Opinion
SC: 164307 COA: 353548
01-03-2024
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marquis Deangelo NELSON, Defendant-Appellant.
Calhoun CC: 2019-002838-FH
Order
On November 9, 2023, the Court heard oral argument on the application for leave to appeal the February 24, 2022 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
Bolden, J. (dissenting).
I respectfully dissent from the Court’s order denying leave to appeal. For similar reasons to those given by Judge Stephens in her dissent, I would conclude that there were multiple errors in defendant’s trial. I would then remand this case to the Court of Appeals to determine whether defendant was prejudiced by these errors.
Defendant was jury-convicted of delivering less than 50 grams of heroin, MCL 333.7401(2)(a)(iv). Having reviewed this case, I conclude that two police officers, Officer Mikael Ziegler and Sergeant Kurt Roth, testified to the ultimate issue in the case by stating, under oath before the jury, that defendant had sold heroin—even though neither officer witnessed any exchange of drugs. Notably, when defendant was apprehended shortly after the alleged drug sale, no evidence of contraband or evidence of a drag deal was found. I agree with Judge Stephens—there were multiple errors made by the Court of Appeals majority. I would reverse and ask the Court of Appeals, on remand, to assess the cumulative effect of these errors to determine whether they collectively merit a new trial.
I. RELEVANT FACTS AND PROCEEDINGS
On October 30, 2018, Battle Creek police were surveilling an apartment complex after they were notified of suspected narcotics activity in the vicinity of the apartment complex. At one point during the afternoon, surveilling officers saw defendant leave the apartment complex at least once with at least one other man. The surveilling officers also observed defendant get into the driver’s seat of a grey Hyundai Tucson with an Illinois registration. Unmarked patrol cars watched the Tucson and saw that it changed directions a few times and stopped at other apartment complexes and residences over the course of about an hour.
After making several frequent stops, the Tucson was observed by Officer Ziegler and Sergeant Roth as it pulled over to the side of the road on Shellenberger Avenue. Shortly after the Tucson parked, Officer Ziegler and Sergeant Roth—stationed from different vantage points—saw a white Dodge pickup truck pull behind the Tucson. The driver of the pickup truck was later determined to be Joshua Blount. Officer Ziegler and Sergeant Roth watched as Blount approached the driver’s side window of the Tucson. Defendant was still in the driver’s seat of the Tucson when he and Blount interacted at defendant’s window. Officer Ziegler and Sergeant Roth saw hand movements between defendant and Blount, but neither officer witnessed anything in either man’s hands or anything exchanged between the two. Blount returned to his Dodge and both vehicles drove away.
Shortly after, both vehicles were pulled over. Defendant consented to a search of the Tucson. He was told he was free to leave after a search of his vehicle returned no evidence. Meanwhile, Blount was stopped by a different pair of police officers, and the officers who stopped his Dodge found items consistent with intravenous drug use inside the vehicle. Blount’s pockets were searched and inside there was a small quantity of a substance. The substance lab-tested positive for heroin and fentanyl. Blount was questioned and told the police that defendant provided the drugs that were found on his person, although he denied knowing defendant’s name. Blount was charged with a felony but ultimately pled guilty to a misdemeanor with no jail time.
Ten days after defendant’s vehicle was searched and he was told to leave, defendant was arrested. He was charged as a fourth-offense habitual offender with delivering less than 50 grams of heroin, MCL 333.7401(2)(a)(iv). Defendant faced a jury trial on this charge.
The first witness to testify against defendant was Sergeant Roth. He was not qualified as an expert and instead gave his testimony as a lay witness. He testified that he had worked for the city of Battle Creek in various patrol capacities for 24 years, including approximately 1,000 narcotics investigations, about 200 to 300 of which involved hand-to-hand transactions. He discussed how on October 30, 2018, he was engaged in countersurveillance of defendant based on police information that there was some narcotics activity in the area. He claimed he was parked on Shellenberger facing east, a few car lengths behind the interaction between defendant and Blount. Sergeant Roth was parked in a manner that allowed him to watch the interaction through his side mirror and over his shoulder. From this vantage point, he saw the driver of the Dodge approach the driver of the Tucson, then saw them speak to one another and engage in hand motions with one another. Sergeant Roth never saw anything in the hands of either party. On direct examination, Sergeant Roth was asked, "[Y]ou testified earlier you have several years of training and experience with regards to narcotics investigation, based on your training and experience, what was your indication as to what you thought might be happening?" Sergeant Roth replied, "It’s a narcotic’s [sic] buy, it’s a hand to hand." No objections were raised to Sergeant Roth’s testimony. On cross-examination, Sergeant Roth was pressed about the details. The following exchange occurred:
[Defense Counsel]: Did you actually see the ve—what happened or was it happening inside the car and you’re assuming?
[Sergeant Roth]: What?
[Defense Counsel]: So, when the white male goes up to the car, say this is the car window, does he reach in the car?
[Sergeant Roth]: I don’t know if he reached in, I just saw an exchange, hand movements
[Defense Counsel]: Okay.
[Sergeant Roth]: —and then he left.
[Defense Counsel]: So, if he’s standing in front of the window and it’s in front of the car and you’re on the other side, can you actually see what’s happening or are you assuming?
[Sergeant Roth]: Can’t see what’s happening, but I can see this
[Defense Counsel]: So, you—he could have been pointing something in the car, doing a handshake?
[Sergeant Roth]: Could have been doing a lot, yeah.
[Defense Counsel]: Okay. So, you’re not entirely sure that that was an exchange, you’re calling it an exchange?
[Sergeant Roth]: I am calling it an exchange, yes.
Next, the prosecution called Officer Ziegler to testify and qualified him as an expert in drug trafficking on the basis of his specialized training, assignment within the Special Investigations Unit, and his work on hundreds of drug cases. Like Sergeant Roth, Officer Ziegler was also assigned to countersurveillance of defendant on October 30, 2018, albeit in a separate unmarked car. Officer Ziegler was parked about 40 yards away and facing the opposite direction from the Tucson when it pulled over on Shellenberger. He testified that less than a minute after the Tucson pulled over, a Dodge pulled up and parked directly behind the Tucson and that the only individual in the Dodge was a white man who exited his vehicle and approached the driver’s side window of the Tucson. Officer Ziegler saw the back of defendant’s head and shoulders. Officer Ziegler described their interaction.
[Prosecutor]: Can you describe the hand to hand interaction that you saw?
[Officer Ziegler]: Yes. Mr.—well—well, the white male, Mr. Blount reached in to his pocket, he hands an item into Mr. Nelson’s vehicle and then returns his hand back out after exchanging something with Mr. Nelson, places his hand back into his pocket.
[Prosecutor]: And you testified earlier, you’ve done multiple undercover buys for narcotics and been involved in hundreds of investigations. Based—in your opinion, what happened, what was going on at that point with that hand to hand?
[Officer Ziegler]: What happened was, Mr. Blount reached into his pocket to retrieve money that he brought with him, handed that money to Mr. Nelson, Mr. Nelson handed Mr. Blount an amount of narcotics which he placed back into his pocket and then go [sic] into his vehicle and left. This interaction took place in less than 20 seconds, it was—it—probably even quicker than that, might be fair to say less than 10 seconds. And you know, after—after that hand to hand transaction took place, they departed and left, there was no normal chitchat that you would see between people who might just be seeing each other for the first time in a while and hanging out and spending some time together, then—not the normal "hey, how are you; what are you doing today" or anything like that, it was quick business, to the point and done.
Again, no objections were raised as to Officer Ziegler’s testimony. On cross-examination, Officer Ziegler was asked for more details about the interaction.
[Defense Counsel]: Okay. And you’re almost half a football field away and you can see exactly what’s happening?
[Officer Ziegler]: Correct.
[Defense Counsel]: So, what you described is, [Blount] put his hand in his pocket, he put it in the vehicle, took it out of the vehicle and put his hand back in his pocket?
[Officer Ziegler]: Correct.
[Defense Counsel]: So, you don’t know what did [sic] in the vehicle?
[Officer Ziegler]: Well, from my experience, I saw a
[Defense Counsel]: Nope, I’m saying what did you see?
[Officer Ziegler]: I’m trying to explain from my experience what I saw, so.
[Defense Counsel]: Okay.
[Officer Ziegler]: What I saw was a hand to hand drug transaction between Mr. Blount and Mr. Nelson. However, I couldn’t see a direct item because they don’t typically, during a drug deal, hold up a bag of drugs and look at it like this to make sure it is what it is due to its packaging and size they quickly try to put that item into a secure location and get it out of their hands to make sure that that hand to hand transaction isn’t seen. So, due to the speed of the transaction and the size of the item, is why I couldn’t identify that exact item, but otherwise I knew what I was seeing.
[Defense Counsel]: Do you know if they were just shaking hands?
[Officer Ziegler]: I don’t believe they were, no.
[Defense Counsel]: But you can’t tell.
[Officer Ziegler]: Their hands touched; I can tell you that.
[Defense Counsel]: From half a football field away?
[Officer Ziegler]: Yes.
[Defense Counsel]: Okay. Did you have anything aiding you to see from half a football field away?
[Officer Ziegler]: Nope.
After redirect and recross were completed, the court asked whether the jurors had any questions for the court. One juror’s question pertained to what Officer Ziegler saw.
[The Court]: Alright. Hand to hand transaction, did you actually see any money in hand?
[Officer Ziegler]: No, did not see either of the items that were exchanged.
Relevant to the testimony of what happened on Shellenberger Avenue, Blount testified that he gave defendant $20 for the drugs that the police later found in his pocket. He acknowledged that his guilty plea reduced his charges but would not give a verbal answer when asked whether the charges were reduced because of his cooperation or testimony against defendant. Defendant testified that the several frequent stops he made were to provide transportation for friends and family members and to ensure that his girlfriend’s daughter was calm while he drove. Defendant said that the interaction officers believed they saw between him and Blount was not a hand-to-hand drug transaction, but Blount approaching his vehicle seeking directions.
The jury deliberated for more than one day. The first day’s deliberations began at 10:45 a.m. At 4:15 p.m., the jury informed the court that it was deadlocked. A dead-locked-jury instruction was read. The jury still was unable to reach a verdict. The trial court sent the jury home for the evening and excused one of the jurors because of a scheduling conflict. The next morning, an alternate juror was seated in place of the excused juror. The jury was instructed to begin its deliberations anew. After two more hours of deliberating, the jury returned a guilty verdict.
Defendant appealed his conviction. The Court of Appeals affirmed. People v Nelson, unpublished per curiam opinion of the Court of Appeals, issued February 24, 2022, 2022 WL 572496 (Docket No 353548). The majority concluded that Officer Ziegler exceeded the scope of permissible drug profile testimony but Sergeant Roth did not. Judge Stephens dissented and would have held that both officers exceeded the scope of permissible testimony and that the cumulative effects of those errors prejudiced defendant so as to deny him a fair trial. Id. (Stephens, J., dissenting) at 1-5.
Defendant filed an application seeking leave to appeal in this Court. Among other things, we directed the parties to brief "whether the Court of Appeals correctly held that only Officer Mikael Ziegler exceeded the scope of permissible drug profile testimony, and that Sergeant Kurt Roth did not." People v Nelson, — Mich —, —, 982 N.W.2d 183 (2022). Oral arguments were held on November 9, 2023. After considering the parties’ arguments, I agree with Judge Stephens that there were multiple errors at defendant’s trial. I would remand this case to the Court of Appeals for further consideration.
II. ANALYSIS
Defendant challenges the testimony given by Sergeant Roth and Officer Ziegler as impermissible. I agree.
Drug profile evidence is an "informal compilation of characteristics often displayed by those trafficking in drugs." People v Murray, 234 Mich App 46, 52, 593 N.W.2d 690 (1999) (quotation marks and citations omitted). The evidence is inherently prejudicial because "the profile may suggest that innocuous events indicate criminal activity." Id. at 53, 593 N.W.2d 690 (quotation marks and citation omitted). The characteristics involved in drug profile evidence may apply equally to innocent individuals as well as drag dealers. Id. Although this Court has not weighed in on the admissibility of drag profile evidence, our Court of Appeals has held that drag profile evidence is generally inadmissible as substantive evidence of guilt. Id. Although a difficult task for a court to ac- complish, courts must consider, on a case-by-case basis, "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, 593 N.W.2d 690.
Murray articulated several exceptions to this rule. Id. at 53-54, 593 N.W.2d 690 (listing the following exceptions: (1) expert testimony explaining the significance of items seized, citing People v Hubbard, 209 Mich App 234, 239, 530 N.W.2d 130 (1995); (2) "to aid the jury in understanding evidence in controlled substance cases," citing People v Ray, 191 Mich App 706, 707, 479 N.W.2d 1 (1991); and (3) to show that a defendant acted in accordance with a criminal modus operandi, citing United States v Espinosa, 827 F.2d 604, 612 (9th Cir. 1987)). None of these exceptions would apply here.
The Court of Appeals majority examined Officer Ziegler’s testimony and concluded that the testimony went beyond the scope of permissible drug profile evidence. Nelson (opinion of the Court), 2022 WL 572496, at *2-3. Officer Ziegler testified that, considering all the evidence, "in his expert opinion, defendant sold narcotics to the other man," the exact elements the prosecution was setting out to prove. Id. at 3, citing People v Dickinson, 321 Mich App 1, 12, 909 N.W.2d 24 (2017). The majority found this testimony erroneous but not requiring reversal. Nelson, 2022 WL 572496, at 3-4.
The majority did not agree with defendant’s assertion that Sergeant Roth’s testimony was improper, finding it notable that Sergeant Roth’s conclusion that he believed he saw a hand-to-hand drag transaction was based on his own perception, whereas Officer Ziegler’s testimony compared defendant’s behavior to behavior typical of drag dealers. Id. at 4-5. Judge Stephens disagreed. Id. (Stephens, J., dissenting), at 1-3. I agree with the dissent. Like Officer Ziegler, Sergeant Roth testified to the ultimate issue in the case—whether defendant engaged in a hand-to-hand drag transaction with Blount. Also like Officer Ziegler, Sergeant Roth testified that he saw defendant’s vehicle make several sudden stops, including one in which Blount pulled up behind him, got out of the track he was driving, and approach defendant’s driver’s-side window. Both Officer Ziegler and Sergeant Roth then testified that, although they did not see anything change hands between the two men—and although defendant was apprehended shortly after the interaction with Blount with no evidence of drags in his car—on the basis of their experience, they believed they saw a hand-to-hand drag transaction take place at defendant’s car window involving defendant and Blount. I would consider both officers’ testimony to be erroneous.
The majority’s holding creates a perplexing outcome. Officer Ziegler was qualified as an expert witness, and his testimony as to the ultimate issue of defendant’s guilt was erroneous. Sergeant Roth, who was not qualified as an expert witness, was held to have given permissible nonerroneous testimony, even though he testified to the ultimate issue in the case and did so as a lay witness. Lay witness testimony "is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue." MRE 701. Sergeant Roth’s testimony that "[i]t’s a narcotics buy, it’s a hand to hand" was not based on Sergeant Roth’s rational perceptions. Sergeant Roth himself made that clear when that was his response to the question, "[Y]ou testified earlier you have several years of training and experience with regards to narcotics investigation, based on your training and experience, what was your indication as to what you thought might be happening?" Sergeant Roth was never qualified as an expert, yet gave his conclusions—as to the ultimate issue in this case—on the basis of his experience and training rather than his rational perceptions. Like Judge Stephens did in her dissent, [ would have found errors in the admission of both Officer Ziegler’s and Sergeant Roth’s testimony and I would have found it necessary to consider the cumulative prejudice of both when assessing the error.
This is an evidentiary error. No objection was raised at the trial court level, so it is reviewed for plain error affecting defendant's substantial rights. People v Grant, 445 Mich. 535, 552, 520 N.W.2d 123 (1994). Rather than concluding that this was plain error affecting defendant's substantial rights, I would have remanded this case to the Court of Appeals to determine whether the cumulative effect of erroneous testimony given by two officers as to the ultimate issue in defendant’s case met that standard.
Further, defendant also appealed this error by asking the appellate courts whether trial counsel's failure to object to the testimony given by these officers constituted ineffective assistance of trial counsel. In light of my conclusions that both officers gave inadmissible testimony as to the ultimate issue in the case, I would have remanded to the Court of Appeals to address this claim as well.
III. CONCLUSION
At defendant’s trial, the jury heard testimony from two officers who expressly stated, under oath, that on the basis of their experience and training, they witnessed defendant engage in a hand-to-hand drug transaction with Blount, who was found with a substance that later tested positive for heroin and fentanyl. Neither officer saw any substance change hands. Defendant was pulled over shortly after his interaction with Blount. No evidence of drugs was found in defendant’s vehicle, and officers told him he was free to leave. Yet both officers, on the basis of their training and experience, testified affirmatively that they witnessed a hand-to-hand drug transaction.
I would have reversed, holding that both officers' testimony to the ultimate issue in this case was improper and inadmissible. I would have remanded this case to the Court of Appeals to determine whether the cumulative effect of improper testimony from both officers without objection resulted either in a plain error that affected defendant’s substantial rights requiring reversal or whether defendant was entitled to a new trial through his alternative claim of ineffective assistance of trial counsel.