People v. Williams, Docket Nos. 130174

• Decision Date: 02 March 1993
• Docket Number: Docket Nos. 130174,138931
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Samuel William WILLIAMS, Defendant-Appellant. (After Remand).
• Court: Court of Appeal of Michigan — District of US

Page 404

499 N.W.2d 404

198 Mich.App. 537

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Samuel William WILLIAMS, Defendant-Appellant. (After Remand).

Docket Nos. 130174, 138931.

Court of Appeals of Michigan.

Submitted Jan. 6, 1993, at Grand Rapids.

Decided March 2, 1993, at 9:15 a.m.

Released for Publication May 24, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Michael D. Thomas, Pros. Atty., and Edwin R. Brown, Asst. Pros. Atty., for the People.

Samuel W. Williams, in pro. per., and Cyril C. Pessina, Harper Woods, for defendant-appellant.

Before SAWYER, P.J., and HOOD and JANSEN, JJ.

PER CURIAM.

Defendant appeals as of right from his convictions, following a jury trial, of delivering or manufacturing between 50 and 224 grams of cocaine, M.C.L. Sec. 333.7401(2)(a)(iii); M.S.A. Sec. 14.15(7401)(2)(a)(iii), delivering or manufacturing less than 50 grams of heroin, M.C.L. Sec. 333.7401(2)(a)(iv); M.S.A. Sec. 14.15(7401)(2)(a)(iv), possession of marijuana, M.C.L. Sec. 333.7403(2)(d); M.S.A. Sec. 14.15(7403)(2)(d), and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). ¹ He was sentenced to two terms of ten to twenty years for the first two convictions and to terms of one and two years, respectively, for the last two convictions. ² We affirm.

Defendant first argues that the trial court erred in not directing a verdict in his favor with regard to the felony-firearm charge because the gun found in his home was not in his possession. We disagree.

The record shows that the loaded gun was found inside a metal box located within a padlocked wooden safe in the basement of defendant's home, along with some cash and two bankbooks belonging to defendant. Defendant and a woman were also found in the basement, along with drugs, money, and paraphernalia. Neither made any attempt to get to the safe, but, instead, defendant attempted to flush some contraband down the toilet. The keys to the safe were never found; the police broke into it.

The felony-firearm statute punishes anyone "who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony...." M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). A person has "possession" of a weapon when it is "accessible and available ... at the time [the crime is committed]." People v. Terry, 124 Mich.App. 656, 662, 335 N.W.2d 116 (1983). "[D]efendant's access to the weapon should not be determined solely by reference to his arrest." People v. Becoats, 181 Mich.App. 722, 726, 449 N.W.2d 687 (1989). To the extent that People v. Myers, 153 Mich.App. 124, 126, 395 N.W.2d 256 (1986), requires actual possession of the weapon at the time of defendant's arrest, we decline to follow it.

Here, the presence of defendant's bankbooks inside the locked box created a question of fact regarding whether the contents of the safe, including the gun, were accessible to him at the time he possessed the controlled substances found in his home. We find that the trial court properly refused to take this issue away from the jury.

Defendant next argues that the trial court abused its discretion in allowing a police officer to testify as an expert in the area of drug manufacturing and delivery. We disagree.

MRE 702, which governs the admissibility of expert testimony, requires that there "be facts in evidence that require or are subject to examination and analysis by a competent expert, and [that] there ... be knowledge in a particular area that belongs more to an expert than an ordinary person." People v. Ray, 191 Mich.App. 706, 707, 479 N.W.2d 1 (1991). Admissibility is governed by a three-part test: (1) the expert must be qualified; (2) the evidence must serve to give the trier of fact a better understanding of the evidence or assist in determining a fact in issue; and (3) the evidence must be from a recognized discipline. People v. Beckley, 434 Mich. 691, 711, 456 N.W.2d 391 (1990). "The critical inquiry, however, is whether such testimony will aid the factfinder in making the ultimate decision in the case." Ray, supra 191 Mich.App. at 707, 479 N.W.2d 1; see alsoBeckley, supra 434 Mich. at 715, 456 N.W.2d 391. The fact that an expert's opinion may embrace "an ultimate issue" in the case does not make it inadmissible. Ray, supra 191 Mich.App. at 707, 479 N.W.2d 1; see alsoBeckley, supra 434 Mich. at 727, 456 N.W.2d 391; MRE 704.

Here, as in Ray--which happened to involve the same police officer--the testimony concerned how the evidence found in defendant's house was routinely used to cut, weigh, package, and sell controlled substances. The officer was qualified because of his training and experience. The information was not within the layman's common knowledge and was useful to the jury in determining defendant's intent at the time he possessed the drugs. Ray, supra 191 Mich.App. at 707-708, 479 N.W.2d 1. There is also no serious question that drug-related law enforcement is a recognized area of expertise. The trial court did not abuse its discretion in admitting the officer's testimony.

Defendant's third argument is that the trial court erroneously used the second edition of the sentencing guidelines, rather than the first, in calculating his sentences. We disagree. Administrative Order No. 1988-4, 430 Mich. ci, requires that the second edition of the guidelines be used in all sentencing proceedings that, as was the case here, take place after October 1, 1988. People v. Potts, 436 Mich. 295, 298, 461 N.W.2d 647 (1990).

For his fourth argument, defendant contends that he was not sentenced under the appropriate statute with regard to the first two convictions. We again disagree.

When defendant was initially sentenced, the court erroneously sentenced him under the old statute that provided for higher minimum sentences. See M.C.L. Sec. 333.7401(2)(a); M.S.A. Sec. 14.15(7401)(2) (a); see also People v. Schultz, 435 Mich. 517, 526, 460 N.W.2d 505 (1990). However, on remand by this Court in light of Schultz, the trial court noted that the lower minimums were applicable but nevertheless chose to impose the same sentences. Defendant was not sentenced under the wrong statute.

Defendant also argues that the sentences were nevertheless disproportionate and cruel or unusual. We must again disagree. Because the sentences were within the range recommended by the guidelines, they are presumptively proportional, especially in light of defendant's extensive drug record and his prior manslaughter conviction. People v. Broden, 428 Mich. 343, 354-355, 408 N.W.2d 789 (1987); see also People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990). Defendant has failed to overcome this presumption of proportionality. Likewise, because the sentences are not disproportionate in relation to the crimes, they are therefore not cruel or unusual. People v. Bullock, 440 Mich. 15, 40-41, 485 N.W.2d 866 (1992).

In a related issue, defendant further argues that, in determining his score under the guidelines, the trial court erred in considering a conviction he received in 1967 without the benefit of counsel. Once again, we disagree. Our review of the record in that case has disclosed that, before he pleaded guilty, defendant was told of his right to counsel, was asked whether he wanted appointed counsel, and that, instead of accepting, he indicated that he was not indigent. Defendant therefore has failed to establish a prima facie case that the 1967 conviction was improperly considered. People v. Moore, 391 Mich. 426, 440-441, 216 N.W.2d 770 (1974).

Defendant next argues that the trial judge should have disqualified himself because he had prosecuted defendant on behalf of the people in 1967 and 1977 and had still been a prosecutor in 1987, when defendant was again prosecuted. We disagree.

First, we find that this issue is moot because defendant sought to disqualify the judge only in the bench trial of an habitual offender charge that was eventually dismissed. Second, the issue has been waived because defendant did not seek review de novo by the chief judge of the circuit court from the trial judge's refusal to disqualify himself. Law Offices of Lawrence J. Stockler, P.C. v. Rose, 174 Mich.App. 14, 23, 436 N.W.2d 70 (1989); MCR 2.003(C)(3)(a). Third, defendant has failed to convince us that there was actual bias on the trial judge's part. See MCR 2.003(B)(2). Lastly, defendant has failed to show that, as a prosecutor, the trial judge personally appeared or participated in defendant's 1987 conviction, the only one within two years of the conviction at issue here. See People v. Delongchamps, 103 Mich.App. 151, 155-156, 302 N.W.2d 626 (1981).

For his last argument, defendant contends that the trial court should have granted his motion to suppress evidence because the police did not knock and announce themselves before breaking into defendant's home to execute the search warrant. We disagree.

The testimony produced at the suppression hearing showed that, as soon as the officers pulled into defendant's driveway and got out of their van, they noticed someone at the front window looking at them. Several officers then started yelling "police; search warrant" and ran into defendant's open attached garage and proceeded to break into the house through the door connecting the garage and the house. Another officer ran toward the window to "cover" the person who had spotted them and saw several people inside running toward the back of the house. That officer was also yelling "police; search warrant." There was no contrary testimony.

The knock-and-announce statute requires police...