Opinion
No. 331175
04-25-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. NICHOLAS MARCUS WALKER, Defendant-Appellant.
UNPUBLISHED Kent Circuit Court
LC No. 15-007079-FH Before: BECKERING, P.J., and MARKEY and SHAPIRO, JJ. PER CURIAM.
Defendant, Nicholas Marcus Walker, appeals from his conviction of possession with intent to deliver less than 50 grams of Norco/Hydrocodone, MCL 333.7401(2)(a)(iv), second offense, MCL 333.7413(2). He was sentenced as a third habitual offender, MCL 769.11, to 20 months to 40 years in prison. We affirm defendant's conviction, but remand for the ministerial purpose of correcting defendant's judgment of sentence.
Defendant was arrested and charged after an eyewitness, Isaiah Vandenberg, reported that defendant was attempting to sell prescription hydrocodone pills at the Family Fare gas station on 28th Street in Wyoming, Michigan.
Defendant first argues that the trial court committed reversible error by admitting testimony from Vandenberg that he felt threatened by defendant at a prior hearing pertaining to defendant's case. At trial, Vandenberg testified that after a previous hearing, defendant "look[ed] at [me] and said something, couldn't hear what was said, um, and then he proceeded out of the courtroom." When asked how that made him feel, Vandenberg responded "threatened," and he further testified that he then asked for a court officer to escort him to his vehicle. Vandenberg reiterated that while he was sure that defendant said something to him, he was not able to make out what defendant said. We agree that had defendant's trial counsel objected to this evidence, the proper course for the trial court would have been to sustain the objection as Vandenberg's testimony about his subjective feelings was not relevant. However, defense counsel did not object, and we do not believe that the admission of this testimony was plain error that affected defendant's substantial rights.
Unpreserved evidentiary issues are reviewed for plain error. People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999). Plain error requires that: "1) [an] error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." Id. "The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." Id.
The prosecution contends that this testimony was admissible as "[a] defendant's threat against a witness is generally admissible[,]" because "[i]t is conduct that can demonstrate consciousness of guilt." People v Sholl, 453 Mich 730, 740; 556 NW2d 851 (1996). However, Vandenberg never testified that defendant threatened him, and he stated that he did not hear what the defendant said to him. Thus, the testimony was not that defendant threatened Vandenberg, rather it was that Vandenberg felt threatened. The witness's subjective feeling alone does not constitute evidence of defendant's consciousness of guilt, and the testimony had no other potential relevance to the case. See MRE 401 (" 'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable . . . .") and MRE 402 ("Evidence which is not relevant is not admissible.").
However, in order to prevail under the plain error test, defendant must show that the error "resulted in the conviction of an actually innocent defendant or [that the] error seriously affected the fairness, integrity or public reputation of judicial proceedings' independent of the defendant's innocence." People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999) (quotations and citation omitted). There was ample untainted evidence of defendant's guilt such that Vandenberg's testimony about feeling threatened did not result in the conviction of an innocent person or seriously affect the fairness, integrity, or public reputation of the proceedings.
According to Vandenberg, as he was pumping his gas, defendant approached him and offered to sell him prescription medication, which, according to Vandenberg, defendant stated was "Norco," by first offering to sell Vandenberg the pills and then offering to trade the pills for cigarettes. When he had finished pumping his gas, Vandenberg drove to a nearby Tim Hortons, called the police, and watched defendant until the police arrived. Officers testified that when they approached defendant he was found with a bottle of prescription pills for hydrocodone/acetaminophen that had been filled earlier that morning. Defendant had a valid prescription for the pills, and he denied that he tried to sell them to anyone. Based on this evidence, Vandenberg's improper testimony about feeling threatened was not outcome determinative. Carines, 460 Mich at 763. As a result, the trial court did not commit plain error, and defendant is not entitled to relief on this basis. Id.
"Norco" is a brand name for a prescription drug that is a combination of acetaminophen, the active ingredient in Tylenol, and hydrocodone. Everyday Health, What is Norco <http://www.everydayhealth.com/drugs/norco> (accessed March 21, 2017). Hydrocodone is a schedule 2 controlled substance. MCL 333.7214(a)(i).
Defendant testified that he approached Vandenberg simply to ask to borrow a cigarette.
Next, defendant argues that the prosecutor improperly commented on his homelessness in closing arguments. On cross-examination, defendant was questioned regarding the reason that the address where he testified that he was living was different than both the address listed on his prescription and the address he gave the police at the time of his arrest. Defendant explained that he did not have a permanent residence, was "basically homeless" and simply resided with different people from time to time, which resulted in his use of varying addresses. In closing arguments, the prosecutor asked the jury, "[a]re you going to believe [the eyewitness], or are you going to believe an individual who has three addresses that have come out in this trial?" This was clearly improper. It is improper for a prosecutor to comment on a defendant's poverty or homelessness for the purpose of attacking that defendant's credibility. People v Johnson, 393 Mich 488, 498; 227 NW2d 523 (1975) and People v Conte, 152 Mich App 8, 14; 391 NW2d 763 (1986) (stating that "[e]vidence of poverty, dependence on welfare or unemployment is not admissible to show motive or as evidence of a witness's credibility"). Contrary to its arguments on appeal, the prosecutor's argument was not a credibility attack based on defendant's inconsistent statements; it was an attack on defendant's credibility due to his explanation for the inconsistency, his homelessness, and was improper.
However, as with the evidentiary error regarding Vandenberg's testimony of feeling threatened, no objection was made by trial counsel, so our review is limited to the plain error standard, which requires a showing of prejudice, Carines, 460 Mich at 763, and defendant has failed to show that this improper conduct was prejudicial. As discussed above, the untainted evidence was substantial, and the prosecutor's comments, while improper, did not result in the conviction of an actually innocent defendant or seriously affect the fairness, integrity, and public reputation of the trial. Id.
Defendant next asserts that he was denied effective assistance of counsel because his trial counsel failed to object to Vandenberg's improper testimony of feeling threatened and failed to object to the prosecutor's improper comment about his poverty. To prevail on a claim of ineffective assistance of counsel a defendant must show "that counsel's performance was deficient," and that "the deficient performance prejudiced the defense." Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). "A defendant must overcome a strong presumption that the assistance of his counsel was sound trial strategy . . . ." People v Sabin (On Second Remand), 242 Mich App 656, 659; 620 NW2d 19 (2000).
Because no hearing pursuant to People v Ginther, 390 Mich 436; 212 NW2d 922 (1973), was held to create a factual record regarding trial counsel's decision to not object, our review is limited to mistakes apparent on the record. People v Hurst, 205 Mich App 634, 641; 517 NW2d 858 (1994).
After reviewing the record, we do not conclude that counsel failed to perform effectively. While we have indicated our view that the subject testimony and closing argument were improper, we have done so in the abstract and not in the context of reviewing a decision of the trial court. Had the trial court admitted the testimony and permitted the argument over objections, there is a substantial likelihood that we would not have found the rulings to be an abuse of discretion. Thus, to have objected risked bringing further attention to harmful material without success. "There is a 'strong presumption' that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than 'sheer neglect.' " Harrington v Richter, 562 US 86, 109; 131 S Ct 770; 178 L Ed 2d 624 (2011), quoting Yarborough v Gentry, 540 US 1, 8; 124 S Ct 1; 157 L Ed 2d 1 (2003). We must make every effort "to eliminate the distorting effects of hindsight" when reviewing a presumptively sound trial strategy, Strickland, 466 US at 689, including being mindful that no expectation should exist "that competent counsel will be a flawless strategist or tactician." Harrington, 562 US at 110.
Furthermore, even if the failure to object fell "below an objective standard of reasonableness," defendant cannot satisfy the prejudice prong of the Strickland test. While the case was essentially a credibility contest between Vandenberg and defendant, Vandenberg's testimony was corroborated in several key aspects. First, Vandenberg's description of the pill bottle defendant had in his possession was consistent with the bottle the police eventually found on defendant. Second, and more notably, Vandenberg did not simply testify that defendant was attempting to sell him prescription drugs. Vandenberg testified that defendant attempted to sell him a specific drug, Norco, the very drug that police eventually found in defendant's possession. Given this corroborating evidence, the improper reference to Vandenberg's subjective feelings of being threatened and to defendant's homelessness do not undermine our confidence in the outcome of this case. Defendant is not entitled to relief under Strickland.
A defendant is required to show that there exists a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 US at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
Next, defendant contends that the judgment of sentence is incorrect because it indicates that he was convicted of delivery of less than 50 grams of a controlled substance when he was actually convicted of possession with the intent to deliver less than 50 grams of a controlled substance. Although both delivery of a controlled substance less than 50 grams and possession with intent to deliver a controlled substance less than 50 grams are prohibited under the same statutory provision, MCL 333.7401(2)(a)(iv), defendant's judgment of sentence does not accurately state that his conviction was for possession with intent to deliver a controlled substance as opposed to delivery or manufacture of a controlled substance. Defendant is entitled to an accurate judgment of sentence, so we remand to the trial court for the limited purpose of correcting the judgment of sentence to accurately reflect that defendant was convicted for possession with intent to deliver a controlled substance, not delivery or manufacture of a controlled substance. People v Avant, 235 Mich App 499, 521-522; 597 NW2d 864 (1999).
The Felony Information stated the charge as "CONTROLLED SUBSTANCE - DELIVERY/MANUFACTURE (COCAINE, HEROIN OR ANOTHER NARCOTIC) LES THAN 50 GRAMS did possess with intent to deliver less than 50 grams of a mixture containing the controlled substance NORCO/HYDROCODONE." Defendant's Judgement of Sentence simply stated his conviction was for "CONT SUB-DEL/MANF (COCAINE/HEROIN/OR ANOTHER NARCOTIC) LESS THAN 50 GRAMS."
Finally, in his Standard 4 brief, defendant argues that his arrest violated the Fourth Amendment to the United States Constitution because it was not based on probable cause. Specifically, defendant takes issue with the affidavit of probable cause presented to the magistrate and with the felony complaint and argues that these documents are improperly based on hearsay and not supported by personal knowledge of the signing officer.
Defendant does not contest that the felony complaint complied with the relevant statutory and court rule requirements such as that the complaint be signed and sworn before a judicial officer and be filed with the prosecutor's written approval. MCR 6.101 and MCL 764.1(3). Additionally, it does not matter that statements in the complaint and in the affidavit in support of that complaint were based on hearsay because a finding of probable cause sufficient to allow a court to issue an arrest warrant may be based on "hearsay evidence" and on "factual allegations in the complaint, affidavits from the complainant or others." MCR 6.102, and see MCL 764.1a (stating that reasonable cause to issue an arrest warrant may be based on factual allegations in a complaint and the complainant's affidavit). Defendant argues that the complaint and affidavit in support were insufficient because they did not comply with MCL 780.653, but that statutory provision pertains to the issuance of search warrants, not criminal complaints or arrest warrants. See MCL 780.651 et seq. Defendant has not alleged that the police performed an illegal search on him. The criminal complaint and the affidavit in support both fully comply with the applicable statutes and court rules pertaining to those documents. See MCR 6.101 & 6.102, MCL 764.1 & 764.1a.
Furthermore, the officers who arrested defendant had probable cause to do so, and defendant's arrest was not a violation of the Fourth Amendment. The Fourth Amendment requires that the arresting officer "possess information demonstrating probable cause to believe that an offense has occurred and that the defendant has committed it." People v Nguyen, 305 Mich App 740, 751; 854 NW2d 223 (2014). "In reviewing a claim that the police lacked probable cause to arrest, this Court must determine 'whether facts available . . . at the moment of arrest would justify a fair-minded person of average intelligence in believing that the suspected person had committed a felony.' " Id. at 751-752, quoting People v Oliver, 417 Mich 366, 374; 338 NW2d 167 (1983). One police officer testified that she made contact with defendant and that he matched the description of the individual Vandenberg had reported tried to sell him Norco. Finally, the arresting officer confiscated a pill bottle from defendant's front pants pocket that contained 21 hydrocodone pills. Based on this information, "a fair-minded person of average intelligence" would believe that defendant had attempted to sell hydrocodone pills to Vandenberg, which is a felony pursuant to MCL 333.7401(2)(a)(iv). Oliver, 417 Mich at 374 (citation and quotations omitted).
"A custodial arrest based on probable cause is not an unreasonable intrusion under the Fourth Amendment." People v Nguyen, 305 Mich App 740, 751; 854 NW2d 223 (2014).
Defendant also contends that his defense counsel was ineffective for failing to object to the felony complaint and his arrest. As there is no merit to defendant's claim that the complaint and his arrest were unlawful, trial counsel was not ineffective for failing to raise these objections. See People v Snider, 239 Mich App 393, 425; 608 NW2d 502 (2000) ("Trial counsel is not required to advocate a meritless position."). --------
Defendant's convictions are affirmed. We remand to the trial court for the limited ministerial purpose of correcting defendant's judgment of sentence. We do not retain jurisdiction.
/s/ Jane M. Beckering
/s/ Jane E. Markey
/s/ Douglas B. Shapiro