Docket Nos. 130174, 138931.
Submitted January 6, 1993, at Grand Rapids.
Decided March 2, 1993, at 9:15 A.M.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Michael D. Thomas, Prosecuting Attorney, and Edwin R. Brown, Assistant Prosecuting Attorney, for the people.
Samuel W. Williams, in propria persona, and Cyril C. Pessina, for the defendant.
Before: SAWYER, P.J., and HOOD and JANSEN, JJ.
Defendant appeals as of right from his convictions, following a jury trial, of delivering or manufacturing between 50 and 224 grams of cocaine, MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2) (a)(iii), delivering or manufacturing less than 50 grams of heroin, MCL 333.7401(2)(a)(iv); MSA 14.15(7401) (2)(a)(iv), possession of marijuana, MCL 333.7403(2)(d); MSA 14.15(7403)(2)(d), and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He was sentenced to two terms of ten to twenty years for the first two convictions and to terms of one and two years, respectively, for the last two convictions. We affirm.
In his initial appeal as of right, defendant was assigned Docket Number 130174. For the reasons discussed in defendant's fourth argument, the case was remanded for resentencing by order of the Court, HOLBROOK, JR., P.J., and McDONALD and NEFF, JJ., on December 10, 1990. On appeal from resentencing, defendant was assigned Docket Number 138931. The two cases have been consolidated because they involve the same conviction.
For the sake of completeness, we also note that this case was successfully appealed to the Supreme Court on an unrelated issue. People v Williams, 437 Mich. 888; 464 N.W.2d 709 (1991).
Defendant was initially sentenced to sixteen to twenty-four months for the conviction of possession of marijuana. However, the trial court sua sponte resentenced defendant on that charge to one year, in compliance with the statute. MCL 333.7403(2)(d); MSA 14.15(7403)(2)(d).
Defendant first argues that the trial court erred in not directing a verdict in his favor with regard to the felony-firearm charge because the gun found in his home was not in his possession. We disagree.
The record shows that the loaded gun was found inside a metal box located within a padlocked wooden safe in the basement of defendant's home, along with some cash and two bankbooks belonging to defendant. Defendant and a woman were also found in the basement, along with drugs, money, and paraphernalia. Neither made any attempt to get to the safe, but, instead, defendant attempted to flush some contraband down the toilet. The keys to the safe were never found; the police broke into it.
The felony-firearm statute punishes anyone "who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony. . . ." MCL 750.227b; MSA 28.424(2). A person has "possession" of a weapon when it is "accessible and available . .. at the time [the crime is committed]." People v Terry, 124 Mich. App. 656, 662; 335 N.W.2d 116 (1983). "[D]efendant's access to the weapon should not be determined solely by reference to his arrest." People v Becoats, 181 Mich. App. 722, 726; 449 N.W.2d 687 (1989). To the extent that People v Myers, 153 Mich. App. 124, 126; 395 N.W.2d 256 (1986), requires actual possession of the weapon at the time of defendant's arrest, we decline to follow it.
Here, the presence of defendant's bankbooks inside the locked box created a question of fact regarding whether the contents of the safe, including the gun, were accessible to him at the time he possessed the controlled substances found in his home. We find that the trial court properly refused to take this issue away from the jury.
Defendant next argues that the trial court abused its discretion in allowing a police officer to testify as an expert in the area of drug manufacturing and delivery. We disagree.
MRE 702, which governs the admissibility of expert testimony, requires that there "be facts in evidence that require or are subject to examination and analysis by a competent expert, and [that] there . . . be knowledge in a particular area that belongs more to an expert than an ordinary person." People v Ray, 191 Mich. App. 706, 707; 479 N.W.2d 1 (1991). Admissibility is governed by a three-part test: (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. People v Beckley, 434 Mich. 691, 711; 456 N.W.2d 391 (1990). "The critical inquiry, however, is whether such testimony will aid the factfinder in making the ultimate decision in the case." Ray, supra at 707; see also Beckley, supra at 715. The fact that an expert's opinion may embrace "an ultimate issue" in the case does not make it inadmissible. Ray, supra at 707; see also Beckley, supra at 727; MRE 704.
Here, as in Ray — which happened to involve the same police officer — the testimony concerned how the evidence found in defendant's house was routinely used to cut, weigh, package, and sell controlled substances. The officer was qualified because of his training and experience. The information was not within the layman's common knowledge and was useful to the jury in determining defendant's intent at the time he possessed the drugs. Ray, supra at 707-708. There is also no serious question that drug-related law enforcement is a recognized area of expertise. The trial court did not abuse its discretion in admitting the officer's testimony.
Defendant's third argument is that the trial court erroneously used the second edition of the sentencing guidelines, rather than the first, in calculating his sentences. We disagree. Administrative Order No. 1988-4, 430 Mich ci, requires that the second edition of the guidelines be used in all sentencing proceedings that, as was the case here, take place after October 1, 1988. People v Potts, 436 Mich. 295, 298; 461 N.W.2d 647 (1990).
For his fourth argument, defendant contends that he was not sentenced under the appropriate statute with regard to the first two convictions. We again disagree.
When defendant was initially sentenced, the court erroneously sentenced him under the old statute that provided for higher minimum sentences. See MCL 333.7401(2)(a); MSA 14.15(7401)(2) (a); see also People v Schultz, 435 Mich. 517, 526; 460 N.W.2d 505 (1990). However, on remand by this Court in light of Schultz, the trial court noted that the lower minimums were applicable but nevertheless chose to impose the same sentences. Defendant was not sentenced under the wrong statute.
Defendant also argues that the sentences were nevertheless disproportionate and cruel or unusual. We must again disagree. Because the sentences were within the range recommended by the guidelines, they are presumptively proportional, especially in light of defendant's extensive drug record and his prior manslaughter conviction. People v Broden, 428 Mich. 343, 354-355; 408 N.W.2d 789 (1987); see also People v Milbourn, 435 Mich. 630; 461 N.W.2d 1 (1990). Defendant has failed to overcome this presumption of proportionality. Likewise, because the sentences are not disproportionate in relation to the crimes, they are therefore not cruel or unusual. People v Bullock, 440 Mich. 15, 40-41; 485 N.W.2d 866 (1992).
In a related issue, defendant further argues that, in determining his score under the guidelines, the trial court erred in considering a conviction he received in 1967 without the benefit of counsel. Once again, we disagree. Our review of the record in that case has disclosed that, before he pleaded guilty, defendant was told of his right to counsel, was asked whether he wanted appointed counsel, and that, instead of accepting, he indicated that he was not indigent. Defendant therefore has failed to establish a prima facie case that the 1967 conviction was improperly considered. People v Moore, 391 Mich. 426, 440-441; 216 N.W.2d 770 (1974).
Defendant next argues that the trial judge should have disqualified himself because he had prosecuted defendant on behalf of the people in 1967 and 1977 and had still been a prosecutor in 1987, when defendant was again prosecuted. We disagree.
First, we find that this issue is moot because defendant sought to disqualify the judge only in the bench trial of an habitual offender charge that was eventually dismissed. Second, the issue has been waived because defendant did not seek review de novo by the chief judge of the circuit court from the trial judge's refusal to disqualify himself. Law Offices of Lawrence J Stockler, PC v Rose, 174 Mich. App. 14, 23; 436 N.W.2d 70 (1989); MCR 2.003(C)(3)(a). Third, defendant has failed to convince us that there was actual bias on the trial judge's part. See MCR 2.003(B)(2). Lastly, defendant has failed to show that, as a prosecutor, the trial judge personally appeared or participated in defendant's 1987 conviction, the only one within two years of the conviction at issue here. See People v Delongchamps, 103 Mich. App. 151, 155-156; 302 N.W.2d 626 (1981).
For his last argument, defendant contends that the trial court should have granted his motion to suppress evidence because the police did not knock and announce themselves before breaking into defendant's home to execute the search warrant. We disagree.
The testimony produced at the suppression hearing showed that, as soon as the officers pulled into defendant's driveway and got out of their van, they noticed someone at the front window looking at them. Several officers then started yelling "police; search warrant" and ran into defendant's open attached garage and proceeded to break into the house through the door connecting the garage and the house. Another officer ran toward the window to "cover" the person who had spotted them and saw several people inside running toward the back of the house. That officer was also yelling "police; search warrant." There was no contrary testimony.
The knock-and-announce statute requires police executing a warrant to give "notice of [their] authority and purpose" and be refused entry before they are allowed to force their way in. MCL 780.656; MSA 28.1259(6). Here, the statute was not complied with because there was no reasonable time for the occupants to answer the door following the officers' yelled announcement. However, this violation does not require the exclusion of evidence seized inside unless "the Fourth Amendment standard of reasonableness is also offended." People v Polidori, 190 Mich. App. 673, 677; 476 N.W.2d 482 (1991). Thus, noncompliance with the statute will be excused "[i]f the police officers have a basis to conclude that evidence will be destroyed or lives will be endangered by" the delay of complying with the statute, or "if events indicate that compliance . . . would be a useless gesture." Id., at 677. In practice, substantial compliance with the statute has been found or has been excused where the officers have been observed before knocking and where, after knocking, officers have heard running and other suspicious noises inside. See, e.g., People v Jackson, 179 Mich. App. 344, 346-347; 445 N.W.2d 513 (1989), sentence vacated 437 Mich. 866 (1990) (as officers approached, a woman was seen running from the front porch into the house); People v Slater, 151 Mich. App. 432, 434-440; 390 N.W.2d 260 (1986) (after officers knocked, they observed defendant running up the stairs inside the house); People v Brown, 43 Mich. App. 74, 77-90; 204 N.W.2d 41 (1972) (after police knocked, they heard running inside away from the front door); People v Doane, 33 Mich. App. 579, 581-584; 190 N.W.2d 259 (1971), rev'd on other grounds 387 Mich. 608 (1972) (after knocking, officers saw defendant and his wife observing them through a window instead of opening the door). On the other hand, noncompliance will not be excused where police do not allow a reasonable time for the occupants to open the door if no suspicious movements are heard to justify an immediate intrusion. Polidori, supra 674-678.
In light of the above case law and the facts of this case, we are not left with the definite and firm conviction that the trial court made a mistake in denying defendant's motion to suppress.