People v. Daniel

• Decision Date: 20 September 1994
• Docket Number: No. 140603,140603
• Citation: 523 N.W.2d 830,207 Mich.App. 47
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Hank Henry DANIEL, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 830

523 N.W.2d 830

207 Mich.App. 47

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Hank Henry DANIEL, Defendant-Appellant.

No. 140603.

Court of Appeals of Michigan.

Submitted May 18, 1994, at Detroit.

Decided September 20, 1994, at 9:05 a.m.

Released for Publication Dec. 2, 1994.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Carl J. Marlinga, Pros. Atty., Robert J. Berlin, Chief Appellate Lawyer, and Mark G. Cardellio, Asst. Pros. Atty., for the People.

Lawrence S. Katz, Sterling Heights, for defendant.

Before REILLY, P.J., and WAHLS and CHRZANOWSKI, ^* JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of possession with intent to deliver less than fifty grams of cocaine and conspiracy to commit the same offense, M.C.L. § 333.7401(2)(a)(iv); M.S.A. § 14.15(7401)(2)(a)(iv), M.C.L. § 750.157a; M.S.A. § 28.354(1), maintaining a drug house and conspiracy to commit the same offense, M.C.L. § 333.7405(d); M.S.A. § 14.15(7405)(d), M.C.L. § 750.157a; M.S.A. § 28.354(1), and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). Defendant was sentenced to concurrent prison terms of sixteen to twenty-four months for the drug-house convictions to be served consecutively to concurrent prison terms of five to twenty years for the cocaine convictions. He was also sentenced to a mandatory two-year prison term for felony-firearm to run consecutively to the cocaine sentences. Defendant appeals as of right. We affirm.

Defendant first contends that the jury's verdicts were against the great weight of the evidence and that the trial court erred in denying his motion for a new trial. We disagree.

After reviewing the record, we conclude that the trial court did not abuse its discretion in denying defendant's motion, because the convictions are supported by the great weight of the evidence and did not result in manifest injustice. People v. DeLisle 02 Mich.App. 658, 661, 509 N.W.2d 885 (1993). The case against defendant and his codefendants arose from a lengthy narcotics investigation conducted by the County of Macomb Enforcement Team. During the surveillance, defendant was observed conducting four suspected drug transactions. After obtaining a search warrant, the police officers approached the apartment and saw defendant's brother, Paul Daniel, standing on the porch with a short-barreled shotgun. Upon seeing them, Paul fled into the apartment, and the interior lights were immediately extinguished. Within seconds, several officers entered the apartment through the balcony and front door. As they entered, officers standing outside the building saw the window screens of two windows being pushed out, and vials containing cocaine were thrown from the windows. The barrel of a gun was then seen pointing out the north window. Defendant was found lying underneath the north bedroom window, and a rifle was lying on the floor approximately five feet away from him. A subsequent search of defendant revealed that he had fifteen rocks of crack cocaine in his possession. The police also discovered a container of baking soda, a digital scale, and weapons, including assault rifles and three pipebombs, inside the apartment. Contrary to defendant's claim that he was merely present in the apartment and had no involvement in the activity conducted therein, we believe that the evidence clearly supports the verdicts against defendant.

We also reject defendant's claim that the trial court erred in denying his motion for a directed verdict. Viewed in a light most favorable to the prosecution, the evidence was sufficient for a rational trier of fact to conclude that defendant possessed and conspired to possess cocaine with intent to deliver, maintained and conspired to maintain a drug house, and was in possession of the rifle at the time of the raid. People v. Wolfe, 440 Mich. 508, 513-516, 489 N.W.2d 748 (1992); Wayne Co. Prosecutor v. Recorder's Court Judge, 406 Mich. 374, 397-398, 280 N.W.2d 793 (1979); People v. Williams (After Remand), 198 Mich.App. 537, 541, 499 N.W.2d 404 (1993); People v. Cotton, 191 Mich.App. 377, 392-393, 478 N.W.2d 681 (1991).

Next, defendant argues that he was denied his constitutional right to a speedy trial, U.S. Const., Am. VI; Const.1963, art. 1, § 20. We disagree.

A delay of six months is necessary to trigger further investigation when a defendant raises a speedy trial issue. In determining whether a defendant was denied a speedy trial, this Court considers the length of the delay, the reason for the delay, defendant's assertion of the right to a speedy trial, and any prejudice to defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101 (1972); People v. O'Quinn, 185 Mich.App. 40, 47, 460 N.W.2d 264 (1990). Here, defendant was arrested and incarcerated on January 16, 1990. Defendant demanded a speedy trial on January 8, 1991, and his trial subsequently commenced on February 26, 1991. Because the delay was less than eighteen months, the burden is on defendant to prove prejudice resulting from the delay. Id. at 48, 460 N.W.2d 264. However, defendant has failed to explain how he was prejudiced by the delay. Therefore, we conclude that defendant was not denied a speedy trial.

Next, defendant claims that the trial court erred in denying his motion to suppress as evidence the cocaine in his possession on the ground that the search was illegal because the search warrant did not include his name. We disagree. Once inside the apartment, the police had probable cause to arrest defendant on the basis of their observations and the drugs, weapons, and paraphernalia found inside. Therefore, the search of defendant was reasonable as being incident to a lawful arrest and thus not subject to the warrant requirement. People v. Arterberry, 431 Mich. 381, 383-384, 429 N.W.2d 574 (1988). Accordingly, the trial court did not clearly err in denying defendant's motion to suppress the evidence. People v. Shields, 200 Mich.App. 554, 556, 504 N.W.2d 711 (1993).

Defendant also argues that the district court abused its discretion by binding over him on the felony-firearm charge. We disagree. The evidence adduced at the preliminary examination established that before the police raided the apartment, a gun was pointing out from a bedroom window and that vials of cocaine were being tossed outside. The officers testified that, once inside, they found defendant lying underneath the bedroom window and a rifle lying on the floor approximately five feet away from him. Defendant's brother, Peter L. Daniel, was also lying on the floor two feet from the rifle. Because the rifle was seen pointing out the window and defendant was discovered underneath the window, a reasonable inference could be drawn that defendant was the person holding the rifle before the raid. The fact that the gun was lying closer to Peter Daniel does not negate the inference that defendant was in possession of the rifle. Clearly, the rifle was accessible and available to defendant at the time the crime was committed. Williams, supra. Accordingly, the trial court properly denied defendant's motion to quash the information. People v. Flowers, 191 Mich.App. 169, 174, 477 N.W.2d 473 (1991).

Defendant's claim that he should not have been tried with his codefendants was not preserved. Failure to move for a separate trial precludes appellate review. People v. Hoffman, 205 Mich.App. 1, 19, 518 N.W.2d 817 (1994). Moreover, because the defenses were not antagonistic, defendant was not entitled to a separate trial. People v. Hurst, 396 Mich. 1, 4, 238 N.W.2d 6 (1976).

Next, defendant claims that the jury instruction regarding possession was erroneous. This Court reviews jury instructions in their entirety to determine if there is error requiring reversal. People v. Caulley, 197 Mich.App. 177, 184, 494 N.W.2d 853 (1992). The instructions must include all elements of the charged offense and must not exclude material issues, defenses, and theories, if there is evidence to support them. Id. Even if the instructions are imperfect, there is no error if they fairly presented the issues to be tried and sufficiently protected the defendant's rights. Id.; People v. Davis, 199 Mich.App. 502, 515, 503 N.W.2d 457 (1993).

After reviewing the instructions, we find no error. Although possession is not defined under the controlled substance act, the instruction properly explained the term as it has been defined by case law. People v. Wolfe, 440 Mich. 508, 517, 489 N.W.2d 748 (1992); People v. Davenport, 39 Mich.App. 252, 257-258, 197 N.W.2d 521 (1972). Contrary to defendant's assertion, the trial court instructed the jury to find an independent factor linking defendant to the narcotics and that mere association was not sufficient to find him guilty. Id.

We also find no merit in defendant's contention that the jury could have marked inadvertently the wrong offense on the verdict form because the list of charges was not in the same order as his codefendants' verdict forms. The foreman read the verdict concerning each count into the record, and, subsequently, the jury was polled. Moreover, defendant's issue that the jury was polled improperly is waived because he failed to object below. People v. Todd, 186 Mich.App. 625, 633, 465 N.W.2d 380 (1990).

Defendant next contends that his sentences are disproportionate to his background and the circumstances of the offense. We disagree.

Defendant's sentences are within the sentencing guidelines' recommended minimum sentence range of eighteen to sixty months. Therefore, they are presumptively proportionate. People v. Milbourn, 435 Mich. 630, 636, 461 N.W.2d 1 (1990); People v. Dukes, 189 Mich.App. 262, 471 N.W.2d 651 (1991). Moreover, the factors cited by defendant, i.e. his employment, lack of criminal history, and minimum culpability, are not unusual circumstances that would overcome that presumption. Milbourn, supra. Accordingly, the court...