People of Michigan v. Kirk Antonio Roston ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 13, 2016
Plaintiff-Appellee,
v No. 328726
Oakland Circuit Court
KIRK ANTONIO ROSTON, LC No. 2015-253336-FH
Defendant-Appellant.
Before: JANSEN, P.J., and CAVANAGH and BOONSTRA, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of possession with intent to deliver
less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv), possession of less than 25 grams of
heroin, MCL 333.7403(2)(a)(v), felon in possession of a firearm, MCL 750.224f, felon in
possession of ammunition, MCL 750.224f(6), and possession of marijuana, MCL
333.7403(2)(d). The trial court sentenced defendant, a fourth habitual offender, MCL 769.12, to
6 years and 3 months to 40 years’ imprisonment for the possession with intent to deliver less
than 50 grams of cocaine conviction, 1 to 15 years’ imprisonment for the possession of less than
25 grams of heroin conviction,1 1 to 15 years’ imprisonment for the felon in possession of a
firearm conviction, 1 to 40 years’ imprisonment for the felon in possession of ammunition
conviction, and 41 days jail for the possession of marijuana conviction. We affirm.
I. DUE PROCESS, RIGHT TO CONFRONT WITNESSES, AND BRADY2 VIOLATION
Defendant argues that he was denied his due-process right to a fair trial and his right to
confront the witnesses against him when the trial court refused to order production of a
confidential informant mentioned in the affidavit supporting the warrant to search defendant’s
1
We note that defendant was initially sentenced to 1 to 40 years’ imprisonment for possession of
less than 50 grams of cocaine, MCL 333.7403(2)(a)(iv), an offense for which defendant was not
convicted. However, defendant’s judgment of sentence was amended to reflect that defendant
was sentenced to 1 to 15 years’ imprisonment for his possession of heroin conviction.
2
Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963).
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home. Additionally, defendant argues that the prosecutor’s failure to produce the confidential
informant or provide identifying information constituted a violation of defendant’s right to
disclosure of exculpatory evidence under Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed
2d 215 (1963). We disagree.
Defendant requested production of the confidential informant in the trial court, preserving
his argument that the trial court’s refusal to produce the informant violated his due-process right
to a fair trial. See People v Henry (After Remand), 305 Mich App 127, 152; 854 NW2d 114
(2014). However, defendant failed to object to the trial court’s decision to maintain the
informant’s confidentiality on either Confrontation Clause or Brady violation grounds, and these
issues are unpreserved. See id.; People v Metamora Water Serv, Inc, 276 Mich App 376, 382;
741 NW2d 61 (2007) (noting that “[f]or an issue to be preserved for appellate review, it must be
raised, addressed, and decided by the lower court.”).
This Court reviews a trial court’s decision regarding whether to order production of a
confidential informant for an abuse of discretion. Henry (After Remand), 305 Mich App at 156.
“ ‘An abuse of discretion occurs when the court chooses an outcome that falls outside the range
of reasonable and principled outcomes.’ ” Id. (citation omitted). This Court’s review of
defendant’s unpreserved issues is limited to plain error affecting defendant’s substantial rights.
See People v Walker (On Remand), 273 Mich App 56, 65-66; 728 NW2d 902 (2006).
To avoid forfeiture under the plain error rule, three requirements must be met: 1)
error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the
plain error affected substantial rights. The third requirement generally requires a
showing of prejudice, i.e., that the error affected the outcome of the lower court
proceedings. It is the defendant rather than the Government who bears the burden
of persuasion with respect to prejudice. Finally, once a defendant satisfies these
three requirements, an appellate court must exercise its discretion in deciding
whether to reverse. Reversal 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. (citation and
quotation marks omitted; alteration in original).]
The prosecution is generally not required to disclose the identity of confidential
informants. Henry (After Remand), 305 Mich App at 156. “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. Specifically, the trial court must determine whether
the testimony of the confidential informant is “either relevant and helpful to defendant’s defense
or essential to a fair determination of defendant’s guilt.” People v Underwood, 447 Mich 695,
707; 526 NW2d 903 (1994). In making this determination, the court should consider “ ‘the
crime charged, the possible defenses, the possible significance of the informer’s testimony, and
other relevant factors.’ ” Henry (After Remand), 305 Mich App at 156 (citation omitted).
Defendant’s right to a fair trial was not affected by the trial court’s failure to order the
prosecution to produce the confidential informant because defendant failed to show that the
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confidential informant possessed information that was relevant and helpful to his defense or
essential to a fair determination of his guilt. In the lower court, defendant failed to even suggest
that the confidential informant might possess any relevant information. Defendant’s “demand”
for the production of the confidential informant encompassed two statements, both broad and
bare, in a motion requesting a Franks3 hearing to investigate alleged falsifications in the affidavit
supporting the warrant to search his home. In that motion, which was not accompanied by a
brief, defendant claimed that “the confidential informant on his own volition knowingly provided
false information to the Affiant, thus making him/her unreliable,” and stated that he therefore
“demands a production of the confidential informant.” The motion was not supported by an
affidavit or any other documentation.
On appeal, defendant argues that statements in the affidavit attributed to the confidential
informant were inconsistent with the trial testimony of the officer in charge, Detective Daniel
Main, regarding the officer’s surveillance of the home. According to defendant, the confidential
informant’s statement that he had been to defendant’s house in the 48 hours before the warrant’s
issuance directly contradicted Detective Main’s testimony that he had not seen anyone other than
defendant or defendant’s girlfriend, Conquilla Griffin, enter or exit 1046 Cherrylawn in the days
prior to the search. This contradiction, in turn, indicates that Detective Main was either
unreliable or that he provided false testimony. However, defendant’s unpreserved argument is
simply unsupported by the facts. Nowhere in the affidavit does it say that the confidential
informant was at defendant’s house. The affidavit states only that, “[a] confidential informant of
established reliability provided the affiant with true and accurate information concerning
criminal activity at 1046 Cherrylawn,” which prompted Main, the affiant, to “control[] the
purchase of cocaine from the location twice within the past three months, the most recent within
the past 48 hours.” Detective Main’s testimony at trial, indicating that he had only ever seen
defendant and an adult female exit the home at 1046 Cherrylawn, was consistent with the
information in the affidavit. Defendant’s attempt to establish the relevance and importance of
the confidential informant’s testimony fails. Defendant has not offered any other explanation
regarding how the informant’s testimony would be relevant and helpful to the defense, or
“essential to a fair determination” of defendant’s guilt, see Underwood, 447 Mich at 707, and the
trial court therefore did not abuse its discretion when it denied defendant’s demand for the
identity of the informant.
Neither has defendant shown that the trial court’s failure to order production of the
confidential informant deprived him of his right to confront witnesses. The Confrontation
Clauses of “[b]oth the United States and Michigan constitutions guarantee a criminal defendant
the right to confront the witnesses against him or her.” People v Garland, 286 Mich App 1, 10;
777 NW2d 732 (2009), citing US Const, Am VI; Const 1963, art 1, § 20. Importantly, the
Confrontation Clause concerns out-of-court statements of witnesses, that is, persons who bear
testimony against the defendant. People v Fackelman, 489 Mich 515, 528; 802 NW2d 552
(2011). “To preserve this right, testimonial hearsay is inadmissible against a criminal defendant
unless the declarant is unavailable at trial and the defendant had a prior opportunity to cross-
3
Franks v Delaware, 438 US 154, 155-156; 98 S Ct 2674; 57 L Ed 2d 667 (1978).
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examine the declarant.” Id. However, if the statement is nontestimonial, then the Confrontation
Clause does not bar its admisibility. Id. A statement is testimonial if the primary purpose of that
statement or the corresponding question “ ‘is to establish or prove past events potentially relevant
to later criminal prosecution.’ ” Id. (citation omitted).
“A statement by a confidential informant to the authorities generally constitutes a
testimonial statement.” People v Chambers, 277 Mich App 1, 10; 742 NW2d 610 (2007).
“However, the Confrontation Clause does not bar the use of out-of-court testimonial statements
for purposes other than establishing the truth of the matter asserted.” Id. at 10-11. In this case,
the prosecution did not seek to introduce any evidence of the confidential informant or rely on
statements made by that individual. In fact, neither Detective Main nor any of the other
witnesses testified that they had been investigating defendant based on information obtained
from a confidential informant. None of the informant’s statements were admitted into evidence
at defendant’s trial or any pretrial hearing. The informant was therefore not a witness against
defendant, and defendant had no one to confront. Defendant’s right of confrontation was not
violated.
Similarly, defendant cannot show that the failure of the prosecution to produce the
confidential informant constituted a Brady violation. The elements of a Brady violation are that
“(1) the prosecution has suppressed evidence; (2) that is favorable to the accused; and (3) viewed
in its totality, is material.” People v Chenault, 495 Mich 142, 155; 845 NW2d 731 (2014). It is
true that under Brady, “[t]he prosecution’s failure to disclose exculpatory or material evidence in
its possession constitutes a due process violation regardless of whether a defendant requested the
evidence.” Henry (After Remand), 305 Mich App at 157. However, “[u]ndisclosed evidence
will be deemed material only if it could reasonably be taken to put the whole case in such a
different light as to undermine confidence in the verdict.” Id. (citation and quotatoin marks
omtited). As previously discussed, defendant failed to offer any evidence illustrating how
statements by the confidential informant were relevant and helpful to the defense. As such, he
failed to provide proof that the confidential informant could have offered either material or
favorable evidence, and the prosecution’s failure to produce the informant therefore did not
undermine confidence in the jury’s verdict. Accordingly, there was no Brady violation.
II. FRANKS HEARING
Next, defendant argues that the trial court erred when it denied his request for a Franks
hearing to challenge the validity of the warrant to search his home. We disagree.
A trial court’s decision on whether to hold an evidentiary hearing based on a challenge to
the validity of a search warrant’s affidavit is reviewed for an abuse of discretion. People v
Martin, 271 Mich App 280, 309; 721 NW2d 815 (2006). “However, this Court reviews the facts
supporting the denial of the evidentiary hearing for clear error and reviews the application of
those facts to the law de novo.” Id.“[I]f false statements are made in an affidavit in support of a search warrant, evidence
obtained pursuant to the warrant must be suppressed if the false information was necessary to a
finding of probable cause.” People v Stumpf, 196 Mich App 218, 224; 492 NW2d 795 (1992).
However, an affidavit supporting a search warrant is presumed to be valid. Martin, 271 Mich
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App at 311. A trial court must conduct an evidentiary hearing only after the defendant makes a
preliminary showing that the affiant knowingly and intentionally, or with reckless disregard for
the truth, included a false statement in the warrant affidavit, and that the allegedly false statement
was necessary to a finding of probable cause. Id. A conclusory challenge does not warrant a
hearing. Id. As the Franks Court explained:
To mandate an evidentiary hearing, the challenger’s attack must be more than
conclusory and must be supported by more than a mere desire to cross-examine.
There must be allegations of deliberate falsehood or of reckless disregard for the
truth, and those allegations must be accompanied by an offer of proof. They
should point out specifically the portion of the warrant affidavit that is claimed to
be false; and they should be accompanied by a statement of supporting reasons.
Affidavits or sworn or otherwise reliable statements of witnesses should be
furnished, or their absence satisfactorily explained. Allegations of negligence or
innocent mistake are insufficient. [Franks v Delaware, 438 US 154, 171; 98 S Ct
2674; 57 L Ed 2d 667 (1978).]
Additionally, after a defendant has made a preliminary showing that the affidavit contains false
statements, any invalid portions of the affidavit may be severed, People v Ulman, 244 Mich App
500, 510; 625 NW2d 429 (2001), and “if, when material that is the subject of the alleged falsity
or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to
support a finding of probable cause, no hearing is required,” Franks, 438 US at 171-172. Thus,
“if the remaining content is insufficient, the defendant is entitled, under the Fourth and
Fourteenth Amendments, to his hearing.” Id. at 172.
Defendant failed to make a preliminary showing that the search warrant affidavit
contained any false statements, or to provide any proof, aside from conclusory allegations, that
such statements were made knowingly and intentionally, or with reckless disregard for the truth.
It is not enough that defendant claimed that he could “establish a substantial preliminary
showing.” It was defendant’s burden to make the substantial showing before the trial court was
obligated to grant defendant’s motion for a Franks hearing. There is no question that defendant
failed to meet that burden. Defendant did not produce any sworn statements by a witness or
attempt to explain why such statements were unavailable. Nor did defendant attempt to explain
how, if the affidavit contained false statements, those statements were necessary for a finding of
probable cause. Defendant brought nothing more than broad and nonspecific allegations, failed
to point out specifically what portion of the warrant affidavit was false, failed to include any
supporting argument, and failed to accompany his allegations with an offer of proof.
Further, although defendant broadly claimed that “without the false and reckless
statements a finding of probable cause would not be supported by the remaining content of the
affidavit,” he failed to offer support for this assertion. Defendant’s conclusory statement was
simply insufficient. This Court, like the trial court, is unable to determine whether defendant’s
claimed falsities could undermine the probable cause for the search warrant. Without a showing
by defendant that such falsities exist, this Court presumes the validity of the search warrant
affidavit, and further consideration of defendant’s claims is unnecessary. Martin, 271 Mich App
at 311. Without a preliminary showing that the affidavit contained false statements, the trial
court was well within its discretion to deny such a motion.
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III. CHALLENGES TO THE SEARCH WARRANT
Third, defendant argues that he is entitled to a new trial because the warrant to search his
home was unsupported by probable cause. In his Standard 4 brief, he also argues that the
warrant is unconstitutionally unspecific and invalid for failure to meet certain structural
requirements. Again, we disagree.
Defendant failed to preserve these objections by moving to suppress the evidence in the
trial court on the ground that the search warrant was deficient and unsupported by probable
cause. See People v Unger, 278 Mich App 210, 243; 749 NW2d 272 (2008). Unpreserved
constitutional issues are reviewed for plain error affecting a defendant’s substantial rights.
People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Further, “[a] magistrate’s
determination of probable cause should be paid great deference by reviewing courts.” People v
Keller, 479 Mich 467, 474; 739 NW2d 505 (2007) (citation and quotation marks omitted).
Affording the requisite deference to the magistrate’s decision, a reviewing court is required to
ensure simply that a reasonably cautious person could conclude that there is a substantial basis
for the magistrate’s conclusion that probable cause exists. Martin, 271 Mich App at 297.
Defendant argues that the affidavit fails to show probable cause to believe that
contraband or any other evidence of a specific crime would be found in defendant’s home
because (1) it does not provide facts regarding the confidential informant’s credibility or
reliability, (2) it does not indicate the existence of evidence to show that drugs would be located
inside defendant’s home or that defendant was engaged in direct sales of drugs, and (3) it does
not indicate that the confidential informant ever provided specific information regarding the
probability of drugs other than cocaine, guns, or telephones in defendant’s home, and the affiant
therefore lacked probable cause to search for anything other than cocaine.
Under both the United States Constitution and the Michigan Constitution, a search
warrant may not issue without probable cause to justify the requested search. US Const, Am IV;
Const 1963, art 1, § 11. “Probable cause exists when the facts and circumstances would allow a
reasonable person to believe that the evidence of a crime or contraband sought is in the stated
place.” People v Waclawski, 286 Mich App 634, 698; 780 NW2d 321 (2009). Probable cause is
determined based on the facts presented by oath or affirmation to the issuing magistrate. Id.“When probable cause is averred in an affidavit, the affidavit must contain facts within the
knowledge of the affiant rather than mere conclusions or beliefs.” Id. On appeal, “a search
warrant and the underlying affidavit are to be read in a common-sense and realistic manner” to
determine whether there is a substantial basis supporting the magistrate’s conclusion that there is
“a fair probability that contraband or evidence of a crime will be found in a particular place.”
People v Whitfield, 461 Mich 441, 446; 607 NW2d 61 (2000) (citations and quotation marks
omitted).
If a search warrant affidavit is based in part on information supplied by a confidential
informant, it must contain affirmative allegations from which a magistrate may conclude that the
confidential informant was credible or the information provided was reliable. People v Poole,
218 Mich App 702, 706; 555 NW2d 485 (1996). The fact that the police previously used
information from the informant with success provides support for the conclusion that the
informant was credible and reliable. Stumpf, 196 Mich App at 223. Contrary to defendant’s
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assertion on appeal, the search warrant affidavit contained affirmative allegations to satisfy this
requirement. As one of several facts offered to support a probable cause determination, the
affidavit states that “[a] confidential informant of established reliability provided the affiant with
true and accurate information concerning criminal activity at 1046 Cherrylawn . . . that a [man]
identified as “Kirk” sold cocaine from and made deliveries of cocaine from that residence.”
(Emphasis added.) Thereafter, the affidavit contains a provision specifically addressing the
informant’s credibility, which, on its own, would be sufficient to support the affiant’s reliance on
information obtained from the confidential informant.
Information provided by a confidential informant is enough to establish probable cause
when the police have verified the information through an independent investigation. See
Waclawski, 286 Mich App at 699. The record clearly establishes not only that the facts stated in
the affidavit were confirmed by investigating officers, but that Detective Main’s independent
investigation uncovered evidence, independent of the confidential informant’s original
statements, establishing probable cause to believe that defendant was engaged in narcotics
trafficking. Indeed, while the affidavit mentions that Detective Main’s investigation of
defendant was initiated after Detective Main received information suggesting that defendant was
selling cocaine, its recitation of facts to establish probable cause consists of Detective Main’s
independent, direct observation of defendant engaged in person-to-person sales of narcotics with
a confidential informant. The affidavit specifically alleged that the affiant observed the
confidential informant as the informant participated in two controlled buys of cocaine with the
occupants of 1046 Cherrylawn, that the transactions were undertaken at a prearranged meet
location, and that the informant was searched immediately before and after conducting the hand-
to-hand transactions. These allegations were sufficient to allow the magistrate to find that the
confidential informant’s information was reliable.
The affidavit clearly illustrated probable cause to believe that defendant was engaged in
narcotics trafficking on some scale. Indeed, the affiant personally observed defendant as he
conducted a hand-to-hand sale of cocaine to the affiant’s confidential informant. Further, the
affidavit provided sufficient information to allow a reasonably cautious person to conclude that,
under the totality of the circumstances, there was a substantial basis for the magistrate’s
determination that probable cause existed to conclude that evidence of drug trafficking would be
found in defendant’s home. See People v Echavarria, 233 Mich App 356, 367; 592 NW2d 737
(1999). Detective Main personally observed defendant leave the residence at 1046 Cherrylawn
to meet with the confidential informant at the prearranged meet location, where defendant
engaged in the sale of cocaine. It is reasonable, from this information, to believe that defendant
brought the cocaine with him from his home. Additionally, Detective Main supported his
request for a search warrant with a recitation of his qualifications as a narcotics enforcement
officer and an explanation, based on his experience, that drug traffickers commonly keep
weapons, records of drug deals, cellular telephones, drug paraphernalia, and a source of
controlled substances in their homes. “[T]he affiant’s experience is relevant to the establishment
of probable cause.” Waclawski, 286 Mich App at 698.
Contrary to defendant’s argument on appeal, the search warrant affidavit was not
rendered invalid by any failure of the affiant to specifically describe the evidence sought. The
fact that Detective Main only had direct evidence of defendant’s sale of cocaine did not, as
defendant argued, limit the probable cause to that for suspicion of cocaine sales. “The Fourth
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Amendment requires a warrant to ‘particularly describ[e] the place to be searched, and the
person or things to be seized,’ ” Keller, 479 Mich at 475 (alteration in original). However, the
degree of specificity required depends on the circumstances of the investigation and the types of
items involved. Unger, 278 Mich App at 245. Michigan’s probable cause standard relates to
whether “contraband or evidence of a crime will be found in a particular place.” People v
Kazmierczak, 461 Mich 411, 417-418; 605 NW2d 667 (2000) (emphasis added). “It does not
require that the evidence sought be particular to the specific offense a defendant is alleged to
have committed.” People v Hellstrom, 264 Mich App 187, 199-200; 690 NW2d 293 (2004).
The personal observations of Detective Main, combined with his experience investigating drug
trafficking crimes, provided probable cause to believe evidence of drug trafficking in general
would be located at defendant’s home. There was no reason to limit the search of defendant’s
home to evidence of cocaine alone.
The descriptions of the items to be seized from defendant’s home were sufficiently
particularized. Contrary to defendant’s assertions in his Standard 4 brief, the warrant drafter’s
use of the word “any” to delineate the types of drugs, weapons, and cellular telephones was not
too general to meet specificity requirements. Again, it is not necessary to specifically delineate
whether a search is for a specific type of drug or a specific type of weapon, when it is only
probable cause to believe evidence of “a crime” will be found in a particular place that is
necessary. See Kazmierczak, 461 Mich at 417-418 (emphasis added). Read in context, it is clear
that the warrant limited the seizure of evidence to items related to the sale or distribution of
controlled substances. Examining the description in a common-sense manner, it is clear that the
officers’ discretion was limited to searching for identified classes of items connected to
defendant’s suspected drug trafficking operation, and the warrant therefore met the particularity
requirement.
In his Standard 4 brief, defendant also alleges various structural flaws in the search
warrant, including the absence of the signing magistrate’s name and bar number, the absence of a
clerk file mark, the absence of a court seal, the absence of the confidential informant’s “code
number,” and the absence of any dates for the alleged hand-to-hand transactions between
defendant and the confidential informant. Defendant presents most of these arguments in a
cursory fashion without sufficient development to permit meaningful review. Although he
asserts that such indicia of reliability are “required by law,” he does not cite supporting authority.
“An appellant may not merely announce his position and leave it to this Court to discover and
rationalize the basis for his claims, nor may he give only cursory treatment with little or no
citation of supporting authority.” People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480
(1998). It should be noted that although the warrant does not include the identifying information
defendant claims is required, it does indicate that it is based on the attached affidavit, sworn to
by the affiant, and that it was entered by a 50th District Court magistrate. The warrant does not
include a printed name of the magistrate, but it is signed by the magistrate, and defendant
conceded in his lower court motion that the magistrate’s identity is known to defendant. The
warrant is dated with the same date as the affidavit, and we find no evidence to suggest that the
warrant was issued illegally.
Even if we were to find that the search warrant was invalid for structural deficiencies, or
for lack of probable cause, a new trial would not be necessary as suppression of the evidence
would be inappropriate. Ordinarily, if a warrant is determined to be invalid because it lacked a
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probable cause basis or was technically deficient in some other manner, any evidence seized
pursuant to that warrant is inadmissible as substantive evidence in related criminal proceedings.
Kazmierczak, 461 Mich at 418. However, our Supreme Court recognizes the “good-faith”
exception in cases of invalid search warrants, which “renders evidence seized pursuant to an
invalid search warrant admissible as substantive evidence in criminal proceedings where the
police acted in reasonable reliance on a presumptively valid search warrant that was later
declared invalid.” Hellstrom, 264 Mich App at 193-194. Defendant has not argued that the
officers performing the search of his home acted in bad faith. The supporting affidavits were not
“so lacking in indicia of probable cause that the officers could not objectively believe that the
warrant was supported by probable cause.” See id. at 199 (citation and quotation marks
omitted). Neither was there any reason, at the time of the search, to believe that the facts alleged
in the affidavit were false or that the magistrate was misled by false information. See id.
Finally, the warrant was not “so facially deficient that it rendered the officers’ reliance wholly
unreasonable.” Id. at 200. The warrant described the place to be searched and the items to be
seized with sufficient particularity to allow the officers to reasonably rely on the validity of the
warrant. The warrant was signed by the magistrate and supported by the affidavit of an
investigating officer. The good-faith exception is therefore applicable, and suppression of the
evidence obtained pursuant to the warrant would be inappropriate.
IV. RIGHT TO A JURY TRIAL
Next, in his Standard 4 brief, defendant argues that the trial court’s refusal to produce the
confidential informant to testify at defendant’s trial deprived him of his right to a jury trial. We
disagree.
Defendant failed to preserve this issue by raising it in the lower court. See Metamora
Water Serv, Inc, 276 Mich App at 382. Our review is therefore limited to plain error affecting
defendant’s substantial rights. Carines, 460 Mich at 763.
Defendant does not argue that he was deprived of a trial by jury. Indeed, defendant was
tried before a jury and convicted by jury verdict. Defendant instead presents the novel argument
that the trial court’s denial of his request for production of the confidential informant deprived
him of his right to have the jury consider all of the available evidence bearing on defendant’s
guilt. Inherent in defendant’s argument is the idea that an uninformed jury cannot be “fair and
impartial.” Defendant does not cite any legal authority to support his claim, and this Court need
not find it for him. See Kelly, 231 Mich App at 640-641. Because defendant has cited no
authority to support his claim of error, he has abandoned this issue on appeal.
Further, defendant’s stated argument directly conflicts with the rules of evidence and this
Court’s construction of a defendant’s right to a fair and impartial jury. The Sixth Amendment to
the United States Constitution states that “[i]n all criminal prosecutions, the accused shall enjoy
the right to a speedy and public trial, by an impartial jury . . . .” US Const, Am VI. This
amendment guarantees a criminal defendant the right to be tried by a fair and impartial jury.
People v Miller, 482 Mich 540, 547; 759 NW2d 850 (2008). While the right to a fair and
impartial jury encompasses several areas, it has never been found to encompass the right to
present all evidence related to defendant’s guilt or innocence. Indeed, such a “right” would be,
in many cases, detrimental to a criminal defendant. See Unger, 278 Mich App at 250
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(explaining that the rules of evidence at issue in the case “help to ensure the integrity of criminal
trials”). To interpret the Sixth Amendment’s right to a fair and impartial jury to necessitate the
presentation of all evidence, however tangentially related, would render meaningless the rules of
evidence. Thus, there is no basis for defendant’s argument that the failure to produce the
informant constituted a violation of his Sixth Amendment right to a jury trial.
Additionally, defendant has not shown that the presentation of testimony from the
confidential informant would have affected the outcome of his trial. Defendant has not
suggested that the confidential informant could testify regarding any relevant or material
evidence, or that the confidential informant’s testimony would have cast doubt on any element of
any of the charged crimes. The evidence necessary to support defendant’s convictions arose
from the search of defendant’s home, which the confidential informant had no part in. None of
the evidence of guilt presented by the prosecution at trial was obtained from the confidential
informant, who was never mentioned at trial. Given the overwhelming evidence of guilt, it is
unlikely that the jury’s knowledge of the extraneous involvement of a confidential informant
would have affected their decision. Defendant has not demonstrated that any alleged error
resulted in prejudice, and reversal is not warranted. See Carines, 460 Mich at 763.
V. RIGHT TO PRESENT A DEFENSE
Next, defendant argues in his Standard 4 brief that the trial court’s refusal to produce the
confidential informant to testify at his trial deprived him of his constitutional right to present a
defense. Again, we disagree.
Defendant failed to preserve this issue by raising it in the trial court. See Unger, 278
Mich App at 247. Unpreserved constitutional issues are reviewed for plain error affecting a
defendant’s substantial rights. Carines, 460 Mich at 763.
At the outset, it should be noted that defendant has provided no authority or argument in
support of the proposition that a trial court’s decision to maintain the confidentiality of a police
informant deprives a defendant of his right to present a complete defense. Again, defendant’s
failure to fully brief the issue constitutes an abandonment of the claim. See Kelly, 231 Mich App
at 640-641. Therefore, we need not address the merits of defendant’s argument. However, we
find defendant’s argument to be without merit.
A defendant has the constitutional right to present evidence in his defense. Unger, 278
Mich App at 249. However, “[t]he right to present a defense is not absolute or unfettered.”
People v Orlewicz, 293 Mich App 96, 101; 809 NW2d 194 (2011). A defendant is entitled to
present witnesses only if their testimony would be material and favorable to the defense. Id. at
101-102. This rule is reflected in the exception to the informer’s privilege, mandating the
prosecution’s production of a confidential informant for an in camera hearing in any case where
the defendant can demonstrate a possible need for that informant’s testimony. See Underwood,
447 Mich at 706-707. In such a case, the trial court must weigh “ ‘the crime charged, the
possible defenses, the possible significance of the informer’s testimony, and other relevant
factors,’ ” to determine whether the informant’s testimony could be relevant and helpful to the
defense. Henry (After Remand), 305 Mich App at 156.
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Because defendant failed to demonstrate, in the lower court or on appeal, any possible
need for the confidential informant’s testimony, he cannot show that he was deprived of
evidence necessary to support his defense. Defendant does not analyze the circumstances of the
crime or the defenses available, or suggest that the confidential informant’s testimony might be
necessary to support an available defense. Indeed, defendant does not even attempt to argue that
the confidential informant’s testimony would be relevant to the charged offenses. To the
contrary, the crimes for which defendant faced trial were all related to items discovered during
the execution of a search warrant, which was obtained on the basis of personal observations by
the officer in charge of the investigation, and not for any of the transactions involving the
confidential informant. The confidential informant’s statements were not relied upon to support
the warrant or prove any element of the charged crimes. Because defendant has not shown that
the informant’s testimony would be material and favorable to the defense, defendant has not
established that the court’s refusal to require the informant’s production constituted a denial of
defendant’s right to present a defense. See Orlewicz, 293 Mich App at 101-102. Moreover,
without even a showing of relevance, defendant cannot establish the requisite prejudice for
reversal.
VI. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant also argues that he was deprived of his constitutional right to the effective
assistance of counsel when defense counsel failed to object to (1) the trial court’s denial of
defendant’s right of confrontation, (2) the invalidity of the search warrant, (3) the trial court’s
denial of defendant’s right to a jury trial, and (4) the trial court’s denial of defendant’s right to
present a defense. We disagree.
Defendant failed to preserve this issue by bringing a timely motion for a new trial or for a
Ginther4 hearing in the lower court. See People v Petri, 279 Mich App 407, 410; 760 NW2d 882
(2008). This Court’s review of unpreserved ineffective assistance of counsel claims is limited to
mistakes apparent on the record. Id. Whether a person has been denied effective assistance of
counsel is a mixed question of law and fact. Id. “A trial court’s findings of fact, if any, are
reviewed for clear error, and this Court reviews the ultimate constitutional issue arising from an
ineffective assistance of counsel claim de novo.” Id. “To prove that defense counsel was not
effective, the defendant must show that (1) defense counsel’s performance was so deficient that
it fell below an objective standard of reasonableness and (2) there is a reasonable probability that
defense counsel’s deficient performance prejudiced the defendant.” People v Heft, 299 Mich
App 69, 80-81; 829 NW2d 266 (2012).
This Court has already concluded that each of defendant’s claims of error related to the
invalidity of the search warrant and the trial court’s decision to deny defendant’s request for
production of the confidential informant fail. Defense counsel’s failure to object on any of these
related grounds was therefore objectively reasonable. “Failing to advance a meritless argument
or raise a futile objection does not constitute ineffective assistance of counsel.” People v
4
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
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Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010). Further, defense counsel could not be
considered ineffective for failing to object to the validity of the search warrant or requesting
production of the confidential informant, as defense counsel did bring a motion for a Franks
hearing, arguing that the search warrant was not supported by probable cause. Within the
motion, defense counsel specifically demanded production of the confidential informant. The
trial judge’s decision to deny that motion does not negate the fact that defense counsel did raise
the issues.
As previously discussed, neither the alleged “invalidities” of the search warrant nor the
trial court’s denial of defendant’s request for production of the confidential informant likely had
an effect on the outcome of defendant’s trial. The officers’ search of defendant’s home was
conducted in good-faith reliance on the validity of the search warrant, and any errors in the
warrant affidavit would therefore not necessitate exclusion of the evidence found in defendant’s
home. The evidence found in defendant’s home was sufficient to allow the jury to convict
defendant on all of the charges, even without testimony regarding a confidential informant or
allegations made by such an informant. There is nothing to show that the jury would not have
found defendant guilty as charged had it considered testimony from the confidential informant,
especially without any indication that the informant’s testimony would have been relevant or
helpful to the defense. Without a showing of prejudice, defendant’s ineffective assistance of
counsel claim fails.
VII. SUFFICIENCY OF EVIDENCE
Finally, defendant argues that there was insufficient evidence to support his convictions
of felon in possession of a firearm and felon in possession of ammunition. We disagree.
A challenge to the sufficiency of evidence is reviewed de novo, People v Harverson, 291
Mich App 171, 177; 804 NW2d 757 (2010), but “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). This Court must review the evidence in a
light most favorable to the prosecution and determine whether the trier of fact could have found
the essential elements of the crimes proven beyond a reasonable doubt. People v Reese, 491
Mich 127, 139; 815 NW2d 85 (2012).
In every criminal case, the prosecution is required to prove each element of every
charged crime beyond a reasonable doubt. People v Likine, 492 Mich 367, 407; 823 NW2d 50
(2012). In this case, defendant was charged with one count of felon in possession of a firearm
and one count of felon in possession of ammunition. For a conviction of felon in possession of a
firearm, the prosecution must present evidence that defendant possessed a firearm, and that at the
time defendant possessed a firearm, he was ineligible to do so as a result of a prior felony
conviction. People v Perkins, 473 Mich 626, 630-632; 703 NW2d 448 (2005). The elements of
felon in possession of ammunition are identical to the elements of felon in possession of a
firearm, except that rather than prove defendant possessed a firearm, the prosecution is required
to prove beyond a reasonable doubt that defendant possessed ammunition. MCL 750.224f. The
parties may stipulate that the defendant has been convicted of a prior felony. People v Green,
228 Mich App 684, 691-692; 580 NW2d 444 (1998).
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The parties stipulated that defendant had a prior felony conviction and was ineligible to
possess a firearm under MCL 750.224f at the time of the charged crimes. Thus, for convictions
of felon in possession of a firearm and felon in possession of ammunition, the prosecution was
only required to prove to the jury that defendant possessed a firearm and ammunition. People v
Minch, 493 Mich 87, 91; 825 NW2d 560 (2012). Possession, in the context of firearms, can be
actual or constructive. Id. “The test for constructive possession is whether ‘the totality of the
circumstances indicates a sufficient nexus between defendant and the contraband.’ ” Id. at 91-92
(citation omitted). In other words, “ ‘[a] person has constructive possession if there is proximity
to the article together with indicia of control. Put another way, a defendant has constructive
possession of a firearm if the location of the weapon is known and it is reasonably accessible to
the defendant.’ ” People v Johnson, 293 Mich App 79, 83; 808 NW2d 815 (2011) (citation
omitted). Our Supreme Court has noted that ownership of a firearm is not the same thing as
possession. People v Burgenmeyer, 461 Mich 431, 438; 606 NW2d 645 (2000). “Possession
can be established with circumstantial or direct evidence, and the ultimate question of possession
is a factual inquiry to be answered by the jury.” People v Flick, 487 Mich 1, 14; 790 NW2d 295
(2010) (citation and quotation marks omitted).
In the present case, the police did not find defendant in actual, physical possession of
either a firearm or ammunition. However, there was sufficient evidence for a rational trier of
fact to conclude beyond a reasonable doubt that defendant constructively possessed the firearm,
which was located in his bedroom, and the ammunition, which was found in both the handgun
and in his kitchen. First, there was sufficient evidence to show that defendant knew of the
firearm and the ammunition. During his interview with Main, defendant admitted that he knew
there was a loaded handgun on the shelf in his bedroom closet. Although there was no testimony
directly indicating that defendant knew of the ammunition in his kitchen cabinet, it would be
reasonable for the trier-of-fact to infer that defendant was aware of the contents of his own
kitchen cabinets. Additionally, defendant’s claim that the handgun, registered to Griffin, was not
his, a fact later verified by Detective Main, makes no difference when the element necessary is
“possession” and not “ownership.” The prosecutor was not required to prove that defendant
owned the handgun, the ammunition inside, or the ammunition in the kitchen, but was required
only to prove that defendant possessed these objects. See Burgenmeyer, 461 Mich at 438.
“Possession of a firearm may be sole or joint; thus dominion or control over the object need not
be exclusive.” People v Strickland, 293 Mich App 393, 400; 810 NW2d 660 (2011). Thus,
neither Griffin’s ownership nor concurrent possession of the handgun relieved defendant of
liability. Finally, while the fact the handgun and ammunition were never sent for fingerprinting
might tend to weaken an argument for actual possession, it has no bearing on the prosecutor’s
argument regarding defendant’s constructive possession of the handgun and ammunition. Again,
the prosecution was only required to present enough evidence to support a rational trier of fact’s
conclusion that defendant knew the handgun and ammunition were in his home, and the
prosecution met its burden here.
Defendant argues that evidence presented at trial tends to prove that the residence at 1046
Cherrylawn is not his primary home, and that he could not possess the handgun or ammunition
because he was “merely present” when the handgun and ammunition were found. Presumably,
defendant refers to the two driver’s licenses found in his vehicle, indicating a home address of
1058 Cherrylawn. But defendant’s argument fails. Residence is not required for proof of
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constructive possession. The question is whether defendant had knowledge of the handgun’s
location, not whether he lived where the firearm was found. In any case, the prosecution
presented overwhelming evidence that defendant resided at the 1046 Cherrylawn residence, not
the least of which was defendant’s presence in the home, with his girlfriend and their children, in
his boxers, at 8:45 a.m. The prosecution also presented various documents found within the
home and garage bearing defendant’s name and indicating a home address of 1046 Cherrylawn.
It is worth noting that even defendant, in his brief on appeal, refers to the residence at 1046
Cherrylawn as “his home.” Additionally, Detective Main explained at defendant’s trial that he
had observed defendant at the 1046 Cherrylawn address during his surveillance of defendant, and
had never seen him enter or exit the residence at 1058 Cherrylawn. According to Detective
Main, it is not uncommon for individuals engaged in the sale of drugs to provide an alternate
address for something like a driver’s license.
Further, there was sufficient evidence to support the jury’s conclusion that defendant had
reasonable access to the handgun and the ammunition. The handgun was found, loaded, on a
shelf inside defendant’s bedroom closet. Although the searching officer had to move aside a pile
of clothes to reach the handgun, defendant admitted to Detective Main that he knew exactly
where the loaded handgun was. Defendant was one of only two adults inside the home during
the search that produced the handgun and ammunition, and although it was later discovered that
the handgun was registered to Griffin, the other present adult, Griffin’s ownership did not limit
defendant’s access to the firearm. Indeed, 20 seconds after the officers first breached
defendant’s home to perform their search, Detective Main found defendant standing between the
foot of his bed and the open closet, less than 4 feet from the loaded handgun. Given the timing
and defendant’s state of undress, it would be reasonable to infer that defendant had recently left
his bed and moved toward the closet in reaction to the disturbance in his home. He was within
reaching distance of the loaded handgun when he was discovered.
The jury was properly instructed on the definition of constructive possession and is
presumed to have considered and followed that instruction during deliberations. People v
Abraham, 256 Mich App 265, 278-279; 662 NW2d 836 (2003). As previously noted, there was
sufficient evidence presented at trial to support the jury’s conclusion that defendant knew of the
firearm and the box of ammunition, and that he had reasonable access to both. Sufficient
evidence therefore supported the jury’s conclusion that defendant’s constructive possession of
the firearm and ammunition had been proved beyond a reasonable doubt.
Affirmed.
/s/ Kathleen Jansen
/s/ Mark J. Cavanagh
/s/ Mark T. Boonstra
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