People v. Kelley, 310325
| Decision Date | 24 October 2013 |
| Docket Number | No. 310325,310325 |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MARCUS MANDELLE KELLEY, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
UNPUBLISHED
Oakland Circuit Court
Before: SAAD, P.J., and SAWYER and JANSEN, JJ.
Defendant appeals as of right his jury trial convictions of two counts of delivery of 50 grams or more, but less than 450 grams, of cocaine, MCL 333.7401(2)(a)(iii), two counts of delivery of less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv), and one count of conspiracy to deliver 50 grams or more, but less than 450 grams, of cocaine, MCL 750.157a; MCL 333.7401(2)(a)(iii). He was sentenced, as a fourth habitual offender, MCL 769.12, to 9 to 40 years' imprisonment for each count. We affirm defendant's convictions and sentences and remand to correct a clerical error on the judgment of sentence.
This case arises from defendant's having sold crack cocaine to a police informant on four occasions from January 26, 2011, to February 3, 2011. Defendant first argues that the prosecution presented insufficient evidence on the element of identity to sustain his convictions. We disagree.
In criminal cases, due process requires that the evidence must have shown the defendant's guilt beyond a reasonable doubt. People v Harverson, 291 Mich App 171, 175; 804 NW2d 757 (2010). This Court examines the lower court record de novo, in the light most favorable to the prosecution, to determine whether a rational trier of fact could have found that the evidence proved each element of the crime beyond a reasonable doubt. Id.
The elements of delivery of 50 grams or more, but less than 450 grams, of cocaine are (1) defendant's delivery; (2) of 50 grams or more, but less than 450 grams; (3) of cocaine or a mixture containing cocaine; (4) with knowledge that he was delivering cocaine. People v Collins, 298 Mich App 458, 462; 828 NW2d 392 (2012) (). Identity is an element of every offense. People v Yost, 278 Mich App 341, 356; 749 NW2d 753 (2008). Circumstantial evidence and reasonable inferences arising therefrom may constitute proof of the elements of the crime. People v Bennett, 290 Mich App 465, 472; 802 NW2d 627 (2010).
Defendant argues that the prosecution presented insufficient evidence on the element of identity. Michael Zion, the informant who purchased crack cocaine from defendant, testified that he recognized defendant's voice on the telephone each time a purchase was arranged. On four occasions, he personally saw defendant hand him what a laboratory would confirm to be crack cocaine. Immediately before two of the exchanges, Zion witnessed defendant weighing and packaging the drugs. During the fourth transaction, Zion lingered about five feet away in defendant's kitchen while defendant "cooked" cocaine to convert it from powder form to crystalline or "rock" form. Before the first purchase, at a gas station, Oakland County Sheriff's Office Detective Mark Ferguson identified defendant as the driver and only passenger of the car in which the exchange was made. As he listened to each transaction using a recording device Zion carried with him, Ferguson identified defendant's voice, and observed that he heard nothing that sounded like "anything other than a drug deal."
Defendant notes that Zion was motivated by an interest in seeking leniency for his own shoplifting offense and appeared nervous at trial, but the jury was presumably aware of each, and the jury is the ultimate arbiter of witnesses' credibility. People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008). Defendant argues that, because Ferguson admitted that he did not perform a "detailed" search of Zion's car, which would have taken "days," before and after each purchase, there was a substantial likelihood that Zion had hidden contraband in his car. Assuming defendant were correct, the question is one of the weight of the evidence, which the jury is meant to resolve. See People v Eisen, 296 Mich App 326, 331; 820 NW2d 229 (2012).
Generally, a person "who conspires together with 1 or more persons to commit an offense prohibited by law" may be "punished by a penalty equal to that which could be imposed if he had been convicted of committing the crime he conspired to commit . . . ." MCL 750.157a(a); People v Mass, 464 Mich 615, 629; 628 NW2d 540 (2001). Zion's testimony that defendant directed one of the men in the house to physically search Zion, and that the man acquiesced, was sufficient to sustain defendant's conviction for conspiracy to deliver more than 50 grams, but less than 450 grams, of cocaine, MCL 750.157a; MCL 333.7401(2)(a)(iii), because defendant's instruction and the other man's compliance could reasonably have been interpreted as having been motivated by the desire to protect the retail narcotics business in which the men were engaged.
Defendant argues, in his Standard 4 brief, that he received ineffective assistance of counsel. We disagree.
To preserve a claim of ineffective assistance of counsel, the defendant must move, in the trial court, for a new trial or an evidentiary hearing under People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973). People v Payne, 285 Mich App 181, 188; 774 NW2d 714 (2009). Failure to do so limits this Court's review to errors apparent on the record. Id. Defendant's claims that his trial counsel failed to object to Ferguson's testimony regarding the contents of audio recordings, failed to investigate and call potential witnesses, and failed to file a motion for speedy trial violations were each raised in his motion for a new trial and are preserved. However, his claim that his trial counsel did not consult him before filing a motion to suppress evidence and agreed to have two charges dismissed is not preserved, as that argument is raised for the first time on appeal. People v Vaughn, 491 Mich 642, 650; 821 NW2d 288 (2012).
The United States and Michigan Constitutions guarantee criminal defendants the right to effective assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20; United States v Cronic, 466 US 648, 654; 104 S Ct 2039; 80 L Ed 2d 657 (1984); People v Meissner, 294 Mich App 438, 459; 812 NW2d 37 (2011). "To establish ineffective assistance of counsel, defendant must first show that (1) his trial counsel's performance fell below an objective standard of reasonableness under the prevailing professional norms, and (2) there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different." People v Uphaus, 278 Mich App 174, 185; 748 NW2d 899 (2008).
Defendant must overcome a strong presumption that counsel's actions were the product of sound trial strategy. People v Brown, 294 Mich App 377, 388; 811 NW2d 531 (2011). Defense counsel is "strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment," Vaughn, 491 Mich at 670, and is given "wide discretion in matters of trial strategy," People v Odom, 276 Mich App 407, 415; 740 NW2d 557 (2007). "Decisions regarding whether to call or question witnesses are presumed to be matters of trial strategy." People v Russell, 297 Mich App 707, 716; 825 NW2d 623 (2012). Declining to raise objections can often be consistent with sound trial strategy, and effective assistance does not require trial counsel to make futile objections. People v Unger, 278 Mich App 210, 242, 256-257; 749 NW2d 272 (2008).
Defendant argues that his trial counsel was ineffective for failing to object when Ferguson testified, on direct examination and redirect examination, with respect to what he heard while audio of the narcotics transactions was transmitted using a hidden recording device. Defendant contends that Ferguson's answers were hearsay. Because none of the answers to which defendant refers were hearsay, as explained below, trial counsel was not ineffective for failing to raise a futile objection. Unger, 278 Mich App at 256-257.
Defendant argues that his trial counsel was ineffective for failing to call a potentially exculpatory witness. He states that he received "a written letter from the girlfriend of [Zion]" that "could establish[] that defendant and [Zion] . . . kn[e]w each other[, w]hich was in direct contrast to testimony given by [Zion]." In fact, Zion testified that he established communication with Ferguson because he knew defendant. He said that defendant would sell him crack cocaine, and that defendant's name was "Marc," each of which turned out to be correct. The letter, then, would have established nothing of import. Even if it did, defendant has not rebutted the presumption that failure to call Zion's girlfriend as a witness was a matter of trial strategy. See Russell, 297 Mich App at 716.
Defendant also argues that his trial counsel failed to introduce, at trial, the fact that the license plate on the car defendant was seen driving was associated with a different make and model and registered to an out-of-state owner. Here, too, the underlying issue is meritless, as explained below; counsel's failure to present this information to the jury was presumptively a decision of trial strategy, and defendant has not rebutted that presumption. See Brown, 294 Mich App at 388.
Defendant argues that his trial counsel failed to assert his right to a speedy trial. Criminal defendants have a constitutionally guaranteed right to a speedy trial. US Const, Am VI; Const 1963, art 1, § 20. See also MCL 768.1; MCR 6.004(A); People v Williams, 475 Mich 245, 261; 716 NW2d 208 (2006). Whether a defendant has been denied the right to a speedy trial is determined by application of a test that balances four factors: (...
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