People of Michigan v. John Butsinas ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 15, 2015
Plaintiff-Appellee,
v No. 322390
Macomb Circuit Court
JOHN BUTSINAS, LC No. 2013-002374-FH
Defendant-Appellant.
Before: GLEICHER, P.J., and SAWYER and MURPHY, JJ.
PER CURIAM.
A jury convicted defendant of possession of less than 25 grams of cocaine, MCL
333.7403(2)(a)(v), tampering with evidence, MCL 750.483a(6)(a), resisting or obstructing a
police officer resulting in injury, MCL 750.81d(2), and resisting or obstructing a police officer,
MCL 750.81d(1). The trial court sentenced defendant as an habitual offender, fourth offense,
MCL 769.12, to a prison term of 29 to 180 months for each conviction, to be served
concurrently. Defendant appeals as of right, and we affirm.
A confidential informant contacted the police with information regarding defendant’s
possession of a quantity of narcotics. The informant identified defendant by name, indicated that
he was driving a silver Porsche SUV, and would be arriving at the Super Eight Motel in
Roseville. The motel was located in a “high intensity narcotic trafficking area.” Detective Brian
Shock proceeded to the motel and set up surveillance. About 10 or 15 minutes later, he observed
defendant arrive at the motel in a silver Porsche. After defendant parked his vehicle, Detective
Shock parked his own vehicle behind defendant’s vehicle and approached the vehicle on foot.
He observed defendant moving around inside the vehicle. Defendant appeared nervous, looked
all around, and appeared as if he was trying to conceal something. Detective Shock ordered
defendant to stop moving and exit the vehicle. Defendant admitted possessing a crack pipe, but
was uncooperative and resisted the officer’s attempt to subdue him. During an ensuing struggle,
defendant removed a plastic bag corner containing suspected cocaine from his pocket, put it in
his mouth, and then spit out the substance. Another officer arrived to assist Detective Shock, and
defendant continued to kick, spit, and resist until the officers were able to handcuff his hands
behind his back. A large sum of currency and a digital scale with cocaine residue were found in
defendant’s car.
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I. MOTION TO SUPPRESS
Defendant argues that he was illegally stopped and arrested by the police, and the trial
court therefore erred in denying his motion to suppress the evidence. The trial court’s ultimate
decision on a motion to suppress evidence is reviewed de novo, but its findings of fact are
reviewed for clear error. People v Barbarich, 291 Mich. App. 468, 471; 807 NW2d 56 (2011).
“A finding is clearly erroneous when, although there is evidence to support it, the reviewing
court is left with a definite and firm conviction that a mistake has been made.” Id. (citation and
internal quotations omitted).
The Fourth Amendment of the United States Constitution and the Michigan Constitution
both protect persons from unreasonable searches and seizures. US Const, Am IV; Const 1963,
art 1, § 11; Barbarich, 291 Mich. App. at 472. “The Michigan Constitution is construed to
provide the same protection as that provided by the Fourth Amendment absent a compelling
reason to do otherwise.” Id. n 1.
The police can arrest a person without a warrant if they have probable cause to believe
that a felony has been committed and that the defendant committed it. MCL 764.15(1)(d);
People v Johnson, 431 Mich. 683, 691; 431 NW2d 825 (1988). “Probable cause to arrest exists
where the facts and circumstances within an officer’s knowledge and of which he has reasonably
trustworthy information are sufficient in themselves to warrant a man of reasonable caution in
the belief that an offense has been or is being committed.” People v Champion, 452 Mich. 92,
115; 549 NW2d 849 (1996). A court evaluating probable cause “must determine whether the
facts available to the arresting officer at the moment of arrest would justify a fair-minded person
of average intelligence in believing that the suspected individual had committed the felony.”
People v Kelly, 231 Mich. App. 627, 631; 588 NW2d 480 (1998).
A police officer may also briefly stop and detain a person, known as a Terry1 stop, to
investigate possible criminal activity if he has a reasonable suspicion based on specific and
articulable facts that the person detained has committed or is committing a crime. People v
Shankle, 227 Mich. App. 690, 693; 577 NW2d 471 (1998). In Barbarich, 291 Mich. App. at 473,
this Court summarized the principles applicable to a Terry stop as follows:
[I]f a police officer has a reasonable, articulable suspicion to believe a
person has committed or is committing a crime given the totality of the
circumstances, the officer may briefly stop that person for further investigation.
People v Christie (On Remand), 206 Mich. App. 304, 308; 520 NW2d 647 (1994),
citing Terry. Moreover, under Terry, a police officer may approach and
temporarily detain a person for the purpose of investigating possible criminal
behavior even if probable cause does not exist to arrest the person. Terry, 392 U.S.
at 22; 88 S. Ct. 1868; People v Jenkins, 472 Mich. 26, 32; 691 NW2d 759 (2005).
The scope of any search or seizure must be limited to that which is necessary to
1
Terry v Ohio, 392 U.S. 1; 88 S. Ct. 1868; 20 L. Ed. 2d 889 (1968).
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quickly confirm or dispel the officer’s suspicion. People v Yeoman, 218 Mich
App 406, 411; 554 NW2d 577 (1996).
During an investigative Terry stop, the police may secure or restrain a person for safety reasons,
and such restraint does not constitute an arrest and is not an unreasonable seizure under the
Fourth Amendment. People v Green, 260 Mich. App. 392, 397-398; 677 NW2d 363 (2004),
overruled in part on other grounds in People v Anstey, 476 Mich. 436, 447 n 9; 719 NW2d 579
(2006); see also People v Custer, 465 Mich. 319, 328; 630 NW2d 870 (2001). A defendant’s
furtive gestures, or unusual or extreme nervousness lasting throughout an investigative stop, may
justify an officer’s concern for safety under the totality of the circumstances. See People v
Lewis, 251 Mich. App. 58, 72; 649 NW2d 792 (2002), and People v Balog, 56 Mich. App. 624,
627; 224 NW2d 725 (1974).
In circumstances involving an anonymous informant’s tip, “courts must examine whether
the tipster’s information contained sufficient indicia of reliability to provide law enforcement
with a reasonable suspicion that would justify the stop.” Barbarich, 291 Mich. App. at 474. The
court must “consider, given the totality of the circumstances, ‘(1) the reliability of the particular
informant, (2) the nature of the particular information given to the police, and (3) the
reasonability of the suspicion in light of the above factors.’” Id.
In Barbarich, the defendant’s vehicle was stopped by a state trooper after another
motorist reported that the defendant almost hit her. The other motorist “mouthed the words
‘almost hit me’” and pointed to the defendant’s vehicle while the trooper was driving alongside
her. Although the trooper did not personally observe the defendant driving in a manner that
would have justified a stop, and he did not attempt to speak to the other motorist to get more
information, this Court concluded that the trooper had a reasonable, articulable suspicion of
criminal activity to justify an investigative stop because the anonymous motorist’s tip “provided
sufficient information to accurately identify the vehicle and create an inference that a crime or
civil infraction had occurred, and the tip was also sufficiently reliable, being based on the
woman’s contemporaneous observations.” Id. at 470-471, 482.
In People v Dunbar, 264 Mich. App. 240; 690 NW2d 476 (2004), overruled on other
grounds in People v Jackson, 483 Mich. 271; 769 NW2d 630 (2009), officers stopped the
defendant’s vehicle based on information from a confidential informant that the defendant was in
possession of cocaine. The officers had prior experience with the informant, including one
officer’s personal involvement in three previous drug buys made by the informant. One of the
officers observed the informant meet with the defendant in front of and then behind a store. 264
Mich. App. at 243-244. Based on this information, the officers detained the defendant by
blocking his way with police vehicles. The officers ordered the defendant to remove his hands
from his pockets, but the defendant at first removed only his right hand. When he obeyed the
officers’ second command to raise both hands, he had in his left hand a small clear plastic bag
that appeared to contain other packages of green and white substances. The defendant dropped
two bags when one of the officers made contact with his left arm. Id. at 245. This Court
considered “all the facts known to the officers at the time they approached defendant to
determine whether these facts constituted reasonable suspicion that defendant was involved in an
illegal activity.” Id. at 247. This Court concluded that the officer reasonably relied on the
informant’s information because the officer considered the informant to be reliable, and the
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officer observed the defendant meet with the informant at the location foretold by the informant.
This Court concluded that “the trial court did not clearly err in concluding that there was
sufficient indicia of reliability to provide the police with reasonable suspicion that defendant had
just been involved in criminal activity, which justified the forcible stop.” Id. at 250. The
Dunbar Court further held that the defendant’s conduct with the two plastic bags justified the
arrest without a warrant. Id. at 250-251.
In the instant case, the confidential informant’s information, the reliability of which was
confirmed by police surveillance, was sufficient to establish a reasonable and particularized
suspicion that defendant was in possession of narcotics to justify a Terry stop for further
investigation. The fact that the information was provided shortly before defendant’s arrival at
the motel, and that the informant identified defendant by name, expressed knowledge of the type
of vehicle he was driving, his destination, and his anticipated arrival suggested that the
informant’s information was based on recently acquired personal knowledge. The informant
reported that defendant was on his way to the Super Eight Motel in Roseville, driving a silver
Porsche SUV. Detective Shock testified that the informant had provided credible information on
past occasions. Although Shock did not testify regarding any specific past experiences with the
informant, he was able to confirm the reliability of the informant’s information when he set up
surveillance and observed defendant arrive at the stated location, at the anticipated time, in the
vehicle described by the informant. Shock also knew from his experience that the motel was in a
“high intensity narcotic trafficking area.” Considering the totality of the circumstances, the
informant’s tip was sufficient to establish a reasonable and particularized suspicion that
defendant was in possession of cocaine to justify an investigatory stop.
Once defendant was detained, he acted nervously, attempted to hide or retrieve something
while he was still in the car, and admitted that he had a crack pipe in his pocket. During the
detention, defendant was uncooperative and ignored commands to show his hands. Detective
Shock became concerned for his safety because he was the only officer present, defendant was
acting nervous, and defendant was not cooperating. These circumstances justified Detective
Shock’s attempt to restrain defendant during the investigatory stop. Defendant resisted and
pulled out a corner of a clear plastic bag from his pocket that contained a white powder, which
Shock suspected was cocaine, and put the bag in his mouth. Defendant’s uncooperative conduct
during the detention, combined with his previous admission that he possessed a crack pipe, and
his placement of the plastic bag corner with suspected cocaine in his mouth, provided probable
cause to believe that defendant was in possession of cocaine to justify defendant’s arrest without
a warrant. Because defendant’s initial detention and subsequent arrest were legal, the trial court
did not err in denying defendant’s motion to suppress.
II. JURY SELECTION
Defendant argues that the prosecutor improperly used a peremptory challenge to excuse a
black juror on the basis of the juror’s race, contrary to Batson v Kentucky, 476 U.S. 79, 89; 106 S
Ct 1712; 90 L. Ed. 2d 69 (1986). He also argues that the trial court erred in dismissing another
black juror for cause.
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A. BATSON CHALLENGE
In Batson, 476 U.S. at 89, the United States Supreme Court held:
Although a prosecutor ordinarily is entitled to exercise permitted peremptory
challenges “for any reason at all, as long as that reason is related to his view
concerning the outcome” of the case to be tried, United States v Robinson, 421 F
Supp 467, 473 (Conn 1976), mandamus granted sub nom. United States v
Newman, 549 F2d 240 (CA2 1977), the Equal Protection Clause forbids the
prosecutor to challenge potential jurors solely on account of their race or on the
assumption that black jurors as a group will be unable impartially to consider the
State's case against a black defendant.
In People v Armstrong, 305 Mich. App. 230, 237-238; 851 NW2d 856 (2014), this Court
explained that evaluation of a Batson challenge involves a three-step process:
First, the defendant must show a prima facie case of discrimination. Second, the
prosecutor may rebut the defendant’s prima facie case with a race-neutral reason
for dismissing the juror. Third, the trial court must determine whether the
prosecutor’s explanation is a pretext for discrimination. [Id. at 238.]
In People v Knight, 473 Mich. 324, 345; 701 NW2d 715 (2005), our Supreme Court
summarized the appropriate standard of review for a Batson challenge as follows:
In sum, we conclude that the proper standard of review depends on which
Batson step is before us. If the first step is at issue (whether the opponent of the
challenge has satisfied his burden of demonstrating a prima facie case of
discrimination), we review the trial court’s underlying factual findings for clear
error, and we review questions of law de novo. If Batson’s second step is
implicated (whether the proponent of the peremptory challenge articulates a race-
neutral explanation as a matter of law), we review the proffered explanation de
novo. Finally, if the third step is at issue (the trial court’s determinations whether
the race-neutral explanation is a pretext and whether the opponent of the
challenge has proved purposeful discrimination), we review the trial court’s ruling
for clear error.
In this case, the trial court concluded that defendant established a prima facie case of
discrimination when the prosecutor used a peremptory challenge to excuse Juror No. 216, the
only black person among the prospective jurors seated for voir dire. “[I]f the trial court
determines that a prima facie showing has been made, the burden shifts to the proponent of the
peremptory challenge to articulate a race-neutral explanation for the strike.” Knight, 473 Mich. at
337. This step does not require “ ‘an explanation that is persuasive, or even plausible,’ ” because
the pertinent question is “whether the proponent’s explanation is facially valid as a matter of law.
Id. at 337, quoting Purkett v Elem, 514 U.S. 765, 768; 115 S. Ct. 1769; 131 L. Ed. 2d 834 (1995).
“ ‘A neutral explanation in the context of our analysis here means an explanation based on
something other than the race of the juror. . . . Unless a discriminatory intent is inherent in the
prosecutor’s explanation, the reason offered will be deemed race neutral.’ ” Knight, 473 Mich at
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337, quoting Hernandez v New York, 500 U.S. 352, 360; 111 S. Ct. 1859; 114 L. Ed. 2d 395 (1991)
(plurality opinion). Here, the prosecutor explained that he exercised a peremptory challenge to
dismiss Juror No. 216 because the juror’s responses to questions during voir dire revealed an
unwillingness to accept that a police officer’s use of force against a person could ever be
justified. This reason was grounded in the juror’s responses to questions during voir dire, and
was unrelated to the juror’s race. The trial court did not err in concluding that the prosecutor
offered a race-neutral explanation for the juror’s exclusion.
With respect to the third step, the trial court credited the prosecutor’s race-neutral
explanation for excusing Juror No. 216, and found that it was not a pretext for discrimination.
The trial court’s determination is accorded great deference. Knight, 473 Mich. at 344. Defendant
was charged with two counts of resisting or obstructing a police officer, and the prosecutor
intended to present evidence of a struggle between defendant and two officers. Juror No. 216
revealed that he had observed two prior incidents in which he believed the police had wrongfully
exerted force against another person. The prosecutor asked the juror several times if he believed
that the police were ever justified in using force against a person, and the juror responded by
explaining that he could only comment on what he had actually seen, and every time he had seen
the police use force, he believed it was wrongful. The juror was reluctant to acknowledge that
the use of force by the police could sometimes be justified. Considering the nature of the
charges against defendant and the anticipated evidence, and the juror’s expressed views during
voir dire, the prosecutor had legitimate concerns, unrelated to the juror’s race, about the juror’s
ability to fairly serve on the jury. Accordingly, the trial court did not clearly err in finding that
the prosecutor’s proffered race-neutral explanation for excusing the juror was credible, and in
thereby rejecting defendant’s Batson challenge.
B. DISMISSAL FOR CAUSE
Defendant also argues that the trial court erred by dismissing for cause Juror No. 644,
who was also a black juror and the last person available to seat a racially diverse jury. This
Court reviews a trial court’s decision regarding challenges for cause for an abuse of discretion.
People v Williams, 241 Mich. App. 519, 522; 616 NW2d 710 (2000). A trial court abuses its
discretion when its decision falls outside the range of reasonable and principled outcomes.
People v Unger (On Remand), 278 Mich. App. 210, 217; 749 NW2d 272 (2008). Under MCR
2.511(D)(2) and (3), a juror may be challenged for cause if he “is biased for or against a party”
or he “shows a state of mind that will prevent the person from rendering a just verdict . . . .”
Juror No. 644 indicated that he had health problems that prevented him from sitting for a two-
hour period and affected his ability to render a fair and impartial verdict. Upon further
questioning, he stated that he had difficulty concentrating, becomes “uncomfortable” and “a little
paranoid,” and “do[es not] function in [his] mind sometimes.” Although he denied any bias
toward the police, prosecutors, or defense attorneys, he stated that his health problems would
interfere with his ability to be an impartial juror. Because the juror’s answers revealed a state of
mind that would prevent him from rendering a just verdict, the trial court did not abuse its
discretion in dismissing him for cause.
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III. SENTENCING ISSUES
Defendant challenges the scoring of two offense variables, and argues that the trial court
erred by failing to separately score the guidelines for each of his convictions.
A. SCORING OF OFFENSE VARIABLES 3 AND 19
Defendant preserved his challenge to the scoring of offense variable (OV) 3 with an
appropriate objection at sentencing. MCL 769.34(10). Although defendant also objected to the
scoring of OV 19, he did so on a ground different from the ground he asserts on appeal. An
objection on one ground is insufficient to preserve an appellate attack on a different ground.
People v Asevedo, 217 Mich. App. 393, 398; 551 NW2d 478 (1996). Accordingly, defendant’s
challenge to the scoring of OV 19 is not preserved.
This Court reviews the trial court’s factual determinations in scoring the guidelines for
clear error. People v Hardy, 494 Mich. 430, 438; 835 NW2d 340 (2013). The trial court’s
factual findings “must be supported by a preponderance of the evidence.” Id. “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. Unpreserved claims are reviewed for plain error affecting the
defendant’s substantial rights. People v Carines, 460 Mich. 750, 763-764; 597 NW2d 130
(1999).
Defendant argues that the trial court erred in assessing 10 points for OV 3, physical injury
to a victim. A 10-point score is appropriate where “[b]odily injury requiring medical treatment
occurred to a victim.” MCL 777.33(1)(d). The phrase “ ‘requiring medical treatment’ refers to
the necessity for treatment and not the victim’s success in obtaining treatment.” MCL 777.33(3).
At trial, Detective Shock testified that he injured his back during his struggle with defendant. He
further testified that he went to the clinic for the back injury, saw a doctor, and received
treatment for his injury. In light of this testimony, the trial court did not clearly err in assessing
10 points for OV 3.
With respect to OV 19, interference with the administration of justice, defendant
challenges the trial court’s assessment of 15 points, which are to be assigned when “[t]he
offender used force or the threat of force against another person . . . to interfere with, attempt to
interfere with, or that results in the interference with the administration of justice.” MCL
77.49(b). Detective Shock testified that defendant physically resisted Shock’s efforts to restrain
defendant, and that defendant reached into his pocket, removed a corner baggie containing
suspected cocaine, placed the substance in his mouth, and then spit it out. Defendant’s use of
force in an effort to destroy evidence, which interfered with the administration of justice,
justified the 15-point score for OV 19. Indeed, defendant does not contest the facts that support
the trial court’s scoring of OV 19, but rather argues that it was improper to score the variable
because his arrest was illegal. As previously explained, however, the trial court did not err in
concluding that defendant’s initial detention and subsequent arrest were legal. Accordingly, we
reject defendant’s challenge to the scoring of OV 19.
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B. FAILURE TO SCORE THE GUIDELINES FOR EACH CONVICTION
Defendant argues that the trial court erred by failing to score the guidelines for each
conviction. Defendant did not argue below that the trial court was obligated to score the
guidelines for each offense. Therefore, this issue is unpreserved and our review is limited to
plain error affecting defendant’s substantial rights. Carines, 460 Mich. at 763-764. Because
defendant was sentenced to concurrent prison terms, the trial court was not required to
independently score the guidelines for each conviction, but rather was only required to score the
guidelines for defendant’s conviction of resisting or obstructing a police officer causing injury,
the conviction with the highest crime classification. People v Lopez, 305 Mich. App. 686; 854
NW2d 205 (2014); People v Mack, 265 Mich. App. 122; 695 NW2d 342 (2005). Accordingly,
there was no error.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ David H. Sawyer
/s/ William B. Murphy
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