STATE OF MICHIGAN COURT OF APPEALS

Transcription

1 STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, UNPUBLISHED June 27, 2017 v No Kalamazoo Circuit Court SAMMIE BEN GRAY, LC No FH Defendant-Appellant. Before: MARKEY, P.J., and METER and SHAPIRO, JJ. PER CURIAM. Defendant, Sammie Ben Gray, was convicted by a jury of possession of less than 25 grams of cocaine, MCL (2)(a)(v). Defendant was sentenced as a fourth-offense habitual offender, MCL , to one year in jail. Defendant now appeals as of right. We affirm. Defendant first argues that the trial court abused its discretion by denying his request for substitute appointed counsel based on his claim that defense counsel was not properly representing him and that there had been a complete breakdown in the attorney-client relationship. We disagree. A trial court s decision regarding substitution of counsel will not be disturbed absent an abuse of discretion. People v Traylor, 245 Mich App 460, 462; 628 NW2d 120 (2001). A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. People v Waterstone, 296 Mich App 121, ; 818 NW2d 432 (2012). This Court has previously explained the well-settled principles regarding substitution of appointed counsel: An indigent defendant is guaranteed the right to counsel; however, he is not entitled to have the attorney of his choice appointed simply by requesting that the attorney originally appointed be replaced. Appointment of a substitute counsel is warranted only upon a showing of good cause and where substitution will not unreasonably disrupt the judicial process. Good cause exists where a legitimate difference of opinion develops between a defendant and his appointed -1-

2 counsel with regard to a fundamental trial tactic. [People v Strickland, 293 Mich App 393, 397; 810 NW2d 660 (2011) (quotation marks and citations omitted).] When a defendant asserts that the defendant s assigned attorney is not adequate or diligent, or is disinterested, the trial court should hear the defendant s claim and, if there is a factual dispute, take testimony and state its findings and conclusion on the record. Id. (quotation marks and citation omitted). The circumstances that would justify good cause rest on the individual facts in each case. People v Buie, 298 Mich App 50, 67; 825 NW2d 361 (2012). [A] complete breakdown of the attorney-client relationship or disagreement over whether a particular line of defense should be pursued may justify appointing new counsel. Id. (quotation marks and citation omitted). The Michigan Supreme Court has held that a trial court abused its discretion by denying a defendant s counsel s motion to withdraw and ruling that a continuance would not be granted to permit the substitution of a newly retained attorney where the defendant and his original counsel developed a bona fide, irreconcilable dispute on the day before trial over whether to call certain alibi witnesses. People v Williams, 386 Mich 565, 568, 576, 578; 194 NW2d 337 (1972). The Supreme Court reasoned that this dispute presented a legitimate reason for defendant to assert his right to counsel, that the defendant was not guilty of any negligence or delay in informing the trial court of his wish to change his counsel even though the motion was made on the first day of trial, and that the desire of the trial courts to expedite court dockets is not a sufficient reason to deny an otherwise proper request for a continuance. Id. at Yet, in general, [c]ounsel s decisions about defense strategy, including what evidence to present and what arguments to make, are matters of trial strategy, and disagreements with regard to trial strategy or professional judgment do not warrant appointment of substitute counsel. Strickland, 293 Mich App at 398 (citation omitted). Decisions regarding what evidence to present and whether to call or question witnesses are presumed to be matters of trial strategy, and this Court will not substitute its judgment for that of counsel regarding matters of trial strategy. People v Davis, 250 Mich App 357, 368; 649 NW2d 94 (2002). Good cause for appointing substitute counsel is not supported by [a] mere allegation that a defendant lacks confidence in his or her attorney, unsupported by a substantial reason, nor is good cause supported by a defendant s general unhappiness with counsel s representation.... Strickland, 293 Mich App at 398. Where a defendant s claim rests on a dispute regarding trial tactics but is not stated with any degree of specificity, the defendant may not rely on this Court to search for a factual basis to sustain or reject his position. Traylor, 245 Mich App at 464 (quotation marks and citation omitted). Further, [a] balancing of the accused s right to counsel of his choice and the public s interest in the prompt and efficient administration of justice is done in order to determine whether an accused s right to choose counsel has been violated. People v Aceval, 282 Mich App 379, 387; 764 NW2d 285 (2009) (quotation marks and citation omitted; alteration in the original). In the instant case, defendant requested substitute appointed counsel on the first day of trial, before the jury venire was brought into the courtroom for voir dire. Defendant argues on appeal, as he did below, that there was a complete breakdown in the attorney-client relationship based on defense counsel s alleged failure to properly represent defendant. It is evident from the -2-

3 discussion that occurred on the record that the dispute involved a disagreement over whether to call a particular witness. Based on defendant s explanation, it appears that the dispute arose, at least in part, from defense counsel s having informed defendant that the witness could not be used because of the time frame. Defendant did not provide any additional information about that nature of the dispute, either in the trial court or on appeal. Defendant has not indicated who this witness was, why the witness was important, or how this witness would have aided his defense. There is no evidence that this dispute was anything other than a disagreement over whether this particular witness could or should be called, which is a matter of trial strategy and professional judgment that does not warrant appointing substitute counsel. Strickland, 293 Mich App at 398; Davis, 250 Mich App at 368. In other words, there is no evidence that the dispute was over the fundamental theory of defense, such as whether to present an alibi witness. Therefore, defendant s claim does not support the conclusion that there was a complete breakdown in the attorney-client relationship such that there was a legitimate reason to appoint substitute counsel. See Williams, 386 Mich at 578, and Buie, 298 Mich App at Further, defendant admitted in the trial court that he never made the witness available for defense counsel after asserting his desire to call the witness to testify, even though defense counsel indicated that he would interview the witness. A defendant may not purposely break down the attorney-client relationship by refusing to cooperate with his assigned attorney and then argue that there is good cause for a substitution of counsel. Traylor, 245 Mich App at 462 (quotation marks and citation omitted). Also, defendant has not supported the factual basis for his claim, id. at 464, and defendant cannot show that good cause existed to justify the appointment of substitute counsel merely by relying on unsupported allegations of a lack of confidence in defense counsel or by relying on his general unhappiness with counsel s representation.... Strickland, 293 Mich App at 398. Defendant also argues that the trial court failed to sufficiently investigate his claim that defense counsel was not properly representing him. However, the trial court gave defendant a full opportunity to explain his claim on the record and asked questions in an attempt to clarify the nature of defendant s complaint. Defendant never claimed that he had anything additional to say and did not adequately raise any factual disputes by way of his vague claim, and when given the opportunity to raise additional issues, he simply repeated his claim that defense counsel was not representing him as he thought defense counsel should. Therefore, the trial court fulfilled its obligation to hear defendant s claim and appropriately address it. Id. at 397 (rejecting the defendant s claim that the trial court failed to adequately inquire into the nature of the breakdown of the attorney-client relationship, reasoning that [b]ecause the trial court accepted a copy of the grievance that [the defendant] had filed against his attorney and gave him an opportunity to say whatever he wants to say on the record about counsel s alleged 1 We note that, unlike the defendant in Williams, defendant in this case was requesting that substitute counsel be appointed rather than requesting that he be allowed to have substitute retained counsel. See Williams, 386 Mich at

4 inadequacies, the trial court was aware of [the defendant s] complaints regarding appointed counsel ). Nonetheless, defendant argues on appeal that the trial court failed to fully investigate the allegations because its decision to not appoint substitute counsel was based on the fact that it did not have enough information to grant the request and the lack of information was the result of defense counsel s having indicated that the attorney-client privilege prevented him from elaborating further. Defendant asserts without any citation to authority that [w]here counsel indicates to the court that there has been a breakdown of the attorney-client relationship due to reasons that cannot be divulged on the record due to the attorney-client privilege, the trial court should act with blind justice to grant counsel s motion based on counsel s credibility as an officer of the court. However, defendant ignores the fact that the attorney-client privilege is the client s alone and may be waived only by the client. People v Johnson, 203 Mich App 579, 585; 513 NW2d 824 (1994). Defendant was free to disclose further details about the witness and the dispute with defense counsel to make his case that there was good cause to justify appointing substitute counsel but chose not to do so. As previously discussed, the trial court afforded defendant a full opportunity to explain the nature of the breakdown in the attorney-client relationship and thus adequately inquired into defendant s claim. Strickland, 293 Mich App at 397. In addition to being founded upon a showing of good cause, an appointment of substitute counsel must also be shown not to unreasonably disrupt the judicial process. Strickland, 293 Mich App at 397. Defendant sought the appointment of substitute counsel on the morning of trial while the pool of potential jurors was waiting to be brought into the courtroom for jury selection despite the fact that the alleged dispute over the witness had occurred before the final court proceeding before trial. As the trial court noted, the issue could have been addressed at that time. Thus, this is not a case where the untimely request was not the result of defendant s negligence. See Williams, 386 Mich at 576. In light of the fact that defendant had a previous opportunity to address the problem but chose to wait until the trial was ready to begin with jury selection, the judicial process would have been unreasonably disrupted if the trial court had appointed substitute counsel at that point. Strickland, 293 Mich App at 399. We conclude that the trial court did not abuse its discretion by denying defendant s request to appoint substitute counsel. Traylor, 245 Mich App at 462. Next, defendant claims that the evidence was insufficient to support his conviction, specifically arguing that there was insufficient evidence to establish that he constructively possessed the cocaine, which was found in an SUV. We disagree. This Court review[s] de novo a challenge to the sufficiency of the evidence. People v Henry (After Remand), 305 Mich App 127, 142; 854 NW2d 114 (2014). [W]hen determining whether sufficient evidence has been presented to sustain a conviction, a court must view the evidence in a light most favorable to the prosecution and determine whether any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v Wolfe, 440 Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). [A] reviewing court is required to draw all reasonable inferences and make credibility choices in support of the jury verdict. People v Meshell, 265 Mich App 616, 621; 696 NW2d -4-

5 754 (2005) (quotation marks and citations omitted; alteration in the original). All conflicts in the evidence must be resolved in favor of the prosecution, and this Court will not interfere with the jury s determinations regarding the weight of the evidence and the credibility of the witnesses. People v Unger, 278 Mich App 210, 222; 749 NW2d 272 (2008). It is for the trier of fact, not the appellate court, to determine what inferences may be fairly drawn from the evidence and to determine the weight to be accorded those inferences. People v Hardiman, 466 Mich 417, 428; 646 NW2d 158 (2002). Defendant was convicted of violating MCL (2)(a)(v). MCL provides, in relevant part: (1) A person shall not knowingly or intentionally possess a controlled substance, a controlled substance analogue, or a prescription form unless the controlled substance, controlled substance analogue, or prescription form was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner s professional practice, or except as otherwise authorized by this article. (2) A person who violates this section as to: (a) A controlled substance classified in schedule 1 or 2 that is a narcotic drug or a drug described in section 7214(a)(iv), and: * * * (v) That is in an amount less than 25 grams of any mixture containing that substance is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $25,000.00, or both. The elements of unlawfully possessing less than 25 grams of cocaine are (1) the substance was cocaine, (2) the mixture containing the cocaine weighed less than 25 grams, (3) the defendant did not have authorization to possess the substance, and (4) the defendant possessed the cocaine knowingly. See Wolfe, 440 Mich at , and People v Torres, 222 Mich App 411, 416; 564 NW2d 149 (1997). With respect to the third element, the [d]efendant [bears] the burden of presenting some competent evidence that he was legally authorized to possess the cocaine.... People v Nunez, 242 Mich App 610, 616; 619 NW2d 550 (2000). Here, laboratory specialist Matthew Bombich testified that the residue on the digital scale that was found in the glove box of the SUV contained cocaine hydrochloride, which is commonly known as powder cocaine. Bombich also testified that the substance that was found wrapped inside a lottery ticket that was under a coat in the backseat of the SUV contained 0.10 grams of cocaine base. Cocaine is a schedule 2 controlled substance as described in MCL (a)(iv). MCL (a)(iv) (schedule 2 controlled substances). There was no evidence that the cocaine was somehow possessed lawfully. Based on this evidence, a rational trier of fact could have found that the first three elements were proven beyond a reasonable doubt. See Wolfe, 440 Mich at

6 With respect to the possession element, which is the only element that defendant challenges on appeal, [a] person need not have actual physical possession of a controlled substance to be guilty of possessing it. Id. at Possession may be either actual or constructive, and may be joint as well as exclusive. People v Fetterley, 229 Mich App 511, 515; 583 NW2d 199 (1998). The essential question is whether the defendant had dominion or control over the controlled substance. Id. Additionally, the defendant must have knowledge of the controlled substance s presence and character. Nunez, 242 Mich App at 615 (quotation marks and citation omitted). [P]ossession may be found even when the defendant is not the owner of recovered narcotics. Wolfe, 440 Mich at 520. A person s presence at the place where the drugs are found is not sufficient, by itself, to prove constructive possession; some additional link between the defendant and the contraband must be shown. However, circumstantial evidence and reasonable inferences arising from the evidence are sufficient to establish possession. Fetterley, 229 Mich App at 515 (citation omitted). Constructive possession exists when the totality of the circumstances indicates a sufficient nexus between the defendant and the controlled substance. Meshell, 265 Mich App at 622. Here, Sergeant Jeff Deblecourt testified that he was dispatched to a house, where he saw a dark-colored SUV in the driveway, with defendant sitting in the front passenger seat and Tavarius Yarbrough sitting in the driver s seat. He also saw Demetryus Jackson standing outside of the SUV. Sergeant Deblecourt conducted surveillance at the location for over an hour. During this time, he observed Jackson conduct what appeared to be hand-to-hand drug transactions with several unknown individuals, and he observed defendant engage in what also appeared to be a hand-to-hand drug transaction. Jackson s transactions occurred in close proximity to the SUV in which defendant was sitting. In between two of Jackson s transactions, Sergeant Deblecourt saw Jackson go to the passenger side of the SUV and engage in some type of brief contact through the open window. The police apprehended defendant, Jackson, and Yarbrough, and they searched the SUV after Sergeant Deblecourt s police dog gave a positive alert for the scent of narcotics. When the police searched the SUV, they found the digital scale with residue on it that was subsequently identified by laboratory specialist Bomich as powder cocaine. The digital scale was in the glove box on the front passenger side of the vehicle, and a wallet containing defendant s photo ID and a credit card with defendant s name on it was also found in the glove box next to the digital scale. Further, a substance that was subsequently identified as cocaine base by laboratory specialist Bomich was found in the backseat of the SUV and wrapped in a lottery ticket. The lottery ticket containing the cocaine was underneath a coat in the middle of the backseat. Police also found a bunch of loss lottery tickets on the floor and in the door area of the front, passenger-side compartment of the SUV, and these lottery tickets were similar to the one in which the cocaine base was wrapped. Sergeant Deblecourt testified that the only people he saw inside the SUV during his surveillance were Yarbrough and defendant. Moreover, there was testimony that the SUV was registered to a woman with the same last name as defendant and who lived at the same address as defendant. Considering that the SUV was registered to someone who shared defendant s last name and address, that defendant was sitting in the front passenger seat of the SUV, and that a wallet with defendant s photo ID and credit card was in the glove box, a rational jury could have concluded that defendant placed his wallet in that location and exercised control and dominion -6-

7 over items inside the SUV. Fetterley, 229 Mich App at 515. Further, considering that the digital scale was found right next to the wallet in the glove box and that the cocaine base was wrapped in a lottery ticket similar to those that were found in the immediate vicinity of where defendant was seen sitting inside the SUV, a rational jury could have concluded that defendant was the one who wrapped the cocaine in the lottery ticket and put it in the backseat and that defendant placed the scale in the glove box right in front of him. Id. A rational jury could also have concluded that defendant knew that the substance was cocaine based on the evidence that Jackson was conducting hand-to-hand drug transactions in close proximity to the SUV and had some type of brief contact through the front, passenger-side window of the SUV in between two of these transactions, as well as the evidence that defendant personally engaged in a hand-to-hand drug transaction. Nunez, 242 Mich App at 615. [B]ecause it can be difficult to prove a defendant s state of mind on issues such as knowledge and intent, minimal circumstantial evidence will suffice to establish the defendant s state of mind, which can be inferred from all the evidence presented. People v Kanaan, 278 Mich App 594, 622; 751 NW2d 57 (2008). The evidence introduced at trial showed a link between defendant and the cocaine beyond his mere presence in the location where the cocaine was found. Fetterley, 229 Mich App at 515. While it is possible that Yarbrough and Jackson also could have exercised dominion and control over the cocaine, it was not necessary for defendant to have been in exclusive possession of the substance for the possession element to be met. See id. Moreover, the prosecution need not negate every reasonable theory of innocence, but must only prove its own theory beyond a reasonable doubt in the face of whatever contradictory evidence is presented. Id. at 517. Under the totality of the circumstances, there was a sufficient nexus between defendant and the cocaine to show that he constructively possessed it. Meshell, 265 Mich App at 622. Relying on People v Head, 211 Mich App 205, 210; 535 NW2d 563 (1995), defendant argues that the evidence was insufficient that he knew about the cocaine in either location because the cocaine was not in plain sight and mere residue is not easily noticeable. In Head, the panel concluded that the evidence showed that the defendant constructively possessed drugs where the police found the defendant [] lying on a bed in the same bedroom where the drugs lay in plain view, there was men s clothing in the bedroom, the drugs were near the defendant s wallet, and the defendant admitted to living in the house. Id. However, while the drugs happened to be in plain view in that case, the panel never held that this was a requirement for constructive possession to exist. In the instant case, a rational jury could have reasonably inferred that defendant wrapped the cocaine base in one of the lottery tickets near his seat and hid it under a coat in the backseat because he knew that the substance was cocaine. A rational jury could also have reasonably inferred that defendant hid the digital scale in the glove box because he knew that there could be cocaine residue on it. Viewing the evidence in the light most favorable to the prosecution and making reasonable inferences in support of the verdict, a rational jury could have found that defendant was guilty beyond a reasonable doubt of possession of less than 25 grams of cocaine. Wolfe, 440 Mich at 515. Reversal is thus not warranted. -7-

8 Affirmed. /s/ Jane E. Markey /s/ Patrick M. Meter /s/ Douglas B. Shapiro -8-