People v. Marji, Docket Nos. 97778

• Decision Date: 21 November 1989
• Docket Number: Docket Nos. 97778,99664
• Citation: 180 Mich.App. 525,447 N.W.2d 835
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ghazi Salameh MARJI, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Stanley THOMAS, Defendant-Appellant. 180 Mich.App. 525, 447 N.W.2d 835
• Court: Court of Appeal of Michigan — District of US

Page 835

447 N.W.2d 835

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ghazi Salameh MARJI, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Stanley THOMAS, Defendant-Appellant.

Docket Nos. 97778, 99664.

180 Mich.App. 525, 447 N.W.2d 835

Court of Appeals of Michigan.

Submitted April 4, 1989.

Decided Oct. 16, 1989.

Released for Publication Nov. 21, 1989.

[180 MICHAPP 528] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Criminal Div., Research, Training and Appeals, and Janice M. Joyce Bartee, Asst. Pros. Atty., for the People.

[180 MICHAPP 529] Barton, Benedetto & Bishop by Bruce A. Burton, Jackson, for defendant-appellant Marji.

Roman S. Karwowski, Warren, for defendant-appellant Thomas.

Before MICHAEL J. KELLY, P.J., and GILLIS and CYNAR, JJ.

CYNAR, Judge.

Defendants Ghazi Salameh Marji and Robert Stanley Thomas were jointly tried by a jury and found guilty of delivery of between 225 and 650 grams of cocaine. M.C.L. Sec. 333.7401(1) and (2)(a)(ii); M.S.A. Sec. 14.15(7401)(1) and (2)(a)(ii). The jury also found defendant Marji guilty of conspiracy to delivery cocaine. M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1). The court sentenced defendant Marji to two concurrent sentences of twenty to thirty years, and sentenced defendant Thomas to twenty to thirty years.

I

Both defendants argue that the trial court committed error mandating reversal by failing to instruct the jury regarding lesser offenses of delivery of smaller amounts of cocaine. We find that the trial court did not err by failing to give these instructions.

It is the trial court's duty to instruct the jury regarding the law applicable to the case. M.C.L. Sec. 768.29; M.S.A. Sec. 28.1052. Defendants Marji and Thomas requested additional jury instructions on the offenses of attempted delivery, delivery of less than fifty grams of cocaine, delivery of more than fifty grams but less than 225 grams of cocaine, and possession and attempted possession of cocaine. The court declined to give these jury instructions and proceeded to instruct the jury on the charged [180 MICHAPP 530] offenses of delivery of between 225 and 650 grams of cocaine and conspiracy to deliver cocaine.

We first note that there is no lesser included offense of "attempted delivery of cocaine." Under the statute, any attempts are subsumed in the actual offense of delivery. Wayne Co. Prosecutor v. Recorder's Court Judge, 177 Mich.App. 762, 442 N.W.2d 771 (1989).

With regard to the other instructions not given, we note that there are two types of lesser included offenses: (1) necessarily included lesser offenses, which must be committed in order to commit the greater offense; and (2) "cognate" lesser included offenses, which share several elements with the offense and are of the same class or category as the greater offense, but which may contain elements not found in the higher offense. People v. Beach, 429 Mich. 450, 461, 418 N.W.2d 861 (1988). If a lesser offense is necessarily included and a defendant requests an instruction on that offense, the court must instruct the jury regarding that lesser crime. Id. at 463-464, 418 N.W.2d 861. When the lesser crime in question is a cognate offense, the court must examine the evidence presented and give the instruction when the evidence adduced would support a conviction for the lesser offense. Id. at 464, 418 N.W.2d 861.

The offenses of possession and attempted possession of cocaine, though related to the offense of delivery of cocaine, require proof of the element of possession or attempted possession of the cocaine, which is not required under the delivery offense. Thus these are cognate offenses to the crime of delivery, and instructions regarding these offenses need not be given if the evidence would not support convictions for those crimes. See People v. Kamin, 405 Mich. 482, 497-498, 275 N.W.2d 777 (1979). Here the evidence did not show that either defendant Marji or Thomas possessed or attempted [180 MICHAPP 531] to possess cocaine. Defendant Marji arranged the cocaine sale from his gas station, informing undercover police officers how and where to obtain the cocaine. Defendant Thomas did not possess or attempt to possess cocaine, but allegedly aided in the sale of the cocaine to undercover police. The trial court did not err by refusing to instruct the jury regarding possession or attempted possession of cocaine.

While delivery of lesser amounts of cocaine are crimes within the same category as delivery of over 225 grams of cocaine and share some elements with the greater offense, they also contain essential elements not present in the greater offense, namely proof of lesser quantities of controlled substances. M.C.L. Secs. 333.7401(1), 337.7401(2)(a)(i)-(iv); M.S.A. Secs. 14.15(7401)(1), 14.15(7401)(2)(a)(i)-(iv). Thus these lesser offenses must be considered cognate offenses. Beach, supra. The evidence presented did not indicate that defendants were guilty of these lesser cognate offenses. The evidence presented showed that defendants arranged the delivery of 476.92 grams of cocaine to undercover police officers. This evidence did not support convictions for delivery of lesser amounts, so the trial court did not err in failing to instruct on these offenses.

II

Both defendants Marji and Thomas argued that the trial court's ex parte communication with the jury requires reversal. Defendant Marji also claims that the cumulative effect of several other errors committed by the trial court denied him a fair trial.

The alleged ex parte communications occurred as follows. On November 24, 1986, the jury was [180 MICHAPP 532] deliberating. At around 4:10 p.m. the jury sent a note to the trial judge requesting "Dictionary, according to Michigan law." The judge asked the jury to clarify its request, then proceeded to excuse the jury for the remainder of the day. The following morning, the court informed the attorneys of what had occurred and that the jury had sent a second note that morning requesting "conspiracy, definition." With the consent of both defense attorneys and the prosecutor, the court reinstructed the jury regarding conspiracy.

The court's communication with the jury does not require reversal. While the trial judge should have proceeded on the record and in the presence of counsel, no error requiring reversal occurred here since the instruction ultimately was given with the consent of counsel and on the record. See People v. Pannell, 170 Mich.App. 768, 771, 429 N.W.2d 233 (1988).

Defendant Marji also claims that the cumulative effect of several additional errors committed by the trial court denied him a fair trial. We find defendant's claims of error meritless.

Although the trial judge did not follow the wording of jury instruction CJI 3:1:06 regarding a defendant's right not to testify, the court's instruction adequately informed the jury of the applicable law and did not constitute error. People v. Mixon, 170 Mich.App. 508, 517-518, 429 N.W.2d 197 (1988).

Defendant Marji claims that the trial court improperly determined that the prosecutor established a conspiracy prior to defense counsel's cross-examination of the prosecution witnesses. We disagree. A trial court has broad power to control the interrogation of witnesses. MRE 611(a); People v. Larry, 162 Mich.App. 142, 154, 412 N.W.2d 674 (1987). Appellate review of such decisions by the trial court is precluded unless the record shows a [180 MICHAPP 533] clear abuse of discretion. People v. Taylor, 386 Mich. 204, 191 N.W.2d 310 (1971). No such abuse of discretion is indicated here. The cumulative effect of these alleged errors does not require reversal of defendant Marji's convictions.

III

Defendant Marji argues that the performance of his trial attorney denied him effective assistance of counsel. We disagree.

Our review of claims of ineffective assistance of counsel is limited to the facts contained in the record. People v. Hedelsky, 162 Mich.App. 382, 387, 412 N.W.2d 746 (1987). To preserve the issue of effective assistance of counsel, a defendant should move for a new trial or an evidentiary hearing before the trial court. People v. Ginther, 390 Mich. 436, 443, 212 N.W.2d 922 (1973). Failure to move for a new trial or Ginther hearing usually forecloses appellate review unless the appellate record contains sufficient detail to support defendant's claims. Hedelsky, 162 Mich.App. at 387, 412 N.W.2d 746. Here defendant Marji did not move for a new trial or a Ginther hearing before the trial court. Review of the existing record does not support defendant Marji's claim of ineffective assistance of counsel, so he has effectively waived review of this issue.

IV

Defendant Marji argues that the trial court committed error requiring reversal by admitting a shotgun into evidence at trial. This shotgun was found at a house where the cocaine delivery actually took place and was seized incident to the arrest of defendant Thomas and another suspect. Defendant Marji now claims that this shotgun was [180 MICHAPP 534] illegally seized and impermissibly admitted as evidence, and so requires reversal of his conviction. We disagree.

To preserve an evidentiary issue for review, a defendant opposing the admission of evidence must object to the evidence at trial. MRE 103(a)(1). Defendant Marji failed to object to the admission of this evidence at trial, and so has waived review of this issue on appeal.

V

Defendant Marji claims that reversal of his conviction is required because the trial court erroneously referred to cocaine as a "narcotic drug" in its instructions to the jury. We find this contention meritless. Defendant Marji did not object to this instruction at trial. Issues involving erroneous jury instructions are not considered on appeal unless they have been preserved by an objection at trial. People v. Kelly, 423 Mich. 261, 272, 378 N.W.2d 365 (1985)....