People v. Loy-Rafuls

App 594 PEOPLE LOY-RAFULS 9, 1992, at Detroit. Decided Docket No. 119524. Submitted June 1993, appeal, granting 9:05 In lieu of leave to March at a.m. judgment Appeals is insofar as it the of the Court of reversed sentence, provision parole” of the defendant’s vacated the "no judgment the of the Circuit Court is reinstated for and Macomb Fluker, in the reasons stated 7.302(F)(1).442 Mich MCR 890. jury Loy-Rafuls, jointly a Prudencio T. tried with others before J., Court, Jeannette, E. was the Circuit Frank con- Macomb victed of of cocaine and of of more than cocaine, conspiracy to deliver more than 650 of and was parole. possibility the sentenced to life appealed by granted, raising He leave several claims. Appeals The Court of held: showing prejudice, 1. In of a defendant was the absence provided to not a fair trial when information not the denied counsel, discovery agreement, of a defendant’s violation was presented jury. to the 2. The the assistance defendant was not denied eifective challenged presumption by counsel. that the actions coun- rebutted, strategy was and sel constituted sound trial not prejudice resulting any defendant failed to demonstrate alleged deficiencies counsel. jury 3. The defendant was not denied a fair trial when police guns him and witnessed officers with drawn surround his power outage a codefendants after security the courtroom. That reasonable, did measure was defendant not request cautionary regarding that a the incident be instruction given jury. hearsay testimony police 4. The of two officers who related by arranging two statements made delivery codefendants while properly hearsay of cocaine was admitted under the exception coconspirators during for statements course References 2d, Am Jur Criminal Law 630. § Length Comment of sentence as violation constitutional Note.— provisions prohibiting punishment. cruel and unusual 33 ALR3d 335. 801(d)(2)(E). conspiracies. and in the furtherance of MRE Proof conspiracy independently prepon- established evidence, including indicating derance of the evidence defendant knew that the cocaine was intended for a third party. 5. The defendant was not denied a fair trial as a result of being jointly tried with his codefendants. The defendant did not trial, separate move for a and he failed to establish that he was prejudiced by joint the trial. 6. The defendant’s claim that the statute that allows a prosecutor object by jury, to a defendant’s waiver of trial 28.856, 763.3; Michigan MCL MSA violates the Constitution is rejected People Kirby, without merit. The same claim was in 440 Mich 485 prosecutor, 7. alleged Comments the which the defendant improper, deprive were did not him of a fair trial. The defen- object comments, dant any prejudice did not to the by cautionary the remarks could have been cured instruction. prejudice prosecutor questioned No resulted when the a witness about information the trial court had ruled could not be eli- cited inasmuch as the defendant’s counsel did likewise. The prejudiced by any defendant testimony regarding was not leading transactions and discussions to the transaction for which he was convicted. mandatory imprisonment 8. The sentence of life without the possibility parole delivery grams for of 650 or more of cocaine, 333.7401(2)(a)(i),(3); 14.15(7401)(2)(a)(i),(3), MCL MSA is grossly disproportionate so punish- as to be cruel or unusual 1963, 1, Although gravity ment under Const art 16.§ the of the offense, alone, supports when considered a conclusion that the mandatory unusual, sentence is neither cruel nor other consid- erations, including penalties for other serious felonies in Michi- gan penalties drug and federal and other states’ for similar offenses, mandatory lead to the conclusion that the sentence is disproportionate prohibition against and violates the cruel or Thus, punishment. respect unusual to the defendant and 333.7401(2)(a) all others who have been sentenced under MCL 14.15(7401)(2)(a)(i) (i); delivery grams MSA for of 650 or more of cocaine, 28.2304(4) portion 791.234(4); denying of MCL MSA parole consideration must be struck down. Such defendants are subject jurisdiction parole to be board and be eligible parole for consideration in accordance with MCL 791.234(4)(a)-(d),(5); 28.2304(4)(a)-(d),(5). MSA Convictions affirmed and case remanded for modification of sentence. McDonald, J., dissenting part, in stated that the defendant’s 198 Appeals is the Court be affirmed because sentence should 1990-6 to follow deci- Order No.

bound Administrative (1991), Alexander, sion or more sentence for unusual and is bound to follow cocaine is not cruel or limiting Supreme Bullock convic- Court decision possession. tions for — — — Law Constitutional Sentences Controlled Substances Mandatory Imprison- — Life Cruel Unusual Punishment ment. possibility statutory penalty of life cocaine so or more of grossly disproportionate toas be cruel or unusual (Const 1, 16; Michigan under art MCL § Constitution 791.234[4]; 14.15[7401][2][a][i],[3], 333.7401[2][a][i],[3], MSA 28.2304[4]). Kelley, Attorney General, L. J. Thomas Frank Marlinga, Casey, General, J. Prose- Solicitor Carl cuting Attorney, Suhy, and Michael Assistant people. Prosecuting Attorney, for the Morgan, for the defendant on Joan Ellerbusch appeal. Marilyn Kelly, P.J.,

Before: and McDonald JJ. Reilly, and appeals by granted J. Defendant leave

Reilly, jury of his convictions over 14.15(7401) 333.7401(2)(a)(i); cocaine, MCL MSA of (2)(a)(i), conspiracy and over 14.15(7401) 333.7401(2)(a)(i); cocaine, MCL MSA (2)(a)(i) 28.354(1), 750.157a; MCL MSA and his and life sentence of 333.7401(3); parole, possibility MCL MSA 14.15(7401X3). convictions, We affirm defendant’s remand for a modification sentence. i argues Defendant first that he was denied a fair v provided trial when information that was not discovery agree- defense counsel in violation of a ment was presented jury. police

One officers involved the case day testified that on the of the offense he observed sitting two of defendant’s codefendants on the hood of a car across the street from where the drug transaction was scheduled to occur. The offi- cer also testified that he saw the car in the same spot day after defendant and his codefendants police gave were arrested and that another him the set of officer keys that he used to start the car. police report This information was contained in a supplied that had not been to defendant or his codefendants. remedy

A trial court has discretion to fashion a noncompliance discovery agree- for ment. with a order or

People Taylor, (1987); People NW2d 859 Clark, (1987);People 224, 229; 416 NW2d 390 Williams, App 54, 58-59; balancing exercise of that discretion involves a public, courts, the interests of the and the parties. Taylor, supra at 487. evidentiary hearing,

After an the trial court prosecution’s noncompliance concluded that Nevertheless, was not intentional. the court de- challenged testimony cided to strike the and in- jury struct at the end of the trial testimony disregarded. appears should be It record, however, that no such instruction was given. ever

On the record, basis of our review of we attempted conclude that the trial court to fashion remedy upon a based the consideration of all the parties give involved. The failure to the curative require instruction does not fendant has failed to show reversal because de-

any prejudice. Wil- 598 198 Mich op Opinion the Court impli- testimony liams, did not at 59. any way. Furthermore, there cate defendant that defen- that demonstrated was other evidence delivery of the actual involved the dant was Accordingly, the we that neither conclude cocaine. testimony police nor officer’s admission deprived give the curative instruction failure to fair trial. this defendant of a

ii that was denied also asserts he Defendant effective assistance counsel. hearing re- no held with

Because Ginther1 gard claims, is limited to defendant’s our review apparent v Jua- the record. deficiencies (1987). App 66, rez, 73; 158 Mich 404 NW2d in this case and We have reviewed record any not counsel were conclude that errors made functioning not as an so serious that counsel was purposes attorney Amend- for the of the Sixth Furthermore, defendant has not overcome ment. presumption challenged might actions strategy and has not be considered sound trial prejudiced by any defi- demonstrated that he was ciencies US Washington, counsel. Strickland (1984); L 668; 2052; 104 S Ct Ed 2d Tommolino, 17; NW2d 315 iii Next, defendant asserts he was denied power outage during fair trial when a occurred lights on, trial came defen- because after back his surrounded dant and police codefendants were guns argues drawn. Defendant officers with Ginther, People v 212 NW2d 922 People v that the trial court should have commented on the jury, incident or instructed the but does not indi- cate what sort of comment or instruction would proper. Furthermore, have been neither defendant requested any nor his codefendants the time of the incident. instructions at

Accordingly, appellate review is foreclosed in the absence of manifest injustice. People App Johnson, 621, v 187 Mich 628; 468 NW2d 307 appears

It from the record before us that security employed during power measures out- age addition, were not unreasonable. In defendant any prejudice.2 has failed to show the existence of (On People Remand), Meyers App See v 124 Mich (1983). Accordingly, 148, 165; 335 NW2d 189 we injustice. find no manifest

iv argues hearsay testimony Defendant also that police regarding elicited from two of the officers statements of two codefendants made ar- while ranging improperly the cocaine was ad- alleges mitted. Defendant that there was insuffi- independent proof bring conspiracy cient of a testimony hearsay exception pro- this within the 801(d)(2)(E). by vided MRE Hearsay coconspirator statements a are not exception hearsay an admissible as rule conspiracy unless and until the existence of the independent by Vega, shown evidence. (1982); People 780; Mich Moscara, 316, 364 NW2d 318 conspiracy prepon- A must be shown codefendants, presum 2 We note one that of defendant’s who was ably unlikely police, acquitted. Therefore, also surrounded it seems prevented jury fairly considering that the incident presented. the evidence Opinion Court Vega, supra 782; Mos- at the evidence. derance of cara, at 319. appeal, argument support defendant on In of his Gay, supra, Vega, relies on App (1986), the Courts where 468; 386 NW2d 556 necessary there because held that reversal was independent evidence was insufficient or intended cases knew defendants those party. to a third would delivered cocaine be supra Vega, supra Gay, contrast, In 471. 781; at at presented case, exclusive the evidence this regarding coconspirator testimony the state- the finding supports ments, defendant knew a that party for a third that the cocaine was intended containing bag actually handed the because he police officer. Accord- cocaine undercover required ingly, this See case. reversal not Moscara, at 321-322.

v argument fifth is that he was denied Defendant’s together six a fair trial when he was tried codefendants. disagree. We Although some the codefendants made mo- appear separate trials, it tions for does not that such our review of a record defendant made any event, In we conclude that the trial motion.3 denying court not abuse its discretion did separate People Hicks, trials. v motions for Mich App 107, 117; The were defenses of defendant not acquitted his codefendants antagonistic. jury Furthermore, because the appears codefendants, it

one separate testimony regarding it was to able it each of the defendants and that was not inclined transcript by argu relied on defendant refer to the citations ments the codefendants’ counsel. "guilt by Accordingly, to find association.” defen- prejudiced dant has failed to establish that he was by joint trial. Id.

VI Defendant asserts 763.3; 28.856, that MCL MSA permits prosecutor object which a to a defen- jury Michigan trial, dant’s waiver aof violates the argument recently rejected Constitution. This by Michigan Supreme People Kirby, Court. 487 NW2d 404

VII argues Next, defendant that he was denied a improper fair trial because of remarks prosecutor. object However, defendant did not during these comments trial. To the extent may improper, the remarks be considered defen- deprived any dant was trial, not of a fair because prejudicial resulting effect from the remarks could cautionary have been cured instruction at Mack, trial. 7, 190 19; Mich 475 (1991). NW2d 830 argues prosecutor Defendant also that the inten- tionally questioned regarding a witness the ad- spite dresses of defendant and his codefendants in ruling of the trial court’s that such evidence presented jury. should not be to the Defendant prejudiced by ques- cannot claim that he was this tioning because the witness never answered the question posed by prosecutor the and because de- attorney fendant’s give himself asked the witness to Furthermore, defendant’s address. we con- prejudiced by any clude that defendant was not testimony regarding leading deals and discussions up subject transaction. App 594

602 op Opinion the Court VIII argues though Lastly, the that even defendant in the that he was involved distri- evidence showed kilograms cocaine, of of his sentence bution of two imprisonment possibility mandatory parole life without punish- cruel and/or unusual constitutes Michigan Con- ment under the United States and stitution. Supreme 1991, Court deter-

In the United States pos- Michigan’s mandatory penalty for mined that grams the or more does not violate session Eighth prohibition against cruel and Amendment Michigan, punishment. unusual US Harmelin 2680; L —; 111 S Ct Ed 2d Michigan Supreme recently However, the Court challenge mandatory to sentence for heard a that the 1963, 1, § 16. Const art offense under Bullock, 440 compelling Court found reasons existed provision interpreting for the state constitutional broadly than the "cruel or unusual” more United interpreted Supreme Eighth Court the States Bullock, In Amendment in Harmelin. Court interpretation proper determined provision required state constitutional down the it to strike penalty life unjustifiably disproportionate to as possession or crime more. specifically distinguished However, Court possession delivery of, crime of the crimes of possession deliver, or more of tionality with intent or

cocaine, and did not address constitu- mandatory penalty for the latter Supreme 37-38, Id. at 40. The crimes. subsequently Court has appeal denied leave several challenging constitutionality of the man- cases datory penalty possession People 603 v Opinion op the Court grams 650 or intent to deliver more of cocaine. See People People Gonzalez, v 440 Mich 910 In (1992), App Fluker, 225; 197 494 830 v Mich NW2d grams involving delivery of 650 or more of a case mandatory cocaine, this Court held that life im- prisonment parole without was cruel or unusual Michigan punishment Pur- under Constitution. 1990-6, suant to Administrative Order No. 436 binding lxxxiv, Mich However, that decision is on this Court. below, for the reasons stated we believe correctly that Fluker was decided. past,

In the when the state constitutional issue presented delivery has been possession in the context of or grams

with intent to deliver 650 or Michigan repeatedly upheld more, courts have penalty provision and determined that the manda- parole tory life sentence without not cruel is Michigan People unusual under the Constitution. Harding, App 298, 329; v (1987) 163 Mich 413 777 grounds

, vacated on other , and cases cited therein.4 See also 430 Mich 859 (1988) Young v — (CA 1989), Miller, 6, 883 F2d 1276 cert den US (1991) (Michigan’s mandatory —; 111 S 2886 Ct possession penalty for with intent deliver grams upheld Eighth or more under the Amend- Alexander, 96, App 106; In 188 Mich 469 NW2d 10 (1991), the defendant was convicted of of more than 650 appeal, rejected of cocaine. On this Court the defendant’s imprisonment life contention "cruel and his sentence of unusual,” following with the citation: Harmelin, 524, 535; 440 NW2d 75 — (1989), (1990), —; gtd L lv den Mich 863 cert US 109 Ed People Harding,

2d See also (1987), grounds 413 NW2d 777 vacated on other (1988), cases cited therein. opinion phrase The Alexander does not refer to or discuss "cruel Michigan or unusual” under the Constitution. Because Alexander did not decide whether life unusual,” more it is "cruel or not binding on our decision. Administrative Order No. 1990-6. op Opinion the Court ment). addressing the constitu- Nevertheless, mandatory tionality without life sentence of the parole us, we are bound before in the case majority provided deci- the direction follow three-pronged apply test in Bullock and sion adopted by Supreme Court United States 277, 290-291; 103 S Ct Helm, 463 US Salem v (1983), foreshadowed L Ed 2d 637 which 167, 171-172; 194 Lorentzen, 387 Mich (1972).5 instructed This Court is gravity and first, of the offense consider: comparable penalty; second, the harshness imposed in the same on other criminals sentences comparable jurisdiction; im- third, sentences and posed in other the same crime for commission jurisdictions. THE

A. OF OFFENSE GRAVITY flowing "[Tjhe from mere effects even collateral possession Bullock, indeed.” cocaine are terrible supra effects, which are collateral at 39. Those devastating recognized universally to addicted as society whole, families, individuals, as a their magnified considerably ramifications when the are of the addictive dangerously of this sale and distribution question drug no considered. There is are more is of 650 the offense of may extremely grave ening, surely it well be life-threat- because consequences are and its and addiction gravity of the offense were If foreseeable. difficulty only consideration, be no there would the upholding sentencing provision as unusual._ n being nor neither cruel majority to follow the Lorentzen-Salem Bullock has chosen regardless as a matter of federal of whether it has survived criteria majority decision. Bul- in the of Harmelin’s law wake constitutional lock, supra at 34-35.

B. COMPARABLE MICHIGAN SENTENCES IN criterion, comparable When the second sen- considered, it Michigan, recog- tences in is must be first-degree nized that the commission only murder is to the same harsh subject imposed as is or more of pun- cocaine. The defendant in this case has been ished more than he could have been for severely murder, mutilation, second-degree rape, armed grave or other and violent robbery, exceptionally Bullock, at 39-40. A sentence of life crimes. mandatory, even though showing required, no of malice is or that a occurred, direct unwilling death or that there is a victim, the case in or premeditated felony as is is it even to show that necessary murder. Nor specific against defendant has committed a crime the Bullock majority, noted an property. As record, prior defendant with no who is a individual courier, to harm is not one-time and whose intent considered, even should not be made bear wrought drug for all the evils trade. guilt proportionate, constitutionally To be considered must be tailored to a defendant’s Harmelin guilt. moral personal responsibility and supra (White, J., adopted by at dissenting), Bullock, supra at 39. emphatically do not minimize the While we crime,

gravity reprehensibility and of defendants’ per- impute full profoundly it would be unfair guilt moral to defendants responsibility and sonal acts, by by unintended any and all collateral for them, might committed have been later which connection cocaine. Per- with the seized others other independently violent and who commit sons illegal drugs and can in connection with crimes responsible by our individually be held should criminal justice system. [Id.] Opinion op the Court therefore, evaluation believe, that Bullock’s We possession, severity and of the offense penalty offense, must for that harshness possession applied with to the offenses also be or of 650 to deliver intent reasoning, Applying the Bullock of cocaine. more mandatory life sentence conclude that we imposed parole, defen- on a must be which or more of of 650 convicted of dant cocaine, the convicted defendant was whether the seventeen-year-old drug or a of a cartel head courier, to an "leads acted as a no record who gross disproportionality.” inference of OTHER JURISDICTIONS COMPARABLE SENTENCES IN C. imposed third criterion considers sentences jurisdictions. As noted crime in other for same imposes by Bullock, in the nation "no other state Michigan’s penalty remotely as even as severe possession grams or more of cocaine. mere may for the Bullock, 40. The same be said at possession distribution, manufacture, or offense Only cocaine. Alabama with intent to distribute imprison- provides of life for a sentence possibility parole for a first-time ment without drug "knowingly manufactures, sells, offender who brings state, delivers, is know- into this or who possession speci- ingly in or of’ actual constructive only narcotics, when amounts of various but fied possessed the defendant the evidence shows ten (2)(d)(Supp 13A-12-231(1), kilograms § or more. Ala Code 1990). drug-control statute, a defen- Under the federal grams for of 500 or dant’s conviction distribution grams, cocaine, 2,000 less than would more of but years require a minimum sentence of five imprisonment. forty years of of Under maximum sentencing guidelines for a first-time the federal enhancements, the recommended offender with no sixty-three minimum to sev- sentence would be Sentencing enty-eight months. United States Com- Manual, § 201.1 mission Guidelines penalty with the amount of cocaine dis- increases tributed, and additional enhancement factors are considered, distributing but a first-time offender convicted (2 grams kilograms)

2,000 not would parole. life without face a sentence of Having prongs of the Lor- considered the three adopted proportionality analysis entzen-Salem pen- statutory Bullock, that the we are convinced parole per- alty mandatory life without for all more, sons convicted any factor, un- other without consideration disproportionate constitutionally and violates against prohibition cruel or unusual Therefore, 1, § 16. under Const art we follow majority down, of Bullock’s and strike the lead regard defendant, to this and all others who penalty and sentenced under the same have been portion offense, of MCL for the same 28.2304(4) 791.234(4); denying defen- MSA such parole defendants shall dants consideration. Such parole jurisdiction subject of the become eligible parole and be for consideration board 791.234(4)(a)-(d), (5); MCL MSA accordance with 28.2304(4)(a)-(d), supra Bullock, 42-43.6 See at are affirmed. His sen- Defendant’s convictions mandatory life tence of possibility in accor- shall be modified opinion. for correction Remanded dance with this judgment do not retain of sentence. We jurisdiction.__ mandatory pen incongruity regarding with other See discussion Bullock,

alty provisions of less than 43, n 26. at App 198 Mich by McDonald, J. Dissent

Marilyn Kelly, P.J., concurred. (dissenting part). in in I dissent J.

McDonald, agree part respect I to issue vm. do not imprisonment with- life a sentence of out person possibility parole for a convicted grams in consti- of cocaine excess punishment under cruel or unusual tutes Michigan Constitution. majority’s position, contrary

Moreover, pursuant 1990-6, 436 to Administrative Order No. People lxxxiv, v we are bound to follow App 96, 106; Alexander, 188 Mich 469 NW2d (1991), penalty delivery of over which finds the Michi- of cocaine constitutional under gan law. People panel Fluker, v 197 Mich

The (1992), to mention the 494 NW2d 830 failed un- I assume it Alexander decision. would was it the give of the decision because aware of existence why it Alexan- reasons did not follow failed der pursuant 1990-6. to Administrative Order No. majority acknowledges the existence herein order, but of Alexander and the administrative them it is not bound to follow because states phrase "cruel and unusual” Alexander uses adopted rather than "cruel or unusual.” Alexander the People Harding, analysis (1987), 298; 413 NW2d 777 which considered whether life or unusual” under the Michi-

"cruel gan of "and” rather Constitution. Alexander’s use oversight. obviously than "or” was an majority states it is bound to follow Further provided by majority in the direction Bullock, 15; 485 To the contrary, to follow the administra- we are bound Supreme in Bullock our Court tive order because Loy-Rapuls by McDonald, J. Dissent possession of to convictions for limited its decision frequently and has and consis- or more involving delivery tently denied leave cases possession with intent deliver more of cocaine. the sentence.

I would affirm

Case Details

Case Name: People v. Loy-Rafuls

Court Name: Michigan Court of Appeals

Date Published: Mar 15, 1993

Citation: 500 N.W.2d 480

Docket Number: Docket 119524

Court Abbreviation: Mich. Ct. App.