People of Michigan v. Matthew Jack Levanduski ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
August 13, 2019
Plaintiff-Appellee,
v No. 341934
Livingston Circuit Court
MATTHEW JACK LEVANDUSKI, LC No. 16-023552-FH
Defendant-Appellant.
Before: CAVANAGH, P.J., and STEPHENS and O’BRIEN, JJ.
PER CURIAM.
Defendant appeals as of right his jury-trial conviction of possession with intent to deliver
1,000 grams or more of a controlled substance (cocaine), MCL 333.7401(2)(a)(i), for which he
was sentenced to 11 years and four months to 25 years’ imprisonment. The jury found defendant
not guilty of carrying a concealed weapon, MCL 750.227(2), and carrying a firearm while
committing a felony (felony-firearm), MCL 750.227b(1). We affirm.
I. BACKGROUND
On April 27, 2004, Livingston County police officers were called to a gas station in
Brighton in response to a “trouble with a customer.” The gas station attendant had called the
police because defendant appeared agitated and was having problems with the Western Union
machine, and the attendant feared that he was going to drive away without paying for the gas he
had pumped. After police arrived, defendant told them that he was having problems with the
Western Union machine and was waiting for a friend to send him money so he could pay for gas.
Officers walked with defendant to his car, where Magda Cano and a man named Mendez were
sitting.
At trial, defendant testified that he met Cano at a party, and she offered to pay him to
drive her to Chicago and back to pick up her brother because her license was suspended.
According to defendant, when Cano arrived at defendant’s house with the car defendant would
drive, she brought Mendez with her. Defendant said that Cano directed him to Chicago, where
they stopped at a restaurant to eat lunch and meet Cano’s brother. While at the restaurant, Cano
received a phone call, went outside to put some bags in the car, came back inside, and told
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defendant and Mendez that they were ready to leave, even though Cano’s brother was not there.
Defendant testified that Cano told him that something had come up and her brother would not be
coming with them. Knowing that he was being paid to drive regardless of who was with them,
defendant got in the car and drove back to Michigan. Defendant said that during the drive, he
“had a feeling that something felt off,” so he pulled over and started looking around the car.
When he opened the trunk, he saw a bag with the butt of a gun sticking out of it. According to
defendant, he opened the bag and saw packages that appeared be drugs, and when he turned
around, Cano reached past him and pulled the gun out of the bag. Defendant said that Cano told
him to get back in the car, and fearing for his life, he got back in the car and continued driving.
Defendant testified that they ended up at the gas station in Brighton—even though the
plan was for him to drive from Chicago to Grand Rapids—because he was following Cano’s
directions. Livingston County Sheriff’s Deputies David Klein and Brian Chuff responded
separately to the “trouble with a customer” call. Once the officers were at the car with
defendant, Deputy Klein asked for Cano’s and Mendez’s names, and learned that Mendez had an
outstanding warrant. Deputy Klein took Mendez into custody and asked Cano to step out of the
car. Deputies Klein and Chuff then searched the passenger compartment. Deputy Chuff found a
gun and ammunition inside a woman’s purse on the floor in the backseat, where Cano had been
sitting. Deputy Klein found a notebook, a calculator, and five cell phones. On defendant’s
person, Deputy Klein found $225 in cash and a $400 Western Union receipt. The deputies also
searched the trunk, where Deputy Klein found two bricks of cocaine inside a woman’s purse,
which was inside another bag filled with clothing. At that point, the deputies curtailed the search
until a police dog could be brought in. The deputies took the car to the Sheriff’s Department
where a police dog signaled the presence of drugs on the left side of the trunk. There, Deputy
Klein found a third brick of cocaine inside a box of protein powder. The cocaine contained
markings that, combined with the amount discovered, were consistent with sale or distribution.
A DEA task force then took over the investigation. Defendant provided a written
statement claiming that the gun and cocaine were not his although he had touched them, and that
he had stopped at the Western Union to pick up gas money. Defendant testified that he told the
DEA agents that Cano had threatened him with a gun but they had not believed him. The DEA
task force determined that the quantity of cocaine and the presence of a firearm merited a federal
investigation, but they released the three suspects in hopes of learning about the source of the
cocaine, which totaled nearly three kilograms. Defendant moved to Florida one month later.
A. PRETRIAL PROCEEDINGS AND TRIAL
In July 2004—three months after the events described above—the Livingston County
prosecutor filed a warrant and felony complaint charging defendant with (1) delivery or
manufacture of 1,000 or more grams of a controlled substance (cocaine), MCL 333.7401(2)(a)(i),
(2) carrying a concealed pistol in a vehicle, MCL 750.227(2), and (3) felony-firearm, MCL
750.227b(1). The warrant authorized nationwide extradition. In January 2007, defendant’s trial
counsel, Jeffrey Kortes, entered his appearance on defendant’s behalf. Defendant did not return
to Michigan until April 2016 when he was arrested for an unrelated offense in Florida.
Defendant waived extradition and arraignment. Trial in Michigan was adjourned for various
reasons, including ongoing plea negotiations, the examination of potentially exculpatory
evidence, docket congestion, and defendant’s request for prosecutorial assistance in locating
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Cano and Mendez to testify as witnesses in his defense. Because of the delays, defendant was
not tried until June 2017.
On the first day of trial, the prosecution placed on the record a plea offer of “five plus
two,” meaning a minimum of five years for the principal count of possession with intent to
deliver (which carried a minimum guidelines range of 11 to 18 years) plus the mandatory
consecutive two-year term for felony-firearm. Defense counsel rejected the plea, and defendant
confirmed on the record his decision to reject the plea.
During closing arguments, the prosecution argued that defendant’s claims about
transporting the cocaine only out of fear were not credible because (1) he had not told police
officers at the gas station about Cano’s implied threat with the gun, and (2) the evidence showed
that defendant knew the cocaine was in the car, that he had possession of the cocaine, and that he
agreed to transport cocaine for payment. Defense counsel countered that defendant was not in
possession of the gun or the cocaine because he did not have a right to control them. After the
jury asked for clarification about the meaning of possession, it found defendant guilty of
possession of cocaine with intent to deliver but not guilty of the two gun-related charges.
B. REMAND FOR AN EVIDENTIARY HEARING
After defendant filed a claim of appeal in this Court, he filed a motion for remand,
requesting an evidentiary hearing on claims of ineffective assistance of counsel related to trial
counsel’s failure to (1) raise a speedy-trial claim, (2) request a jury instruction for the defense of
duress, (3) challenge the validity of the search of the trunk of the car that revealed the cocaine,
and (4) follow up on the prosecution’s efforts to locate Cano and Mendez. This Court granted
the motion to remand, and defendant filed a motion for an evidentiary hearing in the trial court
raising the same four claims.
At the hearing, trial counsel Kortes testified that he was first hired in December 2006 to
inquire into a warrant, and that he filed his appearance in January 2007 but heard nothing further
from the trial court, the prosecutor’s office, or the Sheriff’s Department. Defendant testified that
after moving to Florida one month after the arrest in April 2004, he did not know about a
warrant, but he admitted that he hired Kortes for the purpose of looking into whether there was a
warrant. Defendant heard nothing more. During the time he lived in Florida, defendant started
three businesses (one of them bearing his name), and he was involved in two custody cases, one
in Florida and one in Kent County, Michigan. During the Florida custody case, defendant was
told that the warrant on the 2004 charges was not extraditable and was considered inactive.
When defendant was arrested in Florida in April 2016 in an unrelated matter, police officers
learned about the Michigan warrant. Defendant agreed to waive extradition and return to
Michigan to answer the charges. Kortes resumed his participation in the case in 2016, but never
asserted a violation of defendant’s right to a speedy trial.
Kortes described his trial strategy as a challenge to whether defendant possessed the gun
and the cocaine, which would have been inconsistent with a duress defense because such a
defense required defendant to concede possession. Kortes described his failure to request a jury
instruction on the duress defense as an oversight, but he added that he thought it unlikely jurors
would believe defendant’s testimony that he was only acting out of fear. Kortes also testified
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that he did not challenge the validity of the search of the trunk because he believed such a motion
would be frivolous because his understanding of the caselaw in effect in 2004 allowed the police
to search the entire vehicle during a search incident to arrest.
After listening to the evidence, the trial court rejected all of defendant’s claims on
remand. The trial court rejected the speedy-trial claim because the delay was the direct result of
defendant’s leaving the state of Michigan. The trial court also rejected the ineffective assistance
of counsel claims. The trial court first found that trial counsel was not ineffective for failing to
raise a duress defense when that aspect of defendant’s claim was not credible in light of
defendant’s failure to tell police officers at the gas station about his fear. The trial court further
concluded that trial counsel was not ineffective for failing to challenge the search of the trunk
because that search was lawful when it was conducted. It also reasoned that the items in the
trunk would have been found during an inventory search, and the police dog would have
discovered the drugs. The trial court further found that the prosecution exercised due diligence
in response to defendant’s request for assistance in locating Cano and Mendez. The trial court
also noted that trial counsel’s strategy in challenging the possession element was partially
successful. Therefore, the trial court declined to grant further relief on remand.
II. DISCUSSION
A. SPEEDY-TRIAL CLAIM
Defendant argues that his right to a speedy trial was violated by the 12-year delay from
his 2004 arrest to the prosecution’s enforcement of the charges in 2016. We review this
unpreserved issue for plain error affecting substantial rights.1 People v Carines, 460 Mich. 750,
764-765; 597 NW2d 130 (1999). To demonstrate plain error, a defendant “must show that (1)
error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected a
substantial right of the defendant.” People v Pipes, 475 Mich. 267, 279; 715 NW2d 290 (2006).
“Both the United States Constitution and the Michigan Constitution guarantee a criminal
defendant the right to a speedy trial.” People v Waclawski, 286 Mich. App. 634, 665; 780 NW2d
321 (2009); US Const, Am VI; Const 1963, art 1, § 20. “In order to determine whether a
1
We reject the prosecution’s argument that plaintiff waived this claim by agreeing to a trial date.
“[W]aiver is the intentional relinquishment or abandonment of a known right.” People v
Gonzalez-Raymundo, 308 Mich. App. 175, 187; 862 NW2d 657 (2014) (quotation marks and
citation omitted). “Waiver consists of (1) specific knowledge of the constitutional right and (2)
an intentional decision to abandon the protection of the constitutional right.” People v Williams,
475 Mich. 245, 261; 716 NW2d 208 (2006). Agreeing to a trial date in the absence of “evidence
that [the] defendant specifically considered and purposely waived his right to a speedy trial” does
not constitute a waiver of a defendant’s right to a speedy trial. Id. Rather, a defendant’s
agreement to a trial date is relevant to the substantive analysis of a speedy-trial claim. Id. We
therefore refuse the prosecution’s invitation to infer waiver from events that bear on the
substantive analysis of the speedy-trial claim.
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defendant has been denied his right to a speedy trial, this Court must consider (1) the length of
the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right to a speedy trial,
and (4) any prejudice to the defendant.” People v Wickham, 200 Mich. App. 106, 109; 503 NW2d
701 (1993). A speedy-trial violation requires dismissal of the charges with prejudice.
Waclawski, 286 Mich. App. at 664-665.
1. LENGTH OF DELAY
Defendant contends that the delay was 12-years, beginning with his arrest in April 2004
and ending when the prosecution began in 2016. Yet when defendant was arrested and released
in April 2004, there were no charges pending. The warrant and felony complaint were not issued
until July 2004. As explained by the United States Supreme Court, “Although delay prior to
arrest or indictment may give rise to a due process claim under the Fifth Amendment, or a claim
under any applicable statutes of limitations, no Sixth Amendment right to a speedy trial arises
until charges are pending.” United States v MacDonald, 456 U.S. 1, 7; 102 S. Ct. 1497; 71 L. Ed.
2d 696 (1982) (emphasis added; citation omitted).2 Because there were no charges pending
against defendant when he was arrested in April 2004, the speedy-trial issue could not arise at
that time.
“The time for judging whether the right to a speedy trial has been violated runs from the
date of the defendant’s arrest.” People v Williams, 475 Mich. 245, 261; 716 NW2d 208 (2006).
Defendant was arrested and extradited to Michigan in spring of 2016. Because the charges
against defendant were pending at that time, the length of the delay is measured from this arrest
and extradition3—not the April 2004 arrest when no charges were pending. See People v Patton,
285 Mich. App. 229, 236; 775 NW2d 610 (2009) (explaining that “the time frame relied on by
defendant preceded his arrest on November 6, 2006,” so “the 3 ½-year period that defendant uses
to claim a speedy trial violation is not recognized as a period during which a speedy trial
violation occurs”). Therefore, only 14 months lapsed after defendant’s right to a speedy trial
attached.
2
In United States v Marion, 404 U.S. 307, 313; 92 S. Ct. 455; 30 L. Ed. 2d 468 (1971), the United
States Supreme Court elaborated:
On its face, the protection of the Amendment is activated only when a criminal
prosecution has begun and extends only to those persons who have been ‘accused’
in the course of that prosecution. These provisions would seem to afford no
protection to those not yet accused, nor would they seem to require the
Government to discover, investigate, and accuse any person within any particular
period of time. The amendment would appear to guarantee to a criminal
defendant that the Government will move with the dispatch that is appropriate to
assure him an early and proper disposition of the charges against him.
3
In People v Patton, 285 Mich. App. 229, 231, 236; 775 NW2d 610 (2009), this Court held that a
federal inmate’s right to a speedy trial did not attach until he was transferred to the custody of
Michigan authorities.
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A delay of fewer than 18 months requires the defendant to demonstrate prejudice, while a
delay exceeding 18 months is presumptively prejudicial, shifting the burden of rebutting the
presumption to the prosecution. People v Cain, 238 Mich. App. 95, 112; 605 NW2d 28 (1999).
The 14-month delay between the arrest in April 2016 and trial in June 2017 was not
presumptively prejudicial, and this factor does not favor defendant.4
2. REASON FOR DELAY
“In assessing the reasons for delay, this Court must examine whether each period of delay
is attributable to the defendant or the prosecution.” Waclawski, 286 Mich. App. at 666. Delays
resulting from a request for an adjournment by a defendant are attributable to the defendant.
Cain, 238 Mich. App. at 113. Unexplained delays or otherwise unattributed trial-court delays are
charged to the prosecution. People v Lown, 488 Mich. 242, 262; 794 NW2d 9 (2011). Docket
congestion only “minimally weighs against the prosecution.” Cain, 238 Mich. App. at 113.
After defendant waived arraignment on May 18, 2016, a June 17, 2016 pretrial statement
referred to “ongoing discussions,” and a settlement conference was scheduled for July 22, 2016.
Although the substance of the ongoing discussions was not described, the scheduling of a
settlement conference notes defendant’s agreement to the discussions. Defendant then agreed to
adjournments from July 22, 2016 through October 11, 2016. This 146-day period is attributable
to both parties.
Trial was later adjourned from January 23, 2017 to March 20, 2017 for examination of
potentially exculpatory material, and from March 20, 2017 to May 15, 2017 for the prosecution
to assist defendant in locating Cano and Mendez. This 114-day period is attributable to
defendant.
Thus, of the 386 days between defendant’s arrest and trial, 260 days are either
attributable to defendant or to both parties. Because defendant asked for or agreed to two-thirds
of the adjournments, this factor does not favor him.
3. ASSERTION OF THE RIGHT TO A SPEEDY TRIAL
This factor does not favor defendant because he did not assert the right to a speedy trial
until this appeal. See People v Metzler, 193 Mich. App. 541, 546; 484 NW2d 695 (1992)
4
To the extent that defendant’s brief can be construed as raising a due process challenge to the
12-year pre-arrest delay, defendant has to establish that he was substantially prejudiced by the
delay. See Patton, 285 Mich. App. at 236-237. Defendant argues that he was prejudiced because,
due to the long delay, Cano and Mendez were unable to be located, even with assistance from the
prosecution, and they were “potentially exculpatory witnesses.” Yet defendant has presented no
evidence that Cano and/or Mendez would have offered favorable testimony or otherwise
supported his defense. This is particularly troublesome given that Cano and Mendez gave
statements to the DEA that were inculpatory to defendant, with Cano in particular implicating
that the gun found in the car was defendant’s.
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(explaining that a defendant’s failure to assert the right to a speedy trial in a timely manner
weighs against the defendant).
4. PREJUDICE TO DEFENDANT
Defendant argues that he was prejudiced by the loss of Cano and Mendez as defense
witnesses and their potentially exculpatory testimony. Prejudice can flow “to the person” or “to
the defense.” Wickham, 200 Mich. App. at 112. “In considering the prejudice to the defendant,
the most serious inquiry is whether the delay has impaired the defendant’s defense.” Simpson,
207 Mich. App. at 564. A defendant who has not described how witness testimony “would have
aided in his defense” has not shown prejudice. Id.
Defendant was found not guilty of the gun charges, showing that the jury accepted
defendant’s argument that the gun was in Cano’s possession, not his. Thus, any extent that
Cano’s or Mendez’s testimony would have aided the defense in this respect—if at all—clearly
did not prejudice defendant. Turning to defendant’s conviction for possession with intent to
deliver cocaine, defendant does not describe what Cano and Mendez would have testified to that
would have aided his defense to this charge. There is no suggestion that Cano and Mendez
would have testified in a self-incriminating manner and accepted responsibility for the things that
defendant blamed them for. Without any hint that Cano and/or Mendez would have testified
favorably in a way that aided the defense, defendant has not shown that the delay was prejudicial
to or otherwise impeded his defense.
For these reasons, we conclude that none of the speedy-trial factors favor defendant, so
we reject defendant’s speedy-trial claim.
B. INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS
“Whether the defendant received the effective assistance of counsel guaranteed him
under the United States and Michigan Constitutions is a mixed question of fact and law.” People
v Ackley, 497 Mich. 381, 388; 870 NW2d 858 (2015). When examining a defendant’s claim of
ineffective assistance of counsel, “this Court reviews for clear error the trial court’s findings of
fact and reviews de novo questions of constitutional law.” People v Dixon-Bey, 321 Mich. App.
490, 515; 909 NW2d 458 (2017).
“In order to obtain a new trial, a defendant must show that (1) counsel’s performance fell
below an objective standard of reasonableness and (2) but for counsel’s deficient performance,
there is a reasonable probability that the outcome would have been different.” People v
Trakhtenberg, 493 Mich. 38, 51; 826 NW2d 136 (2012). Effective assistance is “strongly
presumed,” People v Vaughn, 491 Mich. 642, 670; 821 NW2d 288 (2012), and the defendant
bears the burden of proving otherwise, People v Hampton, 176 Mich. App. 383, 385; 439 NW2d
365 (1989). Counsel’s performance cannot be judged with the “benefit of hindsight.” People v
Unger, 278 Mich. App. 210, 242-243; 749 NW2d 272 (2008).
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1. RIGHT TO A SPEEDY TRIAL
Defendant argues that trial counsel was ineffective for failing to raise the speedy-trial
violation. Because defendant’s speedy-trial claim has no merit, trial counsel was not ineffective
for failing to argue a speedy-trial violation. See People v Knapp, 244 Mich. App. 361, 386; 624
NW2d 227 (2001) (explaining that defense counsel is not required to make frivolous or meritless
motions or objections).
2. DURESS JURY INSTRUCTION
Defendant next argues that defense counsel was ineffective for not requesting a jury
instruction for the defense of duress. Trial counsel has wide discretion regarding trial strategy
“because counsel may be required to take calculated risks to win a case.” Heft, 299 Mich. App. at
83. A court cannot substitute its judgment for that of trial counsel concerning matters of trial
strategy. Payne, 285 Mich. App. at 190. There is a strong presumption that trial counsel’s
performance was strategic, Unger, 278 Mich. App. at 242, and defendant bears the burden of
overcoming this presumption, People v Horn, 279 Mich. App. 31, 39; 755 NW2d 212 (2008).
The fact that a trial strategy fails does not mean that its use constitutes ineffective assistance of
counsel. People v Petri, 279 Mich. App. 407, 412; 760 NW2d 882 (2008). But the strategy must,
in fact, be sound; a court must not insulate the review of counsel’s performance by calling it trial
strategy. People v Douglas, 496 Mich. 557, 585; 852 NW2d 587 (2014).
“Trial counsel is responsible for preparing, investigating, and presenting all substantial
defenses.” People v Chapo, 283 Mich. App. 360, 371; 770 NW2d 68 (2009). The following are
the elements of a duress defense:
A) The threatening conduct was sufficient to create in the mind of a
reasonable person the fear of death or serious bodily harm;
B) The conduct in fact caused such fear of death or serious bodily harm in
the mind of the defendant;
C) The fear or duress was operating upon the mind of the defendant at the
time of the alleged act; and
D) The defendant committed the act to avoid the threatened harm.
[People v Lemons, 454 Mich. 234, 247; 562 NW2d 447 (1997).]
The threat must have arisen “without the negligence or fault of the person claiming the defense.”
Chapo, 283 Mich. App. at 371-372. A defendant forfeits the defense of duress when he could
have escaped or stopped the offending behavior without the threat of death or serious bodily
harm. Lemons, 454 Mich. at 247 n 18. The duress jury instruction, M Crim JI 7.6, echoes the
elements of the duress defense and instructs the jury how to consider the elements.
Defendant argues that trial counsel was ineffective for failing to request a jury instruction
on the defense of duress because defendant testified that Cano and her gun and Mendez and his
baseball bat made defendant fear for his life. At the evidentiary hearing on remand, defendant’s
trial counsel, Kortes, testified that his strategy at trial was to argue that defendant did not in fact
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possess the gun or the cocaine. During questioning, Kortes acknowledged that defendant would
have to admit to the possession element to claim duress, and that Kortes chose instead to “focus[]
on the lack of possession.”
We conclude that defense counsel’s decision to not request the duress instruction, despite
that he arguably could have, did not fall below an objective standard of reasonableness because it
was sound trial strategy. Kortes made clear both during trial and at the evidentiary hearing that
his strategy was to establish that defendant never possessed the cocaine or gun. The jury was
acutely aware of this strategy, as they asked numerous questions related to the possession
element, and the trial court ultimately had to give them a clarifying instruction about the
difference between carrying and possession. It also bears noting that this strategy was partially
successful; the jury acquitted defendant of the gun-related charges, apparently accepting the
argument that he never possessed the gun. Though it would not have been improper for Kortes
to argue alternative legal theories—essentially, “defendant did not possess the gun and cocaine,
but even if he did, it was under duress”—it was not unreasonable trial strategy for Kortes to
choose to not present these competing theories. Presenting the competing theories could have
potentially confused the jurors. It also ran the risk of placing in the jurors’ minds that defense
counsel believed that the evidence could be sufficient to establish that defendant did in fact
possess the cocaine and gun. In contrast, by not making an argument for duress, defense could
repeatedly drive home the singular point that defendant did not possess the gun or cocaine. For
these reasons, we conclude that defendant has not overcome the strong presumption that defense
counsel’s decision to not request an instruction for a duress defense was sound trial strategy.
Horn, 279 Mich. App. at 39. We will not substitute our judgment for that of defense counsel on
matters of trial strategy. Payne, 285 Mich. App. at 190.5
3. VALIDITY OF THE SEARCH OF THE TRUNK
Defendant argues that trial counsel was ineffective for failing to challenge the validity of
the search of the trunk, where all of the cocaine was found, because that search was an unlawful
search incident to arrest even in 2004 before the issuance of Arizona v Gant, 556 U.S. 332; 129 S
Ct 1710; 173 L. Ed. 2d 485 (2009). Defendant’s argument is flawed because the search-incident-
to-arrest exception is not the proper basis for evaluating the search of the trunk.
The United States Constitution and Michigan Constitution generally prohibit warrantless
searches. People v Slaughter, 489 Mich. 302, 310-311; 803 NW2d 171 (2011). Several
exceptions to the warrant requirement justify searches, including a search incident to lawful
arrest and an automobile search, but they “still require[] reasonableness and probable cause.” In
re Forfeiture of $176,598, 443 Mich. 261, 266; 505 NW2d 201 (1993). “Probable cause exists
when there is a reasonable ground of suspicion supported by circumstances sufficiently strong to
5
We are mindful of Kortes’s statement at the evidentiary hearing that his decision to not request
the instruction “was an oversight,” but he prefaced that statement with “looking back now, you
know, hindsight being 20/20[.]” At any rate, even if Kortes would have requested the instruction
in “hindsight,” that he did not request the instruction did not rise to an objectively unreasonable
performance for the reasons explained above.
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warrant a cautious person to believe that the accused is guilty of the offense charged.” People v
Carter, 250 Mich. App. 510, 521; 655 NW2d 236 (2002).
Gant dealt with the proper scope of the search of the passenger compartment under the
search-incident-to-arrest exception, and narrowed the scope of such searches to only serving the
policies of officer safety and preservation of evidence underlying the exception. Gant, 556 U.S. at
343. Thus, Gant and its predecessors do not address the question raised here: the search of the
trunk.6
Defendant is correct that even before Gant, the scope of a search incident to the arrest of
an occupant of a vehicle covered only the passenger compartment, not the trunk, as this Court
concluded in People v Sinistaj, 184 Mich. App. 191, 199; 457 NW2d 36 (1990). Nonetheless, the
search of the trunk in Sinistaj, 184 Mich. App. at 199-201, was permissible under the automobile
exception once the officer had probable cause to believe that the entire automobile, including the
trunk, contained evidence of criminal activity. In Sinistaj, 184 Mich. App. at 200, during the
search of the defendant and the passenger compartment of the vehicle incident to the defendant’s
arrest, police officers discovered “a telephone pager, a small vial of cocaine with attached silver
spoon, and over $2,700 in cash on [the defendant’s] person,” providing probable cause to search
the vehicle, including the trunk. Consequently, defendant’s framing of the issue in this case as
the proper scope of a search incident to arrest is a red herring that distracts from the question
whether the search of the trunk was permissible under the automobile exception.
The automobile exception is premised on the reduced expectation of privacy in an
automobile and the mobility of automobiles. Carter, 250 Mich. App. at 515-517. Probable cause
“justifies the search of every part of the vehicle and its contents that may conceal the object of
the search.” People v Carter, 194 Mich. App. 58, 61; 486 NW2d 93 (1992) (quotation marks and
citation omitted). In Carter, 194 Mich. App. at 60, 62-63, this Court concluded that the presence
of a pager and a notebook with an unexplained “list of names, locations, and numbers” did not
provide the requisite probable cause to search the trunk, where a digital scale and prepackaged
cocaine was discovered. In contrast, in this case, the vehicle contained additional indications of
drug trafficking beyond a pager and a notebook. When Deputies Klein and Chuff searched the
passenger compartment incident to the arrest of Mendez, Deputy Chuff discovered the gun and
ammunition in the purse on the floor in the backseat. Deputy Klein found $225 in cash on
defendant’s person, a Western Union receipt for $400, a notebook, a calculator, and five cell
phones. Deputy Klein also noted “the differing stories from the people in the car.” Taken
together, the gun, the money, the notebook, the calculator, the number of cell phones exceeding
6
This Court, pre-Gant, upheld the validity of the search of the passenger compartment of a
vehicle incident to the arrest of the driver on outstanding warrants for domestic violence and
unpaid child support. People v Davis, 250 Mich. App. 357, 360, 365; 649 NW2d 94 (2002).
Applying this pre-Gant interpretation, Deputy Klein’s arrest of Mendez on an outstanding
warrant for an unspecified charge justified the search of the passenger compartment of the
vehicle.
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the number of passengers, and the varying explanations from the vehicle’s occupants provided
probable cause for a search of the trunk under the automobile exception.
In sum, defendant’s focus on the limited scope of a search incident to arrest fails to
address other justifications for searching the trunk. Because officers discovered several
indicators of drug trafficking in the passenger compartment during the lawful component of the
search incident to Mendez’s arrest, they had probable cause to suspect the presence of
contraband in the trunk, and the search of the trunk was lawful under the automobile exception.
Trial counsel was not ineffective for failing to challenge the validity of the search and the
admissibility of the cocaine found in the trunk.7 See Knapp, 244 Mich. App. at 386.
C. DEFENDANT’S STANDARD 4 BRIEF
1. EXTRANEOUS EVIDENCE
Defendant argues that the prosecution’s invitation for the jury to conduct a handwriting
analysis “introduced new evidence” that violated defendant’s “constitutional rights to
confrontation, cross-examination, and assistance of counsel,” and that the prosecution should
have brought in a handwriting expert to support the prosecution’s handwriting comparison
instead of stating its own opinion about defendant’s handwriting. We disagree. We review this
unpreserved issue for plain error affecting defendant’s substantial rights. Carines, 460 Mich. at
764-765.
“During their deliberations, jurors may only consider the evidence that is presented to
them in open court. Where the jury considers extraneous facts not introduced in evidence, this
deprives a defendant of his rights of confrontation, cross-examination, and assistance of counsel
embodied in the Sixth Amendment.” People v Budzyn, 456 Mich. 77, 88; 566 NW2d 229 (1997)
(citation omitted). “Misconduct can be demonstrated with evidence pertaining to outside or
extraneous influences, but cannot be demonstrated with evidence indicating matters that inhere
in the verdict, such as juror thought processes and interjuror inducements.” People v Messenger,
221 Mich. App. 171, 175; 561 NW2d 463 (1997). For example, a jury’s reenactment of a
shooting did not reflect a consideration of extraneous matters when the reenactment was based
“exclusively on the testimony elicited during the trial.” People v Fletcher, 260 Mich. App. 531,
542; 679 NW2d 127 (2004).
The prosecution’s invitation for the jury to compare the handwriting from defendant’s
written statement to the DEA and the notebook found in the car was based solely on evidence
produced at trial. Deputy Klein testified about finding the notebook in the car, and it was
7
Defendant has provided no factual basis for his argument that trial counsel was ineffective in
his response to the prosecution’s inability to locate Cano and Mendez for their production as
witnesses, and defendant has not established prejudice resulting from their nonappearance, as
discussed in our rejection of defendant’s speedy-trial claim in Part II.A.4. Therefore, defendant
has not established that trial counsel was ineffective on this ground.
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introduced into evidence as an exhibit. Another officer testified that defendant made a written
statement, which was also admitted into evidence. In closing, the prosecutor compared the
handwriting in the notebook with defendant’s statement to the DEA in response to defendant’s
argument that he was not voluntarily involved in transporting cocaine for distribution. The jury
requested both exhibits, and the trial court allowed the jury to view them. The jury did not view
extraneous evidence when it reviewed exhibits admitted into evidence. Further, the jury’s
deliberation process, which was based on properly admitted evidence, is not subject to attack.
Consequently, we reject defendant’s request for a new trial or an evidentiary hearing to examine
the jury panel regarding the role of the handwriting comparison in reaching its verdict.
2. ADVICE REGARDING PLEA OFFER
Defendant argues that trial counsel was ineffective for improperly advising him of the
consequences of accepting or rejecting a plea, resulting in a sentence more than double the
shortest plea offered for the controlled substances charge. Defendant asks this Court to remand
the case for “enforcement of the five[-]year plea offer” or for an evidentiary hearing regarding
this claim. We disagree, and we decline defendant’s request for a remand. Review of an
unpreserved ineffective assistance of counsel claim is limited to review of errors apparent on the
record. Sabin, 242 Mich. App. at 658-659.
Prejudice can result from an attorney’s advice to reject a guilty plea, even if the
subsequent trial is constitutionally flawless. Lafler v Cooper, 566 U.S. 156, 163-164; 132 S. Ct.
1376; 182 L. Ed. 2d 398 (2012). In Lafler, 566 U.S. at 163, the parties conceded that defense
counsel’s advice to the defendant to reject the plea offer “because he could not be convicted at
trial” was bad advice. Defendant here asserts that defense counsel advised him that the
sentencing guidelines did not apply, that “the trial judge indicated he would impose a three year
sentence if convicted by the jury,” and that trial counsel “assured [defendant] ‘in all probability’
[he] would be acquitted.”
“The ultimate decision to plead guilty is the defendant’s, and a lawyer must abide by that
decision.” People v Effinger, 212 Mich. App. 67, 71; 536 NW2d 809 (1995). Defendant stated on
the record at the beginning of trial his decision to reject the seven-year plea deal (five years for
the narcotics charge plus two years for felony-firearm). Kortes testified at the evidentiary
hearing that defendant made the decision to reject the plea offer because he wanted to go to trial.
Defendant has provided no support for his claim that the trial court indicated that it would
sentence defendant to three years in the event of a conviction. See People v Carbin, 463 Mich.
590, 600; 623 NW2d 884 (2001) (“[T]he defendant necessarily bears the burden of establishing
the factual predicate for his claim.”). In addition, defendant testified at the evidentiary hearing
that Kortes said he could get a three-year plea deal, not that the trial court assured defendant of a
three-year sentence. Any suggestion that Kortes promised defendant a three-year plea deal is
inconsistent with the prosecution’s placement of the seven-year plea offer on the record before
trial.
Lastly, defendant’s assertion about defense counsel’s prediction of the likelihood of
conviction differs significantly from defense counsel’s advice in Lafler, 566 U.S. at 163, that the
defendant “could not be convicted . . . .” Further, the jury in this case found defendant not guilty
of the two charges related to possession of the gun after asking questions about the definition of
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possession. Accordingly, defense counsel’s optimistic prediction was based in a reasonable
understanding of the facts.
In sum, defendant is essentially arguing that he would have accepted a guilty plea if he
knew that he would be convicted and sentenced as he was, but this regret is not the proper basis
for an ineffective assistance of counsel claim. Therefore, we reject defendant’s request for a
remand for the prosecution to renew the final plea offer or for an evidentiary hearing on
defendant’s ineffective assistance of counsel claim related to the plea negotiations.
We affirm.
/s/ Mark J. Cavanagh
/s/ Cynthia Diane Stephens
/s/ Colleen A. O’Brien
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