People v. Lester, Docket No. 199269

• Decision Date: 23 October 1998
• Docket Number: Docket No. 199269
• Citation: 232 Mich.App. 262,591 N.W.2d 267
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Jerome LESTER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 267

591 N.W.2d 267

232 Mich.App. 262

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Jerome LESTER, Defendant-Appellant.

Docket No. 199269.

Court of Appeals of Michigan.

Submitted May 13, 1998, at Grand Rapids.

Decided Oct. 23, 1998, at 9:00 a.m.

Released for Publication Jan. 15, 1999.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, James L. Gregart, Prosecuting Attorney, and Frank J. Machnik, Assistant Prosecuting Attorney, for the people.

Carla J. Johnson, Beverly Hills, CA, for the defendant.

Before FITZGERALD, P.J., and HOLBROOK, Jr., and MARK J. CAVANAGH, JJ.

MARK J. CAVANAGH, J.

Defendant appeals by leave granted his jury trial convictions of one count of delivery of over 650 grams of cocaine, M.C.L. § 333.7401(2) (a)(i); MSA 14.15(7401)(2)(a)(i), and one count of conspiracy to deliver between 225 grams and 650 grams of cocaine, M.C.L. § 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii). The trial court imposed the mandatory life sentence for the delivery conviction ¹ and twenty to thirty years' imprisonment for the conspiracy conviction. We affirm in part and remand for further proceedings.

Defendant's convictions arose out of the sale of approximately 666 grams of cocaine by Brenda Houston to undercover police officer Patrick Codere of the Southwest Enforcement Team on April 30, 1987. At defendant's trial, Houston testified as part of a plea agreement under which she would avoid the mandatory life sentence for delivery of the cocaine. Houston testified that defendant had supplied her with the drugs and that she had "a business relationship" with defendant whereby any profits made were to be split equally between them. Another witness, Credell Carpenter, also testifying with the benefit of a plea agreement, stated that he saw defendant the day before the delivery with a large quantity of cocaine. After Houston's arrest, defendant told Carpenter that he had given her a large amount of cocaine to sell.

A jury convicted defendant of one count of delivery of over 650 grams of cocaine and one count of conspiracy to deliver between 225 grams and 650 grams of cocaine on December 18, 1987. This Court affirmed defendant's convictions and sentences, ² and defendant's application for leave to appeal in the Supreme Court was denied. ³

In his first postappeal motion for relief from judgment under subchapter 6.500 of the Michigan Court Rules, defendant alleged misconduct by the police and the prosecutor in using or failing to correct false testimony by Houston regarding the consideration she received in exchange for her testimony against defendant and other matters affecting her credibility as a witness. Specifically, defendant challenged Houston's testimony that she had no sentence agreement with the prosecution other than a reduction of the delivery charges against her from delivery of over 650 grams to delivery of between 225 and 650 grams. Defendant presented evidence that the final agreement for Houston's guilty plea, tendered several weeks after defendant's trial, also provided her with immunity from prosecution for various acts of insurance fraud. Defendant also challenged the failure of the prosecuting attorney or police officials to correct Houston's denial, on cross-examination, of any participation in staging a false burglary at her home for which she received insurance money. Previously, Houston had admitted to Detective Donald Smith of the Kalamazoo Police Department that she and her then-boyfriend, Gary Roberts, had been involved in the phony burglary. ⁴ Her admissions were set forth in a police report that had been available to the prosecutor, but had not been provided to defense counsel, although defense counsel had received a tape recording of most of Houston's inculpatory statements to the police. Defendant also argued that the jury's verdicts on the two counts were inconsistent, given the different amounts of cocaine involved.

The trial court ordered an evidentiary hearing regarding defendant's motion, and the hearing took place on June 8, 1993. Testimony was received from the prosecuting attorney who tried defendant's case, Mark Courtade, and Houston's attorney, Earl Dalzell. Courtade testified that the only agreement his office had with Houston at the time of the trial was that she would be charged with the lesser offense of possession with intent to deliver over 225 but less than 650 grams of cocaine, M.C.L. § 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii), rather than delivery of over 650 grams of cocaine, which carries a mandatory life sentence. Furthermore, Courtade stated that he had no knowledge of Houston's involvement with any insurance frauds until she was cross-examined at trial, and immunity from prosecution for her involvement with such frauds was not offered as part of her plea agreement until after defendant's trial. ⁵ Dalzell's testimony essentially corroborated Courtade's testimony in this regard. ⁶ Defendant also submitted excerpts from the transcript of the trial of Thaddeus Earl Dunning, which occurred shortly before defendant's own trial, in which the prosecution elicited testimony from Carpenter regarding Houston's involvement in a number of insurance frauds.

In an opinion and order entered December 22, 1993, the trial court rejected on the merits defendant's various arguments that he was entitled to relief. Defendant then sought leave to appeal the trial court's decision in this Court. However, before the matter was submitted to a panel of this Court for decision, defendant retained his present appellate counsel, who subsequently filed a motion to strike the application for leave to appeal. This Court granted defendant's motion on June 16, 1994.

In February 1995, defendant filed a second motion for relief from judgment pursuant to MCR 6.500 in the trial court. Defendant cited various items of alleged "newly discovered evidence" in support of his perjured-testimony claims, as well as new grounds for relief based on the racial composition of the jury pool. Defendant offered new deposition testimony from Detective Smith and Officer Codere that he contended was relevant to the deal given to Houston in exchange for her testimony. Essentially, these witnesses testified that when Houston was arrested on drug charges, they had information that she was involved in insurance fraud, but the police officer in charge of the case, Lieutenant Charlie McCord, advised them that Houston was not to be charged in connection with her alleged frauds. Defendant also again cited the testimony from the Dunnings trial regarding Houston's involvement in fraudulent activities as "new evidence" that Houston gave false testimony at defendant's trial regarding her involvement in insurance frauds. Defendant further argued that Houston had committed perjury when she testified that she had not used marijuana during the previous year in light of the fact that marijuana was discovered when a search warrant was executed at her home in conjunction with her arrest.

In its November 17, 1995, opinion and order, the trial court denied defendant's second motion for relief from judgment. With regard to defendant's challenge to Houston's trial testimony regarding the consideration she received in exchange for her testimony against defendant, the trial court again found that Houston's testimony was truthful in this regard, essentially finding the new testimony from Detective Smith and Officer Codere insufficient to rebut the testimony of prosecuting attorney Courtade at the June 8, 1993, evidentiary hearing and other evidence corroborating Houston's trial testimony. As for defendant's claims that Houston had falsely testified regarding her involvement in insurance frauds, marijuana use, and other misconduct, the trial court apparently reasoned that defendant was not prejudiced in this regard because any extrinsic evidence of Houston's involvement in such acts of misconduct would be inadmissible under MRE 608(b). Finally, the trial court rejected defendant's challenges to the racial composition of his jury pool and the effectiveness of trial counsel and his previous appellate counsel.

Defendant filed a delayed application for leave to appeal the trial court's decision. On June 12, 1997, this Court granted leave to appeal limited to the second issue raised in the application. That issue was stated by defendant as follows: "Did the court err when it held that since evidence of prior bad acts would not be admissible under MRE 608(b), the prosecutor could withhold evidence and allow their [sic] star witness to commit perjury on the stand?"

As an initial matter, we note that, in his phrasing of the issue, defendant misrepresents the trial court's holding. The trial court did not hold that the prosecutor could allow Houston to commit perjury on the stand or that the prosecutor could withhold evidence. Rather, the trial court found that Houston testified truthfully about the scope of her agreement with the prosecutor at the time of defendant's trial. With regard to defendant's other allegations, the trial court did not make a specific finding regarding whether the prosecutor improperly allowed Houston to commit perjury or withheld evidence. The trial court simply concluded that any error was harmless because defendant's new evidence was related to collateral matters and, pursuant to MRE 608(b), defendant would not have been able to impeach Houston with extrinsic evidence. Therefore, keeping in mind the actual scope of the trial court's ruling, we now address defendant's allegations of error.

This Court reviews a trial court's postconviction ruling granting or denying a new trial based on newly discovered evidence for an abuse of discretion. People v. Bradshaw, 165 Mich.App. 562, 566-567, 419 N.W.2d 33 (1988). A motion for a new trial based on newly discovered evidence may be granted upon a showing that (1) the evidence itself, not merely its materiality, is...