Opinion
No. 335795
01-11-2018
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. RAYMOND DANIEL LEVARIO, JR., Defendant-Appellant.
UNPUBLISHED Ottawa Circuit Court
LC No. 16-040012-FC Before: METER, P.J., and BORRELLO and BOONSTRA, JJ. PER CURIAM.
Defendant appeals as of right his conviction of armed robbery, MCL 750.529, and conspiracy to commit armed robbery, MCL 750.157a. The trial court sentenced defendant to concurrent terms of 81 to 240 months' imprisonment for the convictions. We affirm.
This case arose out of an undercover drug operation that occurred around 8:00 p.m. on February 4, 2016, in Holland, Michigan. At trial, Detective Tyler Kempema of the Ottawa County Sheriff's Office testified that his responsibilities as a West Michigan Enforcement Team (WEMET) member involved him in an undercover operation where he would pose as someone who would purchase narcotics. During Detective Kempema's undercover operations he encountered an individual named Evan DeJonge. On two separate occasions, Detective Kempema purchased about an eighth of an ounce of cocaine from DeJonge. After these two transactions, Detective Kempema attempted to purchase a larger amount of cocaine—one ounce—from DeJonge. Detective Kempema and DeJonge agreed that the transaction would take place at an Arby's parking lot in Holland.
During this undercover drug transaction, DeJonge and Mario Pinson got into Detective Kempema's vehicle and requested money for the cocaine before handing it over. Detective Kempema testified that he refused to give DeJonge and Pinson the money without seeing the cocaine. Pinson then made a telephone call and handed Detective Kempema the telephone. Detective Kempema testified that he saw the name "Karl" on the telephone and had been made to understand that this person was in the Arby's restaurant. Detective Kempema testified that the individual on the telephone instructed him to give the money to DeJonge or Pinson. Later, after hearing a police interview with defendant, Detective Kempema testified that he was able to match the voice that he heard on the cellular telephone to the voice of defendant.
DeJonge and Pinson went inside the Arby's, and after a short time they returned to the vehicle and asked Detective Kempema to count the money. Detective Kempema pulled out the cash, thumbed through it, and then quickly returned it to his pocket. DeJonge then asked Detective Kempema to count the money again. Detective Kempema testified: "at this point it's becoming very obvious to me that, you know, based on my training and experience, this is not the way the deal . . . should be going . . . ." After Detective Kempema refused, Pinson hit him across the face with a pistol, demanded the money, and threatened to kill the detective. Detective Kempema testified that he then attempted to gain control of the pistol. However, due to the close quarters in the vehicle, Detective Kempema ended up opening the driver's door and exiting the vehicle. As Detective Kempema was exiting his vehicle, he yelled that there was a gun in order to alert WEMET detectives that he was in trouble.
Police units moved in on Detective Kempema's location. As detectives arrived, Pinson and DeJonge exited the vehicle and started running. Pinson and DeJonge were arrested. While WEMET detectives swarmed the area, Detective Kempema observed an individual walking away from the Arby's and yelled out to him, "Police, stop." Detective Kempema recognized the person as defendant. Detective Kempema testified that defendant turned, looked at him, and then turned away and continued walking. At this point, a red van pulled up, defendant entered the van, and the van left the scene.
Detective Kempema testified that the night before the incident he had searched, on Facebook, a cellular telephone number that appeared on the telephone he used to contact DeJonge and that the number led to defendant's profile.
At trial, Kimberly Pelon, DeJonge's girlfriend, testified that she had been at defendant's apartment the night of February 4, 2016, around 7:00 p.m. Pelon testified that while she was at defendant's apartment she overheard defendant tell DeJonge, "You need to pistol whip this guy." Pelon testified that she did not know any details about their discussion "because they were very private about everything." She stated that "[t]hey kept it brief because they didn't really want me knowing what was going on." Even though DeJonge wanted Pelon to go with them when they departed, defendant said, "Absolutely not, no, you're not, no, you're not going with." Pelon testified that defendant, DeJonge, and a third person then left the apartment. Later, only defendant came back to the apartment; he was in a red minivan, and defendant told Pelon that DeJonge was in trouble.
Pelon testified that in her first interview with police, she "[k]ind of" lied and "beat around the bush" when she stated that she did not know anything about the case. She stated that, during her second interview, she told the police the truth because she "had a second to cool off, cool down, and collect [her] thoughts . . . ." Pelon also testified that when she was interviewed the first time, a detective told her she could be charged with helping DeJonge sell drugs and possibly with conspiracy and armed robbery. Pelon admitted that she knew DeJonge was going to steal money from a guy named "Ginger," who turned out to be a WEMET officer. Pelon also testified to having participated in other criminal enterprises with DeJonge and letting him use her car to conduct drug deals.
Ultimately, she was not charged. --------
An acquaintance of defendant's, Karl Kraai, testified that defendant texted him on the evening in question and asked Kraai to walk with him to Arby's. Kraai testified that defendant stated that "they were meeting a guy" and they were going to sell "whatever they were going to sell to him, I don't know . . . ." Kraai testified that he had a bad feeling about the transaction because defendant said that "they didn't really have anything for the guy, they were just going to wait for him to get there and then just take what he had or what he was bringing them." Kraai testified that his job was to hold whatever they got from the person. Additionally, Kraai testified that defendant used his (Kraai's) cellular telephone. Later, Kraai left defendant at Arby's and went to get defendant's car—a red minivan. When Kraai got back to Arby's with the van, there were a lot of cops in the area, defendant got in the van, and Kraai drove away.
Police interviewed defendant. Defendant admitted that he knew DeJonge and Pinson. Defendant stated that he knew Detective Kempema owed DeJonge money, so he told DeJonge that he had to get the money by any means necessary. Additionally, defendant suggested that DeJonge "kick [Detective Kempema's] ass . . . ." Defendant also stated that he told DeJonge it was strange that Detective Kempema, who had previously purchased an eighth of an ounce of cocaine, was now trying to buy a significantly higher amount. Defendant claimed that he was trying to mentor DeJonge so DeJonge could identify undercover cops.
Further, defendant admitted that he had been at the Speedway next to the Arby's and that he had met with DeJonge and Pinson in the restaurant. At trial, defendant testified that he participated in planning to steal the money from Detective Kempema but not in an armed robbery. DeJonge had told defendant that he was "going to trick a white college kid out of his money" because he did not have any drugs to sell him. Defendant testified that even though he was aware of DeJonge's plans, he never planned to hit anyone, rob anyone, or use any violence. Defendant admitted to going to the Arby's and using Kraai's telephone to speak with DeJonge while DeJonge was in Detective Kempema's vehicle. Finally, defendant testified that Pelon's testimony regarding defendant's alleged statement to DeJonge about pistol whipping Detective Kempema was incorrect.
Defendant argues that he received ineffective assistance of counsel due to defense counsel's failure to request cautionary jury instructions regarding Pelon's alleged status as an accomplice.
Generally, "[w]hether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law." People v LeBlanc, 465 Mich 575, 579; 640 NW2d (2002). "This Court reviews for clear error a trial court's factual findings, while we review de novo constitutional determinations." People v Johnson, 293 Mich App 79, 90; 808 NW2d 815 (2011). Where, as here, no evidentiary hearing was held, this Court reviews claims of ineffective assistance of counsel for errors "apparent on the record." See People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004).
To demonstrate ineffective assistance of counsel, a defendant must (1) "show that counsel's performance was deficient" and (2) "show that the deficient performance prejudiced the defense." People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001), (quotation marks and citation omitted). "To demonstrate prejudice, the defendant must show the existence of a reasonable probability that, but for counsel's error, the result of the proceeding would have been different." Id. Defense counsel is given broad discretion in matters of trial strategy, and a defendant must overcome "a strong presumption of effective counsel when it comes to issues of trial strategy." People v Odom, 276 Mich App 407, 415; 740 NW2d 557 (2007). "Failing 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).
"Jury instructions are to be read as a whole and, even if somewhat imperfect, no error exists if the instructions fairly presented the issues to be tried and sufficiently protected the defendant's rights." People v Lockett, 295 Mich App 165, 185; 814 NW2d 295 (2012). CJI2d 5.5 defines "accomplice" as a "person who knowingly and willingly helps or cooperates with someone else in committing a crime."
The failure to request accomplice jury instructions regarding Pelon's testimony did not fall below an objective standard of reasonableness. See People v Douglas, 496 Mich 557, 585; 852 NW2d 587 (2014) (discussing this performance standard). A cautionary jury instruction concerning accomplice testimony is warranted only if the evidence supports the instruction, People v Ho, 231 Mich App 178, 188-189, 585 NW2d 357 (1998), and there was a dearth of evidence that Pelon participated in the armed robbery or in conspiring to commit the armed robbery, see id. at 189, People v Allen, 201 Mich App 98, 105; 505 NW2d 869 (1993), and CJI2d 5.5. Pelon was not charged with any crimes in connection with the incident. In addition, defendant's own testimony belies his claim that Pelon was an accomplice. When discussing the gathering at his apartment, he stated, "I never once told [Pelon] anything. I never once talked in front of her, period. I never once even -- other than telling her, 'Here's the remote and do not go in the rooms', is all I said to her." In addition, when asked to describe what he told Kraai about the planned robbery, defendant testified that DeJong and Pinson were involved and did not mention Pelon. In response to defendant's appellate argument that Pelon was an accomplice because she loaned DeJong her car, we note that Pelon testified that she was not even sure, initially, if it was her car that the three men departed in that night. She stated, "All I know is, [DeJong] had my key and all three of them left." Especially in light of defendant's own testimony, we cannot find the testimony about the car sufficient to bring Pelon into the purview of an "accomplice," and therefore counsel's failure to request cautionary instructions regarding accomplice testimony did not fall below an objective standard of reasonableness.
In addition, given the thorough cross-examination of Pelon and the lengthy argument against her testimony that defense counsel provided in closing, we cannot find that the giving of the accomplice instructions would have affected the outcome of the case. Carbin, 463 Mich at 600.
Defendant argues that the trial court erred when it failed to provide, sua sponte, the cautionary instructions to the jury. However, defendant failed to object to the jury instructions as provided, and review is thus for plain error affecting substantial rights. People v Gonzalez, 256 Mich App 212, 225; 663 NW2d 499 (2003), disapproved of on other grounds 469 Mich 966, 967 (2003). A plain error has been defined as a "clear or obvious" error. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Given the dearth of evidence regarding Pelon's status as an accomplice, we find no clear or obvious error. In addition, as noted, we cannot find that the lack of the instructions affected the outcome of the case. Id. (discussing the plain-error standard).
Affirmed.
/s/ Patrick M. Meter
/s/ Stephen L. Borrello
/s/ Mark T. Boonstra