People v. McGowan, No. 275781 (Mich. App. 3/18/2008), No. 275781.
| Decision Date | 18 March 2008 |
| Docket Number | No. 275781. |
| Parties | PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DEMETRIC ROSHARD McGOWAN, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Appeal from Monroe Circuit Court, LC No. 06-035201-FH.
Before: Murray, P.J., and Bandstra and Fort Hood, JJ.
Following a jury trial, defendant was convicted of possession with intent to deliver between 50 and 449 grams of cocaine, MCL 333.7401(2)(a)(iii), felon in possession a firearm, MCL 750.224f, possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, and carrying a concealed weapon, MCL 750.227. The trial court sentenced defendant, as a third habitual offender, MCL 769.11, to 195 months to 40 years in prison for the possession with intent to deliver between 50 and 449 grams of cocaine conviction, 34 months to 10 years in prison for the felon in possession a firearm conviction, two years in prison for the felony-firearm conviction, and 34 months to 10 years in prison for the carrying a concealed weapon conviction. Defendant appeals as of right. We affirm.
Police received an anonymous tip of drug use at an apartment, received consent from the resident to conduct a search, and discovered drugs in the apartment. The apartment occupant was on parole and agreed to arrange a purchase for three and one-half ounces of cocaine from her supplier, defendant. Defendant called the occupant turned informant when he was on his way with the drugs. When he arrived, defendant was arrested carrying three and one-half ounces of cocaine and a gun. Conversely, defendant claimed that he merely carried three and one-half grams of cocaine. Defendant asserted that he did not intend to deliver the cocaine, but rather, it was for his own personal use. He further testified that he came to visit the informant for commercial sex.
First, defendant alleges that the trial court erred in refusing to allow him to question the informant regarding her occupation as a prostitute. On cross-examination, defense counsel inquired what the informant did for a living at the time of the charged offenses. She stated that she did not want to answer. The prosecutor objected based on relevancy grounds. A discussion was held outside the presence of the jury. In the discussion, defense counsel alleged that the police officers did not hear the conversation setting up the drug transaction, contrary to the trial
testimony. He asserted that the informant set up a transaction for sex rather than drugs. Defense counsel also indicated that he wanted to question the informant regarding what she was wearing because, upon information and belief, she was dressed as a "call girl." The trial court excluded the testimony based on relevancy grounds. The trial court also held that the informant was not provided with immunity and had a right to be free from self-incrimination. The trial court further stated that defendant's purpose for visiting the informant's residence, whether to engage in sexual acts or to watch football, was irrelevant with regard to his intent or the reason for having drugs on his person. Defendant asserts that the exclusion of this line of questioning and testimony deprived him of a substantial defense and shifted the burden of proof. We disagree.
This Court reviews claims regarding the denial of the constitutional right to present a defense de novo. People v Kurr, 253 Mich App 317, 327; 654 NW2d 651 (2002). No person may be deprived of life, liberty, or property without due process of law. US Const, Ams V, XIV, § 1; Const 1963, art 1, § 17; People v Bearss, 463 Mich 623, 629; 625 NW2d 10 (2001). A defendant in a criminal case has the right to present a defense. US Const, Ams VI, XIV; Const 1963, art 1, § 13; Kurr, supra at 326. However, "[i]t is well settled that the right to assert a defense may permissibly be limited by `established rules of procedure and evidence designed to assure both fairness and reliability in the ascertainment of guilt and innocence."' People v Toma, 462 Mich 281, 294; 613 NW2d 694 (2000), quoting Chambers v Mississippi, 410 US 284, 302; 93 S Ct 1038; 35 L Ed 2d 297 (1973).
"The decision whether to admit evidence is within a trial court's discretion." People v Katt, 468 Mich 272, 278; 662 NW2d 12 (2003). Evidence that is relevant is admissible. People v Layher, 464 Mich 756, 761; 631 NW2d 281 (2001); MRE 402. To determine if evidence is relevant under MRE 401, a reviewing court must examine: (1) the materiality of the evidence, and (2) "whether the evidence makes a fact of consequence more or less probable than it would be without the evidence." People v Mills, 450 Mich 61, 66-67; 537 NW2d 909 (1995). A fact is material if it is within the range of litigated matters in controversy. Id. at 68.
Both the federal and state constitutions provide the witness with a privilege against self-incrimination. People v Dyer, 425 Mich 572, 578; 390 NW2d 645 (1986). The trial court may compel the witness to answer a question only when it is apparent that the testimony will not incriminate the witness. Id. at 578-579. A defendant does not have the power to immunize witnesses and cannot compel a grant of immunity. People v Lawton, 196 Mich App 341, 346; 492 NW2d 810 (1992). Testimony is protected against compelled disclosure when there is even a possibility of incrimination. Id.
Irrespective of the asserted relevancy of the informant's occupation, the right of the witness to be free from self-incrimination must be balanced against defendant's right to a substantial defense. In the present case, defendant was not deprived of any right to present a defense by the informant's failure to answer the question regarding her occupation. The elements of possession with intent to deliver between 50 and 449 grams of cocaine are: "(1) the defendant knowingly possessed a controlled substance; (2) the defendant intended to deliver this substance to someone else; (3) the substance possessed was cocaine and the defendant knew it was cocaine; and (4) the substance was in a mixture that weighed between 50 and [449] grams." People v Crawford, 458 Mich 376, 389; 582 NW2d 785 (1998). Intent to deliver need not be established with proof of actual delivery of narcotics. People v Wolfe, 440 Mich 508, 524; 489 NW2d 748, amended 441 Mich 1201 (1992). "An actor's intent may be inferred from all of the
facts and circumstances, and because of the difficulty of proving an actor's state of mind, minimal circumstantial evidence is sufficient." People v Fetterley, 229 Mich App 511, 517-518; 583 NW2d 199 (1998) (Citations omitted). Intent to deliver can be inferred from the quantity of narcotics in the defendant's possession, the manner in which the narcotics are packaged, and other circumstances surrounding the arrest. Wolfe, supra.
In the present case, a police record indicated that three and one-half grams of cocaine were recovered. That record was countered by other police documentation and testimony from police officers at trial that he was found with three and one-half ounces of cocaine. Accordingly, there was contradictory evidence in the trial record regarding the amount of drugs recovered from defendant's person. Moreover, the quantity of cocaine was not divided, and defendant was not found in possession of a scale at the time of arrest. Consequently, the defense had sufficient information to refute the intent to deliver, irrespective of the informant's alleged occupation. Therefore, defendant was not deprived of a substantial defense when the trial court ruled that the occupation was irrelevant and violated the informant's right to be free from self-incrimination. Furthermore, the burden of proof was not shifted in light of the evidence available to dispute the intent to deliver.1 Accordingly, this claim of error is without merit.
Defendant's second argument on appeal is that prosecutor's explanation that the OMNI members "prepared for the possibility that he may be armed" constituted prosecutorial misconduct. We disagree. Unpreserved claims of prosecutorial misconduct are reviewed for plain error. People v Callon, 256 Mich App 312, 329; 662 NW2d 501 (2003). To meet the requirements of the plain error rule, three elements must be satisfied: (1) error must have occurred; (2) the error must be plain; and (3) the plain error affected substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). The third requirement is satisfied by demonstrating prejudice; specifically that the error affected the outcome of the lower court proceedings. Id.
Generally, prosecutors are afforded great latitude in their arguments. People v Bahoda, 448 Mich 261, 282; 531 NW2d 659 (1995). The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial. People v Rice (On Remand), 235 Mich App 429, 434-435; 597 NW2d 843 (1999).
Prosecutorial misconduct issues are decided case by case, and the reviewing court must examine the pertinent portion of the record and evaluate a prosecutor's remarks in context to determine whether the defendant was denied a fair and impartial trial. [Id. at 435.]
During an opening statement, a prosecutor states the facts that counsel believes will be proven at trial, but should not reference evidence that is clearly inadmissible at trial. MCR 6.414(C); People v Watson, 245 Mich App 572, 588; 629 NW2d 411 (2001).
The prosecutor's statement regarding the OMNI members' preparation before defendant arrived was supported by evidence at trial when Detective McDonald and Lieutenant Davis testified that they prepared for the possibility that defendant would arrive with a gun. This evidence was relevant to the weapons charges against defendant. However, the prosecutor did not seek to elicit any testimony that defendant had a habit for carrying a gun or reputation for dangerousness. Therefore, the prosecutor's opening statement did not deny defendant a fair and impartial...
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