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holding that the defendant had waived appellate review of an issue "[b]ecause error requiring reversal cannot be error to which the aggrieved party contributed by plan or negligence"
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No. 205378
Submitted February 2, 1999, at Lansing.
Decided April 6, 1999, at 9:10 A.M.
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, Michael D. Thomas, Prosecuting Attorney, and Katherine Langevin Semel, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Chari K. Grove), for the defendant on appeal.
Before: FITZGERALD, P.J., and HOLBROOK, JR., and O'CONNELL, JJ.
Defendant appeals as of right from his convictions of three counts of delivery of less than fifty grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2) (a)(iv), and single counts of possession with intent to deliver less than fifty grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15 (7401)(2)(a)(iv), conspiracy to deliver cocaine, MCL 750.157a; MSA 28.354(1), and maintaining a drug house, MCL 333.7405(d); MSA 14.15 (7405)(d). We affirm.
I. Facts and Procedural History
After a lengthy period of investigation and surveillance, the police conducted a search and seizure at 732 Bethany in Saginaw on the morning of August 22, 1996. Defendant was in the house at the time, having slept there the night before. On a dresser in the bedroom where defendant said that he had spent that night, the police found a quantity of cocaine in plain view alongside some personal items of defendant. According to expert testimony at trial, the amounts of cocaine and particular drug paraphernalia that the police found at the house indicated that the premises were used as a locus for drug trafficking. During the course of the investigation, an informant, operating under police supervision, purchased cocaine from defendant on April 18 and 29, and August 26, 1996, and on June 11 that year viewed defendant with some cocaine that defendant was offering for sale, each of these events occurring at the house at 732 Bethany.
This house was the residence of Tonja Simpson (Simpson), her and defendant's minor son, and Simpson's father, who was renting the house from his ex-wife. Simpson was arrested and charged along with defendant. Her case was eventually severed from defendant's, and she testified at defendant's trial pursuant to a plea agreement.
The jury found defendant guilty as charged. The trial court sentenced defendant to one to two years' imprisonment for maintaining a drug house, that sentence to run concurrently with sentences of three to forty years' imprisonment for each of the remaining five convictions, the latter all to run consecutively to each other and to a sentence for an earlier conviction.
II. Sufficiency of the Evidence
Defendant argues that the prosecution failed to present evidence sufficient to support his convictions of maintaining a drug house and possessing cocaine with intent to deliver it. We disagree. When reviewing the sufficiency of the evidence in a criminal case, this Court must view the evidence of record in the light most favorable to the prosecution to determine whether a rational trier of fact could find that each element of the crime was proved beyond a reasonable doubt. People v. Jaffray, 445 Mich. 287, 296; 519 N.W.2d 108 (1994); People v. Fetterley, 229 Mich. App. 511, 515; 583 N.W.2d 199 (1998).
A. Keeping or Maintaining a Drug House
Defendant's argument concerning the conviction of maintaining a drug house hinges on the proper interpretation of the applicable statute. At the time of defendant's arrest and conviction, MCL 333.7405(d); MSA 14.15(7405)(d) stated that a person "[s]hall not knowingly keep or maintain a . . . dwelling . . . or other structure or place, which is resorted to by persons using controlled substances in violation of this article for the purpose of using these substances, or which is used for keeping or selling them in violation of this article." Defendant does not argue that the house in question, at 732 Bethany in Saginaw, was not itself a drug house under MCL 333.7405(d); MSA 14.15(7405)(d), but argues instead that he did not "keep or maintain" the property for purposes of the statute.
Effective March 31, 1998, MCL 333.7405(d); MSA 14.15(7405)(d) was amended to identify a place that a person may not "keep or maintain" as any place "frequented by persons using controlled substances in violation of this article for the purpose of using controlled substances, or that is used for keeping or selling controlled substances in violation of this article." Because this appeal concerns the meaning of "keep and maintain," and not any of the changed statutory language, this amendment does not affect our disposition.
Statutory interpretation is a question of law calling for review de novo. Michigan Basic Property Ins Ass'n v. Ware, 230 Mich. App. 44, 48; 583 N.W.2d 240 (1998). "The primary purpose of statutory interpretation is to ascertain and give effect to the intent of the Legislature." Id. at 49. "[T]he meaning of the Legislature is to be found in the terms and arrangement of the statute without straining or refinement, and the expressions used are to be taken in their natural and ordinary sense." Gross v. General Motors Corp, 448 Mich. 147, 160; 528 N.W.2d 707 (1995). A court should interpret a statute in the way that best advances its legislative purpose. People v. Adair, 452 Mich. 473, 479-480; 550 N.W.2d 505 (1996).
We hold that to "keep or maintain" a drug house it is not necessary to own or reside at one, but simply to exercise authority or control over the property for purposes of making it available for keeping or selling proscribed drugs, and to do so continuously for an appreciable period. This reading of the statute comports with other jurisdictions' construction of the terms "keep or maintain" as used in similar statutes.
See State v. Fernandez, 89 Wn. App. 292, 301; 948 P.2d 872 (1997) (unpublished), citing United States v. Clavis, 956 F.2d 1079, 1090 (CA 11, 1992); Dawson v. State, 894 P.2d 672, 678-679 (Alas App., 1995); Meeks v. State, 872 P.2d 936, 937-938 (Okla Crim App., 1994); State v. Allen, 102 N.C. App. 598, 607-608; 403 S.E.2d 907 (1991), rev'd on other grounds 332 N.C. 123; 418 S.E.2d 225 (1992); Barnes v. State, 255 Ga. 396, 401-402; 339 S.E.2d 229 (1986).
Defendant testified that he had lived with Simpson on and off, but that the night before the search was the first one that he had spent at the house since the previous January, when the couple had had a falling out. Defendant maintained that he resided at his mother's residence at the time of his arrest. Simpson testified that defendant had lived with her at the house, but that defendant moved out in May 1996. Simpson added that she and defendant were in the process of resuming their romance at the time of their arrest. According to both defendant and Simpson, defendant had no key to the house and was only an occasional visitor at the time of the police action.
This evidence viewed in the light most favorable to the prosecution indicates that defendant resided primarily at 732 Bethany as late as three months before his arrest, which period encompassed at least his first two sales of cocaine to the informant, that defendant continued to operate as a drug dealer from that house in June and August before his arrest, and that defendant spent the night before his arrest at the house and was reconciling with Simpson. The prosecutor further presented evidence that the police found men's clothing in a dresser in one of the bedrooms. Additionally, a police detective testified that during the period of surveillance he observed defendant apparently more than once drive Simpson's car from work to 732 Bethany, but that he never saw defendant drive to his mother's address.
This evidence would support a factual finding that defendant actually resided at 732 Bethany for the whole time in question, and certainly supports the finding that defendant exercised control over the premises for the purpose of trafficking in cocaine during those several months. Accordingly, defendant's argument that the prosecution failed to present evidence that he kept or maintained a drug house sufficient to support his conviction under MCL 333.7405(d); MSA 14.15(7405)(d) must fail.
B. Possession with Intent to Deliver
Also without merit is defendant's argument that the prosecution failed to present sufficient evidence that he was in possession of the cocaine found at 732 Bethany to support his conviction. The elements that the prosecutor must prove to establish possession with intent to deliver less than fifty grams of cocaine include "that defendant knowingly possessed the cocaine with the intent to deliver." People v. Wolfe, 440 Mich. 508, 517; 489 N.W.2d 748 (1992), amended 441 Mich. 1201 (1992). Possession may be actual or constructive. "The essential question is whether the defendant had dominion or control over the controlled substance." People v. Konrad, 449 Mich. 263, 271; 536 N.W.2d 517 (1995). One need not have actually owned the prohibited substance to have possessed it, and one may possess the substance jointly with one or more others. Wolfe, supra at 520. However, "a person's presence, by itself, at a location where drugs are found is insufficient to prove constructive possession." Id. "`"[M]ere proximity to the drug, mere presence on the property where it is located, or mere association, without more, with the person who does control the drug or the property on which it is found, is insufficient to support a finding of possession."'" United States v. Disla, 805 F.2d 1340, 1351 (CA 9, 1986), quoting Murray v. United States, 403 F.2d 694, 696 (CA 9, 1968), quoting Arellanes v. United States, 302 F.2d 603, 606 (CA 9, 1962).
Although none of the cocaine that the police seized on August 22, 1996, was found on defendant, "constructive possession exists when the totality of the circumstances indicates a sufficient nexus between the defendant and the contraband." Wolfe, supra at 521. Several factors linked defendant to the cocaine found at 732 Bethany. The evidence indicated that defendant had substantial control over the premises for purposes of drug dealing, having four times offered cocaine for sale from that house, and having been found at the house with cocaine in plain view and in proximity of some of defendant's possessions when the police conducted their search. Further, Simpson testified that the cocaine found on top of the dresser, in the room where defendant said that he had spent the night before the search and seizure, was defendant's. This evidence amply supports the jury's finding that the element of possession was met.
III. Evidence of Defendant's Prior Incarceration
The informant who assisted with the investigation of defendant was instructed not to say anything in front of the jury about defendant's having been incarcerated before, but at trial, when asked during direct examination about receiving a telephone call from defendant shortly after the latter's arrest, the informant replied, "He said, guess where I'm at? . . . I'm in jail. . . . And he says, well, I ain't going back to prison again." Defense counsel requested a mistrial on the basis of the informant's statement. The trial court denied the request, stating, "I'll just instruct. It won't — will not be followed up or argued in closing argument." Neither counsel nor any witness made any further mention before the jury of defendant's incarceration, and in the end the trial court provided no instruction regarding the matter. Defendant argues on appeal that this mention of his earlier incarceration had the effect of denying him a fair trial. We disagree.
This Court reviews a lower court decision regarding a motion for a mistrial for an abuse of discretion. People v. Haywood, 209 Mich. App. 217, 228; 530 N.W.2d 497 (1995). "A mistrial should be granted only for an irregularity that is prejudicial to the rights of the defendant and impairs his ability to get a fair trial." Id. (citations omitted).
It is well settled that evidence of a prior conviction may be prejudicial to the accused, the danger being that the jury "will misuse prior conviction evidence by focusing on the defendant's general bad character. . . ." People v. Allen, 429 Mich. 558, 569; 420 N.W.2d 499 (1988). However, not every instance of mention before a jury of some inappropriate subject matter warrants a mistrial. Specifically, "an unresponsive, volunteered answer to a proper question is not grounds for the granting of a mistrial." Haywood, supra at 228.
In this case, it was in answering the prosecutor's questions concerning the course of the informant's contacts with defendant that the informant volunteered that defendant had made reference to his having been in prison. Defendant does not dispute that this was a proper line of questioning, nor does he suggest that the prosecutor expected the improper response. Because the mention of prior incarceration of which defendant complains was not elicited by the prosecutor but was instead volunteered in response to a proper question, that brief incidental mention did not warrant a mistrial.
Nor do we find error in the trial court's not having provided the jury with a curative instruction. Had defense counsel asked the trial court to follow through with its indication that it would provide such an instruction, the court would have been obliged to do so. However, "failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused." MCL 768.29; MSA 28.1052. See also People v. Hendricks, 446 Mich. 435, 440-441; 521 N.W.2d 546 (1994). Further, because a special instruction concerning defendant's having been incarcerated would necessarily have highlighted that fact, defense counsel may well have decided not to bring that double-edged sword into play as a matter of sound strategy.
IV. Rebuttal Evidence
During the early stages of trial, the prosecutor equivocated over whether he would call Simpson to testify in his case in chief. The trial court initially ruled that if the prosecutor wished to present Simpson, he would have to do so in his case in chief and not save her for rebuttal. Upon revisiting the issue shortly before the prosecutor rested, however, the court, citing People v. Figgures, 451 Mich. 390; 547 N.W.2d 673 (1996), stated that rebuttal testimony is "not automatically precluded because it could have been presented in the case in chief," and that it could be presented if it "goes to what is affirmatively presented." Then, later in the proceedings, after defendant testified on his own behalf, the prosecutor produced Simpson without objection. Defendant argues that the court abused its discretion in admitting Simpson's testimony as rebuttal evidence. We disagree.
A "prosecutor may not divide the evidence on which the people propose to rest their case, saving some for rebuttal." People v. Losey, 413 Mich. 346, 351; 320 N.W.2d 49 (1982), citing People v. Quick, 58 Mich. 321, 322-323; 25 N.W. 302 (1885). However,
[r]ebuttal evidence is admissible to contradict, repel, explain or disprove evidence produced by the other party and tending directly to weaken or impeach the same. . . . [W]hether rebuttal is proper depends on what proofs the defendant introduced and not on merely what the defendant testified about on cross-examination.
. . . [T]he test of whether rebuttal evidence was properly admitted is not whether the evidence could have been offered in the prosecutor's case in chief, but, rather, whether the evidence is properly responsive to evidence introduced or a theory developed by the defendant. As long as evidence is responsive to material presented by the defense, it is properly classified as rebuttal, even if it overlaps evidence admitted in the prosecutor's case in chief. [ Figgures, supra at 399 (internal quotation marks and citations omitted).]
In Figgures, the defendant testified during direct examination that he and the complainant, his then-wife, were reconciling at the time of the alleged assault. In rebuttal, the prosecutor presented evidence that the complainant had sought a criminal injunction against the defendant during the same period. The Supreme Court held that the trial court did not abuse its discretion in admitting the rebuttal evidence, because "[t]he evidence introduced by the prosecutor responded to evidence and impressions raised by defendant during direct examination." Id. at 400.
Defendant does not challenge Simpson's rebuttal testimony on the ground that it was not properly responsive to evidence produced in the defense's case, or that it related to only collateral matters, but instead argues generally that the prosecutor may not produce evidence during rebuttal that could have been presented in the case in chief. However, the Supreme Court established in Figgures that the inquiry must go beyond whether the evidence could have been presented in the case in chief, and must consider whether the rebuttal evidence was responsive to evidence put forward by the defense. Because defendant in the instant case testified that he had not lived at the house at 732 Bethany since January 1996, Simpson's testimony that defendant had lived there until May of that year was proper rebuttal. Similarly, because defendant testified that he had no control over any of the contraband found at the house, Simpson's testimony that defendant was in fact the owner of some of the cocaine that was discovered there was again proper rebuttal.
We note that defendant's brief on appeal makes no mention of Figgures.
V. Instruction Regarding the Credibility of an Addict-Informer
Defendant argues that in light of evidence that the informant who testified against him was addicted to drugs at the time of the offense for which defendant was charged, the trial court abused its discretion in refusing a defense request for a jury instruction concerning the credibility of an addict-informer. We disagree.
"[A]n instruction concerning special scrutiny of the testimony of addict-informants should be given upon request, where the testimony of the informant is the only evidence linking the defendant to the offense." People v. Smith, 82 Mich. App. 132, 133-134; 266 N.W.2d 476 (1978), citing People v. Atkins, 397 Mich. 163, 170; 243 N.W.2d 292 (1976). In this case, the prosecutor elicited from the informant that he had been arrested twice for selling drugs, that he once used illicit drugs four or five times a week, but that he was not using drugs at the time of trial, and defense counsel elicited from the informant on cross-examination that he had had a crack cocaine habit for five years. Although this evidence may raise some suspicions concerning the informant's drug habits over the recent past, it falls short of clearly indicating that he was an addict at the time in question.
Further, the testimony of the informant was not the " only evidence linking the defendant to the offense." Smith, supra at 134 (emphasis added). Testimony from a police detective as well as from Simpson corroborated the informant's account. Because the indications that the informant was addicted to drugs at the time in question were not conclusive, the jury was well apprised of the informant's criminal background concerning drugs, and the informant's testimony was corroborated by other evidence, the trial court did not abuse its discretion in declining to provide the jury with a special instruction concerning the credibility of an addict-informer.
VI. Probable Cause for the Search
In the course of a preliminary examination held for defendant and Simpson before their cases were severed, Simpson's attorney moved to suppress the evidence that the police seized from 732 Bethany on the ground that the attendant search warrant rested on a deceptive affidavit and thus was not supported by probable cause. Defendant argues that the district court erred in admitting the evidence. We disagree.
Defendant's lawyer expressly declined to object to admission of that evidence for purposes of the preliminary examination, thus technically failing to preserve this issue for appellate review as concerns defendant. However, because defendant's codefendant raised the objection and the ruling obviously affected both defendants, we here decline to regard the technicality of defendant's lawyer's failing to join in the objection as failing to preserve this issue. Further, "appellate courts will consider claims of constitutional error for the first time on appeal when the alleged error could have been decisive of the outcome." People v. Grant, 445 Mich. 535, 547; 520 N.W.2d 123 (1994).
The Fourth Amendment of the United States Constitution, concerning searches and seizures, provides that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation. . . ." US Const, Am IV. Evidence seized in the course of a violation of a suspect's rights under the Fourth Amendment is subject to suppression at trial. See People v. Chapman, 425 Mich. 245, 252; 387 N.W.2d 835 (1986), citing Mapp v. Ohio, 367 U.S. 643; 81 S.Ct. 1684; 6 L.Ed. 2d 1081 (1961); Wolf v. Colorado, 338 U.S. 25; 69 S.Ct. 1359; 93 L.Ed. 1782 (1949).
Where an affidavit in support of a search warrant includes false information provided either intentionally or with a reckless disregard for the truth, evidence obtained pursuant to that warrant must be suppressed if probable cause would not exist without the misinformation; where the affidavit includes sufficient untainted information to establish probable cause apart from the misinformation, the affidavit, and resulting search warrant, remain valid within the scope and to the extent of the untainted information. People v. Melotik, 221 Mich. App. 190, 200-202; 561 N.W.2d 453 (1997), citing Franks v. Delaware, 438 U.S. 154; 98 S.Ct. 2674; 57 L.Ed.2d 667 (1978), United States v. Shamaeizadeh, 80 F.3d 1131, 1136 (CA 6, 1996), United States v. Smith, 730 F.2d 1052, 1056 (CA 6, 1984), and People v. Stumpf, 196 Mich. App. 218, 224; 492 N.W.2d 795 (1992).
The police detective who provided the affidavit at issue included the assertion that the informant with whom he was working had established credibility by providing information in the past that had at least three times resulted in arrests of drug traffickers and seizures of controlled substances. Uncontroverted testimony during the preliminary examination and during trial indicated clearly that in fact the informant before the instant case had not provided information leading to any arrests or seizures concerning controlled substances. We agree with defendant that the police detective's exaggeration concerning the informant's history of assisting with drug investigations was misinformation that could not support the search warrant.
However, the untainted assertions within the affidavit include a summary of observations of drug trafficking activity made by the police pursuant to their surveillance of the premises in question, and the informant's statements were corroborated by reliable police investigations. If the single sentence containing the misinformation of which defendant complains is redacted from the affidavit, what remains well supports the resulting search warrant. For these reasons, the evidence seized pursuant to that warrant was properly admitted at trial.
VII. Cumulative Error
Finally, defendant argues that the trial court improperly allowed evidence of defendant's history as a drug dealer, plus evidence that defendant's operations matched a drug-trafficking profile, that he failed to pay child support, and that he drove a car without a license. Defendant further argues that the court allowed the prosecutor to improperly bolster the credibility of Simpson by establishing that she had no prior convictions. Defendant maintains that these alleged errors, along with the inadvertent mention of his having been in prison before, had the cumulative effect of denying him a fair trial. We disagree.
A. Evidentiary Issues
Defendant argues that irrelevant and highly prejudicial evidence that tended to portray him as a bad person was admitted on four occasions, in addition to the incident where the informant volunteered that defendant had been in prison before (discussed in part III above). The first was when the informant and the police detective each testified that the detective had known before working with the informant that defendant was the informant's supplier. Defense counsel did not object to this testimony as improper bad acts evidence, thus waiving this issue for appellate review. To preserve an evidentiary issue for appeal, the party opposing the admission of evidence must object at trial on the same ground that the party asserts on appeal. MRE 103(a)(1). However, this Court may consider unpreserved issues where failure to do so would result in manifest injustice. People v. Metzler, 193 Mich. App. 541, 548; 484 N.W.2d 695 (1992). There is no manifest injustice in this instance. This testimony was introduced not as character evidence, but as proper rebuttal to defendant's theory that the informant had implicated defendant as a drug dealer out of a personal motive for revenge.
Concerning drug profile evidence, defendant argues that the trial court improperly allowed the police detective to testify that he observed people entering and leaving the house at 732 Bethany in a manner that was indicative of drug trafficking. Again, defense counsel did not object to this testimony, thus waiving appellate review absent manifest injustice. We find no manifest injustice here. As this Court has stated, citing various federal cases, "the use of drug profiles as substantive evidence of a defendant's guilt has been widely condemned." People v. Hubbard, 209 Mich. App. 234, 239-240; 530 N.W.2d 130 (1995). However, the detective was testifying in this instance as an expert concerning his impression that drug trafficking was taking place at 732 Bethany. The status of defendant as a drug dealer, and that of 732 Bethany as a drug house, were questions before the jury. Expert testimony concerning indicia of drug trafficking relating to both, which was not within the knowledge of a layperson, aided the jury in resolving those questions. See People v. Ray, 191 Mich. App. 706, 708; 479 N.W.2d 1 (1991). Thus the testimony was not improper drug profile evidence, but rather proper expert testimony concerning material issues.
In regard to defendant's failure to pay child support, the prosecutor asked defendant during cross-examination if he had been paying child support for his four children, and defendant answered that he had not, except for his son with Simpson. Defense counsel raised an objection, which the court sustained. There is no indication that defense counsel requested any curative instruction. Although in extreme cases a prosecutor's probing into improper subject matter may be so prejudicial that the error cannot be corrected, defendant develops no argument, and cites no authority, to suggest that this foray into allegedly irrelevant subject matter was so prejudicial as to support a prayer for reversal. Thus, this issue is waived. A party may not merely state a position and then leave it to this Court to discover and rationalize the basis for the claim. In re Hamlet (After Remand), 225 Mich. App. 505, 521; 571 N.W.2d 750 (1997); In re Toler, 193 Mich. App. 474, 477; 484 N.W.2d 672 (1992). In any event, we are satisfied that the question and answer at issue constituted at worst a minor misstep, which the trial court well remedied by sustaining the defense objection.
See, generally, People v. Messenger, 221 Mich. App. 171, 179, n 3; 561 N.W.2d 463 (1997).
Finally, there was no error attendant to the introduction of testimony that defendant drove without a license. Defendant himself volunteered during direct examination both that he drove regularly and that his license was suspended. Because error requiring reversal cannot be error to which the aggrieved party contributed by plan or negligence, defendant has waived appellate review of this issue. Phinney v. Perlmutter, 222 Mich. App. 513, 537; 564 N.W.2d 532 (1997).
Because defendant has failed to identify any seriously prejudicial errors concerning the introduction of any evidence at trial, his argument that the cumulative effect of any such errors denied him a fair trial must fail.
B. Bolstering the Witness
At trial, the prosecutor elicited from Simpson that she had no convictions before her participation in the instant case. There was no defense objection in response. Evidence of the lack of a criminal record is not admissible to prove the honesty or bolster the credibility of a witness. People v. Phillips, 170 Mich. App. 675, 680-681; 428 N.W.2d 739 (1988). The record suggests no purpose for this inquiry into Simpson's lack of convictions other than to bolster her credibility. However, in the absence of an objection or a request for a curative instruction below, appellate review of the matter is limited to determining whether the misconduct was sufficiently egregious that no curative instruction would have counteracted the prejudice to defendant, or whether manifest injustice would result from failure to review the alleged misconduct. People v. Launsburry, 217 Mich. App. 358, 361; 551 N.W.2d 460 (1996). In this instance, we are persuaded both that a curative instruction would have counteracted any slight prejudice defendant may have suffered and that no manifest injustice will result from our declining to consider this issue further.
In sum, the few minor mishaps from which defendant alleged cumulative error fall far short of denying him a fair trial.
Affirmed.