People v. Humphreys

• Citation: 221 Mich.App. 443,561 N.W.2d 868
• Decision Date: 11 February 1997
• Docket Number: Docket No. 184583
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daryn Lamar HUMPHREYS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 868

561 N.W.2d 868

221 Mich.App. 443

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daryn Lamar HUMPHREYS, Defendant-Appellant.

Docket No. 184583.

Court of Appeals of Michigan.

Submitted Oct. 8, 1996, at Grand Rapids.

Decided Feb. 11, 1997, at 9:00 a.m.

Released for Publication April 29, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Susan K. Mladenoff, Prosecuting Attorney, and Nancy Mullett, Assistant Prosecuting Attorney, for People.

James W. Daly, Adrian, for defendant-appellant on appeal.

Before NEFF, P.J., and HOEKSTRA and G.D. LOSTRACCO ^*, JJ.

PER CURIAM.

Defendant was convicted by a jury of possession of less than twenty-five grams of cocaine. M.C.L. § 333.7403(2)(a)(v); M.S.A. § 14.15(7403)(2)(a)(v). Defendant was sentenced to three years' probation with a six-month suspended jail term. Defendant was also fined $100 and ordered to pay $1,000 in costs, $40 to the crime victim rights fund, $1,333.18 in attorney fees, $150 in forensic fees, and $360 in supervisory fees. Defendant appeals his conviction, sentence, and award of costs and attorney fees as of right, and we reverse and remand for a new trial.

I

We first address defendant's argument that the trial court erred in allowing the prosecution to elicit certain rebuttal testimony. We agree with defendant that he was denied a fair trial by the admission of the testimony and therefore reverse defendant's conviction.

A

In the prosecution's case in chief, Officer Scott Ciupak, the arresting officer, testified that defendant possessed $169 when arrested. In his case in chief, defendant testified, as did one of his witnesses, that he had recently won the money at a race track. Because of this testimony, the prosecution introduced in rebuttal, over defendant's objection, the testimony of Officer Kurt Etter that the money found on defendant was taken to a trained, drug-sniffing dog, which "alerted," an indication that the money was contaminated by drugs.

Defendant objected below to this testimony on the grounds that it could have been brought forth in the prosecution's case in chief, that where the money came from was merely a collateral matter, and that, even if proper, the testimony was irrelevant.

B

A trial court's decision regarding the admission of rebuttal testimony will not be disturbed absent an abuse of discretion. Winiemko v. Valenti, 203 Mich.App. 411, 418, 513 N.W.2d 181 (1994). Rebuttal evidence is limited to refuting, contradicting, or explaining evidence presented by the opposing party. People v. Leo, 188 Mich.App. 417, 422, 470 N.W.2d 423 (1991). The prosecution cannot introduce evidence on rebuttal unless it relates to a substantive rather than a collateral matter. People v. Losey, 413 Mich. 346, 351-353, 320 N.W.2d 49 (1982).

Here, we conclude that the trial court abused its discretion in allowing the prosecution to introduce the complained-of rebuttal testimony because it could have been introduced in the prosecution's case in chief, and because it related to a collateral issue. ¹

The prosecution offered the rebuttal testimony to refute defendant's explanation regarding the origin of the money. We conclude that the origin of the money was collateral to whether defendant possessed the drugs in question.

The fact that the drug dog indicated that the money in defendant's possession was contaminated with drugs would refute defendant's claim that he won the money at the race track only if the prosecution intended to claim, under a drug profile theory, that defendant possessed the money because he was a drug dealer. That is, under a drug profile theory, all drug dealers carry large sums of money, and, because defendant was carrying a large sum of money that the dog indicated was contaminated with drugs, defendant was a drug dealer. Drug profile evidence, however, has been held to be inadmissible as substantive evidence of a defendant's guilt in a drug case. See People v. Hubbard, 209 Mich.App. 234, 530 N.W.2d 130 (1995). Thus, the testimony was, at best, collateral to the disputed issues at trial.

Accordingly, we conclude that the trial court abused its discretion in allowing the prosecution to elicit this rebuttal testimony.

C

Having concluded that the trial court erred in allowing the rebuttal testimony, we must still determine whether the resulting error was harmless. We conclude that it was not, focusing on the highly prejudicial nature of this evidence compared with its low probative value.

Our Supreme Court has recently discussed at length the harmless-error rule as it relates to preserved, nonconstitutional error. People v. Mateo, 453 Mich. 203, 551 N.W.2d 891 (1996). The majority opinion concluded that for purposes of applying the harmless-error rule, preserved, nonconstitutional error is not to be viewed in terms of whether the defendant is guilty. Rather, the error once determined to exist, is to be reviewed in terms of its effect on the factfinder. Id. at 221, 551 N.W.2d 891.

An appellate court on direct appeal, must have a "level of assurance" that the error was not prejudicial and was therefore harmless. Id. at 218, 551 N.W.2d 891. The Mateo opinion does not decide the question what that "level of assurance" must be, noting that there are at least two possibilities. Id. at 218-219, 551 N.W.2d 891. The first possible test is whether it is highly probable that the error did not contribute to the verdict. The second is whether it is more probable than not that the error did not affect the verdict, a preponderance of the evidence standard. Id. at 218-221, 551 N.W.2d 891. Despite the lack of guidance with regard to which test to apply, we reverse in this case because, under either test, we cannot say that the error was harmless.

In this case, the prejudice to defendant's case is obvious; the prosecution was allowed to introduce evidence that defendant's money was contaminated by drugs, leading to the inference that defendant's drug possession caused the contamination, or even more damning, that defendant was involved in drug transactions. The evidence of guilt was by no means overwhelming without the evidence of drug-contaminated money in defendant's possession. The effect on the factfinder can hardly be more clear. We conclude that the probative value of the dog-sniff evidence was substantially outweighed by its prejudicial effect and, therefore, defendant was denied a fair trial by its admission. We conclude that the error in the admission of the evidence was not harmless because it was both highly probable and more likely than not that it did affect the verdict.

II

We next address defendant's remaining claims of error that may occur during retrial.

A

Defendant argues that the trial court erred in failing to read an instruction that defendant could be convicted of simple possession under M.C.L. § 333.7403(2)(b); M.S.A. § 14.15(7403)(2)(b). We disagree.

Defendant relies on this Court's opinion in People v. Gridiron, 185 Mich.App. 395, 460 N.W.2d 908 (1990), in support of his position. However, that opinion was vacated in People v. Gridiron (On Rehearing), 190 Mich.App. 366, 475 N.W.2d 879 (1991).

Further, a plain reading of subsection 2(b) leads us to the conclusion that violations of that subsection are not to be considered lesser-included offenses when a defendant is charged under subsection 2(a) of § 7403. The statute provides:

(2) A person who violates this section as to:

* * * * * *

(b) A controlled substance classified in schedule 1, 2, 3, or 4, except a controlled substance for which a penalty is prescribed in subdivision (a), (c), or (d), or a controlled substance analogue, is guilty of a felony, punishable by imprisonment of not more than 2 years, or a fine of not more than $2,000.00, or both. [M.C.L. § 333.7403; M.S.A. § 14.15(7403).]

Accordingly, because defendant was charged under subsection 2(a), he falls within the exception in subsection 2(b). On that basis, the violation of subsection 2(b) cannot be considered a lesser-included offense of a violation of subsection 2(a), and the trial court properly refused to give the requested instruction.

B

Next, defendant argues that the trial court erred in denying his motion for a directed verdict at the close of the prosecution's case. Specifically, defendant argues that the prosecution failed to prove defendant possessed the cocaine. We disagree.

Officer Ciupak testified below that when he approached defendant, who was sitting down playing dominoes in the backyard of an acquaintance's home, he observed defendant place his hands inside his shirt. When Officer Ciupak asked defendant to get up, he noticed a bag containing drugs underneath defendant's chair. Further, a safety pin was found on the inside of defendant's shirt, and the plastic bag containing the cocaine contained two pinholes, with a tear in between them. When viewed in a light most favorable to the prosecution, we find this circumstantial evidence to be sufficient proof of defendant's constructive possession to allow the case to be submitted to the jury. See People v. Konrad, 449 Mich. 263, 536 N.W.2d 517 (1995).

C

Finally, defendant argues that the trial court erred in ordering defendant to pay both the costs associated with prosecuting him, as well as the costs associated with defending him. We disagree.

M.C.L. § 771.3(4); M.S.A. § 28.1133(4) provides:

The court may impose other lawful conditions of probation as the circumstances of the case require or warrant, or as in its judgment are proper. If the court requires the probationer to pay costs, the costs shall be limited to expenses incurred in prosecuting the defendant or providing legal assistance to the defendant and supervision of the probationer.

Defendant argues that because the Legislature used the word "or" between the phrases regarding "expenses incurred in prosecution" and "providing legal assistance," the trial court was unauthorized to tax defendant with regard to...