PEOPLE v GONZALEZ; PEOPLE v GUERRA
Docket Nos. 223401, 223402
Michigan Court of Appeals
April 8, 2003
256 MICH APP 212
Submitted January 15, 2003, at Detroit. Decided April 8, 2003, at 9:10 A.M. Leave to appeal sought.
David A. Guerra, a member of the Spanish Cobras gang, was convicted along with Gonzalez in the joint jury trial of racketeering,
The Court of Appeals held:
- The trial court did not abuse its discretion in admitting evidence regarding the criminal activities of other persons, including
other Spanish Cobra gang members, because the evidence tended to show that the defendants were part of an enterprise (the Spanish Cobras), and that the Spanish Cobras were engaged in a pattern of criminal activity. Thus, the evidence was admissible to establish elements of the racketeering charges against the defendants. - The trial court did not abuse its discretion in admitting evidence of an assault allegedly ordered by Guerra because this evidence demonstrated Guerra‘s leadership role and participation in the Spanish Cobras.
- The prosecutor did not commit misconduct with regard to Guerra by eliciting names of other gang members through the testimony of a police officer to establish that the officer was a gang expert, because the evidence was introduced on the basis of the officer‘s declared status as an expert witness regarding gangs.
- There was no error requiring reversal, nor was it an abuse of the trial court‘s discretion, to prohibit Guerra from impeaching a witness with evidence of the witness‘s plea agreement, because Guerra called the witness and elicited the damaging testimony in the first place.
- Guerra‘s argument that the trial court improperly instructed the jury that it could consider all relevant evidence introduced at trial, including similar-acts evidence, with respect to the intent element of possession with intent to deliver cocaine failed in light of the fact that there was other evidence sufficient to support his conviction.
- The trial court did not abuse its discretion in using the judicial sentencing guidelines rather than the legislative sentencing guidelines in determining the defendants’ sentences, because the legislative guidelines only apply to felonies committed after January 1, 1999,
MCL 769.34(2) , and the offenses of which the defendants were convicted occurred before January 1, 1999. With respect to the one offense that Gonzalez was charged with and that possibly occurred after January 1, 1999, any error was harmless because the trial court would have had compelling reasons to depart from the legislative guidelines had those guidelines been used. - The trial court did not err with regard to Gonzalez by ordering consecutive sentences for his solicitation and racketeering convictions because
MCL 333.7401(3) specifically authorizes consecutive sentencing for offenses involving controlled substances, including the defendant‘s conviction of solicitation underMCL 333.7407a(2) . - If an habitual offender‘s underlying felony and criminal history demonstrate that he is unable to conform his conduct to the law, a sentence within the statutory limit is proportionate. Given his criminal record and his status as a second-offense habitual offender,
MCL 769.10 , Gonzalez‘s sentences of thirteen years and four months to thirty years for racketeering,MCL 750.159j , and five to forty years for solicitation,MCL 333.7401(2)(a)(iv) andMCL 333.7413(2) , were not disproportionate because the sentences were within the statutory limits for those offenses. - The trial court did not err in denying Guerra‘s motion to suppress evidence of drugs found in his home during a search warrant, because the evidence had previously been observed in plain view by police officers who conducted a protective sweep of the home incident to Guerra‘s arrest. Thus, it was proper to list this evidence on the request for a search warrant, and the evidence was properly admitted at trial.
- Guerra‘s argument that the trial court should have instructed the jury that the trial court lacked jurisdiction over a predicate offense that occurred when he was a juvenile,
MCL 712A.4 , was moot because the jury did not find him guilty of that offense.
Affirmed.
WHITE, P.J., concurring, stated that she agreed with the result reached by the majority but wrote separately to note that the trial court erred in refusing to allow Guerra to impeach a witness with her plea agreement, but that this error did not affect the outcome of the trial. Furthermore, there was no error requiring reversal regarding the admission of similar-acts evidence because Guerra did not request a limiting instruction. With regard to Guerra‘s motion to suppress, although the initial search was not permissible as a protective sweep, the drug evidence was observed in plain view and the denial of the motion should be affirmed.
Michael A. Cox, Attorney General, Thomas L. Casey, Solicitor General, Arthur A. Busch, Prosecuting Attorney, Timothy J. Cassady, Chief, Research, Training, and Appeals, and Michael A. Tesner, Assistant Prosecuting Attorney, for the people.
Patrick K. Ehlmann for Israel J. Gonzalez.
Neil C. Szabo for David A. Guerra.
KELLY, J. In these consolidated appeals from a joint jury trial, defendants Israel J. Gonzalez (Docket No. 223401) and David A. Guerra (Docket No. 223402) appeal as of right.
Defendant Gonzalez appeals his convictions of operating a criminal enterprise (racketeering),1
Defendant Guerra appeals his convictions of racketeering,2
We affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
A Crime Area Target Team of the Flint Police Department, which had been investigating gang activity for several years, discovered that the Spanish Cobras, a gang originating in Chicago, had been active in Flint since the early 1990s. The Spanish Cobras were primarily drug traffickers, but also committed larcenies, burglaries, thefts, extortion, fencing of stolen property, and assaults.
As part of an investigation of the Spanish Cobras, Michigan State Police Trooper Dale Girke made several undercover drug transactions to discover the drug source. Some of these transactions were surveilled by Flint police officers, who ultimately searched Jose Diaz‘s home finding a safe containing $3,600. Marked bills from the drug transactions with Trooper Girke were also traced to Diaz. In March 1998, Flint police executed a search warrant at Diaz‘s home where they found firearms and various items exhibiting gang colors and symbols, as well as photographs of gang members, including defendants, wearing gang paraphernalia and making gang signs.
In June 1998, Flint police officers executed felony arrest warrants regarding eleven individuals, including defendant Guerra. During the execution of defendant Guerra‘s arrest warrant, Lieutenant Gary Hagler approached defendant Guerra‘s house and saw him run from the front door. Defendant Guerra did not
Defendants, as well as three other individuals,3 were charged with racketeering,
II. EVIDENTIARY ISSUES
A. STANDARD OF REVIEW AND GENERALLY APPLICABLE LAW
The decision whether to admit evidence is within the discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion. People v Snider, 239 Mich App 393, 419; 608 NW2d 502 (2000). An abuse of discretion is found only if an unprejudiced person, considering the facts on which the trial court acted, would say that there was no justification or excuse for the ruling made. Id. A decision on a close evidentiary question ordinarily cannot be an abuse of discretion. People v Sabin (After Remand), 463 Mich 43, 67; 614 NW2d 888 (2000). Decisions regarding the admission of evidence that
Generally, all relevant evidence is admissible. MRE 402. Relevant evidence is “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 than it would be without the evidence.” MRE 401. Relevant evidence “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” MRE 403. A determination of the prejudicial effect of evidence is “‘best left to a contemporaneous assessment of the presentation, credibility, and effect of testimony’ by the trial judge.” People v Bahoda, 448 Mich 261, 291; 531 NW2d 659 (1995), quoting People v VanderVliet, 444 Mich 52, 81; 508 NW2d 114 (1993).
B. CRIMINAL ACTIVITIES OF OTHERS
Defendants first argue that the trial court abused its discretion in admitting evidence concerning the criminal activities of others. We disagree.
Defendants were convicted pursuant to
As used in this chapter, “racketeering” means committing, attempting to commit, conspiring to commit, or aiding or abetting, soliciting, coercing, or intimidating a person to commit an offense for financial gain, involving any of the following:
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(c) A felony violation of part 74 or section 17766a of the public health code, 1978 PA 368,
MCL 333.7401 to333.7461 and333.7766a , concerning controlled substances or androgenic anabolic steroids.*
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(r) A violation of section 213, concerning extortion.
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(ff) A violation of section 529, 529a, 530, 531, concerning robbery.
(gg) A felony violation of section 535, 535a, 536a, concerning stolen, embezzled, or converted property.
“Pattern of racketeering activity” means not less than 2 incidents of racketeering to which all of the following characteristics apply:
(i) The incidents have the same or a substantially similar purpose, result, participant, victim, or method of commission, or are otherwise interrelated by distinguishing characteristics and are not isolated acts.
(ii) The incidents amount to or pose a threat of continued criminal activity. (iii) At least 1 of the incidents occurred within this state on or after the effective date of the amendatory act that added this section, and the last of the incidents occurred within 10 years after the commission of any prior incident, excluding any period of imprisonment served by a person engaging in the racketeering activity.
The statute was intended to create state racketeering law analogous to the Racketeering Influence and Corrupt Organizations Act (RICO),
1) an ongoing organization with some sort of framework or superstructure for making and carrying out decisions; 2) that the members of the enterprise functioned as a continuing unit with established duties; and 3) that the enterprise was separate and distinct from the pattern of racketeering activity in which it engaged. [Id., citing Frank v D‘Ambrosi, 4 F3d 1378, 1386 (CA 6, 1993).]
Here, the challenged evidence was relevant to establish the existence of the enterprise and the participation of its members in a pattern of criminal activity. During the execution of the search warrant at Diaz‘s home on March 17, 1998, police officers discovered a photo album covered in green and black, the
The testimony of Trooper Girke regarding drug transactions was relevant to show a pattern of the Spanish Cobras’ criminal activity. Working undercover, Trooper Girke acted as a buyer in three drug transactions with Mary Parrish. In two of the transactions, the vehicle involved belonged to Diaz and was followed back to Diaz‘s home after the sale. In addition, some of the money used by Trooper Girke was traced to Diaz. Because other evidence had already been admitted that tended to establish that Diaz was a member and leader of the Spanish Cobras, this additional evidence tended to show that the Spanish Cobras was an organization involved in the street sale of cocaine. Thus, it was admissible to establish an element of racketeering.
Defendant Gonzalez did not object to the testimony of Officer David Forysteck, Bethany Carter, and Ryan Pinkston. Nonetheless, this testimony also tended to show that the Spanish Cobras were an enterprise involved in drug trafficking and violence. Given the other evidence that established the existence of the
C. ASSAULT
Defendant Guerra next argues that the trial court abused its discretion in admitting evidence of an assault that was allegedly ordered by him. We disagree.
The trial court did not err in admitting the evidence that defendant Guerra ordered another Spanish Cobra member to assault Ryan Pinkston. This evidence tended to demonstrate defendant‘s leadership role in the Spanish Cobras. The evidence was material in that defendant‘s participation in the affairs of the Spanish Cobras was at issue during his trial. It was also probative, making his leadership in the Spanish Cobras more probable.
D. GANG AFFILIATION
Defendant Guerra next argues that the prosecutor improperly introduced evidence of gang affiliation without an adequate foundation. We disagree.
To avoid forfeiture of an unpreserved claim of prosecutorial misconduct, defendant must show a plain error affecting his substantial rights. People v Rodriguez, 251 Mich App 10, 32; 650 NW2d 96 (2002). “Issues of prosecutorial misconduct are decided case by case, with the reviewing court examining the pertinent portion of the record and evaluating the pros-
Specifically, defendant Guerra argues that the prosecutor improperly elicited the testimony of Lieutenant Hagler regarding names of other gang members whose identities were derived from hearsay and gang profiles. Defendant Guerra argues that the purpose of admitting this evidence was to establish that Lieutenant Hagler was a gang expert. We find that the challenged conduct did not constitute plain error because the prosecutor introduced the evidence on the basis of Lieutenant Hagler‘s declared status as an expert witness in the area of street-gang investigation and practices. Even if it was plain error, it could not have affected defendant Guerra‘s substantial rights because the complained of conduct occurred during a small portion of the direct examination of one witness and did not infect the entire trial.
E. PLEA AGREEMENT
Defendant Guerra next argues that the trial court abused its discretion in not allowing him to impeach witness Mary Parrish with evidence of her plea agreement. We disagree.
Defendant Guerra called Parrish in his case-in-chief, apparently to mitigate the testimony of a prosecution witness. Defendant now argues that Parrish‘s agreement with the prosecutor to give truthful testimony in exchange for a more lenient sentence was admissible to show her bias toward the prosecution. However, we note that defense counsel first elicited Parrish‘s testimony that defendant had threatened her.
While a witness‘s credibility may be attacked by the party calling the witness, MRE 607, defendant was attempting to impeach testimony that he initially elicited from Parrish. “Because error requiring reversal cannot be error to which the aggrieved party contributed by plan or negligence, defendant has waived appellate review of this issue.” People v Griffin, 235 Mich App 27, 46; 597 NW2d 176 (1999). Regardless of this waiver, though it may be error requiring reversal to exclude evidence of a prosecution witness‘s plea agreement on the basis of the right of confrontation, People v Mumford, 183 Mich App 149, 154; 455 NW2d 41 (1990), there is no such error here because defense counsel called Parrish to testify and elicited her testimony about defendant Guerra‘s threat. Therefore, the trial court did not abuse its discretion in denying defendant Guerra‘s request to present the fact that Parrish was offered a plea agreement by the prosecution.
F. SIMILAR ACTS
Defendant Guerra next argues that the trial court abused its discretion in “allowing the jury to consider similar acts evidence for an improper purpose without sufficient notice to the defendant.” We disagree.
To begin with, we note that defendant Guerra did not object to the admission of similar-acts evidence, nor does he argue on appeal that the evidence was improperly admitted. Rather, he argues that the trial court, in response to the jury‘s inquiry, improperly instructed the jury that it could “consider all the rele-
To preserve an instructional error for review, a defendant must object to the instruction before the jury deliberates. MCR 2.515(C). Because the alleged error was not properly preserved,5 we review this issue for plain error affecting the defendant‘s substantial rights. People v Knapp, 244 Mich App 361, 375; 624 NW2d 227 (2001), citing Carines, supra at 766-767. This Court reviews jury instructions in their entirety to determine whether there is error requiring reversal. People v Aldrich, 246 Mich App 101, 124; 631 NW2d 67 (2001). We will not reverse a conviction if the instructions fairly presented the issues to be tried and sufficiently protected the defendant‘s rights. Id.
The elements of possession of less than fifty grams of cocaine with intent to deliver are: “(1) that the recovered substance is cocaine, (2) that the cocaine is in a mixture weighing less than fifty grams, (3) that
In this case, Sergeant Harold Payer testified that the amount of cocaine found in defendant Guerra‘s home, when considered with other confiscated items such as the sifter containing cocaine residue, a baggie containing cocaine, and weapons, led him to believe that defendant Guerra intended to deliver the cocaine, not merely possess it. This evidence alone was sufficient to support defendant Guerra‘s conviction. Therefore, the alleged instructional error did not affect defendant Guerra‘s substantial rights.
III. SENTENCING ISSUES
A. SENTENCING GUIDELINES
Defendants next argue that the trial court abused its discretion in using the judicial rather than the legislative sentencing guidelines in formulating their sentences. We disagree.
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The trial court did not err in applying the judicial guidelines because the offenses of which defendants were convicted occurred before January 1, 1999. Defendant Guerra was not charged with any conduct that occurred after 1998. Of the alleged predicate offenses underlying the racketeering charge against defendant Gonzalez, only one occurred after January 1, 1999, intimidating a witness in March 1999. The jury did not find defendant Gonzalez guilty of this offense.
However, defendant Gonzalez also argues that the evidence supporting his solicitation conviction is ambiguous with regard to the date the offense occurred. The subject of defendant Gonzalez‘s solicitation first testified about a sale of marijuana that occurred in the summer of 1997. This witness was then questioned about cocaine solicitation, to which
Q. When was that?
A. Not too long after that, probably in the wintertime after that.
Q. And would that put it one side or the other of New Year‘s, if you know?
A. Not exactly sure.
Q. So that would have been either just—would—would it be fair to say winter can be either side of New Year‘s.
A. Yes.
Q. It would be either the late end of ‘97 or the beginning of ‘98.
A. Well, that—that it was—it had—I think it was in the winter of ‘98—
Q. Okay—
A. —it was probably a year after that.
Q. Okay.
A. It was awhile after that.
We agree that this testimony is ambiguous and could be read to place the incident in the early months of 1999. However, even if the offense occurred after January 1, 1999, any error in applying the judicial guidelines was harmless. The trial court stated that it would have found substantial and compelling reasons to depart from the legislative guidelines if they had been applied. The court noted that justification for this departure was found in defendant Gonzalez‘s criminal history. Furthermore, the jury found him guilty of eleven of fourteen predicate offenses. Had the trial court used the legislative guidelines, it would not have abused its discretion in determining that these objective and verifiable factors presented substantial and compelling reasons to de-
B. DEFENDANT GONZALEZ‘S CONSECUTIVE SENTENCES
Defendant Gonzalez next argues that the trial court erred in ordering consecutive sentences for his solicitation and racketeering convictions. We disagree.
Whether the trial court properly sentenced a defendant to consecutive sentences is a question of statutory interpretation that is reviewed de novo. People v Denio, 454 Mich 691, 698-699; 564 NW2d 13 (1997). A consecutive sentence may be imposed only if specifically authorized by law. People v Lee, 233 Mich App 403, 405; 592 NW2d 779 (1999).
In this case, defendant Gonzalez was convicted of soliciting Ryan Pinkston to possess less than fifty grams of cocaine with intent to deliver.
C. PROPORTIONALITY OF DEFENDANT GONZALEZ‘S SENTENCES
Defendant Gonzalez also argues that the trial court erred in imposing a disproportionate sentence. We disagree.
As discussed above, the legislative sentencing guidelines do not apply to defendant Gonzalez‘s convictions. Additionally, the judicial sentencing guidelines do not apply because he was sentenced as an habitual offender. People v Colon, 250 Mich App 59, 64-65; 644 NW2d 790 (2002). This Court reviews the sentence of an habitual offender for an abuse of discretion. Id. at 64. “Nonetheless, ‘[a] sentence must be proportionate to the seriousness of the crime and the defendant‘s prior record. If an habitual offender‘s underlying felony and criminal history demonstrate that he is unable to conform his conduct to the law, a sentence within the statutory limit is proportionate.‘” Id. at 65, quoting People v Compeau, 244 Mich App 595, 598-599; 625 NW2d 120 (2001) (citation omitted).
In this case, the jury found defendant Gonzalez guilty of eleven offenses predicate to racketeering, most of which involved the possession or sale of cocaine and marijuana. The evidence demonstrated that defendant Gonzalez was a leader of the Spanish Cobras and induced others to commit crimes. Moreover, defendant Gonzalez was a second-offense habitual offender, having previously been convicted of
Pursuant to
IV. MOTION TO SUPPRESS
Defendant Guerra next argues that the trial court erred in denying his motion to suppress evidence found in his home. We disagree.
The right of individuals to be secure against unreasonable searches and seizures is guaranteed by both the federal and state constitutions.
When Hagler approached defendant Guerra‘s house, he noticed defendant Guerra behind an Armorguard door. After Hagler announced his purpose and ordered defendant Guerra to comply, defendant Guerra ran in the opposite direction through the house, zigzagging through other rooms. Lieutenant Hagler entered the house and chased defendant Guerra past other people in the home, to the back door where defendant Guerra stepped outside and was apprehended.
Given these circumstances, the trial court did not err in determining that the police conduct was reasonable. Lieutenant Hagler articulated facts that would form “a reasonable belief” that there may have been individuals in defendant Guerra‘s home who posed a danger to the arresting officers. The officers knew that other individuals affiliated with the Spanish Cobras, including some wanted for assaultive crimes and murder, were still at large and could be hiding in defendant Guerra‘s home. It was reasonable to perform a protective sweep of the house, including the basement, to ensure that no individuals were hiding in the house. The officers also noted defendant Guerra‘s girlfriend Sandra Fierros’ presence and
V. JURISDICTION OVER PREDICATE JUVENILE OFFENSE
Defendant Guerra also argues that the trial court erred in refusing to instruct the jury that the trial court did not have jurisdiction over a predicate offense that occurred when defendant Guerra was a juvenile. We disagree.7 Issues of subject-matter jurisdiction are reviewed de novo. People v Harris, 224 Mich App 597, 599; 569 NW2d 525 (1997). A lack of subject-matter jurisdiction cannot be waived by a party. People v Eaton, 184 Mich App 649, 652; 459 NW2d 86 (1990). This Court also reviews de novo claims of instructional error. People v Hall, 249 Mich App 262, 269; 643 NW2d 253 (2002).
Defendant Guerra argues that even if the jurisdictional issue is moot, we should still address the instructional issue because “the trial court also instructed the jury that this alleged conduct may be considered when determining guilt on Count II [possession with intent to deliver less than fifty grams of cocaine].” Although the jury was permitted to consider evidence of the alleged juvenile conduct, it found that there was insufficient evidence to establish that this conduct occurred. Having found that this act was not proven beyond a reasonable doubt, it is improbable that the jury considered it in relation to Count II. Moreover, even without the evidence of defendant Guerra‘s juvenile act, there was ample evidence to support his conviction as discussed above. Therefore, even if the trial court erred in denying defendant Guerra‘s request for the jury instruction, defendant Guerra cannot show a miscarriage of justice under the “more probable than not” standard, Carines, supra at 774; Lukity, supra at 495-496.
Affirmed.
WHITE, P.J. (concurring). While I agree with the result reached by the majority, I write separately because my reasoning differs on several issues.
Regarding evidence of the criminal activities of others, I agree that evidence concerning the album seized from Jose Diaz‘s home was relevant and admissible. I find no error requiring reversal in the admission of the other evidence challenged on appeal because I conclude that the admission of evidence of guns found in the search was harmless, and that witness Theresa Goodman provided adequate foundation for testimony concerning the drug transactions with Diaz and Mary Parrish.
I agree that any error in admitting Lt. Gary Hagler‘s testimony regarding various individuals’ membership in the gang did not affect the outcome of the trial. People v Lukity, 460 Mich 484, 495; 596 NW2d 607 (1999).
I conclude that the trial court erred in refusing to allow defendant Guerra to question Parrish regarding her plea agreement. However, the error did not affect the outcome of the trial. Id.
Regarding the similar-acts evidence and the jury‘s consideration of the evidence in relation to the count of possession with intent to deliver, I find no error requiring reversal under the circumstances because defendant Guerra did not request a limiting instruction when the evidence was admitted, and objects to the evidence only on the basis of failure to give the notice required by MRE 404(b).
Lastly, with regard to defendant Guerra‘s motion to suppress, I conclude that the initial search was far