People v. Howe
| Decision Date | 20 May 2014 |
| Docket Number | No. 313143,313143 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. BRYAN ZALA-CHAPMAN HOWE, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Marquette Circuit Court
Before: BECKERING, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ.
Defendant appeals as of right from his jury trial convictions of operating or maintaining a laboratory involving methamphetamine, MCL 333.7401c(2)(f), and conspiracy to operate or maintain a laboratory involving methamphetamine, MCL 750.157a; MCL 333.7401c(2)(f). He was sentenced to 7 to 20 years imprisonment for both convictions, sentences to run concurrently with credit for 129 days served. We affirm.
On December 1, 2011, defendant arrived at Marquette General Hospital with severe and suspicious burns. After a brief investigation, the police located what appeared to be a methamphetamine laboratory in Aaron Armatti's house. Further investigation led the police to believe that there had been a conspiracy to manufacture methamphetamine and that defendant had been actively involved. At trial, there was testimony from defendant's ex-girlfriend, Bridgett Black, that her role had been to obtain pseudoephedrine.1 She was apparently told by defendant exactly what to obtain, but the first time she purchased the drug, she obtained the wrong kind or the wrong dose and defendant yelled at her. Black's testimony was corroborated by the testimony of Vickie Lara, an upstairs tenant, who also purchased pseudoephedrine. Because she obtained the wrong type or amount of medication, Black went with Richard Hill, another conspirator, to purchase more. Before they left the house, defendant allegedly told Hillto purchase other ingredients necessary to manufacture methamphetamine, including lithium batteries, fuel, and an ice pack. While they were away, Armatti, the owner of the house, claimed he saw defendant cleaning pseudoephedrine pills in the sink. When they returned, Armatti claimed he saw Hill and defendant in the kitchen and that defendant was putting pills into a Gatorade bottle.
Armatti claimed that awhile later he heard Hill shouting Armatti said he saw flames in the living room and that there were "little round fires, like, probably 10, 15 in the kitchen." He said he put out the fires in the living room with a blanket, and that the kitchen was "just blazing hot" and the fire was "blue from chemicals." Defendant ran outside on fire and rolled in the snow twice before searching for his car and driving himself and Black to the hospital.
Defendant's theory of the case was that he was in the wrong place at the wrong time. He asserted that he fell asleep on the couch after using morphine, woke up once and took more morphine, woke up a second time and walked into the kitchen just in time to see Armatti flipping a bottle. Then there was an explosion that set him on fire. Defendant testified that he believed the other persons present while methamphetamine was being cooked decided to blame him because they believed he would die from his injuries.
Defendant raises several claims of evidentiary error and prosecutorial misconduct related to the prosecution's solicitation of testimony concerning the manufacture of methamphetamine. We review a trial court's evidentiary decisions for an abuse of discretion. People v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999). A court abuses its discretion when it chooses a result that is outside the range of reasonable and principled outcomes. People v Orr, 275 Mich App 587, 588-589; 739 NW2d 385 (2007).
"[T]he test of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial." People v Dobek, 274 Mich App 58, 63; 732 NW2d 546 (2007). "A defendant's opportunity for a fair trial can be jeopardized when the prosecutor interjects issues broader than the guilt or innocence of the accused." Id. at 63-64. Prosecutorial misconduct issues are decided on a case-by-case basis, and the reviewing court must examine the record and evaluate a prosecutor's remarks in context. Id. "[P]rosecutors should not resort to civic duty arguments that appeal to the fears and prejudices of jury members." People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995). Such arguments are condemned because they inject issues into the trial that are broader than a defendant's guilt or innocence of the charges, and because they encourage the jurors to suspend their own powers of judgment. People v Abraham, 256 Mich App 265, 273; 662 NW2d 836 (2003).
Defendant first argues that the prosecutor solicited inadmissible, inflammatory, and irrelevant information relating to the dangerousness of methamphetamine laboratories. This argument is unpreserved because defendant did not object to its admission at trial. We review unpreserved errors for plain error affecting defendant's substantial rights. People v Brown, 279Mich App 116, 134; 755 NW2d 664 (2008). However, defendant has given only cursory treatment to this argument in his brief. Indeed, defendant fails to even direct this Court's attention to the testimony that he believes was improper. "An appellant may not merely announce his position and leave it to this Court to discover and rationalize the basis for his claims, nor may he give only cursory treatment [of an issue] with little or no citation of supporting authority." People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480 (1998). "Such cursory treatment constitutes abandonment of the issue." People v Matuszak, 263 Mich App 42, 59; 687 NW2d 342 (2004). We therefore decline to address this issue as abandoned.2
Defendant also argues that testimony regarding the severity of the methamphetamine problem was an instance of prosecutorial misconduct because it constituted an impermissible civic duty argument. Moreover, he also asserts that the testimony was irrelevant. We disagree. We review this issue for plain error affecting defendant's substantial rights. Brown, 279 Mich App at 134.
In this case, the prosecution's expert witness, Sergeant Detective Ron Koski, testified that he had dealt with over 65 methamphetamine laboratories in the Upper Peninsula, for at least 46 of which he was the person in charge. He also testified that even though there was no lye found in this case, that did not mean it was impossible to make methamphetamine because people can bring lye with them in a baggie or Tupperware container. Further, he explained that the entire methamphetamine cook can be placed in a backpack. Finally, he testified that whether someone would "shake" or "burp" the bottle containing methamphetamine ingredients depends on the person and the reaction he or she is getting with the bottle. He then noted that some people put the bottle in their trunk in order to get a reaction and that if you shake it too much you can have a violent reaction. During closing argument, the prosecution did not reiterate this testimony or base any arguments off of it. Further, it is clear that this testimony was solicited in order to (1) determine Koski's qualifications as an expert, (2) in order to explain why the absence of lye at the house was not fatal to the case, and (3) to explain why a person might shake a bottle in the methamphetamine manufacturing process. The testimony, without any argument urging the juryto convict defendant based on their fears and prejudices, does not constitute an impermissible civic duty argument. Abraham, 256 Mich App at 273.
Moreover, the testimony was relevant and therefore admissible, subject to the MRE 403 balancing test. MRE 402. Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." MRE 401. In this case, the solicited testimony was relevant as to the witness's qualifications to give an expert opinion relating to methamphetamine. It was also relevant as to whether a methamphetamine cook was even in progress considering that lye is an essential ingredient and no lye was found during the police investigation. Finally, it was relevant because the prosecution theory was that the bottle containing the methamphetamine ingredients was being shaken when there was a reaction and the bottle breached and burned defendant.
Defendant also argues that the prosecutor solicited impermissible hearsay testimony about the methamphetamine laboratory methodology. Furthermore, he claims that the testimony contained an inadmissible opinion, failed to comply with MRE 404(b) (other acts evidence), and failed to comply with the requirements of MRE 403. Although defendant cites the allegedly deficient testimony, he provides only cursory treatment of this issue. Accordingly, this issue has been abandoned on appeal. Kelly, 231 Mich App at 640-641.
Further, we find no plain error affecting substantial rights in the admission of Koski's testimony. Defendant alleges that the following statement by Sergeant Koski contained inadmissible hearsay:
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