People of Michigan v. Jamee Rene Hess ( 2024 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 08, 2024
Plaintiff-Appellee, 2:56 PM
v No. 362838
Delta Circuit Court
JAMEE RENE HESS, LC No. 21-010613-FH
Defendant-Appellant.
Before: CAMERON, P.J., and JANSEN and SWARTZLE, JJ.
PER CURIAM.
Defendant appeals as of right her jury-trial convictions of possession of methamphetamine,
MCL 333.7403(2)(b)(i), and operating while intoxicated (OWI), MCL 257.625(1). Defendant was
sentenced as a fourth-offense habitual offender, MCL 769.12, to serve 30 months’ to 20 years’
imprisonment for possession of methamphetamine, and 93 days in jail for OWI. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
This case arises out of a report to police of possible gunshots associated with a gray SUV.
As police officers drove to the reported area, they saw defendant’s vehicle, a gray SUV, swerving
in its lane and crossing the center line of the road. The officers stopped defendant, and, after
defendant showed signs of impairment, conducted sobriety tests. Defendant failed the sobriety
tests, and the officers arrested her. The officers searched defendant’s vehicle before it was
impounded, and found a vial and a small, clear plastic baggie, both of which contained
methamphetamine residue. Subsequent blood tests revealed defendant had methamphetamine in
her system.
The trial court granted defendant’s motion to introduce evidence that her friend, Bobbi Jo
Godfrey, was also in defendant’s vehicle that day and had prior methamphetamine-related
convictions. Defendant’s theory was that the drugs belonged to Godfrey, and Godfrey, who was
on parole at the time, had the motive to leave the drugs in defendant’s vehicle. In response to this
grant, the prosecution filed a notice of intent to use other-acts evidence under MRE 404(b) of
defendant’s prior, July 2019 arrest, in which law enforcement found methamphetamine inside
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defendant’s vehicle. The trial court granted the motion to introduce the other-acts evidence, given
defendant’s theory concerning Godfrey.
At trial, the prosecution called defendant’s parole agent, Jaclyn Kass, who testified that
defendant was on parole for possession-of-methamphetamine convictions in both Michigan and
Wisconsin. Defense counsel did not cross-examine Agent Kass or object to her testimony. Out
of the presence of the jury, the trial court reasoned Agent Kass’s testimony was “very obvious
character evidence[.]” The parties agreed to a limiting instruction, which the trial court provided
to the jury.
After the jury convicted defendant and the trial court sentenced her as noted, defendant
moved for dismissal, a new trial, or an evidentiary hearing. The trial court held an evidentiary
hearing, after which it found that the officers conducted a valid stop given the totality of the
circumstances. The trial court also found that Agent Kass’s testimony was inadmissible, and
defense counsel was ineffective for failing to object, but defendant failed to establish she was
prejudiced by counsel’s deficient performance, because the admissible evidence was more than
sufficient to support her convictions. As such, the trial court denied defendant’s motion for
dismissal or a new trial. Defendant now appeals.
II. INVESTIGATORY STOP
Defendant first argues that defense counsel was ineffective for failing to challenge the
constitutionality of the traffic stop and for failing to file a motion to exclude the evidence obtained
from the stop. We disagree.
A. STANDARD OF REVIEW
Whether counsel was ineffective presents a mixed question of fact and law; factual findings
are reviewed for clear error, whereas questions of law are reviewed de novo. People v Head, 323
Mich App 526, 539; 917 NW2d 752 (2018). “The trial court’s findings are clearly erroneous if
this Court is definitely and firmly convinced that the trial court made a mistake.” People v Shaw,
315 Mich App 668, 672; 892 NW2d 15 (2016).
B. LAW AND ANALYSIS
“To prevail on a claim of ineffective assistance, a defendant must, at a minimum, show that
(1) counsel’s performance was below an objective standard of reasonableness and (2) a reasonable
probability [exists] that the outcome of the proceeding would have been different but for trial
counsel’s errors.” Head, 323 Mich App at 539 (quotation marks and citation omitted; alteration in
original). This Court presumes that a defendant received effective assistance of counsel, and “the
defendant bears a heavy burden of proving otherwise.” Id. “[F]ailing to advance a meritless
argument or raise a futile objection does not constitute ineffective assistance of counsel.” People
v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010).
Both the United States and Michigan constitutions guarantee the right of persons to be
secure against unreasonable searches and seizures. US Const, Am IV; Const 1963, art 1, § 11. “A
traffic stop for a suspected violation of law is a ‘seizure’ of the occupants of the vehicle and
therefore must be conducted in accordance with the Fourth Amendment.” Heien v North Carolina,
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574 US 54, 60; 135 S Ct 530; 190 L Ed 2d 475 (2014). “As a general matter, the decision to stop
an automobile is reasonable where the police have probable cause to believe that a traffic violation
has occurred.” People v Kavanaugh, 320 Mich App 293, 299; 907 NW2d 845 (2017) (quotation
marks and citation omitted). A seizure justified by a traffic violation becomes unlawful if it is
“prolonged beyond the time reasonably required to complete [the] mission of issuing a ticket for
the violation.” Rodriguez v United States, 575 US 348, 350-351; 135 S Ct 1609; 191 L Ed 2d 492(2015). But, continued detention after the investigation of a traffic violation may be permissible
if the stop reveals “a new set of circumstances,” and the detention is extended long enough to
resolve the new suspicion. People v Williams, 472 Mich 308, 315; 696 NW2d 636 (2005).
Defense counsel was not ineffective for failing to object to the constitutionality of the stop
or for failing to file a motion to exclude the evidence obtained from the stop that led to defendant’s
arrest because the stop was constitutional. At trial, the officers who arrested defendant testified
that defendant’s vehicle was the only gray SUV they saw while responding to the report. The
officers further testified that defendant swerved, touched the center line, and traveled in the left
turn lane without making a left turn. Because defendant’s vehicle matched the description of the
vehicle from the police report, and because of defendant’s traffic violations, the officers’ initial
stop was lawful.1 See People v Jenkins, 472 Mich 26, 32; 691 NW2d 759 (2005); Kavanaugh,
320 Mich App at 299.
Further, the officers did not unconstitutionally extend the stop, because “a new set of
circumstances” arose which “led to a reasonably articulable suspicion that criminal activity was
afoot.” Kavanaugh, 320 Mich App at 301 (quotation marks, citations, and brackets omitted).
Defendant told the officers that she fell asleep while driving and hit street signs with her vehicle.
The officers observed defendant’s pupils to be dilated and nonresponsive to light, which suggested
substance abuse. Thus, the officers administered sobriety tests, which defendant failed. Under the
totality of the circumstances, the officers conducted a valid investigatory stop, and the resulting
search of defendant’s car was valid. See id. at 301-302. Accordingly, defense counsel was not
ineffective for failing to challenge the legality of the stop or challenge the admission of the
resulting evidence. See Ericksen, 288 Mich App at 201.
III. OTHER-ACTS EVIDENCE
Defendant argues that the trial court erred by allowing Agent Kass to testify about
defendant’s prior convictions of methamphetamine possession. Defendant also argues that defense
counsel was ineffective for failing to object to this testimony. While we agree the other-acts
evidence about defendant’s prior convictions was improperly admitted, this error does not warrant
reversal.
1
Defendant disputes on appeal whether she was driving erratically based on the video from the
officers’ patrol vehicle. However, the officers testified that the video did not capture all of
defendant’s erratic driving, and, regardless, whether defendant was driving erratically was a
question of fact resolved by the trial court.
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A. PRESERVATION AND STANDARDS OF REVIEW
“To preserve an evidentiary issue for review, a party opposing the admission of evidence must
object at trial and specify the same ground for objection that it asserts on appeal.” People v Thorpe,
504 Mich 230, 252; 934 NW2d 693 (2019). Because defendant did not object to the admission of the
other-acts testimony, this issue is unpreserved.
“Unpreserved claims of evidentiary error are reviewed for plain error affecting the
defendant’s substantial rights.” People v Brown, 326 Mich App 185, 195; 926 NW2d 879 (2019)
(quotation marks and citation omitted). The defendant bears the burden of persuasion and, to
obtain appellate relief, must show: (1) an error occurred, (2) the error was clear or obvious, and
(3) the error affected substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130(1999). To satisfy the third element, the defendant must show that the error “affected the outcome
of the lower court proceedings.” Id. “Reversal is warranted only when the plain, forfeited error
resulted in the conviction of an actually innocent defendant or when an error seriously affected the
fairness, integrity or public reputation of judicial proceedings independent of the defendant’s
innocence.” People v Allen, 507 Mich 597, 614; 968 NW2d 532 (2021) (quotation marks omitted).
Lastly, we review the trial court’s factual findings concerning ineffective-assistance-of-
counsel claims for clear error, and questions of law de novo. Head, 323 Mich App at 539. “The
trial court’s findings are clearly erroneous if this Court is definitely and firmly convinced that the
trial court made a mistake.” Shaw, 315 Mich App at 672.
B. LAW AND ANALYSIS
In evaluating the admissibility of other-acts evidence, we must first determine whether that
evidence was offered for a proper purpose. See People v VanderVliet, 444 Mich 52, 74-75; 508
NW2d 114 (1993). To show that a proper purpose exists, the offering party “must explain how
and demonstrate that the other-acts evidence is logically relevant to the stated purpose without
relying on an impermissible propensity inference.” People v Galloway, 335 Mich App 629, 638;
967 NW2d 629 (2020).
At trial, Agent Kass testified only that defendant was on parole for possession-of-
methamphetamine convictions in Michigan and Wisconsin. While defendant’s Michigan
conviction was the result of the July 2019 arrest referenced in the prosecution’s notice of intent,
Agent Kass provided no testimony regarding the factual details of the arrest. At first, the
prosecution argued the other-acts evidence demonstrated the absence of accident or mistake. But,
while the underlying facts of the July 2019 arrest actually referenced in the notice-of-intent could
serve this purpose, defendant’s prior convictions, alone, do not. Furthermore, the prosecution’s
later-alleged purpose—motive—would have been sufficiently established by introducing evidence
solely of defendant’s parole status at the time of her arrest. There was no need for the additional
testimony about the convictions which served as the basis for defendant’s parole status. The trial
court plainly erred by admitting the testimony at trial. Brown, 326 Mich App at 195.
Regardless, defendant cannot establish that the admission of this evidence affected her
substantial rights. Allen, 507 Mich at 614. At trial, defendant testified she was an addict and used
methamphetamine the week before her arrest. There was evidence that defendant had
methamphetamine and amphetamine in her system, and the jury heard testimony that the specific
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substances in defendant’s blood indicated she consumed methamphetamine. There was evidence
that the plastic baggie and vial found in defendant’s vehicle contained methamphetamine residue,
and, during the officers’ search of her vehicle, defendant told them that the vial found in her vehicle
was where she kept “her stuff.” As the trial court properly reasoned, the untainted evidence
admitted at trial was sufficient to sustain defendant’s convictions. Thus, defendant is not entitled
to reversal.2
Because there was sufficient, untainted evidence to support defendant’s convictions,
defendant’s ineffective-assistance-of-counsel claim necessarily fails because she cannot
demonstrate prejudice. See Head, 323 Mich App at 539 (holding that a defendant must show, in
addition to unreasonable performance, that there is “a reasonable probability . . . that the outcome
of the proceeding would have been different but for trial counsel’s errors.”). Because defendant
cannot establish prejudice, we need not address whether defense counsel’s performance was
deficient. Id.Affirmed.
/s/ Thomas C. Cameron
/s/ Kathleen Jansen
/s/ Brock A. Swartzle
2
We note that defendant briefly alleges the disparity between the notice-of-intent and Agent Kass’s
actual testimony constitutes prosecutorial misconduct; though it seems defendant is actually
alleging prosecutorial error. See People v Cooper, 309 Mich App 74, 87-88; 867 NW2d 452(2015). Misnomer aside, defendant does not include any allegations of improper actions by the
prosecution in her statement of questions presented. Therefore, this argument is abandoned.
People v McMiller, 202 Mich App 82, 83 n 1; 507 NW2d 812 (1993).
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