People v. Abcumby-Blair

• Decision Date: 22 December 2020
• Docket Number: No. 347369,347369
• Citation: 966 N.W.2d 437,335 Mich.App. 210
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeremiah Dejuan ABCUMBY-BLAIR, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

335 Mich.App. 210

966 N.W.2d 437

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Jeremiah Dejuan ABCUMBY-BLAIR, Defendant-Appellant.

No. 347369

Court of Appeals of Michigan.

Submitted December 8, 2020, at Detroit.

Decided December 22, 2020, 9:00 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Chief, Appellate Division, and Matthew A. Fillmore, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Michael R. Waldo) for defendant.

Before: Swartzle, P.J., and Beckering and Gleicher, JJ.

Per Curiam.

This case arises from police surveillance of a suspected drug house. Defendant, Jeremiah Dejuan Abcumby-Blair, appeals as of right his jury-trial convictions of possession with intent to deliver less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv ) ; possession with intent to deliver less than 50 grams of heroin, MCL 333.7401(2)(a)(iv ) ; possession with intent to deliver less than 5 kilograms of marijuana, MCL 333.7401(2)(d)(iii ) ; possession of less than 25 grams of fentanyl, MCL 333.7403(2)(a)(v ) ; carrying a concealed weapon, MCL 750.227(2) ; being a felon in possession of a firearm (felon-in-possession), MCL 750.224f ; five counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b ; and operating a motor vehicle with a suspended license, second offense, MCL 257.904(3)(b). The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 9 to 30 years’ imprisonment for his convictions of possession with intent to deliver cocaine, possession with intent to deliver heroin, carrying a concealed weapon, and felon-in-possession; 9 to 15 years’ imprisonment for his convictions of possession with intent to deliver marijuana and possession of fentanyl; two years’ imprisonment for each felony-firearm conviction; and 278 days in jail, time served, for operating with a suspended license. Finding no errors requiring reversal, we affirm.

I. BACKGROUND

On April 13, 2018, Oakland County Sheriff's Deputy Ruben Garcia was participating in a surveillance of a suspected drug house on Seward Street in Pontiac.Garcia observed defendant pull up in a car, approach the porch and pause briefly as if using a key for entry, enter the house for a few minutes, and then leave.

Garcia observed defendant drive to a nearby party-store parking lot known for drug trafficking. Defendant maneuvered his car alongside another car and engaged in a hand-to-hand transaction with the occupant, which Garcia believed was a drug sale. As Garcia watched from his surveillance location, Oakland County Sheriff's Deputy Charles Janczarek was summoned to confront defendant in the parking lot and advise him of their investigation, at which time defendant admitted that he was in possession of marijuana.¹ Janczarek searched defendant's pockets and found, among other things, a baggie of marijuana; a baggie of what appeared to be crack cocaine, which Garcia field-tested and found to be positive; two cell phones; and a house key that turned out to be for the suspected drug house on Seward Street. Deputies arrested defendant. Garcia opened defendant's driver's side car door and found in the side pocket a firearm with a bullet in the chamber. Deputies obtained a search warrant for the house and seized marijuana, cocaine, heroin, fentanyl, ammunition, cash, equipment commonly used in drug manufacturing, and mail in a bedroom that was addressed to defendant at the Oakland County Jail. The jury convicted defendant of all charges. Defendant now appeals.

II. BRADY VIOLATION/NEWLY DISCOVERED EVIDENCE

Defendant argues that the prosecution violated his right to due process by failing to disclose that Janczarek had, according to defendant, "a documented history of making false statements pertaining to his investigations, and specifically pertaining to his affidavits for search warrants involving drug investigations." Defendant contends that the prosecution had a duty under Brady v. Maryland , 373 U.S. 83, 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), to disclose this information and that failure to do so undermines confidence in the jury's verdict. While impeachment evidence should have been disclosed, for the reasons explained in this opinion we conclude that reversal of defendant's convictions is not required.

Defendant did not preserve this issue for appellate review because he did not move in the trial court for a new trial or for relief from judgment. People v. Cox , 268 Mich. App. 440, 448, 709 N.W.2d 152 (2005). Therefore, our review is for plain, i.e., clear or obvious, error affecting defendant's substantial rights. People v. Dickinson , 321 Mich. App. 1, 15, 909 N.W.2d 24 (2017). A defendant's substantial rights are affected if the plain error "affected the outcome of the lower court proceedings." People v. Carines , 460 Mich. 750, 763, 597 N.W.2d 130 (1999). "Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affected the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." Id. at 763-764, 597 N.W.2d 130 (quotation marks, citation, and brackets omitted).

To establish a Brady violation, a defendant must show that "(1) the prosecution has suppressed evidence; (2) that is favorable to the accused; and (3) that is material." People v. Chenault , 495 Mich. 142, 150, 845 N.W.2d 731 (2014). The Michigan Supreme Court has explained each of these requirements as follows:

The government is held responsible for evidence within its control, even evidence unknown to the prosecution, Kyles v. Whitley , 514 U.S. 419, 437, 115 S. Ct. 1555, 131 L. Ed. 2d 490 (1995), without regard to the prosecution's good or bad faith, United States v. Agurs , 427 U.S. 97, 110, 96 S. Ct. 2392, 49 L. Ed. 2d 342 (1976) ("If the suppression of evidence results in constitutional error, it is because of the character of the evidence, not the character of the prosecutor."). Evidence is favorable to the defense when it is either exculpatory or impeaching. Giglio v. United States, 405 U.S. 150, 154, 92 S. Ct. 763, 31 L. Ed. 2d 104 (1972) ("When the ‘reliability of a given witness may well be determinative of guilt or innocence,’ nondisclosure of evidence affecting credibility falls within this general rule [of Brady]."), quoting Napue v. Illinois , 360 U.S. 264, 269, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959). To establish materiality, a defendant must show that "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome." United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 87 L. Ed. 2d 481 (1985). This standard "does not require demonstration by a preponderance that disclosure of the suppressed evidence would have resulted ultimately in the defendant's acquittal ...." Kyles , 514 U.S. at 434, 115 S. Ct. 1555. The question is whether, in the absence of the suppressed evidence, the defendant "received a fair trial, understood as a trial resulting in a verdict worthy of confidence." Id. In assessing the materiality of the evidence, courts are to consider the suppressed evidence collectively, rather than piecemeal. Id. at 436, 115 S. Ct. 1555. [ Chenault , 495 Mich. at 150-151, 845 N.W.2d 731.]

Before turning directly to our analysis of defendant's Brady claim, some background information is required. Defendant's claim arises primarily from a prosecutor's statement made during a hearing in a case we remanded to the trial court, People v. Williamson , unpublished order of the Court of Appeals, entered September 27, 2017 (Docket No. 331075). Our remand was based on what had transpired in another case, People v. Dukes , Oakland Circuit Court Case No. 15-255948-FH. It came to light in Dukes that Janczarek had made false statements relative to a search warrant. As this Court explained:

Janczarek testified that he had placed a GPS tracking device on Duke's [sic] vehicle pursuant to a warrant and that the device provided inculpatory information. Defense counsel advised the court that he had never been informed about the use of a GPS device and had never been provided a copy of the warrant permitting the tracking. After argument, the Dukes trial court declared a mistrial and scheduled an evidentiary hearing to determine, inter alia , whether the warrant Janczarek testified existed had in fact ever been issued and to thereafter consider whether the mistrial would be with prejudice. [ People v. Williamson , unpublished per curiam opinion of the Court of Appeals, issued September 5, 2019 (Docket No. 331075), p. 3, 2019 WL 4230674.]

While Dukes was unfolding, Williamson's appeal of a 2015 conviction was pending in this Court. When evidence of Janczarek's conduct in Dukes came out, Williamson filed a motion in this Court seeking remand to the trial court. Williamson argued that had the trial court considered the Dukes evidence, there was a reasonable probability that the court would have upheld the challenge he lodged to the search warrant Janczarek obtained in his case. Williamson had challenged Section 7(E) of Janczarek's sworn search-warrant affidavit, which stated, " ‘During a period of time covering over the past thirty days the informant has provided information that has led to the issuance of one search warrant by a judge of the 50th District Court.’ " Williamson , unpub. op. at 2. This Court remanded the matter for the trial court to consider the challenged statement in light of the Dukes evidence. On remand, the prosecutor conceded in the trial court that Janczarek's statement in Section 7(E) "was an ‘inaccurate statement’ and that actually the confidential informant had never previously provided information that led...