Opinion
No. 346816
02-20-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DONZELL T. JONES, 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 UNPUBLISHED Oakland Circuit Court
LC No. 2016-261224-FH Before: REDFORD, P.J., and CAVANAGH and SERVITTO, JJ. PER CURIAM.
Defendant appeals as of right his jury convictions of felon in possession of a firearm, MCL 750.224f, felon in possession of ammunition, MCL 750.224f(6), three counts of possession of a firearm during the commission of a felony (felony-firearm), second offense, MCL 750.227b, and possession of less than 25 grams of cocaine, MCL 333.7403(2)(a)(v). We affirm.
I. FACTUAL BACKGROUND
This case arises from the drug raid of a home in which defendant was living. When Royal Oak Police Detective Jason Manning arrived to execute the search warrant, defendant and Kyra Porter were detained and searched. Defendant had $1,160 in cash on his person. Defendant was also wearing a neck brace, but Manning testified that defendant was able-bodied and could quickly and independently walk.
Manning searched the basement of the home where he believed defendant was staying. In the common area of the basement, Manning found two magazines of ammunition and an "orange press" which had marijuana in it. In the basement bedroom, Manning found men's clothing, numerous documents and mail addressed to defendant at that address, prescription bottles with defendant's name on them, a loaded AR-15 firearm and extra ammunition, multiple cell phones, a razor blade on a white marble slab, small Ziploc bags, a strainer, and cocaine additives—lactose and vitablend. The razor blade found on the marble slab was later tested for drugs by Rachel Scott, a forensic chemist with the Oakland County Sheriff's Office, and the residue tested positive for cocaine.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant argues that he was denied the effective assistance of counsel because his trial counsel failed to call him or Kyra Porter as witnesses, and failed to object to the admission of drug-profile evidence. We disagree. Defendant preserved this claim by moving for a new trial or Ginther hearing in the trial court, but our review is limited to mistakes apparent on the record because a Ginther hearing was not held. See People v Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009).
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
This Court denied defendant's motion to remand for failure to persuade this Court of the necessity of such remand. People v Jones, unpublished order of the Court of Appeals, entered May 9, 2019 (Docket No. 346816). Defendant has not made any offer of proof of facts that would be established on remand. See MCR 7.211(C)(1)(a).
"Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise." People v Rodgers, 248 Mich App 702, 714; 645 NW2d 294 (2001). To prevail on a claim of ineffective assistance of counsel, a defendant must establish both that " '(1) the performance of his counsel was below an objective standard of reasonableness under prevailing professional norms and (2) a reasonable probability exists that, in the absence of counsel's unprofessional errors, the outcome of the proceedings would have been different.' " People v Rosa, 322 Mich App 726, 741; 913 NW2d 392 (2018), quoting People v Sabin (On Second Remand), 242 Mich App 656, 659; 620 NW2d 19 (2000).
Defendant contends that he was denied the effective assistance of counsel because his trial counsel failed to investigate or call Porter as a witness. An attorney's decisions such as what evidence to present and whether to call witnesses are considered matters of trial strategy. People v Dixon, 263 Mich App 393, 398; 688 NW2d 308 (2004) (citation omitted). The failure to call or consult with a witness only constitutes ineffective assistance of counsel if it "deprives the defendant of a substantial defense." Payne, 285 Mich App at 190 (citation omitted). It is well established that this Court will not second-guess counsel's decisions regarding trial strategy and will not assess counsel's competence with the benefit of hindsight. People v Horn, 279 Mich App 31, 39; 755 NW2d 212 (2008).
Defendant has failed to support this claim with any evidence, affidavit, or offer of proof of the substance of Porter's purported testimony. Defendant merely speculates that Porter "would likely" have testified that, at the time of the raid, defendant was not residing in the basement bedroom because of an injury and that another man was living at the residence. Defendant has also failed to offer any evidence that her testimony would have benefited him. Moreover, nothing in the record supports defendant's claim that trial counsel failed to investigate Porter prior to trial. Therefore, absent any evidence of Porter's potential testimony or regarding the extent of trial counsel's pretrial investigation, defendant failed to establish the necessary factual predicate to establish the ineffective assistance of his trial counsel. See People v Carbin, 463 Mich 590, 601; 623 NW2d 884 (2001) (holding that, absent any evidence regarding trial counsel's failure to investigate a potential witness or of the substance of the potential witness's testimony, the defendant failed to establish an ineffective assistance of counsel claim).
Defendant also argues that he was denied the effective assistance of counsel because his trial counsel failed to "encourage" him to testify. Defendant asserts that if he had been "encouraged to" testify, and "had actually done so, he would have offered testimony that (a) the drugs, guns, and ammunition were not his, and (b) that he was not, at that time, staying in the basement bedroom because of his physical limitations." Thus, defendant's testimony would have corroborated Porter's purported testimony and rebutted the prosecution's evidence that defendant was exclusively using the basement bedroom. We disagree.
Defendant knowingly and voluntarily waived his right to testify on the record during the trial court proceeding. Absent any evidence that defendant was coerced by his trial counsel into waiving his right to testify, there is no error for this Court to review. See People v Bonilla-Machado, 489 Mich 412, 421; 803 NW2d 217 (2011). The record does not reflect any coercive action by trial counsel or by the trial court. Rather, the record reflects that defendant's trial counsel advised him of his right to testify and defendant made a voluntary choice not to testify. Defendant did not attach any affidavit stating that trial counsel persuaded or coerced him not to testify despite his desire to do so. As such, it appears that defendant made a rational and voluntary choice not to testify after hearing the evidence against him. Therefore, defendant's claim of ineffective assistance premised on this argument is without merit.
Defendant also has not demonstrated how the failure to call Porter or himself denied him a substantial defense, i.e., one that may have made a difference in the outcome of the case. People v Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009). Defendant has not offered any proof of the substance of his or Porter's testimony, or any proof that their testimony would have benefited him or altered the result of the trial. Defendant claims that his and Porter's testimony would have demonstrated that he could not use the stairs because of his injury, and thus, the basement bedroom did not belong to him. However, substantial evidence was presented that the bedroom did belong to defendant and Manning testified that defendant walked up a flight of stairs to get from outside to the kitchen where he was arrested. Therefore, on the basis of the existing record, defendant has not overcome the presumption that he received the effective assistance of counsel. See Payne, 285 Mich App at 190.
Defendant also argues that his trial counsel was ineffective for failing to object to the use drug-profile evidence as substantive evidence of his guilt. Defendant argues that the "only fathomable reason for the trial counsel's failure to object" to the admission of the drug-profile evidence was because of his "ignorance of the law." We disagree.
It is generally presumed that trial counsel's decision not to object to the admission of evidence is based on sound trial strategy. People v Unger, 278 Mich App 210, 253; 749 NW2d 272 (2008). If there is a plausible and legitimate strategic reason for trial counsel's decision not to object, his failure to object cannot be said to fall below an objective standard of reasonableness to sustain an ineffective assistance of counsel claim. People v McFarlane, 325 Mich App 507, 528; 926 NW2d 339 (2018). As discussed in more detail later, the drug-profile evidence was properly admitted and did not constitute as substantive evidence of defendant's guilt. Thus, defendant's trial counsel was not ineffective for failing to advocate a meritless position. See People v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000). Moreover, defendant failed to demonstrate that, but for trial counsel's error, the jury would not have convicted him. See People v Heft, 299 Mich App 69, 81; 829 NW2d 266 (2012). Therefore, defendant has failed to overcome the presumption that trial counsel's performance was the result of sound trial strategy.
III. DRUG-PROFILE EVIDENCE
Defendant argues that the trial court plainly erred in admitting the drug-profile evidence and this error affected his substantial rights. We disagree.
Defendant admits that he did not object to the admission of the drug-profile evidence and that our review is for plain error affecting his substantial rights. See People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999); People v Lechleitner, 291 Mich App 56, 59; 804 NW2d 345 (2010). To demonstrate plain error, the defendant must establish that error occurred, it was plain, and it affected his substantial rights. Carines, 460 Mich at 763. "The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceeding." Id.
"Drug-profile evidence is essentially a compilation of otherwise innocuous characteristics that many drug dealers exhibit, such as the use of pagers, the carrying of large amounts of cash, and the possession of razor blades and lighters in order to package crack cocaine for sale." People v Murray, 234 Mich App 46, 52-53; 593 NW2d 690 (1999). As such, drug-profile information is simply a list of characteristics which law enforcement officers find typical of individuals engaged in drug trafficking. Id. at 52 (citation omitted). It is well settled that, because of the ease of conflating characteristics which would apply to innocent individuals and those involved in drug trafficking, drug-profile evidence is not admissible as substantive evidence of a defendant's guilt. Id. at 53. However, drug-profile evidence may be used to aid the jury's understanding of the evidentiary value and significance of items seized or the modus operandi of drug traffickers. Id. at 54. Moreover,
a prosecutor may use expert testimony from police officers to aid the jury in understanding evidence in controlled substance cases. For such expert testimony to be admissible, '(1) the expert must be qualified; (2) the evidence must serve to give the trier of fact a better understanding of the evidence or assist in determining a fact in issue; and (3) the evidence must be from a recognized discipline.' [Id. at 53-54, quoting People v Williams (After Remand), 198 Mich App 537, 541; 499 NW2d 404 (1993) (internal citation omitted).]However, an expert may not opine that the defendant is guilty merely because he fits the drug-profile evidence. Murray, 234 Mich App at 54.
The distinction between admissible and inadmissible drug-profile evidence is subtle. Id. at 58. This Court established various factors to assist future courts' case-by-case evaluations of whether the drug-profile evidence is being used to explain "the significance of otherwise innocuous circumstantial evidence, or rather to demonstrate that the defendant fits the profile and is therefore guilty." Id . at 58. First, this Court is to consider whether the reason provided for the admission of the drug-profile evidence is to assist the jury or to provide a modus operandi explanation. Id. at 56. Second, the prosecution cannot solely rely on the drug-profile evidence to establish defendant's guilt. Id. at 57. Third, the jury should be provided a limiting instruction regarding the proper use of the drug-profile testimony. Id. Fourth, the police expert should not opine regarding defendant's guilt on the basis of the drug-profile evidence. Id.
Defendant argues that the drug-profile evidence was improperly admitted because the drug-profile evidence was not intended to merely aid the jury or to be used as modus operandi evidence; rather, the testimony was intimately tied to the specific evidence in this case and was admitted as substantive evidence of defendant's guilt. We disagree.
In defining the line between substantive evidence and evidence that is intended to aid the jury's understanding, this Court has stated that
courts must take into consideration the particular circumstances of a case and enable profile testimony that aids the jury in intelligently understanding the evidentiary backdrop of the case, and the modus operandi of drug dealers, but stop short of enabling profile testimony that purports to comment directly or substantively on a defendant's guilt. [Id. at 56.]Moreover, the expert should not "express an opinion, that on the basis of the profile, the defendant is guilty and should not expressly compare the defendant's characteristics to the profile in a way that implies that the defendant is guilty." People v Williams, 240 Mich App 316, 321; 614 NW2d 647 (2000).
In this case, Sergeant Jennings's drug-profile testimony was merely used as background or modus operandi evidence to assist the jury in understanding the significance of the evidence seized from the basement bedroom. See Murray, 234 Mich App at 53-54. The prosecution went through a structured colloquy with Jennings whereby the prosecution would reference a piece of evidence that had been seized from the bedroom and Jennings would explain its significance. Specifically, Jennings testified that, on the basis of his training and experience, a cutting board and razor is typically used to "process" and cut cocaine. Jennings testified that small Ziploc bags are "commonly used to package cocaine and other drugs" and that the strainer could be used to sift drugs. Jennings also testified that multiple phones are often used to set up drug deals to traffic drugs, and that the supplements found in the bedroom are commonly used as cutting agents to increase the quantity of a drug. Jennings further testified that firearms are commonly used in the drug trade to protect "assets" and drugs from thieves and competition, but could simply be used to protect one's home or family. Jennings also explained that the police consider large quantities of cash on one's person to indicate money coming and going, and that, if it is associated with drugs such often indicates the sale of drugs. Finally, at the end of his testimony, Jennings opined that the evidence seized during the execution of the search warrant is common of someone who possessed cocaine; however, Jennings did not relate the drug-profile evidence to defendant's guilt or innocence.
Jennings's testimony was not substantive evidence of defendant's guilt, but merely provided the jury with an understanding of the significance of the evidence seized from the home. Jennings did not expressly state that, on the basis of the profile, defendant was guilty. See Williams, 240 Mich App at 321. Moreover, defendant was not charged with drug trafficking. Therefore, the trial court did not err in admitting the drug-profile evidence.
Defendant also argues that the drug-profile evidence was improperly admitted because the prosecution cannot solely rely on the drug-profile evidence to establish defendant's guilt. See Murray, 234 Mich App at 57. However, the prosecution did not solely rely on the drug-profile evidence to establish defendant's guilt. Rather, as stated in defendant's brief on appeal, the prosecution presented evidence that there was only one man living in the home, male clothing was found in the basement bedroom, mail and prescription bottles with defendant's name and address were found in that bedroom, and defendant had $1,160 in cash on his person. Therefore, the drug-profile evidence was not the only evidence from which the "jury could reasonably infer that whomever was using that downstairs bedroom knew [] that guns, drugs, and ammunition were there." Therefore, defendant's argument is without merit.
Finally, defendant argues that the trial court failed to provide the jury a limiting instruction on the proper use of the drug-profile testimony. The third factor set forth in Murray states that the jury should be provided a limiting instruction regarding the proper use of the drug-profile testimony. Murray, 234 Mich App at 58. The trial court did not give the jury a limiting instruction regarding the drug-profile evidence. But the jury was provided an instruction regarding expert witnesses, informing the jury that it could assign its own weight and credibility to the testimony of Jennings and Scott. However, even if this error was plain, reversal is not warranted. See People v Taylor, 252 Mich App 519, 523; 652 NW2d 526 (2002).
After reviewing the record, the trial court's failure to properly instruct the jury did not result in the conviction of an actually innocent defendant or seriously affect the fairness, integrity, or public reputation of judicial proceedings. Id. There was evidence presented that a loaded AR-15 firearm and additional ammunition was seized from the basement bedroom which contained prescriptions and mail that had defendant's name on them, as well as male clothing. The address on the prescriptions, mail, driver's license, and medical marijuana card was the same address where defendant was arrested. Defendant was the only male living at that address. Moreover, in the bedroom, the police found a marble slab and razor which tested positive for cocaine, a strainer, small Ziploc bags, and supplements which are commonly added to cocaine. Thus, after reviewing the record, the admission of the drug-profile evidence without proper jury instruction does not warrant reversal.
Affirmed.
/s/ James Robert Redford
/s/ Mark J. Cavanagh
/s/ Deborah A. Servitto