Opinion
No. 338266
06-19-2018
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JONTELE SWANSON-DEVILL GOODWIN, Defendant-Appellant.
UNPUBLISHED Monroe Circuit Court
LC No. 16-243088-FC Before: SAWYER, P.J., and CAVANAGH and FORT HOOD, JJ. PER CURIAM.
Defendant appeals as of right his jury convictions of solicitation to commit murder, MCL 750.157b(2), and witness tampering, MCL 750.122(7)(c). The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to prison terms of 37 to 60 years for the solicitation conviction, and 19 to 40 years for the witness tampering conviction, to be served concurrently. We affirm.
The events that gave rise to the charges in this case were preceded by a drug raid on March 16, 2016, at a residence on Sigler Road in Monroe County. Defendant was renting a room at the residence from its owner, Kenneth Rutherford, Sr., whom defendant allegedly supplied with heroin in lieu of paying rent. Rutherford Sr.'s son, Kenneth Rutherford, Jr., and Jessica Cochran also lived in the house. Following the raid, defendant was charged with several firearm and drug-related offenses.
In September 2016, defendant was convicted of two counts of possession with intent to deliver less than 50 grams of a controlled substance, MCL 333.7401(2)(a)(iv), three counts of felon in possession of a firearm, MCL 750.224f(2), and one count each of felon in possession of ammunition, MCL 750.224f(6), and possession of a firearm during the commission of a felony, MCL 750.227b. Defendant has appealed those convictions in Docket No. 337329, which has been submitted with the instant appeal.
While defendant was awaiting trial in the drug case, he spoke to Kurtis Martell, another jail inmate, who was due to be released. Defendant told Martell that he wanted to kill the three witnesses. Martell cooperated with police authorities and thereafter engaged in further discussions with defendant, which were recorded. During the recorded conversations, defendant expressed that he wanted Martell to kill Cochran and the two Rutherford men by giving them "hot shots" (i.e., poisoned heroin) after he was released. Defendant offered to pay Martell money and other compensation for killing the witnesses.
Defendant also indicated that he wanted a police detective killed, but he abandoned this plan. --------
Before Martell was released from jail, defendant gave him the telephone number of his mother, Lakeisha Goodwin. The police gave Martell a cell phone that could record his telephone contacts with Lakeisha. Martell and Lakeisha had a series of telephone conversations in May and June 2016 in which Lakeisha confirmed defendant's continued intent to proceed with the plan to kill the witnesses. Lakeisha also provided Martell with Tylenol 4 pills that he could sell to raise money to purchase the heroin that he would use to carry out the plan.
Before trial, the trial court denied defendant's motion to dismiss based on entrapment. The court also denied defendant's motion to exclude Lakeisha's recorded statements as inadmissible hearsay. The court concluded that Lakeisha's statements were admissible under MRE 801(d)(2)(E) as nonhearsay statements by a co-conspirator.
I. ENTRAPMENT
Defendant first argues on appeal that the trial court erred by denying his motion to dismiss based on entrapment. A trial court's finding regarding a defendant's claim of entrapment is reviewed for clear error. People v Johnson, 466 Mich 491, 497; 647 NW2d 480 (2002). "Clear error exists if the reviewing court is left with a definite and firm conviction that a mistake has been made." Id. at 497-498. "A defendant has the burden of establishing by a preponderance of the evidence that he was entrapped." Id. at 498.
"Under the current entrapment test in Michigan, a defendant is considered entrapped if either (1) the police engaged in impermissible conduct that would induce a law-abiding person to commit a crime in similar circumstances or (2) the police engaged in conduct so reprehensible that it cannot be tolerated." Id. "However, where law enforcement officials present nothing more than an opportunity to commit the crime, entrapment does not exist." Id. The Court in Johnson set forth 12 factors to consider in regard to a defendant's claim of entrapment:
(1) whether there existed appeals to the defendant's sympathy as a friend, (2) whether the defendant had been known to commit the crime with which he was charged, (3) whether there were any long time lapses between the investigation and the arrest, (4) whether there existed any inducements that would make the commission of a crime unusually attractive to a hypothetical law-abiding citizen, (5) whether there were offers of excessive consideration or other enticement, (6) whether there was a guarantee that the acts alleged as crimes were not illegal, (7) whether, and to what extent, any government pressure existed, (8) whether there existed sexual favors, (9) whether there were any threats of arrest, (10) whether there existed any government procedures that tended to escalate the criminal
culpability of the defendant, (11) whether there was police control over any informant, and (12) whether the investigation was targeted. [Id. at 498-499.]
Regarding the first factor, there is no evidence that Martell appealed to defendant's sympathy. Martell told defendant that he knew defendant's father, but there is no evidence that Martell attempted to exploit that relationship, defendant and Martell did not socialize or have a friendship between them, and Martell did not propose that defendant do anything for Martell's benefit. See, e.g., People v Soper, 57 Mich App 677, 679; 226 NW2d 691 (1975). Rather, defendant sought to take advantage of Martell's imminent release from jail and agreed to pay Martell for Martell's service in killing persons defendant believed would be key witnesses against him.
With respect to the second factor, although defendant did not have an established record of homicidal conduct or procurement of homicide, his previous convictions for unarmed robbery and felonious assault indicate that he was not adverse to violence. The third factor, a long lapse between investigation and arrest, is also neutral. Defendant solicited Martell's service in late April 2016. He was charged with solicitation on August 30, 2016. Although defendant was not immediately charged with the offense, the four-month delay is not excessive. Furthermore, there was no urgency to arrest defendant because he was already detained in jail and there was no immediate threat of danger to the targeted victims.
The fourth factor is the existence of "inducements that would make the commission of a crime unusually attractive to a hypothetical law-abiding citizen." Johnson, 466 Mich at 498. Defendant argues that a person facing a potentially lengthy prison term for a drug offense would be susceptible to suggestions to eliminate key witnesses. However, there was no evidence that Martell suggested the murders to defendant to avoid the prospect of a lengthy prison sentence. The idea of murdering the suspected witnesses originated with and was directed by defendant.
Defendant argues that the fifth factor, offers of excessive consideration or other enticement, weighs in favor of finding entrapment because there was a "strong inference" that Martell would receive favorable treatment for engaging in criminal planning. However, the relevant inquiry is whether defendant was offered excessive consideration or enticement to engage in solicitation to commit homicide. Defendant was not offered any consideration or enticement. Defendant himself conceived the idea that he could escape prosecution for drug and firearm charges if Cochran and the Rutherfords were unable to testify.
Factors 6, 7, 8, and 9 also do not support a finding of entrapment. Factor 10 is the existence of "government procedures that tended to escalate the criminal culpability of the defendant." Johnson, 466 Mich at 499. Defendant initiated the contacts with Martell. Lakeisha's subsequent participation does not involve "an offense of a different order" than the original solicitation. People v Killian, 117 Mich App 220, 223; 323 NW2d 660 (1982). The evidence of Lakeisha's statements as a co-conspirator merely confirmed that defendant had not abandoned the plan. Moreover, defendant was charged only with solicitation and witness tampering crimes, not any subsequent conspiracy or elevated offense beyond the crimes he initiated.
Regarding Factor 11, police control over any informant, defendant argues that the police did not exert sufficient control over Martell, but instead gave him only general instructions not to entrap defendant. The recording of Martell's contact with defendant does not support defendant's assertion that Martell "steered the conversation." Martell did not propose anything that defendant had not already raised. Martell suggested using rat poison, but defendant overruled this suggestion and recommended battery acid instead. Martell's only material contribution to the plan was to recommend killing all three victims at one location, not two different locations as defendant had suggested.
With respect to Factor 12, whether the investigation was targeted, defendant acknowledges that he was not targeted, but he argues that Lakeisha was targeted for the purpose of creating incriminating evidence against him. Defendant's attempt to bootstrap Martell's contact with Lakeisha onto his own claim of entrapment is a distraction from the evidence. Martell, acting on police instructions, gave defendant an opportunity to commit the crime of solicitation. Martell's further contacts with Lakeisha were intended only to confirm that defendant had not changed his mind about the solicitation; they in no way induced defendant to commit the original solicitation offense.
Defendant also argues that the police conduct in using his mother to gain evidence to bolster an otherwise weak case is so reprehensible that it cannot be tolerated by the courts. We disagree that the prosecutor's case was weak without evidence of the post-solicitation conspiracy. The evidence included a recording of defendant's conversation with Martell in which defendant actively planned how Martell would kill the targeted victims. In any event, Lakeisha willingly continued the discussions with Martell even after Martell told her that he would abandon the plan if defendant was no longer interested. Moreover, the police did not set out to "use" Lakeisha. Rather, it was defendant who provided Martell with Lakeisha's telephone number as a contact person. Lakeisha's involvement was initiated by defendant, not Martell or the police. Under these circumstances, there was nothing inherently reprehensible in using Martell's follow-up telephone contacts with Lakeisha to continue investigating the solicitation to determine whether defendant was serious and committed to fulfilling it.
In sum, after consideration of the relevant factors, we conclude that the trial court did not err by denying defendant's motion to dismiss based on entrapment.
II. COCONSPIRATOR'S STATEMENTS
Defendant next argues that the trial court erroneously admitted Lakeisha's statements, which defendant argues were inadmissible hearsay. We disagree. "A trial court's decision to admit evidence will not be disturbed absent an abuse of discretion." People v Denson, 500 Mich 385, 396; 902 NW2d 306 (2017). A trial court's decision is not an abuse of discretion if it falls within the principled range of outcomes. People v Norfleet, 317 Mich App 649, 664; 897 NW2d 195 (2016). "However, whether a rule or statute precludes admission of evidence is a preliminary question of law that this Court reviews de novo." Denson, 500 Mich at 396.
Hearsay is a "statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." MRE 801(c); People v Martin, 271 Mich App 280, 316; 721 NW2D 815 (2006), aff'd 482 Mich 851 (2008). Generally, hearsay is not admissible. MRE 802; People v Chelmicki, 305 Mich App 58, 63; 850 NW2d 612 (2014). However, a statement is not hearsay if it is offered against a party and is "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy on independent proof of the conspiracy." MRE 801(d)(2)(E); Martin, 271 Mich App at 316.
"The proponent of evidence bears the burden of establishing its relevance and admissibility." Martin, 271 Mich App at 316. "In order to qualify under the exclusion for statements by a coconspirator, the proponent of the statements must establish three things. First, the proponent must establish by a preponderance of the evidence that a conspiracy existed through independent evidence." Id. at 316-317. A conspiracy exists where two or more persons combine with the intent to accomplish an illegal objective. People v Blume, 443 Mich 476, 481; 505 NW2d 843 (1993). The existence of a conspiracy can be proved by indirect evidence where "the circumstances, acts, and conduct of the parties establish an agreement in fact." Martin, 271 Mich App at 317 (citation and quotation marks omitted). "Circumstantial evidence and inference may be used to establish the existence of the conspiracy." Id. "Second, the proponent must establish that the statement was made during the course of the conspiracy." Id. The conspiracy continues "until the common enterprise has been fully completed, abandoned, or terminated." Id. (citation and quotation marks omitted). Third, the proponent must establish that the statement furthered the conspiracy. Id.
The first requirement is satisfied because the prosecutor proved, by evidence independent of Lakeisha's telephone statements, that a conspiracy existed between defendant and Lakeisha. Defendant gave Lakeisha's telephone number to Martell so that he could communicate with her. Martell called Lakeisha. Lakeisha was willing to talk to Martell only after she verified with defendant that he knew Martell. Lakeisha participated in the conspiracy by providing Martell with Tylenol 4 pills that he could sell in order to raise money to buy the heroin he would give to the targeted victims. The second requirement, that the statements were made during the course of the conspiracy, is satisfied because Lakeisha and defendant subjectively intended to continue the conspiracy until the targeted victims were dead. With respect to the third requirement, Lakeisha's statements furthered the conspiracy by contributing to the planning of the homicides and by advising and questioning Martell about his plan to deliver the poisoned heroin and leave the state.
Defendant argues that evidence of a conspiracy between himself and Lakeisha, in the absence of a charge of conspiracy, created a danger that the jury would convict him of solicitation and witness tampering based on his participation in the uncharged conspiracy. In Martin, 271 Mich App 280, the defendants Bobby Martin, Roger Thompson, and Roger Brown were convicted of maintaining a house of prostitution, MCL 750.452, using the Legg's Lounge club as a front. The defendants Billy Martin and James Frasure were convicted of racketeering, MCL 750.159i. Martin, 271 Mich App at 285. Billy Martin argued on appeal that the trial court improperly admitted hearsay testimony, without which there would have been insufficient evidence to support his conviction. Id. at 314. Bobby Martin's wife, Angela Martin, testified to statements by Bobby concerning the defendants' payments from profits of the club, the performance of sex acts at the club, and the use of VIP cards at the club. Id. at 316. This Court analyzed whether the statements qualified as statements of a coconspirator under MRE 801(d)(2)(E). Martin, 271 Mich App at 316. This Court concluded that before Angela testified, the prosecutor introduced testimony establishing a conspiracy to operate a prostitution ring in the club's VIP room. Witnesses testified that patrons could be admitted to the VIP room by obtaining a VIP card and paying an additional fee. Dancers in the club who paid a $100 fee could earn additional money by performing acts of prostitution for patrons in the VIP room. Id. at 317-318. This Court concluded that this was "sufficient evidence to raise an inference that defendant conspired with Bobby Martin to carry out an illegal objective, i.e., maintain Legg's Lounge as a house of prostitution, accept the earnings of prostitutes, and engage in a pattern of racketeering activity." Id. at 318. This Court further concluded that the statements were made during the existence of the conspiracy, and were not "mere idle chatter." Bobby's statements "informed Angela regarding her collective stake with Bobby and defendant in the success of the conspiracy and served to foster the trust and cohesiveness necessary to keep Angela from interfering with the continued activities of the conspiracy." Id. at 318-319.
This Court rejected the defendants' argument that Bobby Martin's statements could not constitute statements by a coconspirator "because Bobby Martin was acquitted of the racketeering charge, which was the only charge that alleged a conspiracy, before defendant's trial began." The Court held that "Bobby Martin's statements can be admitted as the statements of a coconspirator even absent a charge of conspiracy as long as 'there is independent evidence of the required concert of action.' " Id. at 319, quoting People v Ayoub, 150 Mich App 150, 152; 387 NW2d 848 (1985). In the instant case, defendant emphasizes that the second conspiracy was not charged as an offense. Defendant cites Martin, 271 Mich App 287, for the "ancient doctrine of both the common law and of our Constitution that a defendant cannot be held to answer a charge not contained in the indictment brought against him." This Court made this statement in regard to the defendants Bobby Martin's, Brown's, and Thompson's arguments that the trial court erred in instructing the jury that it could convict the defendants of keeping a house of prostitution as a necessarily included lesser offense of racketeering. Id. at 286-287. This Court did not categorically exclude statements by a coconspirator where the conspiracy is not charged. Furthermore, by ruling that Bobby Martin's statements could be admitted notwithstanding the absence of a conspiracy charge, and notwithstanding his acquittal of racketeering, the Court established that an uncharged conspiracy is sufficient to allow the statements under MRE 801(d)(2)(E).
Defendant also argues that the trial court abused its discretion in ruling that any prejudicial effect of the evidence was outweighed by its probative value. MRE 403 provides that relevant evidence "may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice . . . ." People v Musser, 494 Mich 337, 356-357; 835 NW2d 319 (2013). Lakeisha's statements to the effect that she would help Martell fulfill the solicitation were not unduly prejudicial in view of evidence that defendant planned and solicited the murders. Moreover, Martell gave Lakeisha opportunities to abort the scheme by stating that he would not commit the murders if defendant no longer wanted them. Lakeisha's response that defendant was in good spirits because he expected the charges to be dismissed was probative of defendant's earnestness in planning the homicides. The trial court's decision to admit the evidence was within the range of reasonable outcomes. Norfleet, 317 Mich App at 664.
Defendant also asserts that the "protracted evidence regarding Martell's interactions with Lakeisha Goodwin had far more impact than the 6 minute recording." The jailhouse recording contained defendant's own voice and words stating his intent to have Cochran and the Rutherfords murdered. Although this evidence was enough to establish defendant's guilt, Martell's conversations with Lakeisha merely showed that defendant did not abandon his plan. The trial court did not abuse its discretion in rejecting defendant's argument that the telephone discussions should be excluded under MRE 403.
III. GUIDELINES SCORING
Defendant argues that the trial court erred in assessing 10 points for Offense Variable (OV) 9, number of victims, on the basis that "[t]here were 2 to 9 victims who were placed in danger of physical injury or death . . . ." MCL 777.39(1)(c). In reviewing a defendant's claim that the trial court improperly scored the sentencing guidelines, we review the trial court's factual determinations, which must be supported by a preponderance of the evidence, for clear error. People v Schrauben, 314 Mich App 181, 196; 886 NW2d 173 (2016). The trial court's interpretation and application of the statutory guidelines is reviewed de novo. People v Morson, 471 Mich 248, 255; 685 NW2d 203 (2004).
We disagree with defendant's argument that neither the Rutherford men nor Cochran were victims because there was no acceptance of his solicitation to have them murdered. Defendant's desire to have these individuals killed, and his affirmative involvement in a scheme to act on those intentions, placed them in danger of physical injury or death. The fact that Martell, unbeknownst to defendant, agreed to act as an informant did not eliminate the risk of harm to these individuals from defendant's continued desire to have the victims killed. Accordingly, the trial court did not err in scoring OV 9.
IV. DEFENDANT'S STANDARD 4 BRIEF
Defendant raises additional issues in a pro se supplemental brief, filed pursuant to Supreme Court Administrative Order No. 2004-6, Standard 4, none of which have merit.
A. ALLEGED PROCEDURAL ERROR
Defendant presents a confusing argument in which he asserts that his constitutional rights were violated "when the state of Michigan, through it's [sic] actors failed to follow the rules of evidence that governs the process and equal protection of the law." Defendant's failure to raise this procedural issue in the trial court limits our review to plain error affecting defendant's substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).
Defendant makes several references to an invalid or insufficient "charging instrument." MCR 6.101 provides:
(A) Definition and Form. A complaint is a written accusation that a named or described person has committed a specified criminal offense. The complaint must include the substance of the accusation against the accused and the name and statutory citation of the offense.
(B) Signature and Oath. The complaint must be signed and sworn to before a judicial officer or court clerk.
(C) Prosecutor's Approval or Posting of Security. A complaint may not be filed without a prosecutor's written approval endorsed on the complaint or attached to it, or unless security for costs is filed with the court.The Felony Complaint alleges that defendant committed the offense of solicitation of murder by "solicit[ing] another person, Kurtis Martell, to commit murder," contrary to MCL 750.157b(2). It further alleges that defendant committed the crime of threatening to kill or injure witnesses by threatening to kill or injure a person, contrary to MCL 750.122(7)(c). The complaint satisfies the requirements of MCR 6.101(A). Furthermore, because the trial court had jurisdiction over the offenses of which defendant was charged, and defendant appeared before the court, any technical defect in the warrant did not deprive the trial court of jurisdiction. People v Porter, 285 Mich App 450, 462; 776 NW2d 377 (2009). Defendant's reliance on MCL 750.369 and MCL 750.218(1)(A) is misplaced. MCL 750.369 prohibits an officer from abusing the legal process for personal gain. There is no evidence of such conduct in this case. MCL 750.218 merely defines the offense of false pretenses with intent to defraud for the purpose of wrongfully obtaining an interest in real property, money, or personal property. The statute has no relevance to the events of this case. Accordingly, defendant has not demonstrated a plain error.
B. COVERT RECORDING
Defendant next argues that the police failed to comply with federal wiretapping statutes when Martell secretly recorded a conversation with defendant. Again, defendant failed to raise this issue in the trial court, thus limiting our review to plain error affecting his substantial rights. Carines, 460 Mich at 763. The question whether the police failed to comply with applicable statutory requirements is a question of law, which we review de novo. People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013).
Defendant cites Title III of the federal Omnibus Crime Control and Safe Streets Act of 1968, 18 USC 2510 et seq. 18 USC 2511(1) prohibits the nonconsensual interception of any wire, oral, or electronic communication. However, 18 USC 2511(2)(c) provides:
It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.Defendant argues that law enforcement agents were required to comply with the procedures set forth in 18 USC 2516 - 2518 for obtaining judicial authorization for interception of wire, oral, or electronic communications. These procedures apply to federal agencies. See MCL 18 USC 2516(1).
In People v Collins, 438 Mich 8; 475 NW2d 684 (1991), our Supreme Court addressed "whether recorded evidence of conversations between this defendant and a police informant, electronically monitored by police with the informant's consent, but without a valid search warrant, must be suppressed in defendant's subsequent felony trial." Id. at 11. The Supreme Court comprehensively reviewed the history of caselaw pertaining to electronic surveillance. The Court noted that in 18 USC 2510 et seq., "Congress drew a sharp distinction between two types of law enforcement activity: (1) nonconsensual electronic surveillance (where none of the parties to a conversation has consented), and (2) participant monitoring (where one of the conversants is a consenting participant)." Collins, 438 Mich at 18-19. The Court quoted 18 USC 2511(2)(c), which "expressly exempts participant monitoring from the scope of its regulation," and stated, "It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire, oral, or electronic communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception." Collins, 438 Mich at 19 (emphasis added by Court). Accordingly, defendant's reliance on federal wiretapping statutes is misplaced.
Affirmed.
/s/ David H. Sawyer
/s/ Mark J. Cavanagh
/s/ Karen M. Fort Hood