People v. McGhee

• Decision Date: 08 November 2005
• Docket Number: Docket No. 256767.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry A. McGHEE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

709 N.W.2d 595

268 Mich. App. 600

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry A. McGHEE, Defendant-Appellant.

Docket No. 256767.

Court of Appeals of Michigan.

Submitted September 13, 2005, at Lansing.

Decided November 8, 2005, at 9:05 a.m.

Released for Publication January 23, 2006.

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Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Joyce F. Todd, Chief, Appellate Division, and Danielle Walton, Assistant Prosecuting Attorney, for the people.

Elizabeth L. Jacobs, Detroit, for the defendant.

Before: ZAHRA, P.J., and MARK J. CAVANAGH and OWENS, JJ.

OWENS, J.

Defendant appeals as of right his jury convictions of possession with intent to deliver 650 grams or more of cocaine, MCL 333.7401(2)(a)(i);¹ possession with intent to deliver less than 50 grams of heroin, MCL 333.7401(2)(a)(iv); and possession with intent to deliver marijuana, MCL 333.7401(2)(d)(iii). He was sentenced to three months' imprisonment, with credit for 90 days served, on the marijuana conviction, and to consecutive terms of 12 months' to 20 years' imprisonment on the heroin conviction and 20 to 30 years' imprisonment on the cocaine conviction. He received credit for 336 days served on the heroin sentence, but no credit on the cocaine sentence. This case arose in 1998 when officers searched a house owned by defendant and discovered the controlled substances. We affirm.

A house owned by defendant was raided in 1998. The raid uncovered a scale with cocaine residue, many documents containing defendant's name and the address of the house, a drug ledger, substantial quantities of cocaine and marijuana, a smaller amount of heroin, and a cardboard box for a Highpoint Arms firearm. Defendant was indicted in 1998 and was declared a fugitive immediately after the search warrant was executed. He was apprehended by Federal Bureau of Investigation agents in Georgia on January 19, 2001. He originally claimed he was Adonte Kraft, and had documents and a driver's license in Adonte Kraft's name. After his arrest, defendant consented to a search of his apartment and car. A black Taurus .45-caliber handgun and eight .45-caliber rounds were found in defendant's car.

Defendant moved to suppress the evidence found in the garage because the warrant did not specifically describe the garage as an area to be searched. The trial court granted the motion to suppress. The prosecution appealed, and this Court reversed. People v. McGhee, 255 Mich. App. 623, 625, 662 N.W.2d 777 (2003). The prosecution subsequently moved to admit as other-acts evidence the facts and circumstances surrounding a 1992 search, two 1995 drug transactions, and the 2001 apprehension of defendant. The trial court granted the motion. At the start of trial, the prosecution moved to prohibit defendant from presenting evidence with respect to the dismissal of the charges and the civil suit stemming from the 1992 raid. The court granted the motion. Loren Brown, James Webb, and Daniel Casey, former Pontiac police officers, testified about what they found during the 1992 raid. Lamark Northern, an admitted drug dealer, testified that he twice purchased cocaine from defendant in 1995. The jury found defendant guilty on all counts stemming from the 1998 raid. Defendant was sentenced accordingly.

Defendant first argues that the court erred when it refused to instruct the jury on the lesser offense of possession with intent to deliver 50 to 225 grams of cocaine. We disagree.

A claim of instructional error is reviewed de novo. People v. Fennell, 260 Mich.App. 261, 264, 677 N.W.2d 66 (2004). Instructions are read as a whole rather than extracted piecemeal to determine whether error requiring reversal occurred. People v. Aldrich, 246 Mich.App. 101, 124, 631 N.W.2d 67 (2001). Jury instructions must clearly present the case and the applicable law to the jury. People v. McKinney, 258 Mich.App. 157, 162, 670 N.W.2d 254 (2003). The instructions must include all elements of the charged offenses and any material issues, defenses, and theories if supported by the evidence. Id. at 162-163, 670 N.W.2d 254, citing People v. Canales, 243 Mich.App. 571, 574, 624 N.W.2d 439 (2000). In denying defendant's request, the trial court explained that an instruction would be given for possession with intent to deliver 225 to 650 grams of cocaine because the jury could conclude that defendant possessed the drugs in the house but not those in the garage.

With respect to defense counsel's argument that the drugs could be further segregated because the jury could have believed that the only cocaine defendant possessed was in the coat, the court indicated that the cocaine in the coat was also in the house. Defendant argues that the jury could have found him guilty of possessing only the cocaine located in the pocket of the coat, and failure to give an instruction for possession with intent to deliver the lesser amount was error. "[A] requested instruction on a necessarily included lesser offense is proper if the charged greater offense requires the jury to find a disputed factual element that is not part of the lesser included offense and a rational view of the evidence would support it." People v. Cornell, 466 Mich. 335, 357, 646 N.W.2d 127 (2002).

In Cornell, supra at 353-354, 646 N.W.2d 127, our Supreme Court, citing Hanna v. People, 19 Mich. 316 (1869), noted that MCL 768.32(1), permitting conviction of a lesser degree of the offense charged, was not limited to those offenses that were "expressly divided into `degrees,' but was intended to extend to all cases in which different grades of offenses or degrees of enormity had been recognized." Although the Court in People v. Mass, 464 Mich. 615, 625, 628 N.W.2d 540 (2001), noted when addressing whether knowledge of the amount was a necessary element in a delivery charge that MCL 333.7401(2) entailed separate elements of separate offenses because it covered various drug types, the offenses here involve the same type of drug. Because the only difference here between the possession with intent to deliver offenses is the amount of the illegal substance, it would not be possible to commit the greater offense without committing the lesser offense. People v. Bearss, 463 Mich. 623, 627, 625 N.W.2d 10 (2001).

Nevertheless, an instruction on the lesser offense need only be given if a rational review of the evidence indicates that the element distinguishing the lesser offense from the greater offense is in dispute. Cornell, supra at 352, 646 N.W.2d 127. Here, defendant did not argue or present evidence that he possessed a lesser amount. Therefore, a rational view of the evidence does not support defendant's claim that the amount of cocaine possessed was in dispute. Id.²

Defendant also claims that an accomplice instruction should have been given. We disagree.

A trial court's decision whether to give an accomplice instruction is reviewed for an abuse of discretion. People v. Young, 472 Mich. 130, 135, 693 N.W.2d 801 (2005). Our Supreme Court recently rejected the rule of automatic reversal for failure to give a cautionary accomplice instruction upon request. Id. at 142, 693 N.W.2d 801. Because Young was decided after defendant filed his appeal in the instant case, and it overruled the 30-year precedent established in People v. McCoy, 392 Mich. 231, 220 N.W.2d 456 (1974), we assume that Young is not applicable to the instant case and that the automatic reversal rule for failure to give a requested instruction regarding accomplice testimony is applicable. Id. at 240, 220 N.W.2d 456. However, the instruction is only required if supported by the evidence. People v. Ho, 231 Mich.App. 178, 189, 585 N.W.2d 357 (1998).

The offenses charged in the instant case arose from the 1998 raid of defendant's house. Defendant was not on trial for the two 1995 sales to Northern, and Northern could not have been an accomplice to the instant offense because he was in prison at the time. Moreover, because defendant was not on trial for conspiracy, and Northern was not indicted as a coconspirator with respect to his MRE 404(b) testimony, the witness was neither an accomplice nor a coconspirator, and an accomplice instruction was not required. Ho, supra at 189, 585 N.W.2d 357. Furthermore, the court informed the jury that it could consider bias and self-interest when determining credibility, and pointed out that the plea agreement may have affected Northern's bias or self-interest. Because (1) defense counsel plainly presented to the jury the potential problems with the testimony, (2) an instruction on accomplice testimony was not required because the witness was not an accomplice, and (3) the court instructed the jury on witness credibility and plea agreement testimony, defendant has not demonstrated error requiring reversal.

Defendant next argues that evidence of other acts was improperly admitted as MRE 404(b) evidence because the prosecution failed to demonstrate a purpose for admission other than to show defendant's bad character.

A trial court's admission of other-acts evidence is reviewed for an abuse of discretion. People v. Crawford, 458 Mich. 376, 383, 582 N.W.2d 785 (1998). A trial court abuses its discretion when it admits evidence that is inadmissible as a matter of law. People v. Katt, 468 Mich. 272, 278, 662 N.W.2d 12 (2003). Before other-acts evidence may be introduced, the prosecution must satisfy a three-part test: (a) there must be a reason for its admission other than to show character or propensity, (b) it must be relevant, and (c) the danger of undue prejudice cannot substantially outweigh its probative value, especially if there are other means of proof. People v. Sabin (After Remand), 463 Mich. 43, 55-56, 614 N.W.2d 888 (2000). In the case at hand, ...