People of Michigan v. Louis Edward Laws ( 2019 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
April 11, 2019
Plaintiff-Appellee,
v No. 341739
Oakland Circuit Court
LOUIS EDWARD LAWS, LC No. 2016-259498-FH
Defendant-Appellant.
Before: TUKEL, P.J., and K. F. KELLY and M. J. KELLY, JJ.
PER CURIAM.
Defendant appeals as of right his conviction, following a bench trial, of possession with
intent to deliver 50 grams or more but less than 450 grams of cocaine, MCL 333.7401(2)(a)(iii),
for which the trial court sentenced him to 99 months to 30 years in prison. We affirm.
I. BASIC FACTS
Defendant’s conviction arises from the seizure of cocaine during the execution of a
search warrant at a residence on Kenilworth Street in Pontiac. Upon entering the residence, the
police saw defendant exiting the bathroom, heard the toilet running, and noticed that the water
level in the toilet was low. A police officer immediately kicked the toilet off the floor and
recovered a sock from the basin of the toilet. The sock contained three bags of a powder, which
tested positive for cocaine. The bags weighed 108 grams, 16 grams, and 4 grams, respectively.
Defendant was the only person inside the home at the time of the search. From the
kitchen table, the police recovered a box of baking soda, a digital scale with white residue on the
face, and a box of plastic bags. From the sink, the police recovered a glass Pyrex dish and two
knives, which items tested positive for cocaine. From the garbage outside, the police recovered
plastic bags with the corners missing and latex gloves. The police recovered $2,765 from
defendant’s pockets. Five cell phones were recovered from the home, including one phone that
had incoming text messages identifying the recipient as “Lou” and requesting various amounts of
both crack or powder cocaine, and outgoing messages responding affirmatively. Detective
Daniel Main, who was qualified as an expert in drug trafficking, testified that the recovered
evidence was consistent with drug trafficking and inconsistent with personal use.
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II. VALIDITY OF THE SEARCH WARRANT
Defendant’s first claim on appeal is that the trial court erred by denying his motion to
suppress the evidence recovered during the execution of the search warrant at the Kenilworth
Street residence. Defendant argues that the supporting affidavit failed to establish probable
cause that evidence of a crime would be found inside the home. We disagree.
“ ‘A trial court’s findings on a motion to suppress evidence as illegally seized will not be
reversed on appeal unless clearly erroneous, while questions of law and the decision on the
motion are reviewed de novo . . . .’ A finding is clearly erroneous if this Court is left with a
definite and firm conviction that the trial court has made a mistake.” People v James, ___ Mich
App ___; ___ NW2d ___ (2019) (Docket No. 339504) (citation omitted); slip op at 6.
The United States and Michigan Constitutions both guarantee the right of citizens to be
free from unreasonable searches and seizures. See US Const, Am IV; Const 1963, art 1, § 11;
People v Franklin, 500 Mich. 92, 100; 894 NW2d 561 (2017). “In order to show that a search
was in compliance with the Fourth Amendment, the police must show either that they had a
warrant or that their conduct fell within one of the narrow, specific exceptions to the warrant
requirement.” People v Kazmierczak, 461 Mich. 411, 418; 605 NW2d 667 (2000). A magistrate
shall only issue a search warrant when he or she finds that “there is a fair probability that
contraband or evidence of a crime will be found in a particular place.” Franklin, 500 Mich. at
101. A presumption of validity exists regarding an affidavit supporting a search warrant. Id. at
103. A magistrate’s finding of probable cause “ ‘shall be based upon all the facts related within
the affidavit.’ ” People v Keller, 479 Mich. 467, 482; 739 NW2d 505 (2007), quoting MCL
780.653. “ ‘Search warrants and the underlying affidavits are to be read in a common-sense and
realistic manner . . . .’ ” People v Russo, 439 Mich. 584, 603; 487 NW2d 698 (1992), quoting
Illinois v Gates, 462 U.S. 213; 103 S. Ct. 2317; 76 L. Ed. 2d 527 (1983). Search warrants should not
be read in a “hypertechnical manner.” People v Mullen, 282 Mich. App. 14, 27; 762 NW2d 170
(2008); see also United States v Weaver, 99 F 3d 1372, 1378 (CA 6, 1996) (“As we are aware
that ‘affidavits are normally drafted by nonlawyers in the midst and haste of a criminal
investigation,’ we remain cautious not to interpret the language of affidavits in a ‘hypertechnical’
manner.”) (citation and quotation marks omitted).
Probable cause may be based, in part, on information supplied by a
confidential informant, provided that the affidavit included “affirmative
allegations from which the judge or district magistrate may conclude that the
person spoke with personal knowledge of the information and either that the
unnamed person is credible or that the information is reliable.” MCL 780.653(b).
“[T]he fact that the police previously had utilized information provided by [a
particular] informant in other warrant requests with successful results provide[s] .
. . support for the magistrate to conclude that the informant [i]s credible and
reliable.” [James, ___ Mich App at ___; slip op at 5 (citations omitted).]
Independent police investigations that verify the accuracy and reliability of informant
information support a finding of probable cause. People v Waclawski, 286 Mich. App. 634, 699;
780 NW2d 321 (2009).
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As this Court recently explained in James, “When reviewing a magistrate’s decision that
probable cause existed, this Court considers ‘whether a reasonably cautious person could have
concluded that there was a substantial basis for the finding of probable cause.’ ” James, ___
Mich App at ___; slip op at 5, quoting Russo, 439 Mich. at 603. Likewise, in Franklin, our
Supreme Court stated:
A magistrate’s finding of probable cause and decision to issue a search
warrant are reviewed to ensure that the magistrate possessed a “ ‘substantial basis
for . . . conclud[ing]’ that a search would uncover evidence of wrongdoing . . . .”
A magistrate’s finding of probable cause and his or her decision to issue a search
warrant should be given great deference and only disturbed in limited
circumstances. Judicial deference to a magistrate’s issuance of a warrant is a
legal principle found throughout United States Supreme Court caselaw intended
to emphasize the magistrate’s role as an independent judicial officer and to
encourage law enforcement officers to secure warrants. United States v
Ventresca, 380 U.S. 102, 108; 85 S. Ct. 741; 13 L. Ed. 2d 684 (1965) (“A grudging or
negative attitude by reviewing courts toward warrants will tend to discourage
police officers from submitting their evidence to a judicial officer before
acting.”). [Franklin, 500 Mich. at 101 (citations omitted).]
In this case, the confidential informant reported that defendant was selling cocaine from
690 Kenilworth, and also made deliveries from that address. The informant stated that during
the 60 days preceding the affidavit, he had seen cocaine every time that he visited 690
Kenilworth. Moreover, within 48 hours preceding the affidavit, the informant had observed
cocaine at the home. The informant gave a physical description of defendant and confirmed his
identity using a photograph. The informant also identified defendant by his nickname, “Big
Lou.” Detective Main averred that, based on past investigations of defendant, he could confirm
defendant’s nickname. The informant described the physical appearance of the residence and its
location on Kenilworth. Given this information, the affidavit did not merely baldly state that the
informant had personal knowledge of criminal activity, but it instead set forth the informant’s
observations of cocaine sales by defendant and the presence of cocaine in the home at 690
Kenilworth. As such, the search warrant affidavit allowed the magistrate to find that the
informant spoke with personal knowledge of defendant’s drug activity.
The search warrant affidavit also established the informant’s reliability. Detective Main
averred that the informant had agreed to provide information to the Oakland County Sheriff’s
Office in both drug and other criminal investigations, and that the informant had come to the
office to provide that information. Detective Main averred that the informant had “never
furnished any false or misleading information during the time that [Detective Main] has known
the informant.” Specifically regarding drug trafficking, Detective Main stated that the
informant’s information had been true and accurate; it was “confirmed through various sources
and investigative processes.” In addition, over the course of four years, the informant had
purchased narcotics and “provided information that has led to the initiation of numerous
additional criminal investigations.” Thus, by citing past involvement in police investigations,
including drug trafficking, and involvement with the police over the course of years, Detective
Main provided specific details about the informant’s reliability.
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The requirements of MCL 780.653(b) are satisfied with evidence of an informant’s
personal knowledge and reliability, but the affidavit also provided information supporting the
informant’s credibility. Detective Main and another deputy corroborated information from the
informant. The deputy drove to Kenilworth with the informant, who immediately pointed out
690 Kenilworth. Moreover, Detective Main stated that the description and location of the home
matched the informant’s initial information. Again, the informant provided defendant’s known
nickname, described his appearance, and identified his photograph. In addition, Detective Main
reviewed defendant’s criminal history, which included numerous drug-related convictions and
arrests.1 This information was consistent with that provided by the informant and it further
supports the finding of probable cause to issue the search warrant. Despite defendant’s claim on
appeal that any passerby could have provided his nickname and address, the intersection of this
information with the totality of the other information in the affidavit, including the informant’s
observations of the cocaine and defendant’s drug sales, along with the police investigation into
defendant’s history of drug sales, tended to establish the informant’s credibility.
On appeal, defendant attempts to undermine the informant’s reliability by arguing that
the language in the affidavit suggests that multiple confidential informants actually provided
information. The only basis for this argument is that in the affidavit Detective Main made two
references to “a confidential informant,” rather than referring to the informant initially as “a
confidential informant” and thereafter as “the confidential informant.” In addition, citing
Detective Main’s statements that he was “aware that informant has stated,” “aware that
informant gave information,” and “aware that informant was shown,” defendant suggests that the
informant did not provide certain information directly to Detective Main, but Detective Main
learned it second-hand from another source. Viewing the affidavit as a whole and in a
commonsense manner, Detective Main only identified one informant. The magistrate could have
reasonably concluded that there was only one informant because otherwise Detective Main
would have necessarily distinguished between the informants or sources when stating the
information provided and the history of assistance involving each informant. No such
distinctions were made here. We do not subscribe to defendant’s grammatical hypertechnical
reading of the affidavit.
Defendant also attempts to undermine the reliability of the informant by stating that, even
though the informant had consistently provided no false or misleading information, it was
unclear how long the informant had been providing information. But defendant reads the
affidavit line by line, without assessing the facts presented as a whole. Detective Main stated
shortly afterward in the affidavit that the informant had provided information for four years.
1
Defendant complains that there were no controlled purchases of drugs or surveillance by police
to corroborate the informant’s information. But MCL 780.653(b) only requires an informant’s
personal knowledge of the information and either that the informant is credible or that the
information is reliable. See Waclawski, 286 Mich. App. at 699.
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In sum, we conclude that the magistrate possessed a substantial basis for concluding that
a search would uncover evidence of wrongdoing. James, ___ Mich App at ___; slip op at 5.
Accordingly, the trial court did not err by denying defendant’s motion to suppress.
III. EFFECTIVE ASSISTANCE OF COUNSEL
Defendant next argues that he was denied the effective assistance of counsel when, at
trial, his attorney stipulated to the admission of the preliminary examination transcript of
Detective Main’s testimony, which was the sole testimonial evidence presented by either party at
trial. We disagree.
We review de novo the constitutional question whether a defendant was deprived of his
or her right to the effective assistance of counsel. People v Unger (On Remand), 278 Mich. App.
210, 242; 749 NW2d 272 (2008). But because no Ginther2 hearing occurred, our review of this
issue is limited to errors apparent from the record. People v Matuszak, 263 Mich. App. 42, 48;
687 NW2d 342 (2004).
The United States and Michigan Constitutions guarantee a defendant the right to the
effective assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20. To establish
ineffective assistance of counsel, a defendant must show: (1) that counsel’s performance was
below an objective standard of reasonableness under prevailing professional norms, and (2) that
there is a reasonable probability that, but for counsel’s deficient performance, the result of the
proceedings would have been different. Strickland v Washington, 466 U.S. 668, 688, 694; 104 S
Ct 2052; 80 L. Ed. 2d 674 (1984); People v Trakhtenberg, 493 Mich. 38, 51; 826 NW2d 136
(2012). A “reasonable probability” is a probability sufficient to undermine confidence in the
outcome. Strickland, 466 U.S. at 694. “[C]ounsel is not ineffective for failing to make a futile
objection.” People v Thomas, 260 Mich. App. 450, 457; 678 NW2d 631 (2004).
Defendant generally challenges defense counsel’s decision to stipulate to the admission at
trial of the preliminary examination transcript of Detective Main’s testimony, which was the sole
testimonial evidence presented by either party. In People v Garcia, 51 Mich. App. 109, 114-115;
214 NW2d 544 (1974), aff’d 398 Mich. 250 (1976), this Court addressed a similar stipulation to
the preliminary examination transcript and stated that
the stipulation by defendant’s counsel to allow the trial judge to read the transcript
could constitute a conscious choice of trial strategy on the part of defendant’s
attorney in accordance with appellant’s theory that he did not entertain the
requisite intent at the time of the homicides. On this record, we hold it was.
Whether we on review would agree or disagree with the trial actions or tactics in a
given case is normally an academic point because there are few choices as to
which most attorneys would universally approve.
2
People v Ginther, 390 Mich. 436, 443; 212 NW2d 922 (1973).
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Here too, defendant has not overcome the strong presumption that defense counsel’s decision
was sound trial strategy. People v Toma, 462 Mich. 281, 302; 613 NW2d 694 (2000).
“Decisions regarding what evidence to present, whether to call witnesses, and how to question
witnesses are presumed to be matters of trial strategy[.]” People v Horn, 279 Mich. App. 31, 39;
755 NW2d 212 (2008).
Defendant claims that defense counsel should have cross-examined Detective Main or
called additional witnesses to determine if the search was based on uncorroborated information
from an unidentified informant. But defendant fails to establish a factual predicate for this claim
by setting forth what additional testimony Detective Main or other witnesses could have
provided. People v Cooper, 309 Mich. App. 74, 80; 867 NW2d 452 (2015) (“defendant [also]
necessarily bears the burden of establishing the factual predicate for his claim.”) The trial court
had already denied the motion to suppress, ruling that there was sufficient information in the
search warrant affidavit to establish probable cause to issue the search warrant. We concluded
earlier that the trial court did not err because the affidavit set forth the informant’s personal
knowledge, and established that the informant was both reliable and credible. In any event, at
the preliminary examination, defense counsel in fact questioned Detective Main about his efforts
to corroborate the informant’s information. Defense counsel elicited testimony that no “drug
buys” were ever conducted at the house, and that Detective Main only conducted pre-raid
surveillance for approximately half an hour before the search and observed nothing “of note.”
Given defense counsel’s questioning, and absent any factual predicate for defendant’s claim that
additional questioning or additional witnesses could have produced favorable testimony,
defendant has failed to establish a reasonable probability that further testimony on this subject
would have made a difference in the outcome of the trial.
Defendant claims that if defense counsel had cross-examined Detective Main or called
additional witnesses, they could have been examined about the absence of any evidence of
defendant actually selling drugs. But again, at the preliminary examination, defense counsel
elicited testimony that there was no evidence of “drug buys” or drug activity during the limited
police surveillance. Defense counsel also elicited that Detective Main did not recover any
weapons, and, in closing, argued that the absence of weapons indicated that defendant was not
involved in selling drugs. Although defendant argues that defense counsel could have elicited
testimony that defendant’s fingerprints were not recovered from the bags, defense counsel made
this argument in closing. Defendant has again failed to establish a reasonable probability that,
but for defense counsel’s performance, the outcome of the trial would have been different.
Defendant next claims that if defense counsel had cross-examined Detective Main or
called additional witnesses, they could have been examined about the absence of evidence that
defendant lived in the Kenilworth house. Again, at the preliminary examination, defense counsel
actually cross-examined Detective Main on this topic. Defense counsel elicited testimony that
none of the items recovered with defendant’s name on them contained the Kenilworth address.
Instead, pieces of mail with other addresses and pieces of mail for a woman with the Kenilworth
address were found. Defendant has failed to establish a reasonable probability that further
testimony on this subject would have made a difference in the outcome of the trial.
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In sum, defendant has failed to establish that he was denied the effective assistance of
counsel at trial. Further, absent any offer of proof demonstrating factual support for his
allegations, remand for a Ginther hearing and further factual development is not required. 3
IV. JUDICIAL DISQUALIFICATION
Defendant’s third claim on appeal is that the district court judge, Michael C. Martinez,
should have disqualified himself from the preliminary examination because he had previously
reviewed and authorized the search warrant. Defendant did not preserve this claim by moving
for disqualification below. MCR 2.003(D); People v Jackson, 292 Mich. App. 583, 597; 808
NW2d 541 (2011). Therefore, defendant’s unpreserved argument is reviewed only to ascertain
whether any plain error affected his substantial rights. People v Carines, 460 Mich. 750, 763-
764; 597 NW2d 130 (1999); People v Davis, 216 Mich. App. 47, 51; 549 NW2d 1 (1996).4
A defendant has the right to a fair and impartial trial under both the United States and
Michigan Constitutions. See US Const, Am VI; Const 1963, art 1, § 20. Defendant claims that
Judge Martinez should have disqualified himself pursuant to MCR 2.003(C)(1)(a) and (c), which
provide:
(a) The judge is biased or prejudiced for or against a party or attorney.
* * *
(c) The judge has personal knowledge of disputed evidentiary facts
concerning the proceeding.
“A trial judge is presumed unbiased, and the party asserting otherwise has the heavy
burden of overcoming the presumption.” Mitchell v Mitchell, 296 Mich. App. 513, 523; 823
NW2d 153 (2012); Jackson, 292 Mich. App. at 598. A judge’s involvement in prior proceedings
involving the same defendant “does not amount to proof of bias for purposes of disqualification.”
People v Upshaw, 172 Mich. App. 386, 388; 431 NW2d 520 (1988). “The mere fact that a judge
ruled against a litigant . . . is not sufficient to require disqualification or reassignment.” In re
3
Although defendant also claims that his constitutional rights of confrontation and to present a
defense were violated when defense counsel stipulated to the admission of the preliminary
examination transcript as substantive evidence and failed to call any defense witnesses, the
stipulation waived those claims. Therefore, any alleged error is extinguished and appellate
review is precluded. See People v Buie, 491 Mich. 294, 305, 315; 817 NW2d 33 (2012).
4
Defendant claims that structural error occurred and no proof of prejudice is required. But our
Supreme Court has explained if a “reviewing court has concluded that judicial misconduct has
denied the defendant a fair trial, a structural error has occurred and automatic reversal is
required.” People v Stevens, 498 Mich. 162, 168; 869 NW2d 233 (2015). As discussed further
below, defendant has not established any judicial misconduct or any effects on his trial. Rather,
he only alleges bias related to the preliminary examination. Therefore, the plain error standard
applies.
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Contempt of Henry, 282 Mich. App. 656, 680; 765 NW2d 44 (2009). “[J]udicial rulings, in and of
themselves, almost never constitute a valid basis for a motion alleging bias, unless the judicial
opinion displays a deep-seated favoritism or antagonism that would make fair judgment
impossible and overcomes a heavy presumption of judicial impartiality.” Id. (citation and
quotation marks omitted); see also Jackson, 292 Mich. App. at 598; Armstrong v Ypsilanti Twp,
248 Mich. App. 573, 596, 640 NW2d 321 (2001).
In People v McCrea, 303 Mich. 213; 6 NW2d 489 (1942), the defendant made an
argument similar to defendant’s argument here. The defendant in that case was a prosecutor who
had been accused of corruption and graft. Id. at 223. When the defendant, while acting as the
prosecutor, declined the mayor’s request for a grand jury investigation, the circuit judges granted
a private citizen’s petition for one and appointed Judge Homer Ferguson to serve as a one-man
grand jury. Id. at 224. “As a result of the grand jury investigation indictments were returned and
warrants were issued against [the defendant] and other[s].” Id. at 224-225. Judge Ferguson then
conducted the preliminary examination. Id. at 225-226. After the defendant was convicted by a
jury, he appealed and argued, inter alia, that Judge Ferguson should have been disqualified from
the preliminary examination because he had served as the grand jury. Id. at 247-248. The basis
of the defendant’s argument was that
as a one-man grand jury Ferguson had indicted him; that Ferguson had made a
presentment to the Governor of the State for his removal as prosecuting attorney;
and that, because of the widespread publicity regarding his indictment, Ferguson
was ‘placed in a position where he must either virtually repudiate his actions in
indicting [the defendant], when sitting as a grand jury, or hold him for trial as a
matter of course.’ [Id. at 248.]
The Supreme Court rejected the defendant’s claims and concluded that he had not been denied
due process, stating:
The record contains no affidavit substantiating [the defendant’s] charge of
prejudice and bias on the part of the examining magistrate. Our attention has not
been called to any act or conduct on the part of Judge Ferguson, while conducting
the preliminary examination, from which prejudice or bias could be inferred.
Furthermore, the law is well settled that the due-process clauses of the Federal
and State Constitutions do not require a preliminary examination in criminal
proceedings. [Id. at 249.]
The Supreme Court held the same shortly afterward in a related case, People v Roxborough, 307
Mich. 575, 580; 12 NW2d 466 (1943).
Just as in McCrea, there is no allegation of actual bias here. MCR 2.003(C)(1)(a).
Defendant only alleges impropriety in the fact that Judge Martinez authorized the search warrant
and presided at the preliminary examination. But the judge’s involvement in the prior search
warrant request, and the fact that his approval of that request was detrimental to defendant, does
not establish bias for purposes of disqualification according to Upshaw and In re Contempt of
Henry. We note that decisions involving issuance of a search warrant and binding a matter over
for trial involve different standards. In the former, Judge Martinez decided whether the affidavit
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demonstrated a “fair probability that contraband or evidence of a crime will be found in a
particular place.” Franklin, 500 Mich. at 101. At the preliminary examination, Judge Martinez
decided whether “probable cause exist[ed] to believe both that an offense . . . has been
committed and that the defendant committed it.” MCR 6.110(E). Given these differing
standards, and like the judge in McCrea, Judge Martinez faced no implicit conflict and was not
forced to repudiate his decision on the search warrant when deciding whether to bind defendant
over for trial. Finally, the search warrant and affidavit were not admitted into evidence at the
preliminary examination, and there is no evidence that Judge Martinez relied on those documents
at the examination. Because there is no evidence that Judge Martinez had any personal
knowledge of additional disputed evidentiary facts concerning the proceeding, other than matters
learned in the course of the judicial proceedings, there was no basis for disqualification pursuant
to MCR 2.003(C)(1)(a) and (c). See FMB-First Nat’l Bank v Bailey, 232 Mich. App. 711, 729;
591 NW2d 676 (1998).
Furthermore, defendant cannot establish that any alleged bias by Judge Martinez affected
his substantial rights. As the court concluded in McCrea, and this Court recently restated in
People v Johnson, 315 Mich. App. 163, 200 n 7; 889 NW2d 513 (2016), “a preliminary
examination is not a constitutionally based procedure.” Therefore, “any errors that occur at a
preliminary examination will be deemed harmless if the defendant is subsequently convicted at
an otherwise fair trial.” Id. Defendant has not asserted that the alleged bias at the preliminary
examination affected his bench trial before a different judge or that he was otherwise denied a
fair trial. Therefore, he cannot establish error requiring reversal.
V. DEFENDANT’S STANDARD 4 BRIEF
Defendant raises additional claims in a pro se supplemental brief, filed pursuant to
Supreme Court Administrative Order No. 2004-6, Standard 4, none of which have merit.
Defendant’s last claims involve the sufficiency of the evidence supporting his conviction
and bindover. A challenge to the sufficiency of the evidence in a bench trial is reviewed de
novo, by reviewing the evidence in the light most favorable to the prosecution, to determine
whether the trial court could have found that the essential elements of the crime were proved
beyond a reasonable doubt. People v Wilkens, 267 Mich. App. 728, 738; 705 NW2d 728 (2005).
“All conflicts with regard to the evidence must be resolved in favor of the prosecution.” Id.
The elements of possession with intent to deliver 50 or more but less than 450 grams of
cocaine are “(1) the defendant knowingly possessed a controlled substance; (2) the defendant
intended to deliver this substance to someone else; (3) the substance possessed was cocaine and
the defendant knew it was cocaine; and (4) the substance was in a mixture that weighed [at least
50 grams, but less than 450 grams, of cocaine].” People v Crawford, 458 Mich. 376, 389; 582
NW2d 785 (1998); MCL 333.7401(2)(a)(iii).
Regarding possession in criminal offenses, our Supreme Court has stated:
This Court has held that for possessory crimes in Michigan, actual possession is
not required; constructive possession is sufficient. The test for constructive
possession is whether the totality of the circumstances indicates a sufficient nexus
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between defendant and the contraband. Although not in actual possession, a
person has constructive possession if he knowingly has the power and the
intention at a given time to exercise dominion or control over a thing, either
directly or through another person or persons . . . . [People v Minch, 493 Mich. 87,
91-92; 825 NW2d 560 (2012) (citations and quotation marks omitted).]
In other words, constructive possession means that the defendant “had the right to exercise
control of the cocaine and knew that it was present.” People v Wolfe, 440 Mich. 508, 520; 489
NW2d 748 (1992), amended 440 Mich. 508 (1992) (citation and quotation marks omitted). In
Wolfe, the Supreme Court explained:
We have stated that constructive possession may be demonstrated by
direct or circumstantial evidence that the defendant had the power to dispose of
the drug, or “the ability to produce the drug . . . .” or that the defendant had the
“exclusive control or dominion over property on which narcotics are found . . . .”
[Id. at 521, quoting United States v Disla, 805 F2d 1340 (CA 9, 1986).]
“It is well established that a person’s presence, by itself, at a location where drugs are found is
insufficient to prove constructive possession. Instead, some additional connection between the
defendant and the contraband must be shown.” Id. at 520 (citations omitted).
The evidence, viewed in a light most favorable to the prosecution, was sufficient to
establish constructive possession. When the police began the search, defendant was exiting the
bathroom where approximately 128 grams of cocaine were recovered from the running toilet.
This evidence supported an inference that the cocaine had very recently been flushed down the
toilet, and that it was defendant, the person seen exiting the bathroom, who flushed it. In
addition, it was around 10:30 p.m. and nobody else was in the home. The fact that defendant’s
mail—even if it contained a different address—and clothing that would fit defendant’s very large
frame were present in the home supported an inference that defendant lived there. Defendant’s
knowledge of, and right to exercise control over, the drugs could be inferred from his residence
at the house and the disposal of the cocaine in the toilet. The value of the cocaine, which
Detective Main opined was between $4,500 and $12,800, suggested that the owner would not
discard it unless it was necessary to avoid detection. This was not a case involving defendant’s
mere presence in the home. The evidence established a sufficient nexus between defendant and
the cocaine to support a finding that defendant had either actual or constructive possession of the
requisite amount of cocaine.
Defendant’s knowledge of the cocaine could similarly be inferred from the attempt to
discard it in the toilet. Detective Main testified that it is common for people to attempt to flush
drugs down the toilet. Inside and outside the house, the police recovered a box of baking soda, a
glass Pyrex dish with cocaine, two knives with cocaine, a digital scale with cocaine on the face, a
box of plastic bags, plastic bags with the corners missing, and latex gloves. Detective Main
testified that these items are typically used for making and packaging drugs. Defendant’s intent
to sell the cocaine could also be inferred from the phones in the home, which contained text
messages to “Lou,” which requested various amounts of both crack or powder cocaine. The
outgoing messages responded affirmatively. Defendant’s intent could further be inferred from
the $2,765 recovered from his pockets. Detective Main opined, based on his experience, that the
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evidence recovered from the Kenilworth home indicated that the cocaine was not for personal
use, but was consistent with possession with the intent to deliver.
Although defendant argued at trial, and again argues on appeal, that the absence of any
weapons in the home or controlled buys before the search indicated that he was not a drug dealer,
the prosecution was not required to negate every reasonable theory consistent with defendant’s
innocence. People v Fletcher, 260 Mich. App. 531, 560; 679 NW2d 127 (2004). We conclude
that the prosecution presented sufficient evidence to support defendant’s conviction of
possession with intent to deliver 50 grams or more but less than 450 grams of cocaine.
Defendant also argues that there was insufficient evidence presented at the preliminary
examination to support the bindover to the circuit court. But even if a district court judge
erroneously concludes that sufficient evidence was presented at the preliminary examination to
support a bindover, such error is rendered harmless by a conviction at trial on the basis of
sufficient evidence. Johnson, 315 Mich. App. at 200 n 7. Pursuant to the parties’ stipulation, the
testimony from the preliminary examination was offered as substantive evidence at trial and, as
previously explained, that evidence was sufficient to support defendant’s conviction. Therefore,
defendant’s claim of error regarding the sufficiency of the evidence at the preliminary
examination must necessarily fail. 5
Affirmed.
/s/ Jonathan Tukel
/s/ Kirsten Frank Kelly
/s/ Michael J. Kelly
5
Defendant argues that the district court judge relied on non-record evidence regarding the
effects of cocaine and improperly-admitted hearsay evidence. Defendant makes no citations to
the record in support of these arguments and does not elaborate further. “An appellant may not .
. . give issues cursory treatment with little or no citation of supporting authority.” Houghton ex
rel Johnson v Keller, 256 Mich. App. 336, 339; 662 NW2d 854 (2003); see also People v
Kevorkian, 248 Mich. App. 373, 389; 639 NW2d 291 (2001) (“[i]t is not enough for an appellant
in his brief simply to announce a position or assert an error and then leave it up to this Court to
discover and rationalize the basis for his claims, or unravel and elaborate for him his arguments,
and then search for authority either to sustain or reject his position”). “An appellant’s failure to
properly address the merits of his assertion of error constitutes abandonment of the issue.”
Johnson, 256 Mich. App. at 339-340.
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