People v. Murray

• Decision Date: 12 February 1999
• Docket Number: Docket No. 194761
• Citation: 234 Mich.App. 46,593 N.W.2d 690
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Curtis MURRAY, Jr., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 690

593 N.W.2d 690

234 Mich.App. 46

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Curtis MURRAY, Jr., Defendant-Appellant.

Docket No. 194761.

Court of Appeals of Michigan.

Submitted Nov. 9, 1998, at Lansing.

Decided Feb. 12, 1999, at 9:05 a.m.

Released for Publication May 5, 1999.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, James J. Gregart, Prosecuting Attorney, and Judith B. Ketchum, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Susan M. Meinberg ), for the defendant on appeal.

Before WHITE, P.J., and MARKMAN and YOUNG, Jr., JJ.

MARKMAN, J.

Defendant appeals as of right his jury conviction of possession with intent to deliver less than fifty grams of cocaine, M.C.L. § 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv). The trial court sentenced defendant to six months' imprisonment and lifetime probation. We affirm.

On January 19, 1995, defendant lived in the upstairs apartment located at 802 Staples Street in Kalamazoo with his girlfriend, Rachelle Dodson, and Nicole Potts. At approximately 9:00 p.m., members of the Kalamazoo Valley Enforcement Team, a countywide narcotics unit, executed a search warrant on this apartment. After a battering ram was used to break through the apartment door, Officer Timothy Kozal was the first police officer to enter the apartment. He testified that he saw a black male wearing a multicolored shirt with white on the shoulders run through the apartment into a back bedroom. When Officer Kozal reached the bedroom, he opened the door and saw defendant, in the multicolored shirt, diving from the window toward a mattress on which Rachelle Dodson was sitting. Officer Kozal observed that the window was open and the screen was torn, although it was January and cold outside. Sergeant Lawrence Belen and Officer Gary Kirtley testified that they saw crack cocaine on the window sill and two pagers on the floor in the bedroom, which defendant later stated was the bedroom that he occupied. Officer Richard Ives, who was stationed outside the apartment during the raid, heard a screen ripping, then looked up and saw a formerly intact window screen torn out and saw a piece of paper floating to the ground. When he moved to where the paper landed, he also saw several small plastic bags containing an off-white chunk substance on the ground and a small bag on the roof of a car under the window.

As the police officers took the occupants of the apartment into other rooms to question them, defendant was yelling, "don't say nothing." Officer Kozal did not find any drugs in a search of defendant. His search revealed only a large roll of money in defendant's pocket, consisting of $80 in one-dollar bills and $820 primarily in twenty-dollar bills. Defendant told Officer Kozal that the money was from gambling and his employment at a convenience store, although defendant no longer worked there at the time of the raid. There were several women and two children in addition to the three residents, in the apartment at the time of the raid, but the only person found with drugs was Nicole Potts, who had a small rock of crack cocaine in her pocket. She appeared to be intoxicated, and said that she bought her drugs on the street.

In the dining room, several officers saw a white smudge mark on the glass table that looked like it had cut marks through it. The police officers also found several small plastic bags full of an "off-white substance" that the officers believed to be crack cocaine on the floor beside the table. The bags appeared to have been pushed off the table. There were also some plastic bags with corners ripped off and a box of plastic sandwich bags on the ground next to the dining-room table. Numerous plastic bags, with their corners torn out and containing a white residue that Officer Todd Weston believed was cocaine, were found in the trash. Officer Kirtley testified that between thirty and fifty rocks of crack cocaine were recovered from the apartment.

Defendant was subsequently charged with two counts: (1) possession with intent to deliver less than fifty grams of cocaine, M.C.L. § 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), and (2) maintaining a drug house, M.C.L. § 333.7405-333.7406; MSA 14.15(7405)-14.15(7406). The prosecutor also sought an enhanced drug sentence pursuant to M.C.L. § 333.7413(2); MSA 14.15(7413)(2). At trial, Officer Kozal testified, without being qualified as an expert and without objection, that buyers of crack cocaine use twenty-dollar bills to buy a rock of crack and that ten- and twenty-dollar rocks of crack cocaine are common. He described the process by which crack cocaine is prepared and the heat sealing of the corners of plastic bags used to package the crack cocaine. He stated that the smudge marks on the table were consistent with marks left from cutting crack cocaine in preparation for packaging it, and described the method by which crack cocaine is cut for distribution. Officer Weston was then tendered as an expert in "street level narcotics." In answer to defendant's objection to such an expert, the trial court told the prosecutor to proceed and that it would "deal with it on a particular question basis." Officer Weston then testified about the significance of plastic "coin bags" and how crack cocaine is packaged in them and sold in ten- and twenty-dollar amounts. He stated that the white smear on the table was crack cocaine and that the plastic bags with corners torn out found in the trash contained cocaine residue and were used to package cocaine. Officer Weston testified without further objection.

Officer Kirtley was also qualified as an expert in "street level narcotics trafficking" and testified regarding the method by which drugs are bought and sold in Kalamazoo. During this testimony, he stated that drug dealing was prevalent in the area of 802 Staples and that crack cocaine dealers were primarily males who would often develop a relationship with a woman who has an apartment or a house, then use the apartment or the house to sell drugs and threaten the woman to keep her silent. He also stated that drug dealers often have pagers, many twenty-dollar bills from selling twenty-dollar rocks of crack cocaine, use pieces of paper to tabulate their drug transactions and cut their rocks of crack cocaine into smaller amounts to sell, leaving smears on the cutting surface. After Officer Kirtley's testimony, defendant moved for a mistrial, stating that drug profile evidence given by Officer Kirtley was being used as substantive evidence of guilt. Although the trial court denied defendant's motion for a mistrial, it provided a cautionary instruction to the jury not to use the profile testimony as evidence of guilt or innocence. At the close of the prosecutor's case, the trial court found that there was insufficient evidence that defendant was maintaining a drug house and dismissed this count. The jury found defendant guilty of possession with intent to deliver less than fifty grams of cocaine. Subsequently, defendant moved for a new trial on the issues of improperly admitted profile evidence and ineffective assistance of counsel. The trial court denied defendant's motion.

Defendant's first claim on appeal is that the trial court improperly allowed drug profile testimony from police officers. The admission of evidence is reviewed for abuse of discretion. People v. Ullah, 216 Mich.App. 669, 673, 550 N.W.2d 568 (1996). Similarly, the determination regarding the qualification of an expert and the admissibility of expert testimony is within the trial court's discretion. People v. Beckley, 434 Mich. 691, 711, 456 N.W.2d 391 (1990). An abuse of discretion exists when an unprejudiced person, considering the facts on which the trial court acted, would conclude that there was no justification for the ruling made. Id.

Drug profile evidence has been described as an "informal compilation of characteristics often displayed by those trafficking in drugs." People v. Hubbard, 209 Mich.App. 234, 239, 530 N.W.2d 130 (1995), quoting United States v. McDonald, 933 F.2d 1519, 1521 (C.A.10, 1991), and United States v. Campbell, 843 F.2d 1089, 1091, n. 3 (C.A.8, 1988). "A profile is simply an investigative technique. It is nothing more than a listing of characteristics that in the opinion of law enforcement officers are typical of a person engaged in a specific illegal activity." Hubbard, supra at 239, 530 N.W.2d 130. 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. See id. at 238, 530 N.W.2d 130; United States v. Lui, 941 F.2d 844, 848 (C.A.9, 1991). Such evidence "is inherently prejudicial to the defendant because the profile may suggest that innocuous events indicate criminal activity." United States v. Lim, 984 F.2d 331, 334-335 (C.A.9, 1993). In other words, these characteristics may not necessarily be connected to or inherently part of the drug trade, so that these characteristics could apply equally to innocent individuals as well as to drug dealers. It is for this reason that the majority of courts have held that drug profile evidence is inadmissible as substantive evidence of guilt, because "proof" of crime based wholly or mainly on these innocuous characteristics could potentially convict innocent people. Hubbard, supra at 239-240, 530 N.W.2d 130.

On the other hand, courts generally have allowed expert testimony to explain the significance of items seized and the circumstances obtaining during the investigation of criminal activity. Hubbard, supra at 239, 530 N.W.2d 130; MRE 702. ¹ Even more specifically, this Court has held that a prosecutor may use expert testimony from police officers to aid the jury in understanding evidence in controlled substance cases. People...