Opinion
No. 345351
11-19-2019
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. EDGAR DEANGELO HOSKINS, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Saginaw Circuit Court
LC No. 17-043815-FC Before: O'BRIEN, P.J., and GADOLA and REDFORD, JJ. PER CURIAM.
Following a jury trial, defendant was convicted of one count of conspiracy to deliver a controlled substance causing death, MCL 750.317a. Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to 20 to 35 years in prison. Defendant appeals as of right. We affirm.
I. FACTS
Cindy Robinson and her husband, Timothy Robinson, were heroin and cocaine users. Cindy testified that Timothy frequently bought heroin from a person known to them as "Freak," whom she identified as defendant. On November 1, 2016, Timothy asked Cindy to call Freak to arrange to purchase drugs. Cindy called Freak and arranged a meeting between Timothy and Freak. A short time later, Cindy recognized the sound of Freak's truck arriving at her residence. Timothy went outside and returned with heroin and cocaine. The Robinsons injected the drugs. Afterwards, Timothy told Cindy that he was feeling nauseous and went into the bathroom. Cindy testified that she heard him exclaim "oh, sh**, oh, no." When she checked on him a short time later, he was dead. An autopsy confirmed that Timothy had died of drug intoxication caused by heroin, cocaine, and Fentanyl. Defendant was thereafter convicted of conspiring with Cindy to deliver a controlled substance that caused Timothy's death.
II. DISCUSSION
A. SUFFICIENCY OF THE EVIDENCE
Defendant first contends that the evidence presented at trial was insufficient to demonstrate that he conspired with Cindy Robinson to deliver a controlled substance causing death. We disagree.
Due process requires that every element of a crime be proven beyond a reasonable doubt to sustain a criminal conviction. People v Hampton, 407 Mich 354, 366; 285 NW2d 284 (1979). The elements of the crime may be satisfied by either direct or circumstantial evidence and the reasonable inferences arising from that evidence. People v Henderson, 306 Mich App 1, 9; 854 NW2d 234 (2014). The inferences to be drawn from the evidence and the weight to be accorded those inferences are determined by the jury. People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). This Court reviews a challenge to the sufficiency of the evidence de novo, People v Lane, 308 Mich App 38, 57; 862 NW2d 446 (2014), viewing the evidence in the light most favorable to the prosecution to determine whether the evidence was sufficient for a rational trier of fact to find that the elements of the crime were established beyond a reasonable doubt. People v Oros, 502 Mich 229, 239; 917 NW2d 559 (2018). This standard is deferential, and as the reviewing court we are "required to draw all reasonable inferences and make credibility choices in support of the jury verdict." Id.
In this case, defendant was convicted of conspiracy to deliver a controlled substance causing death. The statute prohibiting delivery of a controlled substance causing death, MCL 750.317a, provides:
A person who delivers a schedule 1 or 2 controlled substance, other than marihuana, to another person in violation of section 7401 of the public health code, 1978 PA 368, MCL 333.7401, that is consumed by that person or any other person and that causes the death of that person or other person is guilty of a felony punishable by imprisonment for life or any term of years.
Thus, the elements of delivery of a controlled substance causing death are "(1) delivery to another person, (2) of a schedule 1 or 2 controlled substance (excluding marijuana), (3) with intent to deliver a controlled substance as proscribed by MCL 333.7401, (4) consumption of the controlled substance by a person, and (5) death that results from consumption of the controlled substance." People v McBurrows, ___ Mich ___, ___; ___ NW2d ___ (2019) (Docket No. 157200); slip op at 6. MCL 750.317a punishes the defendant for his or her role in placing the controlled substance into the stream of commerce regardless of whether there is a direct link between the defendant and the resulting death. People v Plunkett, 485 Mich 50, 60; 780 NW2d 280 (2010).
MCL 750.157a prohibits conspiracy to do an illegal act and provides, in relevant part:
Any person who conspires together with 1 or more persons to commit an offense prohibited by law, or to commit a legal act in an illegal manner is guilty of the crime of conspiracy . . . .
The basis of conspiracy is an agreement to do something unlawful. People v Seewald, 499 Mich 111, 117; 879 NW2d 237 (2016). To prove conspiracy, the prosecution must demonstrate an agreement, express or implied, between two or more persons, to commit an illegal act or a legal act in an illegal manner. People v Meredith (On Remand), 209 Mich App 403, 407-408; 531 NW2d 749 (1995). Once the agreement is formed, the crime of conspiracy is complete regardless of whether the purpose of the agreement is accomplished. People v Mass, 464 Mich 615, 632; 628 NW2d 540 (2001). As with any other crime, conspiracy may be established by direct or circumstantial evidence. People v Hunter, 466 Mich 1, 7; 643 NW2d 218 (2002).
Here, the evidence at trial demonstrated that Timothy asked Cindy to contact a person who went by the name of Freak, and whom she later identified as defendant, for the purpose of purchasing controlled substances. Cindy contacted a man at the number that Timothy provided for Freak and arranged for him to meet with Timothy. A short time later, she heard a truck pull up at their home and recognized the sound of the truck as that belonging to the person she knew as Freak. Timothy went outside and returned with cocaine and heroin. Timothy died shortly after injecting the drugs. The forensic pathologist examining Timothy testified that the cause of death was drug intoxication; although several drugs were detected in his blood, the levels of heroin and cocaine exceeded the lethal level. The prosecution thus introduced evidence that demonstrated that defendant entered into an agreement with Cindy to deliver cocaine and heroin to Timothy, that defendant did so, and that Timothy died as a result of consuming the cocaine and heroin that defendant delivered. Viewed in a light most favorable to the prosecution, the prosecution introduced sufficient evidence from which a rational trier of fact could find that all the elements of the offense of conspiracy to deliver a controlled substance causing death were proven beyond a reasonable doubt.
We also reject defendant's contention that his conspiracy conviction violated Wharton's Rule. Wharton's Rule has been defined as "[t]he doctrine that an agreement by two or more persons to commit a particular crime cannot be prosecuted as a conspiracy if the crime could not be committed except by the actual number of participants involved." Black's Law Dictionary (11th ed). Our Supreme Court has explained that Wharton's Rule limits the scope of the crime of conspiracy by providing that "[a]n agreement to commit a particular crime cannot be prosecuted as a conspiracy where the number of alleged conspirators do not exceed the minimum number of persons logically necessary to complete the substantive offense." People v Blume, 443 Mich 476, 482 n 11; 505 NW2d 843 (1993). Stated another way, under Wharton's Rule "an agreement to commit an offense necessarily involving the cooperative action of two or more persons cannot be prosecuted as conspiracy, at least where the only parties to the agreement are those whose cooperative action is required to commit the substantive target offense which is the object of the conspiracy." People v Davis, 408 Mich 255, 280; 290 NW2d 366 (1980) (opinion of LEVIN, J.).
To determine whether Wharton's Rule applies in a given case requires focus upon the nature and elements of the offense underlying the conspiracy. People v Betancourt, 120 Mich App 58, 64-65; 327 NW2d 390 (1983). This Court has held that conspiracy to deliver a controlled substance does not violate Wharton's Rule because the offense "does not imply an agreement between two culpable actors." Id. at 64-65. Our Supreme Court, however, has more clearly explained that although delivery of a controlled substance requires at least two people in that there is a buyer and a seller, when the number of people involved in the conspiracy exceeds the number of essential participants in the underlying offense, Wharton's Rule does not preclude a charge of conspiracy. See Blume, 443 Mich at 482 n 11; see also Davis, 408 Mich at 280 (opinion by LEVIN, J.). Here, the transaction involved not only the essential participants of the underlying offense, the buyer and the seller (in this case, Timothy and defendant), but also Cindy Robinson who arranged the meeting between defendant and Timothy. Therefore, we are not persuaded that defendant's conviction of conspiracy in this case violated Wharton's Rule.
B. EVIDENTIARY CHALLENGES
Defendant next argues that the trial court erred by permitting the prosecution to introduce evidence of a traffic ticket that he received and evidence that his wife in the past had reported to the police that defendant had assaulted her. We disagree that the trial court erred by admitting this evidence.
When a defendant fails to preserve an evidentiary challenge for review by this Court, we review the unpreserved claim of error for plain error affecting the defendant's substantial rights. People v Roscoe, 303 Mich App 633, 648; 846 NW2d 402 (2014). To demonstrate that the defendant' substantial rights were affected, the defendant must show that (1) error occurred, (2) the error was plain, and (3) prejudice, meaning that the error affected the outcome of the lower court proceedings. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). "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 Randolph, 502 Mich 1, 10; 917 NW2d 249 (2018), quoting Carines, 460 Mich at 763-764.
At trial, the prosecution moved to admit a traffic ticket discovered at defendant's home. The ticket had been issued to defendant and indicated that he had been driving a white 1997 Dodge pickup truck while his license was suspended. The prosecutor initially attempted to admit the ticket through the testimony of defendant's wife, but the trial court excluded the evidence because she testified that she had no knowledge of the ticket and that their sole vehicle was a green Cadillac. However, the ticket was later introduced through the testimony of the police detective who discovered the ticket in defendant's home during the execution of a search warrant. After voir dire of the detective regarding the ticket, defense counsel stated that he had no objection to the admission of the ticket.
Defendant now argues that the ticket should have been excluded from evidence because it was overly prejudicial. We disagree. By expressly stating that he did not object to the admission of the ticket, defendant waived any challenge to its admission. See People v Kowalski, 489 Mich 488, 504; 803 NW2d 200 (2011). Moreover, the ticket was relevant to the issue of defendant's identification and was introduced to corroborate the testimony of Cindy Robinson that the person she knows as Freak drives a white pickup truck. Contrary to defendant's assertion, it was not subject to exclusion under MRE 404(b), which excludes evidence of other crimes, wrongs, or acts for the purpose of showing character or propensity to commit the charged offense, because the evidence was not introduced for any of these purposes. See People v Watkins, 491 Mich 450, 468; 818 NW2d 296 (2012). Nor was the probative value of this relevant evidence substantively outweighed by its minimally prejudicial effect. MRE 403; People v Feezel, 486 Mich 184, 198; 783 NW2d 67 (2010) (MRE 403 does not prohibit prejudicial evidence, only evidence that is unfairly prejudicial).
Defendant also contends that the trial court abused its discretion by permitting the prosecution to introduce evidence of defendant's prior charges of assault. Again, we note that this challenge is unpreserved because defendant did not object to the admission of the evidence before the trial court. Defendant's wife provided his alibi, testifying that she had been with defendant at the times in question and that defendant had not delivered the controlled substances to Timothy Robinson. During cross-examination, the prosecutor questioned her regarding her prior reports to police of defendant's allegedly assaultive behavior, and her subsequent failure to attend related court dates. Defendant asserts that this evidence was inadmissible under MRE 404(b) to show proof of his character.
MRE 404(a)(4), however, provides that evidence of the character of a witness is admissible as provided by MRE 607-609. MRE 608(b) permits a party to question a witness on cross-examination by introducing specific instances of conduct of the witness if, in the trial court's discretion, the evidence is probative of the witness's character for truthfulness or untruthfulness. People v Wilder, 502 Mich 57, 63; 917 NW2d 276 (2018). Here, the evidence was introduced to show that defendant's wife made allegations to the police, then failed to cooperate with the prosecution of the charges, demonstrating her lack of veracity. The evidence was therefore properly admissible under MRE 608(b).
C. PROSECUTORIAL MISCONDUCT
Defendant next contends that the prosecution engaged in misconduct by making prejudicial comments during closing argument. We disagree.
Initially, we note that defendant failed to preserve this issue by objecting to the prosecutor's remarks during closing argument and requesting a curative instruction. See People v Solloway, 316 Mich App 174, 201; 891 NW2d 255 (2016). We review unpreserved claims of prosecutorial misconduct for plain error affecting substantial rights. People v Norfleet, 317 Mich App 649, 660 n 5; 897 NW2d 195 (2016). "Reversal is warranted only when plain error resulted in the conviction of an actually innocent defendant, or seriously affected the fairness, integrity, or public reputation of judicial proceedings." People v Unger, 278 Mich App 210, 235; 749 NW2d 272 (2008) (quotation marks and citation omitted).
The test of prosecutorial misconduct is whether the prosecutor committed errors that deprived the defendant of a fair and impartial trial. People v Cooper, 309 Mich App 74, 88; 867 NW2d 452 (2015). We evaluate a prosecutor's statements in light of the defense arguments and their relationship to the evidence admitted. People v Seals, 285 Mich App 1, 22; 776 NW2d 314 (2009). Prosecutors are generally given great latitude in the arguments they present at trial. People v Fyda, 288 Mich App 446, 461; 793 NW2d 712 (2010). However, prosecutors should avoid arguments that urge the jury to do its civic duty by convicting the defendant. People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995).
In this case, the prosecutor stated during closing argument:
[A]s members of society, we want to live in a society where we're safe, and we're protected from predators, and we're protected from criminals, and we're protected from the poison peddlers that devastate a lot of neighborhoods, and in this case at least one individual, and not to mention his family.The prosecutor also suggested that Cindy Robinson could have ended up "on a slab next to [her husband], or the next autopsy up, as a result of the poison that was peddled." We conclude that the prosecutor's comments do not constitute misconduct. In his closing argument, the prosecutor discussed the evidence and asked the jury to determine that the individual known as "Freak" had been shown by the prosecution to be defendant; that defendant's wife was not a credible alibi witness; that the cause of Timothy Robinson's death was drug intoxication; that defendant knew he was delivering a controlled substance; that the controlled substance was consumed by the victim; and that the controlled substance caused the victim's death. This argument was properly focused on the evidence and not on the problem of drugs in society. The prosecutor did use the term "poison" to refer to illegal drugs, and referred to the selling or dealing of drugs as "poison peddling," and also noted the societal impact of illegal drugs. These references, however, were not so inflammatory as to rise to level of plain error requiring reversal. We further observe that a curative instruction, if requested, could have cured any error during closing argument. See People v Callon, 256 Mich App 312, 329-330; 662 NW2d 501 (2003). Defendant is not permitted to harbor an "appellate parachute" by failing to seek a curative instruction from the trial court.
Finally, with respect to the claim of prosecutorial misconduct, defendant argues in his Standard 4 brief that the prosecutor denied him a fair trial and violated his right to due process by withholding from the defense a police report containing exculpatory information. However, he has not cited any proof in support of his claim, nor has he established how it would have benefited the defense, and therefore he is not entitled to relief based on this claim.
Administrative Order No. 2004-6, Standard 4, permits a defendant to file a brief in propria persona, raising additional issues on appeal not raised by defendant's attorney. --------
D. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant further contends in his Standard 4 brief that his trial counsel was ineffective because he (1) failed to object to the admission of the traffic ticket; (2) failed to object to the introduction of defendant's wife's allegations of domestic violence; (3) failed to investigate an "alternative" cause of the decedent's death; and (4) failed to request a limiting instruction regarding the domestic violence evidence. To demonstrate ineffective assistance of counsel, a defendant bears a heavy burden to show that counsel made errors so serious that he was not performing as counsel guaranteed by the Sixth Amendment, and must overcome a strong presumption that counsel's performance constituted sound trial strategy. People v McGraw, 484 Mich 120, 142; 771 NW2d 655 (2009). "Moreover, the defendant must establish prejudice, i.e., a reasonable probability that but for counsel's error, the result of the proceeding would have been different." Id.
With respect to the admission of the traffic ticket, defendant has not shown that he had valid grounds to object, and thus counsel was not ineffective for failing to object. See People v Putman, 309 Mich App 240, 245; 870 NW2d 593 (2015) (counsel is not ineffective for failing to raise a meritless objection).
With respect to defendant's wife's testimony about her prior allegations of domestic violence, this evidence was admissible to attack her credibility and character for truthfulness. In addition, defense counsel chose not to object, but attempted to rehabilitate the witness on redirect examination. Although this strategy may not have been successful, defendant has not shown that it was objectively unreasonable. See People v Petri, 279 Mich App 407, 412; 760 NW2d 882 (2008) ("A failed strategy does not constitute deficient performance.").
Defendant's claim that trial counsel was ineffective for failing to investigate other potential causes of death also has no support. Defendant argues that other drugs found in Timothy Robinson's system may have been responsible for his death. The forensic pathologist testified that Timothy died of drug intoxication, and that several substances were present in his blood, including heroin and cocaine. However, the forensic pathologist testified that the levels of heroin and cocaine were each sufficient individually to be lethal regardless of the other substances present. Defendant's argument therefore is without merit.
E. PROPORTIONALITY
Defendant next contends that his sentence is unreasonable and disproportionate to the offense, and argues that MCL 769.34(10) is no longer valid in light of People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015). Lockridge, however, did not alter the directive of MCL 769.34(10) that "[i]f a minimum sentence is within the appropriate guidelines sentence range, the court of appeals shall affirm that sentence and shall not remand for resentencing absent an error in scoring the sentencing guidelines or inaccurate information relied upon in determining the defendant's sentence." People v Schrauben, 314 Mich App 181, 196 n 1, 886 NW2d 173 (2016). Further, when a defendant's minimum sentence falls within the guidelines range, this Court will not review the sentence for reasonableness. People v Anderson, 322 Mich App 622, 635; 912 NW2d 607 (2018). Because defendant acknowledges that his sentence is within the guidelines range, and does not assert that it was based on inaccurate information or a scoring error, this Court must affirm defendant's sentence.
Affirmed.
/s/ Colleen A. O'Brien
/s/ Michael F. Gadola
/s/ James Robert Redford