People of Michigan v. Martez Dickerson

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
March 28, 2019
Plaintiff-Appellee,
v No. 339787
Wayne Circuit Court
MARTEZ DICKERSON, LC No. 17-001669-01-FH
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 340674
Wayne Circuit Court
MARK HARMON, LC No. 17-001669-02-FH
Defendant-Appellant.
Before: MURRAY, C.J., and GADOLA and TUKEL, JJ.
PER CURIAM.
In these consolidated cases,1 defendant, Martez Dickerson, appeals as of right his jury
trial convictions of two counts of possession with intent to deliver less than 50 grams of a
controlled substance, MCL 333.7401(2)(a)(iv), possession with intent to deliver marijuana, MCL
333.7401(2)(d)(iii), and possession of a firearm during the commission of a felony (felony-
firearm), MCL 750.227b. Dickerson was sentenced to 2 to 20 years’ imprisonment for each
conviction of possession with intent to deliver less than 50 grams of a controlled substance, one
1
People v Dickerson, unpublished order of the Court of Appeals, entered November 1, 2017
(Docket Nos. 339787, 340674).
to four years’ imprisonment for his conviction of possession with intent to deliver marijuana, and
two years’ imprisonment for his felony-firearm conviction.
Defendant, Mark Harmon, appeals as of right his jury trial convictions of two counts of
possession with intent to deliver less than 50 grams of a controlled substance, MCL
333.7401(2)(a)(iv), possession with intent to deliver marijuana, MCL 333.7401(2)(d)(iii), felon
in possession of a firearm, MCL 750.224f, and felony-firearm, second offense, MCL 750.227b.
Harmon was sentenced, as a fourth habitual offender, MCL 769.12, to 2 to 20 years’
imprisonment for each count of possession with intent to deliver less than 50 grams of a
controlled substance, and for his conviction of felon in possession of a firearm, 1 to 15 years’
imprisonment for his possession with intent to deliver marijuana conviction, and five years’
imprisonment for his felony-firearm conviction. We affirm the convictions of both defendants,
but remand Harmon’s case to the trial court for a ministerial correction of the judgment of
sentence.
I. FACTS
This case arises from defendants’ possession of illegal drugs and firearms on February 3,
2017, in the lower flat of a two-story duplex located on Mt. Vernon Street in Detroit, Michigan.
On that day, police conducted surveillance of the Mt. Vernon duplex at the request of Jacob De
Golish, who claimed to be the owner of the duplex. De Golish had reported that although the
duplex was supposed to be unoccupied, he suspected that the lower flat was being used for drug
trafficking. De Golish provided the officers written consent to enter and search the duplex.
During their surveillance, the officers observed what appeared to be an illegal narcotics
transaction at the front door of the lower flat. The officers used a police ram to enter the lower
flat, after announcing “police.” Upon entering the apartment, police saw Dickerson and Harmon;
both defendants appeared to have just jumped up from a table containing guns and narcotics.
Defendants ran to the rear of the apartment, up a rear stairwell, entered the upper unit of the
duplex, and locked the upstairs door behind them. The officers pursued them, and ultimately
forced entry through the front door of the upper unit. The officers found defendants hiding in a
closet in a back bedroom of the upper unit, and arrested the two men. The officers then retrieved
the narcotics and weapons from the table in the lower flat from which defendants had fled,
including two handguns, 166 ziplock bags containing cocaine, 27 lottery ticket folds containing
heroin, two knotted bags containing heroin, a sandwich-sized bag containing loose marijuana,
113 ziplock bags containing marijuana, and approximately $200 in cash.
De Golish testified that he purchased the Mt. Vernon Street duplex approximately two
years earlier, and recorded the deed in his mother’s name. His mother lives in California,
however, and De Golish is the manager of the property. According to DeGolish, as of February
3, 2017, no one was authorized to occupy the duplex. De Golish testified that previously he had
hired Arlene Emmons to work as a cleaning lady at some of his properties, and had given
Emmons permission to stay in the upper flat of the Mt. Vernon duplex for a couple weeks.
Although Emmons stayed in the upper flat for approximately five months, De Golish believed
that Emmons had moved out of the upper flat one month before the police conducted the search.
De Golish testified that when an employee informed him that drugs were being sold out of the
duplex, he signed the consent form authorizing the police to search the duplex.
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Prior to trial, Harmon filed a motion to suppress the evidence seized from the lower flat
during the police search. At the hearing on the motion, Harmon testified that on the date of the
raid, he was visiting Emmons’s fiancé in the upper flat, and denied ever being in the lower flat.
The trial court denied the motion to suppress, determining that Harmon lacked standing to
challenge the search of the lower flat.
Harmon also filed a motion in limine to exclude evidence concerning the circumstances
of his arrest, arguing that the consent, upon which the upstairs raid and subsequent arrest of
Harmon were predicated, was invalid, that no warrant was obtained, and no exigent
circumstances existed. Harmon contended that he had standing to challenge the search because
he was an invited guest of Emmons in the upper flat when he was arrested. The trial court also
denied this motion, finding that Harmon lacked permission to be in the upper flat and that
Emmons was a holdover resident not entitled to occupy the flat. The trial court further found
that exigent circumstances justified the police entering the upper flat. Harmon renewed this
motion at trial, and Dickerson joined in the motion. The trial court denied the renewed motion to
suppress, finding that De Golish was the owner of the duplex, or had authority from his mother
to manage the property, and that the consent given to the police to search the duplex was valid.
Defendants were convicted and sentenced, and claimed appeals to this Court. Dickerson
also filed in the trial court a motion for an evidentiary hearing and for a new trial, arguing that he
had been denied the effective assistance of his trial counsel because trial counsel had failed
before trial to move to suppress evidence seized in the search and had failed to attempt to call
Emmons as a witness at trial. The trial court denied the motion for new trial and for a Ginther2
hearing.
II. DISCUSSION
A. SUPPRESSION OF EVIDENCE
On appeal, Harmon argues that the trial court erred in denying his motions to suppress the
evidence of the drugs, guns, and money found in the lower flat because the search of the lower
flat and seizure of the evidence violated his Fourth Amendment right against unreasonable
searches and seizures. We disagree.
In general, we review a trial court’s decision regarding the admission of evidence for an
abuse of discretion. People v Lukity, 460 Mich. 484, 488; 596 NW2d 607 (1999). However, we
review de novo a trial court’s ultimate decision on a constitutional challenge seeking to suppress
evidence. People v Mahdi, 317 Mich. App. 446, 457; 894 NW2d 732 (2016). Any findings of
fact made during a suppression hearing are reviewed for clear error. Id. A finding of fact is
clearly erroneous if, after reviewing the entire record, we are left with a definite and firm
conviction that a mistake has been made. Id.
2
People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
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The United States and Michigan Constitutions provide protection from unreasonable
searches and seizures. US Const, Am IV; Const 1963, art 1, § 11. Whether a search or a seizure
is lawful is determined by whether it is reasonable. People v Nguyen, 305 Mich. App. 740, 751;
854 NW2d 223 (2014). A search occurs within the meaning of the Fourth Amendment when the
government intrudes on an individual’s reasonable or justifiable expectation of privacy. People v
Antwine, 293 Mich. App. 192, 195; 809 NW2d 439 (2011). Generally, searches conducted
without a warrant, and without probable cause to believe that evidence of wrongdoing might be
located at the place searched, are considered to be unreasonable, and the evidence seized as a
result of an unreasonable search is subject to suppression at trial. Mahdi, 317 Mich. App. at 458.
To challenge a search and seizure by the police, however, the party challenging the
search must have standing to do so. The right to be free from unreasonable searches and seizures
cannot be invoked by a third party. Mahdi, 317 Mich. App. at 458-459. To possess standing to
challenge a search, a person must have had a legitimate expectation of privacy in the place or
location that is searched, and this expectation of privacy must be one that society recognizes as
reasonable. People v Brown, 279 Mich. App. 116, 130; 755 NW2d 664 (2008). The defendant
has the burden of establishing standing based upon the totality of the circumstances, including
ownership, possession or control of the area searched or item seized, how the property has been
used in the past, any subjective expectation of privacy, and the objective reasonableness of the
expectation of privacy in light of the circumstances. Mahdi, 317 Mich. App. at 459.
In this case, the trial court correctly determined that Harmon lacked standing to challenge
the search of the lower flat where the drugs and weapons were found. Harmon presented no
evidence that he had a legitimate expectation of privacy in the lower flat. He testified that he had
never been in the lower flat, and there is no evidence that Harmon had any right to enter the
lower flat. Therefore, to the extent that Harmon challenged the search of the lower flat and the
seizure of the contraband there, Harmon’s claim fails for lack of standing.
Harmon also asserts that the trial court should have suppressed evidence concerning his
arrest in the upper flat, where he was found hiding in a bedroom closet after he fled from the
lower flat, as well as the fact that suspected narcotics were found in his jacket pocket after his
arrest. We disagree. Harmon claimed that he was invited to the upper flat by Arlene Emmons or
her fiancé, Leonard Anthony, who were allegedly living in the upper flat. There was ample
testimony at trial, however, that the upper flat was supposed to be vacant at the time of the police
search, and that Emmons was to have moved out of the upper flat long before that date. The trial
court credited this testimony when concluding that Emmons was not entitled to be in the upper
flat, and that her purported grant of permission to Harmon to be in the upper flat therefore was
ineffective. No basis exists to question the trial court’s credibility determination. See People v
Parker, 230 Mich. App. 337, 341; 584 NW2d 336 (1998) (the trial court’s resolution of a factual
issue is entitled to deference, especially when the issue involves the credibility of witnesses).
Accordingly, the trial court did not err in concluding that Harmon lacked standing to challenge
the search or seizure with respect to the upper flat.
In addition, Harmon’s challenge to the search and seizure fails because the officers had
consent to enter the premises. One of the exceptions to the general requirement that a valid
search must be conducted pursuant to a warrant is a search conducted pursuant to consent.
Brown, 279 Mich. App. at 131. Generally, valid consent must come from either the person whose
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property is being searched or from a third person who has common authority over the property.
Id. In addition, a search may be rendered valid by virtue of consent by a third party without
actual authority to consent if the police officers had an objectively reasonable belief that the
person had authority to consent to the search. Id. Here, De Golish consented to the police search
of the duplex, testifying that he managed and controlled the property on his mother’s behalf. The
record thus establishes that De Golish exercised common authority over the property and had
authority to consent to the search. See Brown, 279 Mich. App. at 131.
Further, the trial court did not err in concluding that the police officers’ entry into the
upper unit of the duplex was independently supported by the existence of exigent circumstances.
An exception to the Fourth Amendment warrant requirement exists where there are “exigent
circumstances,” one of which is when police officers are in “hot pursuit.” People v Henry (After
Remand), 305 Mich. App. 127, 138; 854 NW2d 114 (2014). Under the hot pursuit exception, an
officer may chase a fleeing suspect into a private home to prevent the suspect’s escape, to
prevent the destruction of evidence, and where there is risk of danger to the police or others. Id.
In this case, the officers were in “hot pursuit” of Harmon and Dickerson when they entered the
upper flat of the duplex. We note that when the officers entered the lower unit, Harmon and
Dickerson were running from a table that contained illegal narcotics and firearms. The officers
reasonably pursued the two men because they were fleeing suspects, and also because there was
a possibility that defendants were armed and dangerous, or had additional evidence that would be
destroyed. Accordingly, exigent circumstances existed that supported the police officers’ entry
into the upper unit of the duplex.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Dickerson contends that he was denied the effective assistance of counsel at trial because
his trial counsel did not move before the trial court to suppress the evidence seized during the
search. We disagree.
To establish a claim of ineffective assistance of counsel, “a defendant must show that (1)
counsel’s performance fell below an objective standard of reasonableness and (2) but for
counsel’s deficient performance, there is a reasonable probability that the outcome would have
been different.” People v Trakhtenberg, 493 Mich. 38, 51; 826 NW2d 136 (2012). We note that
effective assistance of counsel is presumed, and the defendant bears the burden of demonstrating
that counsel was ineffective. People v Solmonson, 261 Mich. App. 657, 663; 683 NW2d 761
(2004). When reviewing a trial court’s determination regarding a claim of ineffective assistance
of counsel, we review the trial court’s findings of fact for clear error, while reviewing the
ultimate constitutional issue arising from an ineffective assistance of counsel claim de novo.
People v Petri, 279 Mich. App. 407, 410; 760 NW2d 882 (2008).
In this case, Dickerson contends that his trial counsel was ineffective for failing to file a
pretrial suppression motion. Dickerson identifies no basis to conclude that such a motion would
have succeeded, and we observe that Harmon’s suppression motion concerning the same facts
and incident was properly denied by the trial court. Also, Dickerson’s counsel joined Harmon’s
renewed suppression motion at the close of the prosecution’s proofs at trial, and that motion was
likewise properly denied by the trial court. Dickerson’s trial counsel was not ineffective for
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failing to file a meritless motion. See People v Ericksen, 288 Mich. App. 192, 201; 793 NW2d
120 (2010).
Dickerson further argues that his trial counsel was ineffective for failing to call Emmons
as a witness at trial. However, the decision to call or question a witness is a matter of trial
strategy that we will not second guess with the benefit of hindsight. People v Russell, 297 Mich
App 707, 716; 825 NW2d 623 (2012). In addition, the failure to call witnesses only constitutes
ineffective assistance of counsel when it deprives the defendant of a substantial defense, id.,
being a defense that might have made a difference in the outcome of the trial. People v Chapo,
283 Mich. App. 360, 371; 770 NW2d 68 (2009). Dickerson did not provide the trial court with an
affidavit or other offer of proof to establish that Emmons would have testified in a manner that
supported Dickerson’s defense, and thus failed to establish that his trial counsel’s failure to call
Emmons might have made a difference in the outcome of the trial. We also deny Dickerson’s
request that this Court remand the case for a Ginther hearing because he has failed to establish
entitlement to a remand by showing that development of a factual record is required for
consideration by this Court, and has not adequately identified the facts to be established on
remand. MCR 7.211(C)(1).
C. CLERICAL ERROR IN SENTENCING
Harmon also contends that his judgment of sentence contains a clerical error concerning
the length of his sentence for his conviction of felon in possession of a firearm, and that this
clerical error should be corrected. We agree. MCR 6.435(A) provides that “[c]lerical mistakes
in judgments, orders, or other parts of the record and errors arising from oversight or omission
may be corrected by the court at any time on its own initiative or on motion of a party, and after
notice if the court orders it.” See also People v Comer, 500 Mich. 278, 293; 901 NW2d 553
(2017). Here, the parties agree that Harmon’s judgment of sentence contains a clerical error
concerning the length of his sentence for felon in possession of a firearm. The trial court stated
at sentencing that it was sentencing Harmon to 2 to 20 years’ imprisonment for his felon in
possession of a firearm conviction, and the order of conviction and sentence likewise states that
Harmon’s sentence for that conviction was 2 to 20 years’ imprisonment, but the judgment of
sentence erroneously lists the sentence for that conviction as 5 to 20 years’ imprisonment. The
case is therefore remanded to the trial court for the ministerial correction of Harmon’s judgment
of sentence to reflect that his sentence for felon in possession of a firearm is 2 to 20 years’
imprisonment. The trial court shall provide a copy of the corrected judgment of sentence to the
Department of Corrections.
Defendants’ convictions are affirmed. Harmon’s case is remanded to the trial court for
the ministerial correction of the judgment of sentence consistent with this opinion. We do not
retain jurisdiction.
/s/ Christopher M. Murray
/s/ Michael F. Gadola
/s/ Jonathan Tukel
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