People of Michigan v. Donnell Raspberry ( 2015 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 9, 2015
Plaintiff-Appellee,
v No. 320304
Emmet Circuit Court
DONNELL RASPBERRY, LC No. 13-003876-FH
Defendant-Appellant.
Before: RIORDAN, P.J., and DONOFRIO and BECKERING, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial conviction of possession with intent to deliver
less than five kilograms of marijuana, MCL 333.7401(2)(d)(iii). We affirm.
I. INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant first argues that defense counsel was ineffective for failing to raise an
entrapment defense before the trial court. Because defendant did not preserve this issue by
moving for a new trial or an evidentiary hearing, our review is limited to mistakes apparent on
the record. People v Petri, 279 Mich. App. 407, 410; 760 NW2d 882 (2008).
To demonstrate ineffective assistance of counsel, a defendant must present evidence that
counsel’s performance was deficient and that the deficiency prejudiced the defendant. Strickland
v Washington, 466 U.S. 668, 687; 104 S. Ct. 2052; 80 L. Ed. 2d 674 (1984). This requires a
defendant to “show that (1) counsel’s performance was below an objective standard of
reasonableness under professional norms and (2) there is a reasonable probability that, if not for
counsel’s errors, the result would have been different and the result that did occur was
fundamentally unfair or unreliable.” People v Odom, 276 Mich. App. 407, 415; 740 NW2d 557
(2007). Reviewing courts “must indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance” and the defendant bears the burden of
overcoming that presumption. Strickland, 466 U.S. at 689; People v LeBlanc, 465 Mich. 575, 578;
640 NW2d 246 (2002). “Failing to advance a meritless argument or raise a futile objection does
not constitute ineffective assistance of counsel.” People v Ericksen, 288 Mich. App. 192, 201;
793 NW2d 120 (2010).
Michigan analyzes claims of entrapment under an objective test. People v Juillet, 439
Mich. 34, 53; 475 NW2d 786 (1991). The defendant bears the burden of establishing by a
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preponderance of the evidence that “either (1) the police engaged in impermissible conduct that
would induce a law-abiding person to commit a crime in similar circumstances or (2) the police
engaged in conduct so reprehensible that it cannot be tolerated.” People v Johnson, 466 Mich.
491, 498; 647 NW2d 480 (2002). A number of factors are considered in evaluating whether the
government activity at issue would impermissibly induce criminal behavior, including
(1) whether there existed appeals to the defendant’s sympathy as a friend, (2)
whether the defendant had been known to commit the crime with which he was
charged, (3) whether there were any long time lapses between the investigation
and the arrest, (4) whether there existed any inducements that would make the
commission of a crime unusually attractive to a hypothetical law-abiding citizen,
(5) whether there were offers of excessive consideration or other enticement, (6)
whether there was a guarantee that the acts alleged as crimes were not illegal, (7)
whether, and to what extent, any government pressure existed, (8) whether there
existed sexual favors, (9) whether there were any threats of arrest, (10) whether
there existed any government procedures that tended to escalate the criminal
culpability of the defendant, (11) whether there was police control over any
informant, and (12) whether the investigation was targeted. [Id. at 498-499.]
The record in this case does not support defendant’s argument that the police entrapped
him. First, there was no evidence that the police appealed to defendant based on friendship. The
evidence was that defendant and the informant barely knew each other. Before the sale for
which defendant was convicted, defendant and the informant knew each other for less than a
year. Further, there was no evidence that either the informant or the police placed excessive
pressure on defendant, that the informant made any type of emotional plea to induce defendant to
engage in the criminal activity, or that a friendship between defendant and the informant was
otherwise exploited to induce defendant to commit the crime. Moreover, it does not appear that
excessive consideration was provided to defendant as the price agreed upon was only $50. Next,
although defendant asserts that he was uninvolved in the sale of drugs for many years, at
sentencing, defense counsel acknowledged that at the time of the transaction defendant was on
probation for a delivery of marijuana conviction. Further, the informant’s testimony established
that defendant was present at other drug transactions. Thus, the record shows that defendant was
known to commit the charged crime before the incident occurred. At the very least, the record
supports that he was involved in the drug culture. Next, the time lag between the investigation
and the arrest was relatively short, consisting of only a week or two. Further, there is no
evidence that the police made guarantees that the acts were not illegal, nor is there evidence that
sexual favors were offered to defendant. There is also no evidence that defendant was threatened
with arrest if he did not make the sale. On the other hand, the record does support that the police
had control over the informant to the extent that she was searched before and after the
transaction, was wearing a recording device, and was given prerecorded funds. However, it is
clear that any “control” the police had over the informant had no effect on defendant’s
willingness to commit the crime. Finally, although defendant argued that the police attempted to
escalate defendant’s criminal culpability by having the informant ask for a larger quantity of
drugs, the informant testified that defendant did not have the larger quantity and that he told her
he could not do it without contacting “his guy.” Thus, there was no escalation of defendant’s
criminal culpability.
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Overall, there is nothing on the record to indicate that a law-abiding person, in similar
circumstances, would be induced to commit a crime. Rather, the facts support a finding that
defendant was simply offered an opportunity to commit the crime. It is well established that
“where law enforcement officials present nothing more than an opportunity to commit the crime,
entrapment does not exist.” Id. at 498. Because the evidence does not support defendant’s
entrapment claim, any failure by defense counsel in failing to advance entrapment as a defense
does not constitute ineffective assistance. See Ericksen, 288 Mich. App. at 201.
II. SUFFICIENCY OF THE EVIDENCE
Defendant also argues that there was insufficient evidence to support the conviction. In
particular, he asserts that there was insufficient evidence identifying him as the person who sold
marijuana to a confidential informant working with the Straits Area Narcotics Enforcement
(SANE) team.
Challenges to the sufficiency of the evidence are reviewed de novo. Ericksen, 288 Mich
App at 195. Due process requires, that when the evidence is viewed in the light most favorable
to the prosecution, a reasonable trier of fact could find each element of the crime established
beyond a reasonable doubt. People v Lundy, 467 Mich. 254, 257; 650 NW2d 332 (2002). It is
the trier of fact’s role to judge credibility and weigh the evidence. People v Jackson, 292 Mich
App 583, 587; 808 NW2d 541 (2011).
“The elements of delivery of less than five kilograms of marijuana are (1) the defendant
delivered a controlled substance, (2) the controlled substance was marijuana or a mixture
containing marijuana, (3) the defendant knew he was delivering marijuana, and (4) the delivery
consisted of less than five kilograms of marijuana.” People v Williams, 294 Mich. App. 461, 470;
811 NW2d 88 (2011). Moreover, identity is an element of every offense. People v Yost, 278
Mich. App. 341, 356; 749 NW2d 753 (2008).
Defendant only challenges whether the evidence was sufficient to identify him as the
perpetrator. However, there was sufficient evidence to identify defendant as the one who sold
the marijuana that day. There was evidence that a black man left defendant’s residence and got
into defendant’s white vehicle. That same vehicle was then seen arriving at the park where the
informant was waiting. The informant testified that it, indeed, was defendant in the vehicle,
from whom she purchased the marijuana. As a result, there was sufficient evidence, in the form
of circumstantial evidence and direct evidence, from which a jury could have concluded beyond
a reasonable doubt that defendant was the one who sold the marijuana that day.
Defendant claims that the informant’s testimony was untrustworthy because of her
potential motivation to lie in order to help herself with her own potential criminal charges.
However, it is the jury’s role to weigh credibility, and we will not second guess that
determination. Jackson, 292 Mich. App. at 587; see also People v Atkins, 397 Mich. 163, 172; 243
NW2d 292 (1976) (“[T]he credibility of an addict-informer . . . is a jury question, and . . . the
jury may convict on such testimony alone.”). Furthermore, the informant’s motive was fully
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explored on cross-examination, thereby enabling the jury to make an informed decision of her
credibility.
Affirmed.
/s/ Michael J. Riordan
/s/ Pat M. Donofrio
/s/ Jane M. Beckering
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