People v. Williams

• Court: Court of Appeal of Michigan
• Writing for the Court: PER CURIAM.
• Citation: People v. Williams, 240 Mich.App. 316, 614 N.W.2d 647 (Mich. App. 2000)
• Decision Date: 22 June 2000
• Docket Number: Docket No. 202176.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles E. WILLIAMS, a/k/a E. Charles Williams, Defendant-Appellant.

614 N.W.2d 647

240 Mich. App. 316

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles E. WILLIAMS, a/k/a E. Charles Williams, Defendant-Appellant.

Docket No. 202176.

Court of Appeals of Michigan.

Submitted September 7, 1999, at Detroit.

Decided March 24, 2000, at 9:10 a.m.

Released for Publication June 22, 2000.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, David G. Gorcyca, Prosecuting Attorney, Daniel L. Lemisch, Chief, Appellate Division, and Janice A. Kabodian, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Susan M. Meinberg), for the defendant on appeal.

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

PER CURIAM.

Defendant appeals as of right from his jury trial convictions of conspiracy to possess with intent to deliver more than 650 grams of cocaine, M.C.L. § 750.157a; MSA 28.354(1), M.C.L. § 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i), and possession with intent to deliver 650 or more grams of cocaine, M.C.L. § 333.7401(2)(a)(i); MSA 14.15(7401)(2)(a)(i). Defendant was sentenced as a fourth-offense habitual offender, M.C.L. § 769.12; MSA 28.1084, to life without parole for each of his convictions. We affirm.

Defendant was tried with a codefendant, Ronald Gentry. Gentry is not a party to this appeal. From September 8, 1995, until his arrest, law enforcement agencies had been investigating defendant's activities and had made seven controlled purchases of cocaine and heroin. Defendant was arrested on October 13, 1995, when search warrants were executed at defendant's and the codefendant's houses. Defendant was arrested outside the codefendant's house. Inside that house, the police found a safe containing approximately 629 grams of cocaine. Defendant had a key to the safe. In searching defendant's house, the police found several persons, over one hundred grams of cocaine, and items associated with preparing the cocaine for distribution.

I

Defendant first claims that the trial court erred in failing to suppress evidence because the issuance of the search warrant was based on false information. We disagree. We review for clear error a trial court's findings of fact regarding a motion to suppress evidence. People v. Echavarria, 233 Mich.App. 356, 366, 592 N.W.2d 737 (1999). However, we review de novo the trial court's ultimate decision regarding a motion to suppress. Id.

Defendant contends that the following statement contained in the affidavit in support of the search warrant was false:

Affiant has been furnished information from a confidential informant of established reliability, that Cocaine is being stored on a daily basis at 566 Pearsall, in the City of Pontiac.

The record supports defendant's assertion. However, suppression is not required. In People v. Melotik, 221 Mich.App. 190, 200, 561 N.W.2d 453 (1997), this Court explained:

"[I]f false statements are made in an affidavit in support of a search warrant, evidence obtained pursuant to the warrant must be suppressed if the false information was necessary to a finding of probable cause. In order to prevail on a motion to suppress the evidence obtained pursuant to a search warrant procured with alleged false information, the defendant must show by a preponderance of the evidence that the affiant had knowingly and intentionally, or with reckless disregard for the truth, inserted false material into the affidavit and that the false material was necessary to a finding of probable cause." [Id. quoting People v. Stumpf, 196 Mich.App. 218, 224, 492 N.W.2d 795 (1992), citing Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) (emphasis in original).]

Here, defendant has not shown that the false material was necessary to establish probable cause. A review of the remainder of the affidavit demonstrates that it contained sufficient information to support a finding of probable cause. Therefore, the trial court did not err in failing to suppress the evidence.

II

Defendant's next claim of error is that he was denied a fair trial by the prosecutor's use of drug profile evidence. We review for an abuse of discretion a trial court's decision to admit evidence. People v. Hendrickson, 459 Mich. 229, 235, 586 N.W.2d 906 (1998). An abuse of discretion is found only if an unprejudiced person, considering the facts on which the trial court acted, would say there was no justification or excuse for the ruling made. Id.

In People v. Murray, 234 Mich.App. 46, 593 N.W.2d 690 (1999), this Court listed four factors to apply when considering whether drug profile evidence should be admitted. First, the drug-profile evidence must be offered as background or modus operandi evidence, and not as substantive evidence of guilt, and the distinction must be carefully maintained by the attorneys and the court. Second, something more than drug profile evidence must be admitted to prove a defendant's guilt; multiple pieces of profile do not add up to guilt without something more. Third, the trial court must make clear to the jury what is and is not an appropriate use of the drug-profile evidence by, e.g., instructing the jury that drug-profile evidence is properly used only as background or modus operandi evidence and should not be used as substantive evidence of guilt. Fourth, the expert witness should not be permitted to express an opinion that, on the basis of the profile, defendant is guilty, and should not expressly compare the defendant's characteristics to the profile in a way that implies that the defendant is guilty. Id. at 56-57, 593 N.W.2d 690.

Applying Murray, we conclude that to the extent the police witnesses were permitted to express the opinion or state the belief or conclusion that defendant used codefendant Gentry's house on Pearsall as a safe house, the testimony was admitted in error.

However, this Court employs a harmless-error analysis when considering the effect of improperly admitted drug profile evidence. Id. at 64, 593 N.W.2d 690. When assessing a defendant's nonconstitutional allegation of error, the test is whether "`after an examination of the entire cause, it shall affirmatively appear' that it is more probable than not that the error was outcome determinative." People v. Lukity, 460 Mich. 484, 496, 596 N.W.2d 607 (1999), quoting M.C.L. § 769.26; MSA 28.1096. Here, there was evidence that defendant had a key to a safe containing 629 grams of cocaine, located at the Pearsall address; evidence of controlled buys in which defendant would go to the Pearsall address upon receiving an order for drugs and then deliver the drugs to the buyer; evidence that crack cocaine was being manufactured at defendant's house; and testimony that codefendant Gentry's fingerprint was recovered from a bag found at defendant's house, apparently containing cocaine residue. Taking this testimony together with the permissible drug profile evidence concerning background, but excluding the impermissible opinions, conclusions, and comparisons, we conclude that upon an examination of the entire record, it does not affirmatively appear that it is more probable than not that the impermissible drug profile evidence was outcome determinative, either of the underlying possession charge or the conspiracy charge.

III

Defendant next claims that the trial court erroneously admitted prejudicial evidence of similar acts, in violation of MRE 404(b), when it admitted audio and video tapes of the controlled buys conducted during the investigation that led to the warrants and arrests, showing defendant engaging in drug transactions. We disagree. We review the admission of such evidence for abuse of discretion. People v. Crawford, 458 Mich. 376, 383, 582 N.W.2d 785 (1998).

MRE 404(b)(1) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the conduct at issue in the case.

Evidence of other crimes, wrongs, or acts is admissible under MRE 404(b)(1) if the evidence is "(1) offered for a proper purpose and not to prove the defendant's character or propensity to commit the crime, (2) relevant to an issue or fact of consequence at trial, and (3) sufficiently probative to outweigh the danger of unfair prejudice, MRE 403." People v. Ho, 231 Mich.App. 178, 185-186, 585 N.W.2d 357 (1998), citing People v. VanderVliet, 444 Mich. 52, 74-75, 508 N.W.2d 114 (1993), amended 445 Mich. 1205, 520 N.W.2d 338 (1994).

The prosecutor offered the tapes into evidence "to establish the Defendant's knowledge, intent, and identity." Defendant argued that Crawford controlled and that the evidence was inadmissible. In Crawford, the Supreme Court found the prosecution's introduction of detailed testimony regarding the defendant's delivery of cocaine in 1988, four years before the charged offense, to be error requiring reversal. The Supreme Court recognized that the defendant's intent and knowledge were at issue in the case and were permissible purposes for introducing evidence under MRE 404(b)(1). However, the Court concluded that the evidence was not probative of the defendant's knowledge and intent with respect to the charged offense because

the factual relationship between the 1988 crime and the charged offense was simply too remote for the jury to draw a permissible intermediate inference of the defendant's mens rea in the present case. [Crawford, supra at 396, 582 N.W.2d 785].

The Court further explained, id. at 396-397, 582 N.W.2d 785:

The prior conviction only demonstrates that the defendant has been around drugs in the past and, thus, is the kind of person who would knowingly possess and intend

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