People of Michigan v. Deon Reynard Morgan ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 21, 2020
Plaintiff-Appellee,
V No. 343809
Ingham Circuit Court
DEON REYNARD MORGAN, LC No. 15-000262-FH
Defendant-Appellant.
Before: LETICA, P.J., and GADOLA and CAMERON, JJ.
PER CURIAM.
Defendant, Deon Reynard Morgan, appeals his convictions of possession with intent to
deliver 50 or more but less than 450 grams of heroin, MCL 333.7401(2)(a)(iii), resisting or
obstructing a police officer, MCL 750.81d(1), possession of a firearm by a felon (“felon in
possession”), MCL 750.224f, and possession of a firearm during the commission of a felony,
second offense (“felony-firearm”), MCL 750.227b(1). The trial court sentenced Morgan as a
fourth-offense habitual offender, MCL 769.12, to serve terms of imprisonment of 160 to 240
months for the heroin conviction, 40 to 60 months for the felon-in-possession conviction, 8 to 15
years for the resisting or obstructing conviction, and 5 years for the felony-firearm conviction.
We affirm Morgan’s convictions but remand for correction of the judgment of sentence.
I. FACTS
This case arose from a drug-trafficking investigation that spanned several months.
Between January 16, 2015 and March 4, 2015, a confidential informant participated in six
controlled purchases of heroin from Morgan. The confidential informant purchased the heroin
with prerecorded funds that were provided by law enforcement. As part of the investigation,
surveillance was conducted on Morgan and the vehicle that Morgan used in the controlled buys.
Morgan was ultimately associated with two separate residences and was observed entering a
storage facility on two occasions.
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On March 4, 2015, search warrants were issued for the residential addresses associated
with Morgan. In one of the residences, a paint can containing 226 grams of heroin and 27.3
grams of cocaine was located in the closet of the master bedroom. Law enforcement also located
some of the prerecorded currency that was used in the controlled purchases, digital scales, and
packaging material similar to the materials used in the controlled purchases. A photograph of
Morgan with a female companion, a letter addressed to “Khalil Morgan,” and men’s clothing
were located in the bedroom. Legal paperwork showing that Morgan had attempted to change
his name from “Deon Morgan” to “Khalil Morgan” was found at the other residential address.
Law enforcement also located digital scales, packaging material similar to the material used in
the controlled purchases, and two magazines for a Ruger P345 pistol.
Also on March 4, 2015, Morgan was stopped while he was attempting to drive away from
a grocery store. At the time of the stop, Morgan was driving the same vehicle he used during the
controlled purchases. Morgan failed to comply with police commands to lower the vehicle’s
window, to open his door, or to leave the vehicle. The police forced entry into the vehicle in
order to place Morgan in custody. Prerecorded currency used in the controlled purchases was
located on Morgan’s person. Heroin and a key to a storage unit that was leased to Morgan’s
girlfriend were located in the vehicle. The storage unit was searched, and a Ruger P345 pistol
was found inside of a luggage bag.
Morgan was charged with possession with intent to deliver 50 or more but less than 450
grams of heroin, possession with intent to deliver less than 50 grams of cocaine, resisting or
obstructing a police officer, felon in possession, and felony-firearm. Morgan was found not
guilty of possession with intent to deliver less than 50 grams of cocaine but was convicted of the
remaining charges. Morgan was sentenced to terms of imprisonment, and this appeal followed.
II. SPEEDY TRIAL CLAIM
Morgan argues that the trial court erred by denying his motion to dismiss the charges on
the basis that Morgan’s right to a speedy trial was violated. We disagree.
In general, “[t]his Court reviews a trial court’s ruling regarding a motion to dismiss for an
abuse of discretion.” People v Adams, 232 Mich. App. 128, 132; 591 NW2d 44 (1998). More
particularly, the determination whether a defendant was denied a speedy trial is a mixed question
of fact and law. People v Gilmore, 222 Mich. App. 442, 459; 564 NW2d 158 (1997). On appeal,
the trial court’s factual findings are reviewed for clear error, but the application of constitutional
law is reviewed de novo. Id.
Both the United States and Michigan Constitutions recognize a criminal defendant’s right
to a speedy trial. US Const, Am VI; Const 1963, art 1, § 20. See also MCL 768.1; MCR
6.004(A). Claims of violation of the right to a speedy trial are evaluated on the basis of four
factors: “(1) the length of delay, (2) the reason for delay, (3) the defendant’s assertion of the
right, and (4) the prejudice to the defendant.” People v Williams, 475 Mich. 245, 261-262; 716
NW2d 208 (2006).
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A. LENGTH OF DELAY
“The time for judging whether the right to a speedy trial has been violated runs from the
date of the defendant’s arrest.” Id. at 261. A delay of less than 18 months requires the defendant
to demonstrate that he was prejudiced by the delay, while a delay exceeding 18 months is
presumptively prejudicial and shifts the burden of rebutting the presumption to the prosecution.
People v Cain, 238 Mich. App. 95, 112; 605 NW2d 28 (1999). In this case, Morgan was arrested
on March 4, 2015. Eighteen months after Morgan’s arrest, his first trial began. It ended in a
mistrial on September 29, 2016. Morgan’s second trial began on September 25, 2017, which
was 30 months after Morgan’s arrest. Because the delay exceeded 18 months, the delay was
presumptively prejudicial, shifting the burden of rebutting the presumption to the prosecutor.
See id. Therefore, this factor weighs in favor of Morgan.
B. REASONS FOR THE DELAY
“In assessing the reasons for delay, this Court must examine whether each period of delay
is attributable to the defendant or the prosecution.” People v Waclawski, 286 Mich. App. 634,
666; 780 NW2d 321 (2009). Delays resulting from a request for an adjournment by a defendant
are attributable to the defendant. Cain, 238 Mich. App. at 113. Unexplained delays or otherwise
unattributed trial-court delays are charged to the prosecution. People v Lown, 488 Mich. 242,
261-262; 794 NW2d 9 (2011). After review of the entire record, we attribute some of the delays
to Morgan and some to the prosecutor. The prosecutor conceded before the trial court that he
was responsible for some of the delays. On appeal, the prosecutor points out that, between
March 4, 2015 and February 17, 2016, Morgan hired and fired three different attorneys. Before
the first trial, Morgan filed three motions to suppress, which the trial court found required
evidentiary hearings. The evidentiary hearings were adjourned multiple times. The trial court
ultimately held the evidentiary hearings on September 20, 2016, which was one day before the
first trial began. A substantial amount of the delay can be attributed to the fact that the first trial
ended in a mistrial on September 29, 2016. After the mistrial, Morgan’s fourth attorney
requested to withdraw from the case. Morgan was appointed another attorney, who indicated at
a pretrial conference that she required time to prepare for trial. That attorney was later permitted
to withdraw as Morgan’s attorney. Morgan’s sixth attorney was appointed in March 2017.
Before the second trial began, Morgan filed motions for funding for a private investigator and to
dismiss the charges as a result of allegations of a speedy trial violation; the motions were denied
by the trial court following hearings. The second trial began on September 25, 2017, and the
jury returned its verdict on October 5, 2017. Consequently, because the delays are attributable to
both Morgan and the prosecution, this factor does not weigh in favor of either party.
C. ASSERTION OF RIGHT TO A SPEEDY TRIAL
In order to preserve a speedy trial issue for appeal, a defendant must make “a formal
demand on the record.” People v Rogers, 35 Mich. App. 547, 551; 192 NW2d 640 (1971).
Morgan did not formally assert his right to a speedy trial until July 2017, when he filed a motion
requesting the same. The motion was filed more than 28 months after Morgan’s arrest and 76
days before Morgan’s second trial began. We conclude that Morgan’s failure to more zealously
pursue a speedy trial motion is indicative of the lack of prejudice that the delay actually caused
him. See Barker v Wingo, 407 U.S. 514, 531-532; 92 S. Ct. 2182; 33 L. Ed. 2d 101 (1972)
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(“Whether and how a defendant asserts his right is closely related to the other factors we have
mentioned. . . . The defendant’s assertion of his speedy trial right, then, is entitled to strong
evidentiary weight in determining whether the defendant is being deprived of the right.”).
Therefore, this factor does not weigh in favor of Morgan.
D. PREJUDICE
Prejudice can flow “to the person” or “to the defense.” Williams, 475 Mich. at 264
(citation omitted). The Barker Court, in providing guidance for evaluating the prejudice factor,
identified three defendant interests that the right to a speedy trial was designed to protect: “(i) to
prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused;
and (iii) to limit the possibility that the defense will be impaired.” Barker, 407 U.S. at 532. The
last of these concerns is the most serious “because the inability of a defendant adequately to
prepare his case skews the fairness of the entire system.” Id. As already stated, because the
delay in the instant case was more than 18 months, it is the prosecutor’s burden to rebut the
presumption of prejudice. Cain, 238 Mich. App. at 112.
Morgan argues that the delay between his arrest and the second trial impaired his defense
because several potential witnesses became unavailable. These witnesses include the registered
owner of the vehicle that Morgan was driving when he was arrested, an individual who was on
the phone with Morgan when he was arrested, and Morgan’s girlfriend. However, Morgan has
not provided any evidence to support that the witnesses were unavailable to him because of the
delay. At a motion hearing, trial counsel noted that Morgan’s girlfriend would likely be able to
appear at trial. At a later hearing, the prosecutor indicated that he was willing to assist Morgan
with securing the witnesses by having law enforcement locate them and by issuing subpoenas for
their appearances at trial. Morgan declined the prosecutor’s offer on the record, indicating that
he was “concerned” about law enforcement contacting the witnesses. Thus, Morgan has failed to
present evidence that the witnesses were unavailable as a result of the delay. Morgan also argues
that he suffered personal prejudice as a result of developing health issues while he was
incarcerated. However, personal prejudice does not weigh in favor of the defendant if his
defense was not prejudiced by the delay. Williams, 475 Mich. at 264. Because Morgan has failed
to provide evidence to support that the witnesses were unavailable as a result of the delay,
Morgan’s personal prejudice does not weigh in his favor.
In sum, of the four factors, one weighs in favor of Morgan and two weigh in favor of the
prosecutor. We conclude that the prosecutor successfully rebutted the presumption of prejudice
by establishing that there was no showing of prejudice from the delay. Consequently, Morgan is
not entitled to vacation of his convictions.
III. SEARCH OF THE STORAGE UNIT
Morgan argues that the trial court erred by denying his motion to suppress evidence that
law enforcement recovered from the storage unit because Morgan’s girlfriend did not freely and
voluntarily give consent to search the storage unit.
“We review de novo a trial court’s ultimate decision on a motion to suppress on the basis
of an alleged constitutional violation.” People v Gingrich, 307 Mich. App. 656, 661; 862 NW2d
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432 (2014). An appellate court reviews a trial court’s findings of fact in a suppression hearing
for clear error, but the application of the underlying law is reviewed de novo as a legal
determination. People v Slaughter, 489 Mich. 302, 310; 803 NW2d 171 (2011).
“The constitutionality of any search and seizure conducted by the police depends on an
analysis of the Fourth Amendment of the United States Constitution and art 1, § 11 of the
Michigan Constitution of 1963.” People v Toohey, 438 Mich. 265, 270; 475 NW2d 16 (1991).
“Searches and seizures conducted without a warrant are unreasonable per se, subject to several
specifically established and well-delineated exceptions.” People v Borchard-Ruhland, 460 Mich.
278, 293-294; 597 NW2d 1 (1999). Among these exceptions “is a search conducted pursuant to
consent.” Id. at 294. Consent must be freely and voluntarily given, and “[t]he presence of
coercion or duress normally militates against a finding of voluntariness.” Id.
In this case, Morgan’s girlfriend testified at an evidentiary hearing that she was confused,
stressed, and under the influence of medication at the time she interacted with law enforcement
on March 4, 2015. Morgan’s girlfriend testified that she did not recall giving law enforcement
permission to search the storage unit. In an affidavit, Morgan’s girlfriend denied that she
voluntarily signed the consent to search form. Testimony of law enforcement at the hearing
conflicted with the testimony of Morgan’s girlfriend. The trial court rejected the affidavit and
found that Morgan’s girlfriend voluntarily signed the consent form. The trial court further held
that it was inevitable that a firearm would have been discovered given that Morgan was found
with a key to the storage unit.
Assuming without deciding that the trial court clearly erred by determining that Morgan’s
girlfriend voluntarily consented to the search of the storage unit, we conclude that the trial court
correctly applied the doctrine of inevitable discovery. “Generally, if evidence is
unconstitutionally seized, it must be excluded from trial.” People v Hyde, 285 Mich. App. 428,
439; 775 NW2d 833 (2009) (quotation marks and citation omitted). However, there are
exceptions to the exclusionary rule. One such exception is the inevitable discovery doctrine. Id.
This Court has described the inevitable discovery doctrine as follows: “The inevitable discovery
doctrine, as applied by Michigan caselaw, permits the admission of evidence obtained in
violation of the Fourth Amendment if it can be shown by a preponderance of the evidence that
the items found would have ultimately been obtained in a constitutionally accepted manner.” Id.
at 439-440.
In this case, a preponderance of the evidence supports that law enforcement would have
been able to procure a search warrant for the storage unit. A search warrant must be supported
by probable cause. US Const, Amend IV; Const 1963, art 1, § 11. See also MCL 780.651.
Probable cause exists where “a reasonably cautious person could have concluded that there was a
‘substantial basis’ for the finding of probable cause.” People v Russo, 439 Mich. 584, 603; 487
NW2d 698 (1992). In this case, law enforcement had already obtained search warrants for two
residences that were associated with Morgan in relation to controlled purchases that were
witnessed by law enforcement. A large sum of money, prerecorded funds, heroin, and cocaine
were located in one of the residences tied to Morgan. Packaging materials consistent with the
materials used during the controlled purchases were located at both residences. When Morgan
was arrested, prerecorded funds were located on his person. The vehicle that Morgan was
driving when he was arrested contained heroin and a key to the storage unit; Morgan was seen
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driving the vehicle where the key was found during the controlled purchases. Additionally,
during law enforcement’s surveillance of Morgan, Morgan was observed driving to the storage
facility. Because the inevitable discovery doctrine applies, the trial court’s decision to deny
Morgan’s motion to suppress the evidence located in the storage unit was not error.
IV. MOTION FOR DIRECTED VERDICT
Morgan argues that the trial court erred by denying his motion for a directed verdict on
the felony-firearm and felon in possession charges because there was insufficient evidence to
support that he possessed the firearm that was found in the storage unit. We disagree.
“When reviewing a trial court’s decision on a motion for a directed verdict, this Court
reviews the record de novo to determine whether the evidence presented by the prosecutor,
viewed in the light most favorable to the prosecutor, could persuade a rational trier of fact that
the essential elements of the crime charged were proved beyond a reasonable doubt.” People v
Aldrich, 246 Mich. App. 101, 122; 631 NW2d 67 (2001).
MCL 750.227b(1) provides that a “person who carries or has in his or her possession a
firearm when he or she commits or attempts to commit a felony . . . is guilty of a felony . . . .”
Thus, the crime of felony-firearm has two elements: a defendant must possess the firearm and he
must do so during the commission of or attempted commission of a felony. People v Johnson,
293 Mich. App. 79, 82-83; 808 NW2d 815 (2011). The elements of felon in possession are “(1)
the defendant is a felon who possessed a firearm (2) before his right to do so was formally
restored under MCL 28.424.” People v Bass, 317 Mich. App. 241, 267-268; 893 NW2d 140
(2016).
Michigan courts recognize that possession can be actual or constructive and may be
proven by circumstantial evidence. People v Hill, 433 Mich. 464, 469-470; 446 NW2d 140
(1989). To find constructive possession, there must be proximity to the firearm with an “indicia
of control.” People v Burgenmeyer, 461 Mich. 431, 438; 606 NW2d 645 (2000). Therefore, it is
enough that the firearm’s location is known to the defendant and the firearm is reasonably
accessible to him. Id. Possession is not dependent on the defendant’s access to the firearm at the
time of arrest or police raid. Id. at 438-439. However, a person’s mere presence in proximity to
contraband is insufficient, by itself, to prove possession. People v Wolfe, 440 Mich. 508, 538;
489 NW2d 748, amended 441 Mich. 1201 (1992). “There must be some link shown between the
person charged with the possession offense and the contraband discovered.” People v Vaughn,
200 Mich. App. 32, 36; 504 NW2d 2 (1993).
We conclude that there was sufficient evidence to persuade a rational trier of fact that
Morgan constructively possessed the firearm. On two occasions, law enforcement observed
Morgan going to the storage facility where the firearm was located. After Morgan was arrested,
the vehicle Morgan was driving was searched and a key to a storage unit within that storage
facility was located in the vehicle. The key and Morgan’s identification were located in the same
bag. Although the firearm was located inside a bag rather than in plain sight, circumstantial
evidence linked Morgan to the firearm. One of the residences that was associated with Morgan
contained magazines for the type of pistol that was located in the storage unit. After Morgan was
arrested and lodged in the county jail, he wrote letters to his girlfriend. The letters, which were
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admitted at trial, supported that Morgan knew that the gun was in the storage unit and that his
DNA might be found on the gun. Consequently, a rational trier of fact could find that the
elements of felony-firearm and felon in possession were proven beyond a reasonable doubt.
Accordingly, the trial court did not err in denying Morgan’s motion for a directed verdict on
those charges.
V. OTHER ACTS EVIDENCE
Morgan argues that he was denied the right to a fair trial by the admission of other-acts
evidence. We disagree.
This Court reviews a trial court’s decision whether to admit evidence of other bad acts for
an abuse of discretion. People v Kahley, 277 Mich. App. 182, 184; 744 NW2d 194 (2007). “A
trial court abuses its discretion when it fails to select a principled outcome from a range of
reasonable and principled outcomes.” Id.
Morgan was charged with possession with intent to deliver heroin on the basis of the
heroin found during one of the residential searches, not on the basis of any of the controlled
purchases. Before trial, the prosecutor moved for the admission of evidence relating to the
controlled purchases pursuant to MRE 404(b). Morgan objected to admission of the evidence on
the ground that “the jury will infer from this evidence” Morgan’s “character or criminal
propensity.” In relevant part, the trial court held that the evidence concerning the controlled
buys was admissible to “give the jury a real picture of what’s gone on here.” The trial court
further held that it would give a limiting instruction and that “the jury will certainly have their
opportunity to weigh the full picture and see if the puzzle pieces fit together . . . .”
Evidence of crimes, wrongs, or other acts is inadmissible to prove that a defendant acted
in conformity with those acts. People v Crawford, 458 Mich. 376, 383; 582 NW2d 785 (1998).
Such evidence may, however, be admissible for another purpose. People v Sabin (After
Remand), 463 Mich. 43, 56; 614 NW2d 888 (2000). A nonexclusive list of permissible purposes
for admitting other-acts evidence is set forth in MRE 404(b):
Evidence of other crimes, wrongs, or acts . . . may . . . 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.
[MRE 404(b)(1).]
MRE 404(b) is a rule of inclusion, not exclusion. People v VanderVliet, 444 Mich. 52,
65; 508 NW2d 114 (1993), amended 445 Mich. 1205 (1994). Thus, relevant evidence of other
acts does not violate MRE 404(b) unless it is offered for the sole purpose of demonstrating the
defendant’s criminal propensity to establish that he acted in conformity therewith. Id.
In VanderVliet, the Michigan Supreme Court adopted the approach to assess relevance
under MRE 404(b) that was enunciated by the United States Supreme Court in Huddleston v
United States, 485 U.S. 681, 691-692; 108 S. Ct. 1496; 99 L. Ed. 2d 771 (1988):
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First, that the evidence be offered for a proper purpose under Rule 404(b); second,
that it be relevant under Rule 402 as enforced through Rule 104(b); third, that the
probative value of the evidence is not substantially outweighed by unfair
prejudice; fourth, that the trial court may, upon request, provide a limiting
instruction to the jury. [VanderVliet, 444 Mich. at 55.]
“[I]t is essential that prosecutors . . . be able to give the [fact-finder] an intelligible
presentation of the full context in which disputed events took place.” People v Sholl, 453 Mich.
730, 741; 556 NW2d 851 (1996).
It is the nature of things that an event often does not occur singly and
independently, isolated from all others, but, instead, is connected with some
antecedent event from which the fact or event in question follows as an effect
from a cause. When such is the case and the antecedent event incidentally
involves the commission of another crime, the principle that the jury is entitled to
hear the “complete story” ordinarily supports the admission of such evidence.
[People v Delgado, 404 Mich. 76, 83; 273 NW2d 395 (1978).]
Although a “context” purpose is not explicitly articulated in the rules of evidence, other-
acts evidence may be admitted for that purpose if it otherwise satisfies the requirements for
admission under MRE 404(b). See People v Jackson, 498 Mich. 246, 268-270; 869 NW2d 253
(2015) (rejecting a res gestae exception to MRE 404(b) but reasoning that Delgado and Sholl
“provide firm support for the notion that evidence meeting their ‘res gestae’ definition is
potentially relevant and admissible”).
We conclude that the evidence concerning the controlled buys was indeed relevant for the
purpose of providing context to the jury of the charged offense of possession with intent to
deliver heroin. The evidence explained why law enforcement was surveilling Morgan and
paying special attention to the places Morgan traveled to and the vehicle Morgan was driving.
The evidence also explained why law enforcement took interest in the wrapping materials they
discovered in the residences associated with Morgan. Moreover, the jury needed to learn how
prerecorded currency was used in the controlled purchases to understand the significance of law
enforcement seizing some of that currency from residences associated with Morgan. Within this
context, it was more probable that Morgan was delivering heroin given the large supply of heroin
that was stored in the paint can in the bedroom and the packaging materials located in the
residences associated with Morgan. Thus, the evidence was relevant to a material fact at trial.
See People v Cameron, 291 Mich. App. 599, 609-610; 806 NW2d 371 (2011).
Furthermore, contrary to Morgan’s arguments on appeal, this evidence was not unfairly
prejudicial. MRE 403 “does not prohibit prejudicial evidence; only evidence that is unfairly so.”
People v Bass, 317 Mich. App. 241, 259; 893 NW2d 140 (2016) (quotation marks and citation
omitted). Also, the danger of unfair prejudice must substantially outweigh the probative value of
the evidence to require exclusion. MRE 403; Bass, 317 Mich. App. at 259. In this case, the other-
acts evidence was more than marginally probative, and it is improbable that the jury gave it
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undue or preemptive weight because the jury was properly instructed that it should not consider
evidence of Morgan’s other acts for propensity purposes.1 Jurors are presumed to follow their
instructions. See id. at 263. Thus, we conclude that the trial court did not abuse its discretion
when admitting the evidence under MRE 404(b).
Furthermore, even if we were to conclude that the trial court abused its discretion in
admitting the evidence, Morgan would not automatically be entitled to a new trial. Rather, “[t]he
effect of the error [must first be] evaluated by assessing it in the context of the untainted
evidence [in order] to determine whether it is more probable than not that a different outcome
would have resulted without the error.” People v Lukity, 460 Mich. 484, 495; 596 NW2d 607
(1999). In this case, the untainted evidence supports that a large amount of money and heroin
was located in one of the residences associated with Morgan, and heroin was found in the vehicle
Morgan was driving when he was arrested. Packaging material and scales were located in both
residences associated with Morgan, and testimony at trial supported that this evidence was
consistent with the intent to deliver narcotics. Thus, the prosecutor presented overwhelming
evidence indicative of possession with intent to deliver heroin. In light of this evidence, it is not
more probable than not that the jury’s verdict would have been different without the evidence of
the controlled buys. See id.
VI. REQUEST FOR APPOINTED DEFENSE INVESTIGATOR
Morgan argues that the trial court abused its discretion by denying his motion to
authorize an expenditure of $500 to engage a private investigator. We disagree.
We review a trial court’s denial of a criminal defendant’s request for a court-appointed
investigator for an abuse of discretion. People v Johnson, 245 Mich. App. 243, 260; 631 NW2d
1 (2001). An indigent criminal defendant may be entitled the services of an appointed private
investigator upon showing that, under the facts and circumstances of the case, the defendant
needs an investigator to satisfy the defendant’s due process right to present a defense. Id.
Morgan requested a private investigator to help locate Morgan’s girlfriend, to conduct a
pretrial interview with her, and to advise the defense on strategy relating to her. We conclude
that Morgan failed to establish that the private investigator was necessary to satisfy his due
process right to present a defense. At the hearing on Morgan’s motion, the prosecutor argued
that engaging a private investigator was not necessary because it was his obligation to help locate
Morgan’s girlfriend and to ensure that she appeared for an interview. The trial court stated that it
was willing to sign a subpoena in order to secure Morgan’s girlfriend’s appearance at the
interview and noted that Morgan’s girlfriend could be transported to the interview by law
enforcement if necessary. Trial counsel stated his concern that if he conducted the interview by
himself, any statements made by Morgan’s girlfriend would not be able to be used as
1
The trial court instructed the jury to “be very careful” when considering evidence of crimes for
which Morgan was not on trial. The trial court further instructed, “you must not decide that it
shows that [Morgan] is a bad person or that he is likely to commit crimes,” and “[y]ou must not
convict [Morgan] here because you think he is guilty of other bad conduct.”
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impeachment evidence at trial since counsel is not permitted to be a witness. In response, the
prosecutor indicated that he would arrange for the interview to be recorded so that relevant
portions of the interview could be played at trial for purposes of impeachment. The trial court
agreed with the prosecutor’s suggestion and noted that if Morgan’s girlfriend provided
information during the interview that called for the services of a private investigator, the court
would approve Morgan’s request to appoint an investigator. There is no indication in the record
that Morgan filed another motion to request the appointment of an investigator based on
statements that Morgan’s girlfriend made during the interview, and Morgan’s girlfriend did not
testify at the second trial. Therefore, because Morgan failed to establish that the appointment of
a private investigator was necessary to present a defense, the trial court did not abuse its
discretion by denying the motion.
VII. ASSISTANCE OF COUNSEL
Morgan argues that he is entitled to a new trial because trial counsel provided ineffective
assistance for multiple reasons, each of which we will address below. Morgan failed to raise an
ineffective assistance of counsel claim in the trial court in connection with a motion for a new
trial or a Ginther2 hearing. Therefore, our review of this issue is limited to mistakes apparent
from the record. People v Heft, 299 Mich. App. 69, 80; 829 NW2d 266 (2012). “To demonstrate
ineffective assistance of counsel, a defendant must show that his or her attorney’s performance
fell below an objective standard of reasonableness under prevailing professional norms and that
this performance caused him or her prejudice.” People v Nix, 301 Mich. App. 195, 207; 836
NW2d 224 (2013). “To demonstrate prejudice, a defendant must show the probability that, but
for counsel’s errors, the result of the proceedings would have been different.” Id.
1. PRIVATE INVESTIGATOR
Morgan argues that trial counsel was ineffective for failing to provide the trial court with
additional reasons to appoint a private investigator. More specifically, Morgan argues that trial
counsel should have argued that the defense required an investigator’s assistance to locate
potential witnesses, including the registered owner of the vehicle that Morgan was driving when
he was arrested, and the individual with whom he was talking to on the phone when he was
arrested. Morgan also argues that counsel was ineffective for failing to call those witnesses at
trial. We disagree.
Morgan further argues that presenting testimony from these witnesses was necessary “to
explain who else had access to the vehicle [Morgan] was in when he was arrested and what
really happened during that arrest.” However, Morgan fails to indicate what testimony these
witnesses might have provided that would have been of significant value to the defense. Access
others had to the vehicle that Morgan was driving during the controlled purchases and his arrest
was of little importance because Morgan was convicted of the heroin offense on the basis of the
discovery of heroin at one of the residential addresses. Although the key to the storage unit was
also located in the vehicle, Morgan had already been observed traveling to the storage facility,
2
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
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and the key was located in the same bag that contained Morgan’s identification. Additionally,
testimony at trial established that Morgan refused to comply with Michigan State Police Trooper
Michael Baker’s instructions to either roll down the window or unlock the door. Although
Morgan attempts to justify his decision not to comply with Trooper Baker’s instructions, Morgan
does not deny that he failed to comply or that Trooper Baker’s instructions were lawful. See
MCL 750.81d(1); People v Moreno, 491 Mich. 38, 52; 814 NW2d 624 (2012). Moreover, as
already discussed, the prosecutor offered to assist trial counsel with locating these witnesses, and
trial counsel declined the offer. Therefore, because Morgan has failed to establish that the
appointment of a private investigator was necessary to locate these witnesses and that the failure
to call the witnesses at trial deprived him of a substantial defense, Morgan has failed to establish
that trial counsel was ineffective in this regard. See People v Brown, 279 Mich. App. 116, 142;
755 NW2d 664 (2008) (“It is well established that defense counsel is not ineffective for failing to
pursue a futile motion.”); People v Jackson (On Reconsideration), 313 Mich. App. 409, 432; 884
NW2d 297 (2015) (failure to present certain evidence does not constitute ineffective assistance
of counsel if the defendant was not deprived of a substantial defense).
2. PRODUCTION OF CONFIDENTIAL INFORMANT
Morgan argues that trial counsel was ineffective for failing to request production of the
confidential informant so that he could be called as a witness and “his credibility could be
challenged.” We disagree.
The prosecution has no general obligation to disclose the identity of a confidential
informant. People v Henry (After Remand), 305 Mich. App. 127, 156; 854 NW2d 114 (2014).
“However, when a defendant demonstrates a possible need for the informant’s testimony, a trial
court should order the informant produced and conduct an in camera hearing to determine if the
informant could offer any testimony beneficial to the defense.” Id. (emphasis added). In making
this determination, the trial court should consider “the crime charged, the possible defenses, the
possible significance of the informer’s testimony, and other relevant factors.” Id. (citation
omitted).
Although the confidential informant’s credibility had bearing on the decision of law
enforcement to rely on the informant for purposes of the investigation, Morgan does not specify
in what regard the informant’s credibility might have factored significantly into the jury’s
deliberations. The informant helped law enforcement identify and expose Morgan as a heroin
dealer. However, at trial, police officers testified about Morgan’s participation in the controlled
purchases and the fact that heroin and packaging paraphernalia were discovered in one of the
residences associated with Morgan. Trial counsel thus had little to gain from any cross-
examination of the informant. To the extent that the informant’s credibility might have been of
interest to the jury, challenging it in court would have brought the risk that the prosecution would
seize the opportunity to present the informant in a favorable light. Trial counsel might well have
thought the potential benefit was not worth the potential risk. Because it is not apparent that the
confidential informant’s testimony at trial would have been beneficial to the defense, trial
counsel’s failure to seek production of the confidential informant did not constitute ineffective
assistance of counsel. See Brown, 279 Mich. App. at 142.
VIII. MORGAN’S STANDARD 4 BRIEF
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In a pro se supplemental brief filed pursuant to Supreme Court Administrative Order No.
2004-6, Morgan raises additional issues on appeal. We conclude that none of these issues have
merit.
A. FOURTH AMENDMENT VIOLATIONS
Morgan argues that the trial court improperly denied his motion to suppress the evidence
located on his person and in his vehicle after his arrest because Morgan was unlawfully arrested
and the searches were conducted without warrants. We disagree.
The United States Supreme Court has established a number of exceptions to the search
warrant requirement, including the search incident to arrest. Toohey, 438 Mich. at 271 n 4, citing
People v Blasius, 435 Mich. 573, 582; 459 NW2d 906 (1990). “A custodial arrest of a suspect
based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion
being lawful, a search incident to the arrest requires no additional justification. It is the fact of
the lawful arrest which establishes the authority to search[.]” US v Robinson, 414 U.S. 218, 235;
94 S. Ct. 467; 38 L. Ed. 2d 427 (1973). In order to effectuate a lawful arrest, a police officer may
obtain an arrest warrant from a magistrate after demonstrating probable cause. People v
Manning, 243 Mich. App. 615, 621; 624 NW2d 746 (2000). In order to lawfully arrest a person
without a warrant, however, a police officer must possess information demonstrating probable
cause to believe that an offense has occurred and that the defendant committed it. People v
Cohen, 294 Mich. App. 70, 74-75; 816 NW2d 474 (2011).
We conclude that there was sufficient evidence to establish that Morgan was lawfully
arrested. Trooper Baker testified that he was instructed to arrest Morgan on March 4, 2015.
Before the arrest, other members of law enforcement informed Trooper Baker that Morgan was
observed selling controlled substances during controlled purchases, which is a criminal offense.
Although Morgan argues that Trooper Baker did not observe him commit a crime or have
probable cause to believe that he was about to commit a crime, MCL 764.15(1) permits a peace
officer to arrest a person without a warrant where “[t]he person has committed a felony although
not in the peace officer’s presence.” MCL 764.15(1)(b). It is well settled that “a police officer is
entitled to rely on the representations of his fellow officers in the determination of whether there
is probable cause to effect an arrest.” People v Himmelein, 177 Mich. App. 365, 370; 442 NW2d
667 (1989), citing Whiteley v Warden, 401 U.S. 560; 91 S. Ct. 1031; 28 L. Ed. 2d 306 (1971).
Because other members of law enforcement observed Morgan commit a criminal offense,
Trooper Baker’s arrest of Morgan was lawful and the search of Morgan’s person was proper
pursuant to the search incident to arrest exception. See Illinois v Lafayette, 462 U.S. 640, 644-
645; 103 S. Ct. 2605; 77 L. Ed. 2d 65 (1983) (holding that an officer may “search the area within
the arrestee’s immediate control”).
With respect to Morgan’s argument that law enforcement lacked probable cause to search
the vehicle, this argument was poorly developed below. Although Morgan sought to suppress
evidence that was obtained as a result of the traffic stop and Deputy William Lo testified about
his search of the vehicle Morgan was driving, very little evidence concerning the justification for
the search of the vehicle was elicited at the evidentiary hearing. At the close of testimony,
neither trial counsel nor the prosecutor made arguments in relation to the search of the vehicle,
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and the trial court only made a general ruling that the court could not suppress the evidence that
“came from [the stop].”
To the extent that the trial court erred by holding that evidence located from the vehicle
should not be suppressed based on the evidence presented at the hearing, we find that such an
error would be harmless pursuant to the inevitable discovery doctrine. See Hyde, 285 Mich. App.
at 439. As already stated, members of law enforcement observed Morgan selling heroin during
controlled purchases while he was driving the motor vehicle in question. At the time of
Morgan’s arrest, Morgan was forcibly removed from the vehicle and prerecorded funds were
located on his person. Law enforcement had already obtained search warrants for two residences
associated with Morgan in relation to the controlled purchases that were witnessed by law
enforcement. Heroin, cocaine, a large sum of money, and prerecorded funds were located in one
of the residences tied to Morgan. Packaging materials consistent with the materials used during
the controlled purchases were located in both residences. Thus, the record evidence supports that
law enforcement would have been able to secure a search warrant for the vehicle. Consequently,
any error in failing to suppress the evidence located in the vehicle Morgan was driving when he
was arrested was harmless.
B. CONSTITUTIONALITY OF MCL 764.15(1)(b)
Morgan argues that his arrest was unlawful because MCL 764.15(1)(b) is
unconstitutionally vague. Because Morgan failed to raise this issue before the trial court, the
argument is unpreserved. Therefore, we apply the plain-error rule, which requires that “1) error
must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected
substantial rights.” People v Carines, 460 Mich. 750, 763; 597 NW2d 130 (1999). An error has
affected a defendant’s substantial rights when there is “a showing of prejudice, i.e., that the error
affected the outcome of the lower court proceedings.” Id. Moreover, “once a defendant satisfies
these three requirements, . . . [r]eversal is warranted only when the plain, forfeited error resulted
in the conviction of an actually innocent defendant or when an error seriously affect[ed] the
fairness, integrity or public reputation of judicial proceedings’ independent of the defendant’s
innocence.” Id. at 763-764 (quotation marks and citation omitted; alteration in original). A
defendant bears the burden of persuasion with respect to prejudice. Id. at 763.
The party challenging the constitutionality of a statute bears the burden of proving its
invalidity. People v Gregg, 206 Mich. App. 208, 210; 520 NW2d 690 (1994). In People v Lino,
447 Mich. 567, 575 n 2; 527 NW2d 434 (1994), our Supreme Court noted that a constitutional
challenge based on vagueness “is brought under the Due Process Clause of the Fourteenth
Amendment of the United States Constitution.” The Lino Court, explaining the vagueness
doctrine, stated that “[i]n order to pass constitutional muster, a penal statute must define the
criminal offense ‘with sufficient definiteness that ordinary people can understand what conduct
is prohibited and in a manner that does not encourage arbitrary and discriminatory
enforcement.’ ” Id. at 575, quoting Kolender v Lawson, 461 U.S. 352, 357; 103 S. Ct. 1855; 75 L
Ed 2d 903 (1983). In this case, however, MCL 764.15(1)(b) does not fail to provide notice of
what conduct is prohibited; nor does the statutory language encourage arbitrary and
discriminatory enforcement of a penal statute. Rather, MCL 764.15(1)(b) permits a peace officer
to arrest a person without a warrant where “[t]he person has committed a felony although not in
the peace officer’s presence.” Because MCL 764.15(1)(b) unambiguously provides a criteria for
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a valid warrantless arrest, Morgan’s argument that MCL 764.15(1)(b) is unconstitutionally vague
is without legal merit. Morgan also argues in a cursory manner that the application of MCL
764.15(1)(b) violated several of his constitutional rights. However, because Morgan fails to
present this argument in a meaningful and understandable manner, it is abandoned. See People v
Harris, 261 Mich. App. 44, 50; 680 NW2d 17 (2004).
C. JURY INSTRUCTIONS
Morgan challenges his conviction of resisting or obstructing a police officer on the
ground that the trial court’s instructions to the jury in connection with that charge did not include
a specific unanimity requirement. However, trial counsel expressed satisfaction on the record
with the instructions as given, thereby affirmatively waiving, or extinguishing, appellate
objections, leaving nothing for this Court to review. People v Carter, 462 Mich. 206, 214-216;
612 NW2d 144 (2000). See also People v Lueth, 253 Mich. App. 670, 688; 660 NW2d 322
(2002).
D. PROSECUTORIAL ERROR
Morgan argues that the prosecutor committed error by withholding exculpatory evidence
and by offering certain evidence without laying the proper foundation. We disagree.
“To preserve an issue of prosecutorial [error], a defendant must contemporaneously
object and request a curative instruction.” People v Bennett, 290 Mich. App. 465, 475; 802 NW2d
627 (2010). Because that did not occur here, we apply the plain-error rule. See Carines, 460
Mich. at 763.
1. BRADY VIOLATION
Morgan argues that the prosecutor failed to produce or disclose evidence in violation of
Brady v Maryland, 373 U.S. 83; 83 S. Ct. 1194; 10 L. Ed. 2d 215 (1963), and that trial counsel was
ineffective for failing to file a motion to compel or address the issue before trial. We disagree.
“Under Brady, the State violates a defendant’s right to due process if it withholds
evidence that is favorable to the defense and material to the defendant’s guilt or punishment.”
Smith v Cain, 565 U.S. 73; 132 S. Ct. 627, 630; 181 L. Ed. 2d 571 (2012). “Impeachment
evidence . . . as well as exculpatory evidence, falls within the Brady rule.” United States v
Bagley, 473 U.S. 667, 676; 105 S. Ct. 3375; 87 L. Ed. 2d 481 (1985). “Such evidence is ‘evidence
favorable to an accused,’ ” “that, if disclosed and used effectively, . . . may make the difference
between conviction and acquittal.” Id., quoting Brady, 373 US at 87.
In this case, Morgan does not assert that trial counsel requested and was refused any of
the items he specifies on appeal. In arguing that he was prejudiced for want of access to certain
evidence, Morgan asserts only that “[i]t would have offered the defense an opportunity to
inspect, prepare, and impeach the witness’s credibility and validity of the existence of
unproduced evidence.” However, such unsupported speculation does not satisfy the Brady
requirement to show that the evidence in question was exculpatory, or withheld by the
prosecution, or that the defense suffered any prejudice for want of a closer look. Consequently,
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Morgan’s prosecutorial misconduct claim fails in this respect, as does Morgan’s claim of
ineffective assistance of counsel. See Brown, 279 Mich. App. at 142.
2. PROPER FOUNDATION
Morgan argues that the prosecutor improperly introduced evidence into the record
without laying a proper foundation and that trial counsel was ineffective for failing to object.
Specifically, Morgan argues that the prerecorded funds from the controlled purchases, the drugs
that were found in the vehicle after Morgan was arrested, and the firearm found in the storage
unit were improperly introduced. In so arguing, however, Morgan does not indicate what the
proper foundation would have been. Additionally, and importantly, Morgan fails to recognize
that the funds from the controlled purchases and the drugs that were found in the vehicle that
Morgan was driving when he was arrested were not admitted into evidence. Consequently,
Morgan has failed to establish plain error with respect to the money and the drugs that were
located in the vehicle. Moreover, even if Morgan was correct that the proper foundation was not
laid before the firearm located in the storage unit was admitted into evidence, Morgan would not
be entitled to relief. Deputy Lo testified that he located the firearm in the storage unit and
described the gun to the jury based on his personal observations. Therefore, even if the gun was
not admitted into evidence, the jury would have been aware through the testimony of Deputy Lo
that a gun was located in the storage unit. Consequently, Morgan has failed to establish plain
error affecting his substantial rights, and has failed to establish that his counsel was ineffective
for failing to object. People v Ericksen, 288 Mich. App. 192, 201; 793 NW2d 120 (2010) (stating
that counsel is not ineffective for failing to raise a meritless argument).
E. ASSISTANCE OF COUNSEL
Morgan argues that trial counsel was ineffective for introducing the wrong photograph of
a pill bottle into evidence and for failing to effectively impeach one of the prosecutor’s
witnesses. In so arguing, however, Morgan does not provide the photographs or video that he
relies on to support that trial counsel was ineffective. Because Morgan has failed to establish the
necessary factual predicate for his claim of ineffective assistance of counsel, it must fail. See
People v Hoag, 460 Mich. 1, 6; 594 NW2d 57 (1999).
Morgan alternatively requests a remand for a Ginther hearing. Because Morgan has not
set forth any facts that would require development of a record to determine if trial counsel was
ineffective, we deny Morgan’s request for a remand. People v Williams, 275 Mich. App. 194,
200; 737 NW2d 797 (2007), citing MCR 7.211(C)(1)(a).
IX. CORRECTION OF MORGAN’S SENTENCE
Although not raised by the parties on appeal, we conclude that the trial court erred when
it ordered the felony-firearm sentence to be served consecutive to all of Morgan’s other
sentences.
“[T]he Legislature intended that a felony-firearm sentence be consecutive only to the
sentence for a specific underlying felony.” People v Clark, 463 Mich. 459, 463; 619 NW2d 538
(2000). See also People v Coleman, 327 Mich. App. 430, 441; ___ NW2d ___ (2019) (“A felony-
firearm sentence must . . . be served consecutively with [only] the sentence for the one predicate
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felony.”). In this case, the trial court instructed the jury on felony-firearm with felon in
possession as the predicate felony. The trial court therefore erred by ordering the felony-firearm
sentence to be served consecutive to Morgan’s sentences for possession with intent to deliver 50
or more but less than 450 grams of heroin and resisting or obstructing a police officer. We
remand to the trial court for the ministerial task of correcting the judgment of sentence to
indicate that the felony-firearm sentence is to be served consecutive only to the felon-in-
possession sentence and to transmit the appropriate paperwork to the Department of Corrections
to indicate the correction.
We affirm Morgan’s convictions and remand to the trial court for correction of Morgan’s
judgment of sentence. We do not retain jurisdiction.
/s/ Anica Letica
/s/ Michael F. Gadola
/s/ Thomas C. Cameron
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