People v. Jackson

• Decision Date: 22 September 1989
• Docket Number: Docket No. 107141
• Citation: 445 N.W.2d 513,179 Mich.App. 344
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Chester David JACKSON, Defendant-Appellant. 179 Mich.App. 344, 445 N.W.2d 513
• Court: Court of Appeal of Michigan — District of US

Page 513

445 N.W.2d 513

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Chester David JACKSON, Defendant-Appellant.

Docket No. 107141.

179 Mich.App. 344, 445 N.W.2d 513

Court of Appeals of Michigan.

Submitted May 8, 1989.

Decided Aug. 9, 1989.

Released for Publication Sept. 22, 1989.

[179 MICHAPP 346] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training and Appeals, and Joseph A. Puleo, Asst. Pros. Atty., for the People.

Chester Jackson, Coldwater, in pro per., and Clarence H. Ledwon, Southfield, for defendant-appellant on appeal.

Before CYNAR, P.J., and BRENNAN and MARILYN J. KELLY, JJ.

PER CURIAM.

On December 1, 1987, following a bench trial, defendant was convicted of one count of possession with the intent to deliver more than 50 grams but less

than 225 grams of cocaine,

M.C.L. Sec. 333.7401(2)(a)(iii); M.S.A. Sec. 14.15(7401)(2)(a)(iii). Defendant was sentenced to ten to twenty years imprisonment. Defendant appeals as of right. We affirm.

Defendant first argues that the search warrant for the dwelling in which defendant was arrested was improperly executed in violation of Michigan's "knock-and-announce" statute, M.C.L. Sec. 780.656; M.S.A. Sec. 28.1259(6). Defendant maintains that the police [179 MICHAPP 347] officers failed to give the occupants an opportunity to respond to their announcement of authority and purpose before forcibly entering the dwelling, as required under the statute. However, refusal of admittance under the statute is not limited to affirmative denials. People v. Slater, 151 Mich.App. 432, 437, 390 N.W.2d 260 (1986). The existence of exigent circumstances, as were present in this case, may excuse noncompliance with the statute. Slater, 151 Mich.App. at 440, 390 N.W.2d 260. In this case, as the officers approached, a woman was observed running from the front porch into the house. As in Slater, supra, her actions provided the officers with a reasonable belief that they would be denied admittance and any evidence contained inside the dwelling would be in jeopardy. Under the circumstances, the officers' noncompliance with the statute was excused.

Defendant also argues unpersuasively that he was denied effective assistance of counsel in violation of both the United States Constitution, Am. VI, and the Michigan Constitution 1963, art. 1, Sec. 20, when his trial attorney failed to challenge the search warrant or move for severance when a codefendant's confession implicated defendant.

In People v. Garcia, 398 Mich. 250, 264-266, 247 N.W.2d 547 (1976), reh. den. 399 Mich. 1041 (1977), our Supreme Court established a bifurcated test for ineffective assistance of counsel claims. First, defense counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law. Second, even though the first test is satisfied, counsel must not make a serious mistake but for which the defendant would have had a reasonably likely chance of acquittal.

Effective assistance of counsel is presumed, and defendant has the burden of proving otherwise. People v. Hunter, 141 Mich.App. 225, 229, 367 [179 MICHAPP 348] N.W.2d 70 (1985), lv. den. 426 Mich. 871 (1986). The presumption can be overcome by showing that defendant was prejudiced by counsel's failure to perform an essential duty, People v. Reinhardt, 167 Mich.App. 584, 591, 423 N.W.2d 275 (1988), lv. den. 430 Mich. 874 (1988), or by showing that counsel failed to meet even a minimal level of competence, People v. Jenkins, 99 Mich.App. 518, 519, 297 N.W.2d 706 (1980).

The federal constitutional standard was formulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), reh. den. 467 U.S. 1267, 104 S.Ct. 3562, 82 L.Ed.2d 864 (1984). As under the state standard, the defendant has the burden of overcoming the presumption that the challenged action was sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. First, defendant must show that counsel's performance was deficient as measured against what is objectively reasonable under the circumstances according to prevailing professional norms. Strickland, 466 U.S. at 687-688, 104 S.Ct. at 2064-65. Second, the deficiency must be prejudicial to the defendant such that, absent the error, there was a reasonable probability that the factfinder would have had a reasonable doubt concerning defendant's guilt. Id.

While at least one panel of our Court is of the opinion that Strickland overrules Garcia even under the Michigan Constitution, creating an apparent conflict which our Supreme Court has not yet resolved, see People v. Dalessandro, 165 Mich.App. 569, 574-575, 419 N.W.2d 609 (1988), lv.den. 430 Mich. 880, 423 N.W.2d 573 (1988), we find little or no practical difference between the two tests. Both standards presume effective assistance of counsel, and both require defendant to overcome the presumption by showing deficient and unreasonable conduct by counsel and resultant prejudice. Nevertheless, regardless[179 MICHAPP 349] of the test employed, defendant failed to carry his burden here.

Defendant first contends counsel was ineffective for failing to challenge the validity of the search warrant arguing that there was sufficient evidence to suggest that the person who allegedly sold drugs to the police informant was nonexistent. However, the only evidence which defendant cites in support of his argument is that the person in question was not in the house when the search warrant was executed. Alone, that is not enough to question counsel's decision not to challenge the warrant's validity. Defendant offers no evidence that the police knew the seller was nonexistent. Further, counsel did seek to suppress the cocaine by challenging the validity of the search warrant's execution. Thus, defendant has failed to establish ineffective assistance of counsel and resultant prejudice regarding the search warrant.

Defendant also wrongly contends that his trial attorney's failure to move for severance constituted ineffective assistance where a codefendant's confession tended to implicate him. The general rule is that a criminal defendant does not have a right to a separate trial. Joinder of defendants for trial is usually within the discretion of the court, but severance should be granted when the defenses of several defendants are antagonistic to each other. People v. Hurst, 396 Mich. 1, 6, 238 N.W.2d 6 (1976), reh. den. 396 Mich. 976 (1976). However, a confession is not "antagonistic" for the purposes of determining whether to sever a trial where, as here, the confession of a codefendant incriminates both the codefendant and defendant. People v. Stanley Jackson, 158 Mich.App. 544, 556, 405 N.W.2d 192 (1987), lv. den. 428 Mich. 917 (1987).

Further, defendant's citation of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476[179 MICHAPP 350] (1968), which held that admission in a joint trial of a nontestifying codefendant's confession violates the other defendant's Sixth Amendment right of confrontation, is inapplicable. Here, the codefendant did testify that he did not make the alleged confession, and, thus, defendant had the opportunity to confront and cross-examine him.

Defendant next argues that the trial judge failed to sufficiently articulate findings of fact and conclusions of law to support his decision as required under MCR 2.517(A)(1). See People v. Robert Jackson, 390 Mich. 621, 627, 212 N.W.2d 918 (1973). However, examination of the record of the trial court's opinion reveals otherwise. In his findings, the trial judge stated that direct and complete control over 119 grams of cocaine in defendant's bag satisfied the statutory requirement of possession. In addition, the various paraphernalia and slips suggesting continuing transactions also found in defendant's bag led the trial judge to infer beyond a reasonable doubt that there was possession with intent to deliver. Further, the court noted that defendant's presence in another person's home at the time of his arrest inured against him on the issue of intent to deliver. In conclusion, the trial judge stated that the evidence as presented against both defendants was sufficient beyond a reasonable doubt to find guilt of possession with intent to deliver over 50 grams but less than 225 grams of powder containing cocaine.

Concerning his sentence, defendant raises a number of arguments, none of them persuasive.

Defendant argues that this Court should give retroactive effect to the recent amendment of M.C.L. Sec. 333.7401(2)(a)(iii); M.S.A. Sec. 14.15(7401)(2)(a)(iii), the statute under which he was sentenced, and remand for resentencing accordingly. The new version of the statute reduces the minimum possible [179 MICHAPP 351] term of imprisonment from ten years to five years. However, the general rule is that the sentence or punishment imposed is that prescribed by the statute in force at the time of the commission of the crime. Amendments to criminal statutes concerning sentences or punishment are not retroactive. People v. Osteen, 46 Mich.App. 409, 413, 208 N.W.2d 198 (1973), lv. den. 390 Mich. 760 (1973); People v. Poole, 7 Mich.App. 237, 243, 151 N.W.2d 365 (1967).

Moreover, M.C.L. Sec. 8.4a; M.S.A. Sec. 2.214 provides unambiguously:

The repeal of any statute or part thereof shall not have the effect to release or relinquish any penalty, forfeiture, or liability incurred under such statute or any part thereof, unless the repealing act shall so expressly provide, and such statute and part thereof shall be treated as still remaining in force for the purpose of instituting or sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture or liability.

M.C.L. Sec. 8.4a; M.S.A. Sec. 2.214 applies to the amendment as well as the repeal of statutes. In People v. Gravedoni, 172 Mich.App. 195, 197-198, 431 N.W.2d 221 (1988), our Court upheld a felony...