Opinion
365175
06-20-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. LC ANTIONIO DESHAWN WALKER, Defendant-Appellant.
UNPUBLISHED
Kalamazoo Circuit Court LC No. 2021-001619-FH
Before: CAMERON, P.J., and N. P. HOOD and YOUNG, JJ.
PER CURIAM.
Defendant appeals as of right his jury-trial convictions of two counts of possession with intent to deliver less than 50 grams of a controlled substance, MCL 333.7401(2)(a)(iv), one count of possession with intent to deliver methamphetamine, MCL 333.7401(2)(b)(i), and one count of possession with intent to deliver ecstasy, MCL 333.7401(2)(b)(i). He was sentenced as a fourthoffense habitual offender, MCL 769.12, to 100 months' to 25 years' imprisonment for each conviction, with each running concurrently to the others. We affirm.
I. BACKGROUND FACTS AND PROCEDURAL HISTORY
This case arises from a July 5, 2021 traffic stop of a pickup truck in which defendant was a passenger. The driver was Thomas Hooper, the middle passenger was Tracy Clark, and the far-side passenger was defendant. Police officers from the Kalamazoo Department of Public Safety (KDPS) searched the pickup. On the floor near defendant's side of the cab, the officers discovered a black bag containing several illegal substances including cocaine, methamphetamine, and ecstasy. Defendant was arrested and charged with the above offenses.
At trial, defense counsel moved for a missing-witness instruction regarding the prosecutor's failure to secure Clark's testimony, but the trial court denied the motion. The prosecutor called KDPS Sergeant John Khillah as an expert witness in drug investigations. Defendant was convicted and sentenced as noted. This appeal followed.
II. DRUG-PROFILE TESTIMONY
Defendant raises many challenges to Sergeant Khillah's testimony. He believes these purported errors require this Court's reversal of his convictions. We disagree.
A. PRESERVATION AND STANDARD OF REVIEW
A defendant preserves an issue by raising it in the trial court. See People v Heft, 299 Mich.App. 69, 78; 829 N.W.2d 266 (2012). The first time defendant specifically challenged Sergeant Khillah's testimony was in his motion for a new trial, which occurred after defendant filed this claim of appeal. In People v Mayfield, 221 Mich.App. 656, 660; 562 N.W.2d 272 (1997), this Court explained that "[t]he purpose of the appellate preservation requirements is to induce litigants to do what they can in the trial court to prevent error and eliminate its prejudice, or to create a record of the error and its prejudice." Here, it was impossible for the trial court to correct the error cited by defendant, because defendant never raised the issue while trial was ongoing. Thus, defendant's challenge to Sergeant Khillah's testimony, while not waived, is also not preserved for this Court's review. See also People v Abraham, 256 Mich.App. 265, 274; 662 N.W.2d 836 (2003) (concluding that an issue is unpreserved because defendant failed to raise the issue at trial).
Usually, challenges to an evidentiary issue are reviewed for an abuse of discretion. People v Orr, 275 Mich.App. 587, 588; 739 N.W.2d 385 (2007). "A trial court abuses its discretion when it chooses an outcome that is outside the range of reasonable and principled outcomes." Id. at 588589. But, because defendant's argument is unpreserved, this Court's review is limited to plain error affecting substantial rights. People v Carines, 460 Mich. 750, 762-763; 597 N.W.2d 130 (1999). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." Id. at 763. "The third requirement generally requires a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." Id.
This issue also involves the interpretation of the rules of evidence, which is reviewed de novo. People v McFarlane, 325 Mich.App. 507, 517; 926 N.W.2d 339 (2018). "When construing court rules, including evidentiary rules, this Court applies the same principles applicable to the construction of statutes." People v Duncan, 494 Mich. 713, 723; 835 N.W.2d 399 (2013). "Accordingly, we begin with the rule's plain language. When the language of the rule is unambiguous, we enforce the plain meaning without further judicial construction. The Court may refer to dictionaries to aid in discerning the plain meaning of a rule." Id. (footnotes and citations omitted).
To the extent this Court considers defendant's challenge of the trial court's denial of his motion for a new trial, our review is for an abuse of discretion. People v Lemmon, 456 Mich. 625, 648 n 27; 576 N.W.2d 129 (1998).
B. LAW AND ANALYSIS
1. MRE 702
Defendant claims that Sergeant Khillah's testimony was impermissible under MRE 702. The prosecutor moved to qualify Sergeant Khillah as "an expert in the sale, manufacturing and delivery[,] . . . and use of controlled substances" under MRE 702. MRE 702 states:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:
(a) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Defendant raises two challenges to the trial court's admission of Sergeant Khillah's testimony as an expert witness. First, he claims that the trial court was required to "make a finding" that Sergeant Khillah's testimony would assist the trier of fact. Second, he argues that Sergeant Khillah's credentials, as they were presented during his testimony, were insufficient to demonstrate he was qualified to testify as an expert witness.
Defendant's first argument is patently meritless. His claim that the trial court was required to "make a finding that the testimony will assist the trier of fact" is belied by the plain language of MRE 702, which contains no such requirement. Duncan, 494 Mich. at 723. Beyond that, defendant offers no authority demonstrating the trial court was required to make such a finding. Therefore, this argument is abandoned for this Court's review. See People v McPherson, 263 Mich.App. 124, 136; 687 N.W.2d 370 (2004) ("The failure to brief the merits of an allegation of error constitutes an abandonment of the issue.").
Defendant's second argument challenges Sergeant Khillah's qualifications. A police officer may be qualified as an expert witness "on the basis of his training and experience with observing drug use and drug trafficking." People v Ray, 191 Mich.App. 706, 708; 479 N.W.2d 1 (1991). Sergeant Khillah testified about his years of experience and training conducting drug investigations. Thus, the trial court did not plainly err when it qualified Sergeant Khillah as an expert witness.
Even so, defendant argues the trial court should have denied the motion to qualify Sergeant Khillah as an expert witness because his credentials were "stale[,]" and his testimony lacked "sufficient data or a reliable method." To resolve this issue, this Court would have to remand the case to the trial court for an evidentiary hearing. But, again, our review of this unpreserved issue is for plain error-meaning any error should be apparent from the record. Carines, 460 Mich. at 762-763. Because there are no issues apparent from the record, defendant's argument lacks merit.
In the section labeled "MRE 702," defendant also raises a confusing argument contending the wording of the verdict form suggests Sergeant Khillah's testimony was improper opinion testimony. As noted above, MRE 702 concerns the confines of an expert witness's testimony. Defendant does not develop his argument that the verdict form is evidence of improper opinion testimony by Sergeant Khillah or that such testimony was a violation of MRE 702. In the absence of any such explanation, this argument is abandoned. McPherson, 263 Mich.App. at 136.
2. MRE 701
Defendant next claims Sergeant Khillah's testimony was inadmissible under MRE 701. This rule of evidence states: "If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's perception; and (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue." MRE 701.
The trial court plainly found that Sergeant Khillah was qualified to testify under MRE 702. Moreover, the prosecutor has made no argument-either to this Court or in the proceedings below-that Sergeant Khillah was qualified to testify under MRE 701. Thus, this argument is plainly meritless.
3. MOTION FOR A DIRECTED VERDICT
Defendant also argues the trial court erred when it denied his motion for a directed verdict.He says that, in denying his motion, the trial court misinterpreted Sergeant Khillah's testimony.
While we address the substance of this argument, we note that defendant did not challenge the trial court's denial of his motion for a directed verdict in his questions presented on appeal. Therefore, we could consider this issue abandoned for appellate review. MCR 7.212(C)(5) (a brief on appeal must contain a statement of the questions involved); People v McMiller, 202 Mich.App. 82, 83 n 1; 507 N.W.2d 812 (1993) (determining a party abandoned an issue for failing to raise it in the questions presented).
When reviewing a trial court's decision on a motion for a directed verdict, this Court reviews the record de novo to determine whether the evidence presented by the prosecutor, viewed in the light most favorable to the prosecutor, could persuade a rational trier of fact that the essential elements of the crime charged were proved beyond a reasonable doubt. [People v Aldrich, 246 Mich.App. 101, 122; 631 N.W.2d 67 (2001).]
"Circumstantial evidence and reasonable inferences arising therefrom may be sufficient to prove the elements of a crime." People v Nelson, 234 Mich.App. 454, 459; 594 N.W.2d 114 (1999). "Even in a case relying on circumstantial evidence, the prosecution need not negate every reasonable theory consistent with the defendant's innocence, but need merely introduce evidence sufficient to convince a reasonable jury in the face of whatever contradictory evidence the defendant may provide." People v Hardiman, 466 Mich. 417, 423-424; 646 N.W.2d 158 (2002), quoting People v Konrad, 449 Mich. 263, 273 n 6; 536 N.W.2d 517 (1995).
Defendant first challenges the trial court's finding that:
[I]t was noted where the black bag was kind of in the center console there. Or not really console it was a seat or in . . . kind of the middle there. They can sort through his testimony as far as where he had placed that bag. And, I think he said, the bench or the floorboards . . . kind of that area. But, again, they can listen to the testimony and . . . review their notes and so forth.
Defendant is correct that KDPS Officer Colin Morgan testified the black bag was "on the passenger seat floorboard," not near the center console as asserted by the trial court. And Mitchell Vorick, another KDPS officer, testified that the speaker was "directly where the middle bench seat was kind of on . . . the floorboards area." Thus, it appears that the trial court confused the location of the black bag with the location of the speaker. What is unclear is how this fact helps defendant. Officer Vorick said that Clark "was in the middle bench compartment area with Hooper driving, and [defendant] on the passenger side." If the black bag was more toward the passenger side, as defendant asserts, this only lends further credibility to the prosecutor's theory that the black bag belonged to defendant.
Defendant also challenges the trial court's findings as to Counts I and II-specifically, that defendant intended to distribute cocaine and heroin. The parties stipulated to the admission of the lab report showing that the black bag contained 25.41 grams of cocaine and 1.36 grams of heroin. Sergeant Khillah testified that these were "significant" amounts-the cocaine amounting to about 254.1 individual servings, and the heroin to about 13 individual servings. According to Sergeant Khillah, he had never encountered a cocaine user who possessed that much of the drug, and, regardless, it was uncommon for drug users to have their drug of choice on their person because they usually consumed it immediately. Sergeant Khillah also testified that it was rare to find a drug user who used multiple types of drugs, and it was more common that a drug dealer would possess more than one kind of drug. The amount of these drugs, coupled with Sergeant Khillah's background information, is enough for a rational juror to conclude defendant intended to distribute the drugs, rather than consume them. Thus, it was not an error for the trial court to conclude there was evidence defendant had the requisite intent for Counts I and II.
4. MRE 704
Defendant next challenges Sergeant Khillah's testimony on the basis of MRE 704, which states: "An opinion is not objectionable just because it embraces an ultimate issue." But, even if a witness offers an opinion on the ultimate issue, "a witness cannot express an opinion on the defendant's guilt or innocence of the charged offense[.]" People v Fomby, 300 Mich.App. 46, 53; 831 N.W.2d 887 (2013) (quotation marks and citation omitted). Similarly, "[a]n expert witness may not express[] an opinion . . . whether the defendant had a culpable state of mind[.]" People v Zitka, 335 Mich.App. 324, 345-346; 966 N.W.2d 786 (2020) (quotation marks and citation omitted, second alteration in original).
Presumably, defendant challenges the following exchange between the prosecutor and Sergeant Khillah:
Q. And, now, Sir, in this case we heard testimony that 2 scales with residue on them, over $900 of cash aside from the drugs, I mean, obviously, with the drugs and then no paraphernalia. In your training and experience and expertise what did that indicate to you?
A. This is without a doubt a dealer quantity amount. This is distribution amounts for all four narcotics.
From this statement, Sergeant Khillah opined that defendant was in possession of a "dealer quantity . . . distribution amount" of all three narcotics, which was a necessary element of the charged offenses. MCL 333.7401(2)(a)(iv); MCL 333.7401(2)(b)(i). Therefore, this statement crossed the line into improper profile evidence. Nevertheless, there was no prejudice in this instance because there was sufficient other evidence showing defendant intended to distribute these narcotics including the lab report outlining the quantity of each narcotic. Carines, 460 Mich. at 763. He is thus not entitled to relief on this issue.
5. DENIAL OF MOTION FOR NEW TRIAL
Defendant next argues the trial court erred in denying his motion for a new trial because it misinterpreted Sergeant Khillah's testimony. Defendant first contends that the trial court erred by "divert[ing]" the question of the staleness of Sergeant Khillah's credentials as a narcotics expert. Defendant argued below that "[Sergeant Khillah] provided no foundation as to how interviews of other arrestees or informants on unknown dates in unknown circumstances in unknown venues could coalesce into relative data for assessing street level drug trafficking after an event such as the COVID-19 pandemic." In rejecting this argument, the trial court reasoned:
Again, we could decline to consider this issue for defendant's failure to include a challenge to the motion for new trial in his questions presented. MCR 7.212(C)(5); McMiller, 202 Mich.App. at 83 n 1.
[T]he qualifications or the experience I should say of this particular witness was outlined on the record. I don't see how Covid [sic] necessarily would change that or not change that and again he's in the industry and . . . he's still . . . seeing the cases and dealing with the cases whether he's in a specialty area or not.
Defendant challenges this reasoning on appeal, claiming that the crux of his argument in his motion for a new trial concerned whether Sergeant Khillah was qualified to be an expert under MRE 702. He says that the trial court erred by "relying on vague anecdotal recollections during and after COVID[-19]." But, as noted, it was defendant who argued the COVID-19 pandemic affected the viability of Sergeant Khillah's credentials. Thus, the trial court did not abuse its discretion when it addressed this argument and explained why it disagreed.
Defendant next focuses on the exchange between the prosecutor and Sergeant Khillah in which Sergeant Khillah opined that the "2 scales with residue on them, over $900 of cash aside from the drugs" indicated there was "a dealer quantity amount[.]" Defendant's argument challenging this statement is difficult to understand. It seems defendant believes that this statement was an impermissible conclusion about defendant's guilt-a fact the trial court should have recognized when considering defendant's motion for a new trial As discussed in the preceding issue, this statement is not a conclusion about defendant's guilt or innocence, but rather Sergeant Khillah's opinion about the nature of the evidence based on his training as a narcotics officer and the quantities involved. Thus, the trial court did not err in relying on Sergeant Khillah's interpretation of the evidence.
6. PREJUDICE
Defendant next argues he was "prejudiced" by the purported errors discussed above. Prejudice occurs when, but for an error, the result of the proceedings would have been different. Carines, 460 Mich. at 763. We need not consider this issue, because defendant's claims of error related to Sergeant Khillah's testimony are meritless.
III. INEFFECTIVE ASSISTANCE
Defendant claims defense counsel was deficient by failing to object to Sergeant Khillah's qualifications and testimony. We disagree.
A. PRESERVATION AND STANDARD OF REVIEW
Defendant argues that defense counsel was ineffective for failing to object to Sergeant Khillah's testimony. Defendant preserved this argument by raising it in his motion for new trial. People v Wilson, 242 Mich.App. 350, 352; 619 N.W.2d 413 (2000). But, because the trial court did not hold an evidentiary hearing on the matter, our review is limited to mistakes apparent from the record. Id.
A criminal defendant's claim of ineffective assistance of counsel "is a mixed question of fact and constitutional law." People v LeBlanc, 465 Mich. 575, 579; 640 N.W.2d 246 (2002). "When reviewing an ineffective assistance of counsel claim, this Court reviews for clear error the trial court's findings of fact and reviews de novo questions of law. The trial court's findings are clearly erroneous if this Court is definitely and firmly convinced that the trial court made a mistake." People v Shaw, 315 Mich.App. 668, 671-672; 892 N.W.2d 15 (2016) (citation omitted).
B. LAW AND ANALYSIS
To establish a claim of ineffective assistance, "a defendant must show that (1) counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's deficient performance, there is a reasonable probability that the outcome would have been different." People v Trakhtenberg, 493 Mich. 38, 51; 826 N.W.2d 136 (2012). "Effective assistance is strongly presumed, and the defendant bears the heavy burden of proving otherwise[.]" People v Haynes, 338 Mich.App. 392, 429; 980 N.W.2d 66 (2021) (quotation marks and citations omitted).
Defendant first argues that defense counsel's representation fell below an objective standard of reasonableness. He again claims that Sergeant Khillah's credentials were "stale." As noted above, whether Sergeant Khillah's credentials were "stale" would require this Court to order the reopening of proofs-something this Court cannot do, because the review is for errors apparent from the record. Beyond that, Sergeant Khillah's testimony demonstrates that he remained an active participant in drug investigations. Although he was no longer part of the drug task force, Sergeant Khillah testified that he oversaw these types of investigations, suggesting he still had active knowledge of the drug trade. It was therefore not unreasonable that defense counsel did not object on this basis.
Defendant next makes the confusing claim that defense counsel's representation fell below an objective standard of reasonableness because there remained a question regarding "whether the intervening events of the pandemic had influenced the street drug trade." Defendant does not explain why defense counsel was deficient for failing to object, or even why the pandemic had any impact on the question of Sergeant Khillah's qualifications or testimony. Therefore, this argument is abandoned. McPherson, 263 Mich.App. at 136.
Defendant also claims prejudice as a result of defense counsel's alleged "deficient performance." As discussed, defendant failed to demonstrate any deficient performance by defense counsel. Therefore, his claim of prejudice necessarily fails. Trakhtenberg, 493 Mich. at 51 (requiring deficient performance and prejudice). Defendant also appears to raise new claims of deficient performance, including "the failure to require compliance with MRE 702 and 703, the failure to insist on a proper cautionary instruction, and the failure to object to substantive use of the evidence[.]" None of these allegations were discussed in the portion of defendant's brief concerning deficient performance. To the extent defendant believes he was prejudiced as a result of these purported errors, these arguments are abandoned. McPherson, 263 Mich.App. at 136.
IV. MISSING-WITNESS INSTRUCTION
Defendant argues the trial court erred in denying his request to include a missing witness instruction concerning the prosecutor's failure to produce Clark for trial. Defendant also argues the trial court erred by failing to conduct a hearing on his motion for a missing-witness instruction. We disagree.
A. PRESERVATION AND STANDARD OF REVIEW
"A party must object or request a given jury instruction to preserve the error for review." People v Sabin, 242 Mich.App. 656, 657; 620 N.W.2d 19 (2000). Because defendant objected to the omission of the missing witness instruction before the trial court, this issue is preserved for appellate review. Id.
Defendant also suggests that the trial court erred by failing to conduct a hearing on his motion for a missing-witness instruction. Defendant did not object or otherwise contend he was entitled to a separate hearing on the matter. Therefore, this argument is unpreserved for appellate review. Id.
"Claims of instructional error are reviewed de novo." People v Montague, 338 Mich.App. 29, 37; 979 N.W.2d 406 (2021). But, "the trial court's determination whether a jury instruction is applicable to the facts of the case [is reviewed] for an abuse of discretion." Id. (quotation marks and citation omitted). Similarly, "[w]e review a trial court's determination of due diligence and the appropriateness of a 'missing witness' instruction for an abuse of discretion." People v Eccles, 260 Mich.App. 379, 389; 677 N.W.2d 76 (2004). "An abuse of discretion occurs when the trial court's decision is outside the range of principled outcomes." People v Russell, 297 Mich.App. 707, 715; 825 N.W.2d 623 (2012) (quotation marks and citation omitted).
Defendant's claim that he was entitled to a hearing on the matter is an issue of law, which this Court usually reviews de novo. People v Lukity, 460 Mich. 484, 488; 596 N.W.2d 607 (1999). But, because this issue is unpreserved, this Court's review is limited to plain error affecting substantial rights. Carines, 460 Mich. at 762-763.
B. LAW AND ANALYSIS
Criminal defendants have "the right to a properly instructed jury[.]" People v Montague, 338 Mich.App. 29, 37; 979 N.W.2d 406 (2021). The "missing witness" instruction states: "[State name of witness] is a missing witness whose appearance was the responsibility of the prosecution. You may infer that this witness's testimony would have been unfavorable to the prosecution's case." M Crim JI 5.12. "[T]he propriety of reading [the missing witness instruction] will depend on the specific facts of that case." People v Perez, 469 Mich. 415, 420-421; 670 N.W.2d 655 (2003). "A prosecutor who endorses a witness under MCL 767.40a(3) is obliged to exercise due diligence to produce that witness at trial." Eccles, 260 Mich.App. at 388. "A prosecutor who fails to produce an endorsed witness may show that the witness could not be produced despite the exercise of due diligence." Id. "If the trial court finds a lack of due diligence, the jury should be instructed that it may infer that the missing witness's testimony would have been unfavorable to the prosecution's case." Id., citing CJI2d 5.12.
"Due diligence is the attempt to do everything reasonable, not everything possible, to obtain the presence of res gestae witness[.]" People v Cummings, 171 Mich.App. 577, 585; 430 N.W.2d 790 (1988). Here, the prosecutor stated that, while they used to have a working telephone number for Clark, she never answered when they called. The prosecutor's office sent subpoenas that went unreturned, and personal service was unsuccessful. On the eve of trial, the prosecutor once more attempted to call Clark, but "the phone number [was] no longer in service." The trial court concluded that the prosecutor showed due diligence, and, therefore, the missing witness instruction was not necessary. Given that the prosecutor's efforts in this case, the trial court did not err in finding the prosecutor exercised due diligence. It was therefore not an abuse of discretion to hold that the missing witness instruction was unnecessary.
Defendant's challenge to this finding is difficult to follow. It seems defendant believes that the trial court erred in rejecting his bid for the missing witness instruction because the prosecutor failed to offer the "dates" on which she attempted to contact Clark or the specific methods she used in doing so. In making this confusing argument, defendant does not explain why the specific dates on which the prosecutor attempted to contact Clark or the specific methods used on each of those dates are relevant to the due-diligence calculus. Moreover, the prosecutor's explanation to the trial court included relative terms about when and how she attempted to contact Clark, stating Clark had a working telephone number when this case was "up for trial before." She also said that she attempted contact again "Tuesday morning prior to jury selection." Our review of this issue is for an abuse of discretion. Eccles, 260 Mich.App. at 389. In this circumstance, where the prosecutor offered general time periods and methods of when she attempted to contact Clark, the trial court did not abuse its discretion in denying defendant's motion simply because the prosecutor failed to offer specific dates and individualized methods.
Defendant also suggests that the trial court should have conducted a hearing so those "persons who actually made the efforts [to contact Clark] could be cross-examined especially as to addresses and dates." Defendant's argument is apparently premised on our Supreme Court's directive in People v Pearson, 404 Mich. 698, 721; 273 N.W.2d 856 (1979) (footnotes omitted), which states:
If the question of a missing res gestae witness is raised during the course of trial, it is out [sic] opinion that the court should hold a hearing and decide first whether the witness is in fact a res gestae witness. If it is determined that the person is a res gestae witness, the court should order the prosecution to produce him or her. If the witness is not produced, then the court should hold a hearing on the issue of whether the prosecution was duly diligent in its attempts to produce the witness.
Defendant's claim that the trial court was required to call a hearing to cross-examine the people who made efforts to contact Clark takes the holding in Pearson too far. Defendant did not object to the prosecutor's efforts to secure Clark's testimony. Similarly, defendant did not challenge the prosecutor's representation. Thus, a hearing was not required in this case, and defendant's argument on appeal does not explain why this procedure was a plain error. This argument, therefore, is meritless.