of his knowledge of the illegal
substance recovered in the vehicle on the date in question. See People v Burbank, 234 Mich. 600,
604; 208 N.W. 687 (1926); People v Coleman, 210 Mich. App. 1, 4; 532 NW2d 885 (1995).
Overall, defendant’s proximity to the crack cocaine in a vehicle where he was the only occupant,
coupled with his evasive behavior and attempted flight in an area known for illegal drug activity,
is sufficient to reasonably support the conclusion that defendant constructively possessed the
crack cocaine. See Williams, 268 Mich. App. at 421. Thus, there was sufficient evidence for a
rational jury to find defendant guilty, beyond a reasonable doubt, of possession of less than 25
grams of cocaine.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Finally, defendant argues that his standby counsel’s deficient performance deprived him
of his constitutional right to the effective assistance of counsel. Defendant provides a list of
activities he claims standby counsel should have performed, including tasks relating to
discovery, questioning of witnesses, and generally advising defendant during trial. According to
-3-
defendant, absent standby counsel’s failings, it is reasonably probable that he would not have
been convicted.
A claim for ineffective assistance of counsel is preserved by raising the issue in a motion
for a new trial or in a motion for a Ginther1 hearing in the trial court. People v Petri, 279 Mich
App 407, 410; 760 NW2d 882 (2008). Defendant failed to request a new trial or Ginther
hearing. Thus, this issue is unpreserved. Id. “Appellate review of an unpreserved argument of
ineffective assistance of counsel, like this one, is limited to mistakes apparent on the record.”
People v Johnson, 315 Mich. App. 163, 174; 889 NW2d 513 (2016) (citations omitted).
“The United States and Michigan Constitutions guarantee a defendant the right to
effective assistance of counsel.” Id. However, standby counsel is not “counsel” within the
meaning of these constitutional guarantees. People v Willing, 267 Mich. App. 208, 227-228; 704
NW2d 472 (2005). That is, standby counsel may offer advice; but, standby counsel does not
bear the responsibility for the defense and “cannot substantially interfere with any significant
tactical decisions, cannot control the questioning of witnesses, and cannot speak in place of the
defendant on any matter of importance.” Id. (citation omitted). It follows that standby counsel
“cannot be held to the standards of effective assistance required of trial counsel.” People v
Kevorkian, 248 Mich. App. 373, 427; 639 NW2d 291 (2001). In other words, “a defendant who
chooses to represent himself does so at his own peril. With no constitutional right to an attorney,
a defendant proceeding in propria persona has no basis to claim that [standby counsel] must
abide by constitutional standards.” Id. at 424. See also People v Dennany, 445 Mich. 412, 442;
519 NW2d 128 (1994) (“[A] defendant has a constitutional entitlement to represent himself or to
be represented by counsel—but not both.”). It is only where standby counsel exceeds the role of
standby counsel and actually acts as defendant’s lawyer that this Court might consider a claim of
ineffective assistance of counsel against standby counsel. See Kevorkian, 248 Mich. App. at 425-
426.
In this case, defendant chose to represent himself and he was assigned advisory counsel.
It is clear from the record that defendant’s counsel only acted as standby counsel and nothing
more. Following closing arguments, out of the jury’s presence, defendant’s standby counsel
stated on the record that she spoke with defendant before each hearing and, though defendant
disagreed with her on fundamental matters, she pointed out the most significant points that he
might consider addressing in his arguments. However, counsel noted, and the record confirms,
that she was “silent” in the courtroom during trial. In comparison, defendant conducted jury
selection, made motions, gave opening and closing statements, and questioned witnesses. On
these facts, it is clear that defendant had control of his own defense and that standby counsel was
not acting as “counsel” within the meaning of the Sixth Amendment. Cf. id. at 426-427. Having
made the decision to proceed in propria persona, defendant cannot now claim on appeal that he
was denied the effective assistance of counsel or that standby counsel was responsible for his
conviction. See id. In short, defendant has no claim for ineffective assistance of counsel.
1
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
-4-
Affirmed.
/s/ Karen M. Fort Hood
/s/ Kathleen Jansen
/s/ Joel P. Hoekstra
-5-