Opinion
No. 334640
11-21-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. KENNEDY FITZGERALD SCALES, Defendant-Appellant.
UNPUBLISHED Cheboygan Circuit Court
LC No. 16-005203-FC Before: SWARTZLE, P.J., and SAWYER and MARKEY, JJ. PER CURIAM.
Defendant appeals by right from his convictions, following a jury trial, of two counts of delivery of a controlled substance less than 50 grams, MCL 333.7401(2)(2)(iv), as a second-offense offender, MCL 333.7413(2). Defendant was sentenced to serve concurrent prison terms of 42 months to 40 years in prison. We affirm.
I. FACTS
On February 24, 2016, members of the Straits Area Narcotic Team (SANE) conducted a controlled buy between defendant and a confidential informant (CI). The CI testified that she had agreed to work with SANE in exchange for a reduced sentence on crimes for which she had been charged. On February 23, 2016, the CI texted defendant and arranged to buy heroin and cocaine from him the next day at a Burger King parking lot. The CI then informed Detective Patrick Holt and members of SANE about the arrangement.
The next day, Holt and Detective Sergeant Jason Varoni met the CI at a vacant parking lot, where they searched her person, searched her vehicle, and provided her with a transmitter and $650 in marked bills. Holt and Varoni followed at a distance while the CI drove to the Burger King to meet with defendant. Holt testified that he watched as defendant exited his car and got into the passenger side of the CI's vehicle. The CI testified that she gave defendant $650 in marked bills and he gave her a plastic bag containing two packages.
After the CI dropped off defendant at his vehicle, Detective Holt followed her vehicle into a nearby empty parking where she handed him two corner-knotted plastic grocery bags containing 1.6 grams of cocaine and .26 grams of heroin. Meanwhile, members of SANE maintained surveillance on defendant's vehicle. Deputy Richard Runstrom attempted to conduct a traffic stop of defendant's vehicle, but defendant refused to stop. Runstrom continued to follow defendant and observed him reach toward the passenger side of his vehicle and throw some money out of the passenger side window. Detective Sergeant Varoni recovered $610 of marked bills from the travel lane and the road's shoulder.
Defendant testified that he had known the CI for a couple of months before the controlled buy and that they had smoked and snorted heroin and crack cocaine together. He stated that before the controlled buy, the CI called him, informed him that she just received her tax refund, and asked him to hold $650 for the later purchase of crack cocaine. Defendant admitted that he met the CI at Burger King and took the money from her, but he denied selling cocaine and heroin.
II. ANALYSIS
A. INEFFECTIVE ASSISTANCE OF COUNSEL
On appeal, defendant first argues that trial counsel was ineffective for failing to raise the defense of entrapment. "Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law." People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002). Generally, this Court reviews findings of fact for clear error and questions of law de novo. Id. However, "[w]hen a defendant did not move in the trial court for a new trial or an evidentiary hearing, this Court's review is limited to mistakes apparent from the record." People v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012).
A criminal defendant has the fundamental right to effective assistance of counsel. United States v Cronic, 466 US 648, 654; 104 S Ct 2039; 80 L Ed 2d 657 (1984). "To prove that defense counsel was not effective, the defendant must show that (1) defense counsel's performance was so deficient that it fell below the objective standard of reasonableness and (2) there is reasonable probability that defense counsel's deficient performance prejudiced the defendant. Heft, 299 Mich App at 80-81. It is presumed that defense counsel rendered adequate assistance and exercised reasonable professional judgment when making all significant decisions. People v Vaughn, 491 Mich 642, 670; 821 NW2d 288 (2012). The burden rests on the defendant to show that counsel's performance was deficient. Burt v Titlow, ___ US ___; 134 S Ct 10, 17; 187 L Ed 2d 348 (2013). "[A] defense counsel's failure to raise a substantive defense, where there is substantial evidence to support the defendant's claim, may amount to ineffective assistance of counsel." People v Moore, 131 Mich App 416, 418; 345 NW2d 710 (1984).
A criminal defendant may attempt to establish entrapment by showing that (1) the police conduct would induce a person not ready and willing to commit the offense to go forward with the crime, or (2) the conduct of the police was so reprehensible that it cannot be tolerated. People v Fabiano, 192 Mich App 523, 531-532; 482 NW2d 467 (1992). "Defendant is required to show entrapment by a preponderance of the evidence." Moore, 131 Mich App at 420. When determining whether the government engaged in impermissible conduct that induced the defendant to commit a crime, courts should consider the following factors:
(1) whether there existed appeals to the defendant's sympathy as a friend, (2) whether the defendant had been known to commit the crime with which he was
charged, (3) whether there were any long lapses between the investigation and the arrest, (4) whether there existed any inducements that would make the commission of a crime unusually attractive to a hypothetical law-abiding citizen, (5) whether there were offers of excessive consideration or other enticement, (6) whether there was a guarantee that the acts alleged as crimes were not illegal, (7) whether, and to what extent, any government pressure existed, (8) whether there existed sexual favors, (9) whether there were any threats of arrest, (10) whether there existed any government procedures that tended to escalate the criminal culpability of the defendant, (11) whether there was police control over any informant, and (12) whether the investigation was targeted. [People v Johnson, 466 Mich 491, 498-499; 647 NW2d 480 (2002).]Entrapment does not exist when "the police did nothing more than present the defendant with the opportunity to commit the crime of which he was convicted, which is insufficient to support a finding of entrapment." People v Fyda, 288 Mich App 446, 460; 793 NW2d 712 (2010) (quotation marks and citation omitted).
In this case, the factors do not weigh in favor of entrapment. First, there is no evidence that there was an appeal to defendant's sympathy as a friend, or any other inducement that made the commission of the crime unusually attractive to defendant. Both defendant and the CI testified that they had known each other for a couple months before the controlled buy. The CI testified that after she first met defendant in a drug dealer's house, she would contact him socially and when she wanted to buy drugs from him. Defendant testified that he and the CI had used drugs together six or seven times. All the CI did to initiate the controlled buy was to send a text to defendant requesting to buy heroin and cocaine from him the next day.
Further, there were no long lapses between the investigation and the arrest. Defendant was arrested on the same day he sold heroin and cocaine to the CI. Neither were there offers of excessive consideration or enticement. Testimony established that the going rate for the heroin and cocaine defendant sold to the CI was consistent with $650. The acts of selling heroin and cocaine are clearly illegal. Further, there was no evidence of government pressure or threats of arrest given that defendant did not even know that the police were involved in the transaction. Nor were there any government procedures that tended to escalate the criminal culpability of defendant.
Defendant argues that sexual favors were a factor because he had a sexual relationship with the CI. However, there is no connection between the alleged sexual relationship and the controlled buy in this case. If defendant's version of events is believed, he met with the CI specifically to hold the $650 for her and not on any inducement or promise of sexual favors. In other words, there is no indication that the CI promised to engage in sexual intercourse with defendant in exchange for the drugs.
Defendant also argues that the police targeted him and controlled the CI. The record does not support defendant's assertion that the police targeted him. The CI admitted that she agreed to work with SANE in exchange for a reduced sentence on several pending charges against her, and there was testimony showing that she had conducted other controlled buys for the police pursuant to the agreement. Moreover, given the testimony that she had purchased drugs from defendant on prior occasions and that they used drugs together, it is reasonable to infer that the CI sought out defendant knowing that he was engaged in the delivery of controlled substances.
Regarding supervision, there was police control over the CI. Holt testified that the CI and her vehicle were searched before the transaction and that the CI was also provided with a transmitter and marked bills. Throughout the transaction, the police maintained surveillance on the CI and defendant. On completion of the controlled buy, the police quickly retrieved the heroin and cocaine from the CI and conducted another search of her person and vehicle. The money used during the controlled buy was marked to ensure that it was the same money found in possession of defendant. However, the existence of this single factor does not make the balance of the factors weigh in favor of entrapment.
Counsel is not ineffective for failing to make futile challenges. People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120 (2010). Because there is no basis to conclude that a reasonable probability exists that an entrapment defense would have been successful, counsel's failure to pursue this defense does not constitute ineffective assistance of counsel.
Defendant also contends that he was denied effective assistance of counsel when he was represented by counsel who represented the CI's boyfriend, and who had shared a cell with a prosecution witness. Although defendant raised this issue before the trial court, it was not raised in his motion to remand; therefore, this Court's review is limited to mistakes apparent from the record. Heft, 299 Mich App at 80.
"Defense counsel have an ethical obligation to avoid conflicting representations and to advise the court promptly when a conflict of interest arises during the course of trial." Cuyler v Sullivan, 446 US 335, 346; 100 S Ct 1708; 64 L Ed 2d 333 (1980). "An attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of trial." Id. at 347 (quotation marks and citation omitted). To demonstrate that a conflict of interest violated his Sixth Amendment rights to counsel, a defendant "must establish that an actual conflict of interest adversely affected his lawyer's performance." People v Smith, 456 Mich 543, 556; 581 NW2d 654 (1998) (quotation marks and citation omitted).
"[U]ntil a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance." Cuyler, 446 US at 350. In the instant case, defendant contends that counsel's representation of Lownsberry established that he had a conflict of interest because Lownsberry was the CI's boyfriend. However, no conflict is apparent from the record. Before trial, defendant sought to disqualify trial counsel alleging that he had a conflict of interest with regard to his representation of the CI's boyfriend. The trial court questioned trial counsel to determine whether a conflict existed. Trial counsel informed the court that the cases were separate, unrelated, and had no overlapping issues. That trial counsel represented defendant and the CI's boyfriend in an unrelated case with separate issues does not by itself establish that defendant was deprived of the effective assistance of counsel. Moreover, defendant himself testified that he had a sexual relationship with the CI before the controlled buy. Also notable is that defendant and the CI's boyfriend were not codefendants in this case and were not tried together.
Defendant seems to suggest that the prosecution's witness got his information about the details of the crime from the CI's boyfriend when they shared the same jail cell. Again, there is nothing in the record that supports defendant's allegation. The prosecution's witness testified that he shared a cell block with defendant for three weeks and, while there, defendant confided that he sold heroin and cocaine for $650 and admitted that he threw money out of his vehicle window. The prosecution's witness also testified that at some point during his time in jail, he was cellmates with the CI's boyfriend. The prosecution's witness insisted that the CI's boyfriend did not talk to him about this case and stated that his knowledge about the details of the crime was from defendant.
Defendant has cited no evidence to suggest that defense counsel actively lessened his defense as a result of the alleged conflict, nor is there any evidence to show that the alleged conflict adversely affected counsel's performance. To the contrary, the record reflects that defense counsel vigorously pursued his objections and presented a strong defense. Any conflict is speculative at best and is not apparent from the record.
B. UNLAWFUL ARREST
In his Standard 4 brief, defendant argues that MCR 6.102 was violated where he was arrested and charged with a crime before an arrest warrant was actually issued.
Defendant did not raise the issue below; therefore, it has not been preserved for review. See People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61 (2007). Unpreserved constitutional issues are reviewed for plain error affecting substantial rights. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). A plain error affects substantial rights when "the error affected the outcome of the lower court proceedings." Id. "Reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings independent of the defendant's innocence." Id. (quotation marks and citation omitted).
MCR 6.102(A) provides that "[a] court must issue an arrest warrant, or a summons in accordance with MCR 6.103, if presented with a proper complaint and if the court finds probable cause to believe that the accused committed the alleged offense." However, MCR 6.104(D) explicitly contemplates that an accused may be arrested without a warrant:
If an accused is arrested without a warrant, a complaint complying with MCR 6.101 must be filed at or before the time of arraignment. On receiving the complaint and on finding probable cause, the court must either issue a warrant or endorse the complaint as provided in MCL 764.1c. . . .MCL 764.1(b) provides that "[i]f the accused is in custody upon an arrest without a warrant, a magistrate, upon finding reasonable cause . . . shall . . . [e]ndorse upon the complaint a finding of reasonable cause and a direction to take the accused before a magistrate . . . ." MCL 764.1c(2) provides that an endorsed complaint constitutes both a complaint and a warrant.
In this case, defendant waived his preliminary examination and was bound over for trial. The prosecutor's complaint was filed on March 17, 2016. On March 29, 2016, defendant also waived his arraignment, and the trial court authorized the information. Accordingly, the complaint was filed before the time of arraignment and the trial court endorsed the complaint. The trial court complied with the court rules.
C. JUROR MISCONDUCT
Defendant also argues in his Standard 4 brief that he was deprived of a fair trial and that defense counsel rendered ineffective assistance where juror 10 discussed the case with the bailiff and counsel was ineffective for failing to request a motion for a new trial.
This Court reviews a trial court's decision whether to remove a juror for an abuse of discretion. People v Mahone, 294 Mich App 208, 215; 816 NW2d 436 (2011). The trial court's factual findings regarding juror misconduct are reviewed for clear error. People v Miller, 482 Mich 540, 544; 759 NW2d 850 (2008). Clear error occurs when the reviewing court is left with a definite and firm conviction that a mistake has been made. Id. "When a defendant did not move in the trial court for a new trial or an evidentiary hearing, this Court's review is limited to mistakes apparent from the record." Heft, 299 Mich App at 80.
A criminal defendant has a constitutional right to a fair and impartial jury. Miller, 482 Mich at 547. Jurors "are presumed to be impartial until the contrary is shown." Id. at 550 (quotation marks and citation omitted). The defendant bears the burden of establishing "that the juror was not impartial or at least that the juror's impartiality was in reasonable doubt." Id. "A juror's failure to disclose information that the juror should have disclosed is only prejudicial if it denied the defendant an impartial jury." Id. at 548. "The misconduct must be such as to reasonably indicate that a fair and impartial trial was not had." Id. at 549 (quotation marks and citation omitted).
MCR 6.411 requires the trial court to instruct the alternate jurors not to discuss the case with any other person. Here, defendant's only complaint about juror 10 was that she made a comment to the bailiff questioning the point of trial in the case when criminals had been recently pardoned of similar crimes. The bailiff informed the court that when juror 10 made the comment, the juror was aware that the bailiff could not respond, and the bailiff had stated, "You're right, I can't comment." Apart from this exchange, defendant has offered no evidence to demonstrate that the juror was anything but impartial. Additionally, defendant also failed to demonstrate that he was prejudiced by the juror's presence on his jury. There is also no indication that this juror was compromised, that the other jurors were exposed to any improper influence, or that their ability to make a fair and impartial decision was compromised by juror 10. See Miller, 482 Mich at 553-554. There was no error in the retention of juror 10 because defendant did not demonstrate that he was prejudiced by the juror's presence on his jury.
Counsel is not ineffective for failing to make futile challenges. Ericksen, 288 Mich App at 201. Because the trial court properly declined to excuse the juror, defense counsel was not ineffective for failing to move for a new trial on that ground.
Affirmed.
/s/ Brock A. Swartzle
/s/ David H. Sawyer
/s/ Jane E. Markey