People v. Murray
People v. Murray
Opinion of the Court
Defendant appeals as of right his jury conviction of possession with intent to deliver less than fifty grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv). The trial court sentenced defendant to six months’ imprisonment and lifetime probation. We affirm.
On January 19, 1995, defendant lived in the upstairs apartment located at 802 Staples Street in Kalamazoo with his girlfriend, Rachelle Dodson, and Nicole Potts. At approximately 9:00 P.M., members of the Kalamazoo Valley Enforcement Team, a countywide narcotics unit, executed a search warrant on this apartment. After a battering ram was used to break through the apartment door, Officer Timothy Kozal was the first police officer to enter the apartment. He testified that he saw a black male wearing a multicolored shirt with white on the shoulders run through the apartment into a back bedroom. When Officer Kozal reached the bedroom, he opened the door and saw defendant, in the multicolored shirt, diving from the window toward a mattress on which Rachelle Dodson was sitting. Officer Kozal observed that the window was open and the screen was tom,
As the police officers took the occupants of the apartment into other rooms to question them, defendant was yelling, “don’t say nothing.” Officer Kozai did not find any dmgs in a search of defendant. His search revealed only a large roll of money in defendant’s pocket, consisting of $80 in one-dollar bills and $820 primarily in twenty-dollar bills. Defendant told Officer Kozai that the money was from gambling and his employment at a convenience store, although defendant no longer worked there at the time of the raid. There were several women and two children, in addition to the three residents, in the apartment at the time of the raid, but the only person found with drags was Nicole Potts, who had a small rock of crack cocaine in her pocket. She appeared to be intoxicated, and said that she bought her drugs on the street.
In the dining room, several officers saw a white smudge mark on the glass table that looked like it had cut marks through it. The police officers also
Defendant was subsequently charged with two counts: (1) possession with intent to deliver less than fifty grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), and (2) maintaining a drug house, MCL 333.7405-333.7406; MSA 14.15(7405)-14.15(7406). The prosecutor also sought an enhanced drug sentence pursuant to MCL 333.7413(2); MSA 14.15(7413)(2). At trial, Officer Kozal testified, without being qualified as an expert and without objection, that buyers of crack cocaine use twenty-dollar bills to buy a rock of crack and that ten- and twenty-dollar rocks of crack cocaine are common. He described the process by which crack cocaine is prepared and the heat sealing of the comers of plastic bags used to package the crack cocaine. He stated that the smudge marks on the table were consistent with marks left from cutting crack cocaine in preparation for packaging it, and described the method by which crack cocaine is cut for distribution. Officer Weston was then tendered as an expert in “street level narcotics.” In answer to defendant’s objection to such an expert, the trial court told the prosecutor to
Officer Kirtley was also qualified as an expert in “street level narcotics trafficking” and testified regarding the method by which drags are bought and sold in Kalamazoo. During this testimony, he stated that drug dealing was prevalent in the area of 802 Staples and that crack cocaine dealers were primarily males who would often develop a relationship with a woman who has an apartment or a house, then use the apartment or the house to sell drugs and threaten the woman to keep her silent. He also stated that drug dealers often have pagers, many twenty-dollar bills from selling twenty-dollar rocks of crack cocaine, use pieces of paper to tabulate their drug transactions and cut their rocks of crack cocaine into smaller amounts to sell, leaving smears on the cutting surface. After Officer Kirtley’s testimony, defendant moved for a mistrial, stating that drug profile evidence given by Officer Kirtley was being used as substantive evidence of guilt. Although the trial court denied defendant’s motion for a mistrial, it provided a cautionary instruction to the jury not to use the profile testimony as evidence of guilt or innocence. At the close of the prosecutor’s case, the trial court found that there was insufficient evidence that
Defendant’s first claim on appeal is that the trial court improperly allowed drug profile testimony from police officers. The admission of evidence is reviewed for abuse of discretion. People v Ullah, 216 Mich App 669, 673; 550 NW2d 568 (1996). Similarly, the determination regarding the qualification of an expert and the admissibility of expert testimony is within the trial court’s discretion. People v Beckley, 434 Mich 691, 711; 456 NW2d 391 (1990). An abuse of discretion exists when an unprejudiced person, considering the facts on which the trial court acted, would conclude that there was no justification for the ruling made. Id.
Drug profile evidence has been described as an “informal compilation of characteristics often displayed by those trafficking in drugs.” People v Hubbard, 209 Mich App 234, 239; 530 NW2d 130 (1995), quoting United States v McDonald, 933 F2d 1519, 1521 (CA 10, 1991), and United States v Campbell, 843 F2d 1089, 1091, n 3 (CA 8, 1988). “A profile is simply an investigative technique. It is nothing more than a listing of characteristics that in the opinion of law enforcement officers are typical of a person engaged in a specific illegal activity.” Hubbard, supra at 239. Drug profile evidence is essentially a compilation of otherwise innocuous characteristics that many drug dealers exhibit, such as the use of pagers, the carrying of large amounts of cash, and the possession of
On the other hand, courts generally have allowed expert testimony to explain the significance of items seized and the circumstances obtaining during the investigation of criminal activity. Hubbard, supra at 239; MRE 702.
Clearly, there is often a very fine line between the probative use of profile evidence as background or modus operandi evidence and its prejudicial use as substantive evidence; the admissibility of profile evi
This gray area is made even more difficult to navigate by the fact that profile evidence is usually offered by police officers testifying as expert witnesses. In Hubbard, this Court noted the danger that such testimony may have an “ ‘aura of special reliability and trustworthiness.’ ” Hubbard, supra at 241, quoting note, The admissibility of ultimate issue expert testimony by law enforcement officers in criminal trials, 93 Colum L R 231, 246-247 (1993). Thus, “ ‘[a] danger of prejudice exists in that a jury may accept a law enforcement officer’s testimony that the defendant was engaging in criminal behavior as substantive evidence of the defendant’s guilt.’ ” Id. Ideally, perhaps, it would be best in determining the admissibility of the profile if the witness knew nothing at all about the defendant’s case; in such a situation, the jury could draw no inference of guilt from
Therefore, difficult as it may sometimes be, courts must take into consideration the particular circumstances of a case and enable profile testimony that aids the jury in intelligently understanding the evidentiary backdrop of the case, and the modus operandi of drug dealers, but stop short of enabling profile testimony that purports to comment directly or substantively on a defendant’s guilt.
Some or all of the following factors may be helpful in distinguishing between the appropriate and inappropriate use of drug profile evidence and thus help to determine the admissibility of such evidence. First, the reason given and accepted for the admission of the profile testimony must only be for a proper use— to assist the jury as background or modus operandi explanation. See United States v Williams, 957 F2d 1238, 1241 (CA 5, 1992) (one factor showing the pro
This Court in Hubbard, supra at 241, followed the majority of courts and prohibited the use of drug profiles as substantive evidence of a defendant’s guilt. Specifically, this Court determined that the drug profile evidence in Hubbard was admitted as substantive evidence for three reasons. First, the prosecutor argued that the evidence was admissible to “explain some of the reasons certain activities are undertaken, to show a consistent pattern of behavior.” Id. at 242. Second, the prosecutor specifically argued to the jmy that the profile was circumstantial evidence of defendant’s guilt. Id. at 242-243. Third, the trial court failed to give the jury a cautionary instruction limiting the use of the profile evidence. Id. at 243.
In the instant case, defendant does not contest, under the three-part expert testimony admissibility test, either that the experts were qualified to testify regarding street level narcotics dealings or that narcotics-related law enforcement is a recognized area of expertise. See People v Williams, supra at 541-542. However, defendant argues that the drug profile testimony did not merely provide the jury with a better
Accordingly, we look to the facts of the present case to determine whether the drug profile evidence was admissible as background or modus operandi evidence or instead whether it embraced the ultimate issue of defendant’s guilt and was thus inadmissible. First, in the case before us, the prosecutor stated that the purpose of Officer Krrtley’s expert testimony was to educate the jury about buying and selling drugs in Kalamazoo County.
Second, the prosecutor in this case also did not argue that the drug profile was evidence against defendant. In Hubbard, supra at 238, the prosecutor referred to the profile evidence as circumstantial evidence of the defendant’s guilt, explicitly allowing the jury to use the testimony as substantive evidence when this use was more prejudicial than probative. Here, in contrast to Hubbard, the prosecutor argued only the facts of this particular case during her closing arguments. The prosecutor did argue that the totality of the evidence found in the apartment showed that defendant possessed the crack cocaine and intended to package it and sell it, and the modus operandi testimony regarding drug dealing could have helped explain the use of some of the items found at the scene, such as a pager and large amounts of money. Such use of profile testimony is allowed, because it helps the jury to understand the implications of the evidence, but does not propose to answer the question of defendant’s guilt by itself. It appears, in our judgment, that the prosecutor here was consistent in her use of the profile testimony as general education for the jury to explain the drug trade.
Third, the trial court provided a clear limiting instruction to the jury in this case. This factor is again contrary to the court’s failure to give an instruction in Hubbard, supra at 243, which helped to persuade this Court that the drug profile there was admitted as substantive evidence. In this case, after defendant moved
By stipulation of counsel, I am going to give you this instruction concerning Officer Gary Kirtley’s testimony about his experience in other drug cases. You are cautioned that the testimony concerning what happened in his other drug cases is not be used to decide whether any crime was committed in this case. This testimony that he gave concerning other drug cases was received only for background informational purposes and nothing else.
This limiting instruction clearly cautions that drug testimony, including profile testimony, other than that about the facts of defendant’s case, is not to be used as substantive evidence of defendant’s guilt. Thus, the instruction supported the prosecutor’s proposed use of the profile testimony and explicitly limited the jury’s use of such evidence. Although the instruction referred to Officer Kirtley’s testimony only, we note that this was the language to which defendant stipulated. In addition, we refuse to operate on the premise that jurors cannot comprehend the difference between substantive evidence and background testimony intended to help them understand the evidence, especially where this difference is pointed out to them. Therefore, we believe that the instruction given adequately limited the use of the profile evidence as a whole.
Fourth, the experts, Officers Weston and Kirtley, did not generally attempt to directly tie the profile testimony to defendant’s actions or characteristics in a manner that implied defendant’s guilt merely because of the connection, nor did they directly opine on the basis of such characteristics that defendant was a drug dealer. See Lui, supra at 847. Officer Wes
However, Officer Kirtley also testified that “there are .certain areas within the city that are more prevalent or open dealing of drugs occur. One of those happens to be the area where 802 Staples Street is.” We believe that this particular statement referring specifically to defendant’s address impermissibly linked an innocuous drug profile characteristic to defendant and stated that drug dealing did take place merely because of the location of this apartment. On the basis of his general knowledge of drag dealing, he also testified that a piece of paper with tabulations of numbers found on the dining-room table was used to keep track of drug sales. Officer Kirtley did not simply testify that the tabulations were consistent with drug dealing modus operandi, but further stated that they were used for keeping track of drug sales. This testimony also impermissibly linked a fairly innocent piece of paper to the drug trade in such a manner that defendant’s guilt was implied from the profile
Thus, we must now determine whether the error in admitting this particular testimony was harmless. The appropriate standard for assessing a defendant’s non-constitutional allegation of error since the Supreme Court’s opinion in People v Gearns, 457 Mich 170; 577 NW2d 422 (1998), is whether the prosecutor “proved that it was highly probable that . . . the tainted evidence did not contribute to the verdictf].” Id., at 204 (Brickley, J., joined by Mallett, C.J.), 220 (Cavanagh, J., joined by Kelly, J.); People v Graves, 458 Mich 476, 482-483; 581 NW2d 229 (1998). We find that it is “highly probable” that the erroneous admission of certain portions of Officer Kirtley’s testimony did not affect the jury’s verdict. Although there is no direct evidence that defendant possessed the crack cocaine found in the apartment, which he shared with two women,
On the basis of these facts, we find that the overwhelming part of Officer Kirtley’s and Officer Weston’s expert testimony was used as admissible modus
Defendant’s other argument on appeal is that his trial attorney’s failure to object to the drug profile evidence amounted to ineffective assistance of counsel. To justify a reversal based on ineffective assistance of counsel, a defendant must show that counsel’s performance fell below an objective standard of reasonableness and so prejudiced the defendant that it deprived him of a fair trial. People v Pickens, 446 Mich 298, 303; 521 NW2d 797 (1994). Effective assistance of counsel is presumed, so a defendant “bears a heavy burden of proving otherwise.” People v Effinger, 212 Mich App 67, 69; 536 NW2d 809 (1995). A defendant must also show actual prejudice, meaning that there is a “reasonable probability that, but for counsel’s error, the result of the proceedings would have been different.” Id.
In this case, defendant must show that his attorney’s failure to object to the expert testimony regarding general information about drug dealing “deprived him of a substantial defense that would have affected the outcome of the proceeding.” People v Daniel, 207 Mich App 47, 58; 523 NW2d 830 (1994). However,
Affirmed.
Various courts have also allowed the admission of profile evidence for other limited purposes that we need not address here. See, e.g., United States v Webb, 115 F3d 711, 715 (CA 9, 1997).
This use of the term “modus operandi” refers to “a particular common method of committing a crime.” See anno: Admissibility of eocpert testimony as to modus operandi of crime—modem cases, 31 ALR4th 798, 802-803.
Obviously, even where testimony regarding a profile is determined to be probative as background or modus operandi evidence, it must still be relevant to the case under MRE 401 and comply with the balancing test of MRE 403.
The court allowed Officer Weston’s expert testimony regarding narcotics dealing on a question-by-question basis without requiring the prosecutor to first argue the merits of such testimony, and defendant did not object to the subsequent questions. Thus, the prosecutor’s first opportunity to explain the purpose of expert testimony about street level drug trafficking was after she moved for the qualification of Officer Kirtley as an expert witness.
Nicole Potts was the only person in the apartment who actually had crack cocaine in her possession on the night in question.
Because defendant did not object to the testimony of Officer Kozal, and his testimony regarding the general drug trade in Kalamazoo was cumulative to that of Officers Kirtley and Weston, we decline to address this testimony directly. See Ray, supra at 709.
Concurring Opinion
(conciWTmi/). Officer Gary Kirtley’s testimony that male crack cocaine dealers in Kalamazoo frequently establish relationships with women who have apartments, move in with the women to sell drugs, and threaten the women to prevent them from talking about or interfering with the drug dealing was improper profile testimony. This testimony did not explain the significance of the seized contraband or other items of personal property, People v Ray, 191 Mich App 706; 479 NW2d 1 (1991), did not explain evidence presented,
I agree, however, that there was strong circumstantial evidence of defendant’s guilt separate and apart from the improper profile testimony, and that the trial court’s admission of the improper profile testimony was harmless error.
Also, because defendant does not challenge on appeal the admission of Officer Kirtley’s testimony regarding papers with tabulations found in the living room, I would not address the admissibility of the evidence.
While there was evidence that defendant resided at the apartment with two women and paid part of the rent, there was no evidence regarding how long defendant had resided there and how he came to reside there, or his relationship with the women, other than that one of the women was his girlfriend.
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