Following a jury trial, defendant was convicted of possession with intent to deliver less than fifty grams of cocaine and conspiracy to commit the same offense, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), MCL 750.157a; MSA 28.354(1), maintaining a drug house and conspiracy to commit the same offense, MCL 333.7405(d); MSA 14.15(7405)(d), MCL 750.157a; MSA 28.354(1), and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to concurrent prison terms of sixteen to twenty-four months for the drug-house convictions to be served consecutively to concurrent prison terms of five to twenty years for the cocaine convictions. He was also sentenced to a mandatory two-year prison term for felony-firearm to run consecutively to the cocaine sentences. Defendant appeals as of right. We affirm.
Defendant first contends that the jury’s verdicts were against the great weight of the evidence and that the trial court erred in denying his motion for a new trial. We disagree.
After reviewing the record, we conclude that the
We also reject defendant’s claim that the trial court erred in denying his motion for a directed
Next, defendant argues that he was denied his constitutional right tó a speedy trial, US Const, Am VI; Const 1963, art 1, § 20. We disagree.
A delay of six months is necessary to trigger further investigation when a defendant raises a speedy trial issue. In determining whether a defendant was denied a speedy trial, this Court considers the length of the delay, the reason for the delay, defendant’s assertion of the right to a speedy trial, and any prejudice to defendant.
Barker v Wingo,
Next, defendant claims that the trial court erred in denying his motion to suppress as evidence the
Defendant also argues that the district court abused its discretion by binding over him on the felony-firearm charge. We disagree. The evidence adduced at the preliminary examination established that before the police raided the apartment, a gun was pointing out from a bedroom window and that vials of cocaine were being tossed outside. The officers testified that, once inside, they found defendant lying underneath the bedroom window and a rifle lying on the floor approximately five feet away from him. Defendant’s brother, Peter L. Daniel, was also lying on the floor two feet from the rifle. Because the rifle was seen pointing out the window and defendant was discovered underneath the window, a reasonable inference could be drawn that defendant was the person holding the rifle before the raid. The fact that the gun was lying closer to Peter Daniel does not negate the inference that defendant was in possession of the rifle. Clearly, the rifle was accessible and available to defendant at the time the crime was committed.
Williams, supra.
Accordingly, the trial court properly denied defendant’s motion to quash the infor
Defendant’s claim that he should not have been tried with his codefendants was not preserved. Failure to move for a separate trial precludes appellate review.
People v Hoffman,
Next, defendant claims that the jury instruction regarding possession was erroneous. This Court reviews jury instructions in their entirety to determine if there is error requiring reversal.
People v Caulley,
After reviewing the instructions, we find no error. Although possession is not defined under the controlled substance act, the instruction properly explained the term as it has been defined by case law.
People v Wolfe,
We also find no merit in defendant’s contention that the jury could have marked inadvertently the wrong offense on the verdict form because the list of charges was not in the same order as his code
Defendant next contends that his sentences are disproportionate to his background and the circumstances of the offense. We disagree.
Defendant’s sentences are within the sentencing guidelines’ recommended minimum sentence range of eighteen to sixty months. Therefore, they are presumptively proportionate.
People v Milbourn,
Furthermore, defendant claims that the trial court improperly ordered his sentences for the cocaine convictions to run consecutively to his sentences for the drug-house convictions, because the latter convictions are misdemeanors. We disagree.
A consecutive sentence may be imposed if specifically authorized by statute.
People v Chambers,
In construing a statutory provision, courts are required to ascertain and give effect to the purpose and intent of the Legislature by examining the provisions in question.
People v Smith,
In
Smith, supra,
our Supreme Court held that offenses defined in the Penal Code, MCL 750.1
et seq.;
MSA 28.191
et seq.,
as misdemeanors punishable by up to two years in prison may be considered "felonies” for the purposes of the habitual offender,
1
probation,
2
and consecutive sentencing
3
provisions of the Code of Criminal Procedure, MCL 760.1
et seq.;
MSA 28.841
et seq.
See also
People v Murphy,
Next, defendant alleges that he was denied a fair trial by misconduct on the part of the prosecution and a witness. We will address each instance separately.
Defendant claims that the prosecutor failed to disclose a police log, which did not list defendant as a participant in the drug operation. A defendant is entitled to have produced at trial all the evidence concerning his guilt or innocence that is within the prosecutor’s control.
Davis, supra
at 514;
People v Calloway,
Defendant claims that the prosecutor improperly remarked during trial that the apartment complex was known to be the site of a lot of criminal activity. The test of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial.
People v Allen,
Defendant also argues that he was denied a fair trial on the basis of a local newspaper article
Next, defendant contends that the trial court abused its discretion in allowing Officer Thomas Maier to opine that defendant was selling crack cocaine to people at the apartment complex. We disagree.
At trial, Officer Maier testified that on four separate occasions a motor vehicle pulled up in front of the apartment. He stated that he observed defendant run to each vehicle as it stopped and lean inside the window for ten to fifteen seconds. Over defendant’s objection, Officer Maier opined that defendant was selling crack cocaine to the occupants of the vehicles. Because, Officer Maier was not qualified as an expert on drug enforcement, the admissibility of his opinion is governed by MRE 701, which allows opinion testimony by a lay witness if it is rationally based on the perception of the witness and helpful to a clear understanding of a fact in issue. This Court finds no abuse of discretion in allowing this opinion testimony because it was based on Officer Maier’s perception and assisted the jurors in determining whether defendant was involved in narcotics trafficking.
People v Oliver,
Finally, defendant contends that he was denied the effective assistance of counsel. We disagree. To establish a denial of effective assistance of counsel under the state and federal constitutions, a defendant must demonstrate that counsel’s performance was deficient and that, under an objective standard of reasonableness, counsel made an error so serious that counsel was not functioning as an attorney as guaranteed by the Sixth Amendment.
People v Lavearn,
First, defendant claims that trial counsel’s failure to call certain witnesses at trial denied him effective assistance of counsel. Before trial, counsel received an anonymous letter indicating that there were several people in the apartment at the time of the raid. As explained by counsel at the Ginther
4
hearing, he advised defendant that the witnesses should not be called because the jury could draw an inference that the apartment was a drug house. The decision whethér to call witnesses is a matter of trial strategy.
People v Julian,
Next, defendant points to counsel’s failure to make the jury aware that a fingerprint belonging to codefendant Peter Daniel was found on the magazine of the rifle found in the bedroom. During his closing argument, defense counsel only referred to the fact that an identifiable fingerprint did not match defendant’s fingerprint. We do not believe that the evidence would have acquitted defendant of the felony-firearm charge. As previously stated, defendant was found lying underneath the window from which the gun was pointed and the gun was lying in close proximity. The identity of a fingerprint would not necessarily negate that defendant was in possession of the rifle. Accordingly, we do not find that defendant was prejudiced.
Finally, defendant argues that counsel was ineffective by failing to move for a separate trial. Counsel explained at the hearing that he did not file a motion because the trial court previously had denied a motion for a separate trial filed by codefendant Peter Daniel. Because a motion for a separate trial would have been unsuccessful, defense counsel was not obligated to pursue the matter. Lavearn, supra at 685.
Affirmed.