Opinion
No. 348772
07-23-2020
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DENNIS DWAINE HUSSEY, JR., Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Kalamazoo Circuit Court
LC No. 2018-001199-FH Before: FORT HOOD, P.J., and JANSEN and TUKEL, JJ. PER CURIAM.
Defendant was convicted by a jury of possession of methamphetamine with the intent to deliver, MCL 333.7401(2)(b)(i), after police discovered 4.13 grams of methamphetamine on his person. He was sentenced as a fourth habitual offender (MCL 769.12) to a term of 5 to 20 years' imprisonment. Defendant did not contest that he possessed the methamphetamine but maintained that it was not intended for delivery. On appeal, defendant raises a number of related issues. We affirm.
I. EXPERT TESTIMONY
Defendant first contends that the trial court erred by qualifying Investigator Matthew Slenk as an expert witness and by admitting his opinion testimony that defendant possessed methamphetamine with the intent to deliver it. We find no error.
"[T]he determination regarding the qualification of an expert and the admissibility of expert testimony is within the trial court's discretion." People v Murray, 234 Mich App 46, 52; 593 NW2d 690 (1999). "In exercising its discretion, a trial court should not require a proposed expert witness to satisfy an overly narrow test of qualifications." People v Haywood, 209 Mich App 217, 225; 530 NW2d 497 (1995), citing People v Whitfield, 425 Mich 116, 122-124; 388 NW2d 206 (1986). A court's decision is an abuse of discretion if it falls outside the range of principled outcomes. People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003).
MRE 702 provides:
If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.
In People v Kowalski, 492 Mich 106, 120; 821 NW2d 14 (2012) (quotation marks, citations and footnotes omitted), our Supreme Court held that
[a] court considering whether to admit expert testimony under MRE 702 acts as a gatekeeper and has a fundamental duty to ensure that the proffered expert testimony is both relevant and reliable. The overarching goal is to make certain that an expert . . . employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field. Because there are many different kinds of experts and expertise, this inquiry is, by necessity, a flexible one, and a court determining the admissibility of expert testimony may consider reliability factors pertinent to the particular type of expert testimony offered and its connection to the particular facts of the case.The Supreme Court continued:
Whatever the pertinent factors may be, however, a court evaluating proposed expert testimony must ensure that the testimony (1) will assist the trier of fact to understand a fact in issue, (2) is provided by an expert qualified in the relevant field of knowledge, and (3) is based on reliable data, principles, and methodologies that are applied reliably to the facts of the case. Although these considerations are separate and distinct and must each be satisfied independently, they are, in fact, overlapping in nature. [Id. at 120-121 (citation and footnote omitted).]
Before trial, defense counsel made clear that he was opposing any expert testimony by police officers. The prosecutor responded:
In terms of the specifics of what I would ask the officer or try to get from the officer I go through um, the 4.13 grams of meth and why that's significant, what a typical user amount would be, how many personal user amounts is in that 4.13 grams, whether or not he's familiar with user paraphernalia and if any of that was found on the Defendant that day and why or why not that is significant. And then again the question that potentially would be at issue I believe would be are there any items typically found with a dealer and then are those—were those items found to your knowledge during this incident."Defense counsel responded that if he had known about the prosecutor's intent to offer the expert testimony sooner, he could have requested a Daubert hearing. The trial court ultimately held that the officer could give factual testimony regarding what was found on defendant when he was apprehended, and could testify "as an expert in police work or in determining how to proceed in a criminal case," i.e., "how he interpreted what he found or did not find in this case as to how to proceed, [and] whether to proceed as a possession case or a possession with intent case based on his training and experience." The court clarified that "he is not going to testify about what are dealer items and whether they are—what dealer items are commonly found and then how that matches up to this case." When the prosecutor subsequently moved to qualify Slenk as an expert "in police work and how to proceed in a criminal case," defense counsel objected, stating: "I don't think it's a recognized field such that the officer should be qualified in general police work." The trial court overruled the objection.
Daubert v Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993).
In People v Ray, 191 Mich App 706; 479 NW2d 1 (1991), the defendant claimed, as does defendant in this case, that the trial court erred by qualifying a police officer as an expert witness "and in permitting him to testify regarding the significance of the quantity and division of the drugs allegedly found on defendant as they related to the issue of intent to deliver." Ray,191 Mich App at 707. This Court rejected the defendant's claim and reasoned:
In the present matter, Officer Rosenstangel was properly qualified as an expert on the basis of his training and experience with observing drug use and drug trafficking. The trial court did not abuse its discretion in permitting his expert testimony. Rosenstangel testified that the quantity of crack cocaine found in defendant's possession, the fact that the rocks of crack cocaine were evenly cut, and the selling price of crack cocaine on the street clearly indicated that defendant intended to sell the drugs and not simply use the crack cocaine for personal consumption. Such information was not within the knowledge of a layman, and Rosenstangel's testimony would have aided the jury in determining defendant's intent and, thus, his guilt of the charged offense. The fact that the testimony did embrace the ultimate issue of intent to deliver did not render the evidence inadmissible. [Id. at 707-708 (citation omitted).]
Citing Ray, this Court similarly concluded as follows in People v Williams, 198 Mich App 537, 542; 499 NW2d 404 (1993) (citations omitted):
"The critical inquiry, however, is whether such testimony will aid the factfinder in making the ultimate decision in the case." [Ray, 191 Mich App at 707.] The fact that an expert's opinion may embrace "an ultimate issue" in the case does not make it inadmissible. [Id.]
Here, as in Ray . . . 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. There is also no serious question that drug-related law enforcement is a recognized area of expertise. The court did not abuse its discretion in admitting the officer's testimony.
Subsequently, in People v Murray, 234 Mich App 46, 62-63; 593 NW2d 690 (1999), this Court agreed that it was appropriate for the police witnesses to describe the typical behavior of drug dealers, how drugs were bought and sold, what effects crack cocaine had on a person's body, how male dealers used women to assist in the sale of drugs in the Kalamazoo area, how drug dealers typically carried pagers and large amounts of cash, and the ways in which crack cocaine was packaged for sale as opposed to personal use. This Court held that "the use of expert testimony, to offer the jurors information about the drug trade from which to analyze the information in the case, was proper and did not offer innocent characteristics themselves as evidence of guilt." Id. at 63. This Court did conclude that it was error to permit a police officer to testify that drug dealing was more prevalent in certain areas of the city, including the address where defendant lived, and that "a piece of paper with tabulations of numbers found on the dining-room table was used to keep track of drug sales." Id. at 63. Nevertheless, this Court concluded that admission of this testimony was harmless because it was highly probable that it did not affect the jury's verdict since there was strong circumstantial evidence of the defendant's possession of the crack cocaine found in his apartment and since the trial court gave a cautionary instruction directing the jury to disregard the testimony as substantive evidence. Id. at 64.
Here, the trial testimony established that defendant was carrying a digital scale in his pocket when he was arrested. He had also hidden a plastic sandwich baggie in his undershorts. That baggie contained another empty plastic sandwich baggie as well as eight small plastic baggies, seven of which contained a total of 4.13 grams of methamphetamine. The remaining smaller baggie was empty. Defendant readily admitted that he had "meth" in his undershorts and denied that he used "meth." Investigator Slenk testified that he was familiar with "user paraphernalia", such as "[g]lass pipes and syringes," and testified that none of those items were found on defendant when he was arrested. He then affirmed that, based on his expertise and the evidence he found, he had "interpret[ed] the evidence seized that day in conjunction with the facts and circumstances of the case." Asked if he had decided how to proceed on charges against defendant and what charge he decided to pursue, he answered, "possessing the methamphetamine for distribution" and agreed that would be "with intent to deliver." The prosecutor asked what he based his decision "on using just the facts of this case" and Slenk stated: "Ah, the individual baggies, the digital scale on him, the lack of paraphernalia, [and] the admission . . . that he didn't use meth."
We conclude that it was appropriate for the trial court to determine that the average juror would not be familiar with the ordinary nature of the drug trade and what things might serve to identify an individual as a drug user or drug distributor. Moreover, Slenk's testimony was proper based on his training and experience as a police officer. His testimony explained, based on his knowledge and experience, the significance of the items he found in defendant's possession as well as the significance of the absence of certain items. The factors described by Slenk strongly suggested that defendant possessed the methamphetamine with the intent to distribute it. He admitted he had methamphetamine concealed on his person, but he denied that he used it. The methamphetamine appeared to be packaged for individual sale. Defendant possessed a digital scale, which would enable him to weigh the baggies, both to divide the methamphetamine equally into the amounts in the small baggies and also to demonstrate to his clients the weight of each individual baggie. Moreover, defendant not only denied that he used methamphetamine, but he did not possess any of the paraphernalia that would enable him to use the it.
We note defendant's claim that the trial court erred by failing to conduct a hearing pursuant to Daubert v Merrell Dow Pharm, Inc, 509 US 579; 113 S Ct 2786; 125 L Ed 2d 469 (1993). While the Daubert hearing requirement is applicable to cases involving claims of new or novel scientific knowledge, "where non-scientific expert testimony is involved, 'the [Daubert] factors may be pertinent,' or 'the relevant reliability concerns may focus upon personal knowledge or experience.' " Surles v Greyhound Lines, Inc, 474 F3d 288, 295 (CA 6, 2007) (citations omitted). This case did not involve new or novel scientific knowledge; it involved the question of whether Slenk could opine on a matter of knowledge that, while not perhaps known to the average citizen, was well-known to a police officer experienced with drug trafficking. Thus, defendant's argument with respect to the failure to hold a Daubert hearing is without merit.
Lastly, any concern that Slenk's testimony might have been given undue weight by the jury "was alleviated to some extent by a proper jury instruction on expert testimony, including the fact that the jury did not have to believe the expert's testimony." People v Dixon-Bey, 321 Mich App 490, 510; 909 NW2d 458 (2017). The trial court instructed that "you do not have to believe an expert's opinion," but should "decide whether you believe it and how important you think it is and when you decide whether you believe an expert's opinion, think carefully about the reasons and facts he gave for his opinion and whether those facts are true." This instruction was sufficient to dispel any concern that the jury might assign undue weight to Slenk's testimony.
II. SUFFICIENCY OF THE EVIDENCE
Defendant next argues that the evidence was insufficient to support the jury's verdict. This claim is without merit.
This Court reviews sufficiency of the evidence claims "in a light most favorable to the prosecutor to determine whether any trier of fact could find the essential elements of the crime were proven beyond a reasonable doubt." People v Williams, 294 Mich App 461, 471; 811 NW2d 88 (2011) (quotation marks and citation omitted). This Court does not interfere with the jury's determination of the weight or credibility of a witness's testimony. People v Fletcher, 260 Mich App 531, 561; 679 NW2d 127 (2004). It is the responsibility of the trier of fact to determine the inferences that may fairly be derived from the evidence and to decide what weight should be accorded to those inferences. People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). Circumstantial evidence and reasonable inferences from such evidence are sufficient to support a jury's finding of guilt. People v Ericksen, 288 Mich App 192, 196; 793 NW2d 120 (2010). Where there are conflicts in the testimony, this Court resolves those conflicts in favor of the prosecution when reviewing the conviction on appeal. People v Harmon, 248 Mich App 522, 524; 640 NW2d 314 (2001). With respect to the contested element of intent to deliver, because of the difficulty of proving intent, minimum circumstantial evidence is sufficient to demonstrate the intent with which a defendant acted. Ericksen, 288 Mich App at 196.
"The elements of possession with intent to deliver a controlled substance under MCL 333.7401 are (1) that a defendant possessed a controlled substance, (2) that the defendant knew he or she possessed the controlled substance, (3) that the defendant intended to deliver the controlled substance to someone else, and (4) the amount of the controlled substance, if applicable." People v Robar, 321 Mich App 106, 131; 910 NW2d 328 (2017); MCL 333.2401(2)(b)(i). Defendant only contested the intent to deliver element.
The amount in this case was not an applicable element because MCL 333.7401(2)(b)(1) does not contain an amount requirement.
As detailed above, defendant admitted that he possessed the methamphetamine concealed in his undershorts; however, when asked if he used methamphetamine, he denied that he used it. A digital scale was found in his pocket along with $75. The small individual baggies with relatively equal amounts of methamphetamine indicated that the drugs had been packaged in small quantities for sale. The additional empty small baggie suggested that one was left over after dividing his initial larger amount of methamphetamine, or that he was prepared to apportion out an even smaller amount if necessary. A user would have no need for an empty baggie. Neither the empty smaller baggie nor the empty larger baggie contained any evidence of methamphetamine. Therefore, there was no support for the supposition that defendant had already personally used some of the methamphetamine he had originally possessed. Finally, no user paraphernalia was found on defendant's person.
Considered in a light most favorable to the prosecution, and resolving all evidentiary conflicts in the prosecution's favor, the evidence presented by the prosecutor established that defendant possessed the methamphetamine with the intent to deliver it. Defendant has failed to establish that the jury's verdict was based on insufficient evidence.
III. CONFRONTATION
Defendant next contends in a Standard 4 brief that the prosecution's failure to present the laboratory technician who performed the analysis of the substance contained in the baggies deprived him of his constitutional right of confrontation. However, because defendant stipulated to the admission of the laboratory report and did not request that the prosecution present the technician who authored it as a witness, he waived this issue and there is no claim to review. People v Buie, 491 Mich 294, 306, 318; 817 NW2d 33 (2012). See also People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000), quoting United States v Griffin, 84 F3d 912, 924 (CA 7, 1996) ("One who waives his rights under a rule may not then seek appellate review of a claimed deprivation of those rights, for his waiver has extinguished any error."). Given defendant's waiver, we decline to address this issue. We note, however, that stipulating to the admission of the laboratory report without requiring the prosecutor to produce the technician who prepared it was consistent with defendant not challenging the only relevant conclusion of the report: that the powdery substance found in the baggies confiscated from defendant was methamphetamine. Because this point was not being contested, there was no reason for requiring the technician to come to court to testify. Moreover, since defendant was not contesting that he possessed methamphetamine, and claimed only that he did not have the intent to deliver, defendant's inability to confront the technician did not cause defendant prejudice. Finally, the failure to afford defendant his right to confront the technician did not result in the conviction of an actually innocent defendant or "seriously affect the fairness, integrity or public reputation of judicial proceedings." People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999).
IV. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant finally contends in his Standard 4 brief that his trial counsel failed to provide effective assistance because did not object to the trial court's failure to give a proper jury instruction concerning the jurors' consideration of the lesser included offense. Specifically, defendant argues that the trial court's instruction failed to comply with the requirements imposed by People v Handley, 415 Mich 356; 329 NW2d 710 (1982), and M Crim JI 3.11(6). Defendant did not claim in a postconviction motion that his counsel had failed to provide effective assistance and no Ginther hearing was conducted. Therefore, this Court's review is limited to mistakes apparent on the record. People v Lane, 308 Mich App 38, 68; 862 NW2d 446 (2014).
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
In Handley, the Court stated:
[A] jury instructed after the day this opinion is released must be told to consider the principal charge first. It should then be instructed that if it fails to convict or acquit or is unable to agree whether to convict or acquit on that offense, it may then turn to lesser offenses. The correct instruction would be that after the jury has given consideration to the greater offense, it may turn to lesser offenses either if it finds the defendant not guilty of the greater offense or if it is unable to agree on whether the defendant is guilty or not guilty of the greater offense. The judge may add that it is for the jury to decide how long to spend considering the greater offense before turning to a consideration of lesser offenses or, stated differently, it is for the jury to decide whether, having failed to reach an agreement on guilt or innocence on a greater offense, to spend more time in an attempt to reach unanimous agreement on the greater offense or whether the time has come to turn to lesser offenses. The judge may also add that of course the jury will not turn to lesser offenses if it finds the defendant guilty of the greater offense. [Handley, 415 Mich at 361.]M Crim JI 3.11 was subsequently adopted. It contains seven paragraphs instructing jurors how they are to conduct themselves during deliberations. The trial court instructed the jury in accord with this standard jury instruction but did not give paragraph (6):
(6) I have already given you instructions regarding [a lesser offense/lesser offenses]. As to any count which includes a lesser offense, you must first consider the principal offense. If you all agree that the defendant is guilty of that offense, you need not consider the lesser offense(s). If you believe that the defendant is not guilty of the principal offense or if you cannot agree on that offense, you may consider the lesser offense(s). It is up to you to decide how long to consider the principal offense before discussing the lesser offense(s). You may go back to consider the principal offense again after discussing the lesser offense(s), if you want to.
The Use Note for M Crim JI 3.11 provides:
Paragraph (6) of this instruction is only used when the jury is instructed on less serious crimes. See [Handley]. The remainder of the instruction should be given in every case.
The problem that Handley addressed was an instruction that directed the jury that it could only consider the lesser offense if it first voted to acquit the defendant of the charged offense. Handley, 415 Mich at 360, quoting People v West, 408 Mich 332, 342; 291 NW2d 48 (1980). The trial court's instructions in this case did not present a similar error. The trial court instructed the jury according to M Crim JI 3.11, but failed to give paragraph (6). Pursuant to Handley and M Crim JI 3.11, this was error. However, before releasing the jury to begin deliberations, the trial court added the following instructions:
You can return a verdict of guilty of the alleged crime, guilty of a less serious crime or not guilty.
* * *
This is the verdict form that's actually going to go up with you to the jury room so it's got the caption of the case which is basically State of Michigan, 9th Judicial Circuit, my name, the case number, the case name and then it says Form of Verdict and it tells you to mark only one box. We the jury find the Defendant and there are three boxes here under the principle [sic] charge; controlled substance, possession with intent to deliver methamphetamine.
You can either check a box that is labeled not guilty[,] [a] box that is labeled guilty of controlled substance, possession with intent to deliver methamphetamine[,] or guilty of the less serious offense of controlled substance possession of methamphetamine. Again, one box—one box only. Then your Foreperson is going to date this form, sign and print their name legibly. This is going to become part of our official Court file.
While not phrased exactly like the instruction approved in Handley and M Crim JI 3.11, the trial court's instructions did not place any restrictions on the jury's order of consideration with regard to the greater and lesser offenses. To establish a deprivation of the right to the effective assistance of counsel, a defendant must establish that he was prejudiced by his counsel's deficient performance. People v Grant, 470 Mich 477, 485-486; 684 NW2d 686 (2004). The instruction as given could not have prejudiced defendant because the jury was not told, as in Handley, that it first had to acquit before it could begin to consider the lesser offense. Additionally, "an imperfect instruction is not grounds for setting aside a conviction if the instruction fairly presented the issues to be tried and adequately protected the defendant's rights." People v Kowalski, 489 Mich 488, 501-502; 803 NW2d 200 (2011).
Here, the instruction informed the jury that it could find defendant not guilty, guilty as charged of the intent to deliver offense, or guilty of the lesser possession offense without requiring the jury to agree with regard to the charged offense before it could consider the lesser offense. Furthermore, defendant was found guilty as charged; accordingly, the jury presumably agreed on defendant's guilt as to the charged offense and never found it necessary to consider the lesser offense. Because defendant was not prejudiced by the instruction that was given, he was not deprived of his right to the effective assistance of counsel. People v Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001) ("To demonstrate prejudice, the defendant must show the existence of a reasonable probability that, but for counsel's error, the result of the proceeding would have been different.").
Affirmed.
/s/ Karen M. Fort Hood
/s/ Kathleen Jansen
/s/ Jonathan Tukel