People of Michigan v. Undra Will Spearman ( 2023 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 11, 2023
Plaintiff-Appellee,
v No. 356964
Isabella Circuit Court
UNDRA WILL SPEARMAN, LC No. 2020-001145-FH
Defendant-Appellant.
Before: BOONSTRA, P.J., and GADOLA and YATES, JJ.
PER CURIAM.
Defendant, Undra Will Spearman, appeals his two convictions by jury verdict of delivery
of methamphetamine (second or subsequent offense), MCL 333.7401(2)(b)(i) and MCL 333.7413,
and conspiracy to deliver methamphetamine, MCL 750.157a and MCL 333.7401(2)(b)(i). The
trial court sentenced defendant, as a fourth-offense habitual offender under MCL 769.12, to serve
concurrent prison terms of 154 months to 40 years in prison. We affirm.
I. FACTUAL BACKGROUND
On September 22, 2020, defendant was caught selling methamphetamine to a confidential
informant in a transaction that was scripted and monitored by law-enforcement officers from start
to finish. Defendant, Demetreon Adams, and Carley Rodman traveled from Jackson to Shepherd,
Michigan, to meet one of defendant’s regular customers to sell him methamphetamine. After the
buyer, a confidential informant for the Mid-Michigan Investigative Narcotics Team, changed the
meet-up location from a McDonald’s parking lot to a park-and-ride lot, defendant handed the buyer
a box that contained 7.9 ounces of methamphetamine and the buyer then gave defendant $4,000 in
prerecorded bills. Detective Kipp Moe observed the transaction in the park-and-ride lot. After the
transaction was finished, Trooper Jacob Gillis conducted a traffic stop of defendant’s vehicle and
found Rodman in the passenger’s seat with $200 in prerecorded bills, defendant in the driver’s seat
with $400 in prerecorded bills, and Adams in the back seat with $3,400 in prerecorded bills, which
accounted for the entire purchase price of $4,000. Law-enforcement officers searched the buyer
after the transaction was finished and obtained 7.9 ounces of methamphetamine that the buyer had
received from defendant.
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Defendant chose to contest the charges against him at a preliminary examination, on appeal
of the bindover decision, and at trial. Defendant’s counsel filed three pretrial motions that the trial
court addressed on the merits. When defendant’s trial started on March 15, 2021, defense counsel
handled the jury-selection process. When the trial resumed for the second day on March 22, 2021,
however, defendant informed the trial court that he wanted to represent himself. In response, the
trial court painstakingly advised defendant of the risks of self-representation, received defendant’s
statement that he wanted to serve as his own counsel in spite of the risks, and authorized defendant
to represent himself at trial with his attorney available as standby counsel. Defendant confirmed
that he wanted his attorney to serve as his standby counsel.
On the third day of trial, March 23, 2021, the jury rendered its verdict, finding defendant
guilty of delivering methamphetamine and conspiring to deliver methamphetamine. The trial court
then sentenced defendant on April 15, 2021, to serve concurrent prison terms of 154 months to 40
years on the two counts of conviction. Defendant subsequently moved for a new trial or a Ginther
hearing,1 which the trial court heard and denied in a written opinion issued on April 1, 2022. This
appeal of right followed.
II. LEGAL ANALYSIS
Defendant’s attorney has advanced three issues on appeal: (1) ineffective assistance of trial
counsel and defendant’s self-representation; (2) the admission of purported drug-profile evidence;
and (3) the admission of evidence that defendant invoked his right to counsel in response to queries
from the arresting law-enforcement officers. Defendant has augmented that presentation with four
issues advanced in a Standard 4 brief.2 We shall address each of these issues in turn.
A. INEFFECTIVE ASSISTANCE OF COUNSEL AND SELF-REPRESENTATION
Defendant presents a convoluted argument about the deprivation of effective assistance of
counsel that prompted him to make the unwise decision to represent himself at trial. According to
Michigan law, “ ‘a defendant who elects to represent himself cannot thereafter complain that the
quality of his own defense amounted to a denial of “effective assistance of counsel.” ’ ” People v
Kevorkian, 248 Mich App 373, 419; 639 NW2d 291 (2001). Nor can defendant “suggest that his
free choice to represent himself, standing alone, denied him effective assistance of counsel.” Id.Thus, defendant attempts to tie his free choice to represent himself to the tardy pretrial motions his
attorney filed, and thereby excuse his decision to represent himself as the byproduct of ineffective
assistance of counsel. For several reasons, this bit of legal legerdemain cannot work.
Prior to trial, defendant’s attorney filed three motions: (1) a “motion to quash the bindover
[and] motion to suppress” filed on February 25, 2021; (2) a motion to dismiss filed on March 10,
1
People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).
2
Defendant properly filed his own brief under Michigan Supreme Court Administrative Order
No. 2004-6, Standard 4. See 471 Mich c, cii (2004). We have consistently described such a
submission as a “Standard 4 brief.”
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2021; and (3) a motion for evidentiary hearing and to suppress evidence filed on March 12, 2021.
The trial court addressed and denied each one of those motions on the merits, even though the trial
court described the second and third motions as “late.”3 The prosecutor characterized the motions
as “frivolous motions [filed] at the 11th hour[,]” but the trial court carefully analyzed each motion
and rendered detailed, well-reasoned explanations for denying the motions. During oral argument
on the second motion on March 12, 2021, defendant engaged in a lengthy discussion with the trial
court about the merits of the motion, reflecting defendant’s personal belief in that motion. Thus,
defendant’s argument now that his attorney’s handling of the motions was ineffective rings hollow.
More significantly, when defendant asked on the second day of trial to represent himself,
he made no mention of dissatisfaction with his attorney’s representation thus far. Instead, he told
the trial court simply and directly that he wanted to represent himself at trial. During the colloquy
at which the trial court tested defendant’s commitment to that request, defendant did not say one
word about ineffective assistance of counsel. Instead, he confirmed that he wanted his attorney to
remain on the case as standby counsel. Therefore, the trial record provides no support whatsoever
for defendant’s current position that his attorney’s purportedly ineffective assistance in the pretrial
phase of the case forced him to represent himself during the trial.
Michigan guarantees the right to have the assistance of counsel in a criminal proceeding.
Const 1963, art 1, § 20. “[T]he right to counsel is the right to the effective assistance of counsel.”
Strickland v Washington, 466 US 668, 686; 104 S Ct 2052; 80 L Ed 2d 674 (1984). A defendant
claiming ineffective assistance “ ‘must show that counsel’s representation fell below an objective
standard of reasonableness . . . under prevailing professional norms.’ ” Id. at 688. The defendant
must also show that there was a reasonable probability that, but for counsel’s errors, the result of
the proceedings would have been different. Id. at 694. Defendant cannot make that showing. The
evidence against defendant at trial was so overwhelming as to constitute an airtight case for guilt
on both charges. The entire transaction supporting the charges was monitored by law-enforcement
officers, defendant and his passengers were found with prerecorded currency, and the confidential
informant turned over to a law-enforcement officer the methamphetamine supplied by defendant.
Thus, any claim of ineffective assistance of counsel necessarily fails in this case.
B. DRUG-PROFILE EVIDENCE
At trial, the prosecutor asked two witnesses who were law-enforcement officers about the
significance of defendant dividing among others the $4,000 he received for the methamphetamine.
One officer responded that, “in our line of work a lot of people, I guess they call them middle men
. . . facilitate drug deals.” The other officer stated that dividing money is “associated with people
who may have facilitated, assisted, transported a suspect to the actual buy itself so they could get
paid with some of the money that the suspect received.” Defendant did not object to that testimony,
so our review is limited to a search for plain error that affected substantial rights. People v Posey,
3
The trial court heard oral argument and then resolved defendant’s second motion from the bench
on March 12, 2021. As the trial court explained, that motion requested dismissal of the charges
on the basis of Franks v Delaware, 438 US 154; 98 S Ct 2674; 57 L Ed 2d 667 (1978). The trial
court resolved the third motion from the bench after jury selection on March 15, 2021. That motion
sought dismissal of the charges based upon entrapment.
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334 Mich App 338, 346; 964 NW2d 862 (2020). “To avoid forfeiture under the plain error rule,
three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or
obvious, 3) and the plain error affected substantial rights.” People v Carines, 460 Mich 750, 763;
597 NW2d 130 (1999). “The third requirement generally requires a showing of prejudice, i.e., that
the error affected the outcome of the lower court proceedings.” Id.As an initial matter, we reject defendant’s characterization of the testimony about sharing
money as drug-profile evidence, meaning “a compilation of otherwise innocuous characteristics
that many drug dealers exhibit, such as the use of pagers, the carrying of large amounts of cash,
and the possession of razor blades and lighters in order to package crack cocaine for sale.” People
v Murray, 234 Mich App 46, 52-53; 593 NW2d 690 (1999). Defendant sold methamphetamine in
this case, so his status as a drug dealer was not established merely because of any “compilation of
innocuous characteristics that many drug dealers exhibit[.]” See id. Instead, the testimony helped
the jurors understand the significance of a drug dealer like defendant sharing proceeds from a drug
sale with others in his presence. Without question, such testimony could be presented through an
expert witness familiar with the drug trade. See People v Ray, 191 Mich App 706, 708; 479 NW2d
(1991). Both of the law-enforcement officers who testified about the significance of dividing the
money had sufficient qualifications to offer expert testimony about the drug trade. The prosecution
did not attempt to qualify either witness as an expert, but the testimony they offered did not rise to
the level of plain error given their backgrounds and experience.
Beyond that, the testimony of the two law-enforcement officers about the significance of
dividing money did not affect defendant’s substantial rights. As we have explained, the evidence
against defendant was overwhelming. The drug transaction was monitored by law-enforcement
officers, defendant and his passengers were found with prerecorded currency, and the confidential
informant turned over to a law-enforcement officer the methamphetamine that defendant supplied.
Two of those law-enforcement officers provided testimony about the division of money that aided
the jurors in the “determination of a fact in issue[,]” i.e., whether the people in defendant’s vehicle
were involved in conspiring with him to deliver methamphetamine. See MRE 701. Accordingly,
their testimony did not constitute plain error that affected defendant’s substantial rights.
C. INVOCATION OF THE RIGHT TO COUNSEL
Defendant contends that his constitutional rights under the Fifth Amendment to the United
States Constitution were infringed when the prosecution elicited testimony that defendant invoked
his right to counsel in response to questioning by the police. Specifically, the following exchange
took place between the prosecutor and Detective Ryan Nau on direct examination:
Q: You attempted to interview Mr. Spearman?
A: With Detective Frisch, yes.
Q: Mr. Spearman say anything?
A: He initially agreed to waive his rights and speak with us. And then we started
to ask questions [and] he advised he wanted a lawyer.
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Defendant insists that Detective Nau’s response compromised the Fifth Amendment right against
self-incrimination. But defendant failed to object to those questions and answers, so we may only
review that claim for plain error that affected defendant’s substantial rights. See Posey, 334 Mich
App at 346.
As a general rule, it is “improper for the prosecutor to question [a law-enforcement officer]
regarding defendant’s invocation of his right to counsel during his prior arrest.” People v Knapp,
244 Mich App 361, 383-384; 624 NW2d 227 (2001). But a single, brief reference to a defendant’s
invocation of the right to counsel may not amount to a constitutional violation “if the reference is
so minimal that [the right to counsel] ‘was not submitted to the jury as evidence from which it was
allowed to draw any impermissible inference . . . .’ ” People v Shafier, 483 Mich 205, 214-215;
768 NW2d 305 (2009). Here, the prosecutor received a response from the law-enforcement officer
on the witness stand that touched upon defendant’s invocation of his right to counsel, but then the
prosecutor left the matter alone, defendant did not object, and the jury was never asked to use
defendant’s invocation of his right to an attorney to infer that defendant had done anything wrong.
Therefore, we conclude that the single, passing reference to defendant’s invocation of his right to
counsel did not affect his substantial rights, especially given the strength of the evidence presented
against defendant. People v Borgne, 483 Mich 178, 196-202; 768 NW2d 290 (2009). Because we
find no plain error that affected substantial rights, defendant is not entitled to any relief based upon
the single, passing reference to his invocation of the right to counsel.
D. ISSUES RAISED IN STANDARD 4 BRIEF
Defendant has filed a Standard 4 brief that raises four issues. First, he asserts that he was
improperly bound over to the circuit court on insufficient evidence. Second, he contends that his
right to confrontation under the Sixth Amendment to the United States Constitution was violated
when law-enforcement officers testified at trial about statements the confidential informant made
to them. Third, he claims that his attorney (who was ultimately his standby counsel) provided him
with ineffective assistance of counsel. Fourth, he insists that the prosecutor and the witnesses that
he called to testify at trial misled the trial court and the jury. None of defendant’s arguments merits
any relief on appeal.
With respect to defendant’s challenge to the decision to bind him over for trial in the circuit
court, we review a motion to quash for an abuse of discretion. People v Miller, 288 Mich App
207, 209; 795 NW2d 156 (2010). In People v Dunham, 220 Mich App 268, 276-277; 559 NW2d
360 (1996), we ruled that “because sufficient evidence was presented at trial to convict defendant
of [the charged crime], error, if any, in the bindover would be harmless.” Similarly, in People v
Green, 313 Mich App 526, 530; 884 NW2d 838 (2015), we concluded that “[a] defendant may not
appeal whether the evidence at the preliminary examination was sufficient to warrant a bindover
if the defendant was fairly convicted of the crimes at trial.” Finally, in People v Wilson, 469 Mich
1018; 677 NW2d 29 (2004), our Supreme Court stated that “[i]f a defendant is fairly convicted at
trial, no appeal lies regarding whether the evidence at the preliminary examination was sufficient
to warrant a bindover.” This well-established principle forecloses defendant’s contention that the
alleged defects at his preliminary examination render the bindover and his subsequent convictions
at trial invalid.
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Defendant next claims that a law-enforcement officer improperly testified about statements
made by the confidential informant, thereby violating the constitutional right to confrontation. But
the confidential informant testified at defendant’s trial, so defendant was not deprived of his right
to confront the confidential informant. “The right of confrontation insures that the witness testifies
under oath at trial, is available for cross-examination, and allows the jury to observe the demeanor
of the witness.” People v Watson, 245 Mich App 572, 584; 629 NW2d 411 (2011). Because the
confidential informant testified at trial and underwent cross-examination, the claim that defendant
was denied his right to confrontation is meritless. Id. at 584-585. Defendant further insists that a
Confrontation Clause violation occurred when statements by Rodman were introduced at trial, but
defendant never made this argument in the trial court, so we must review this challenge strictly for
plain error that affected substantial rights. Given the overwhelming evidence of defendant’s guilt,
we need not attempt to make sense of defendant’s muddled Confrontation Clause challenge to the
admission of Rodman’s statements.
Defendant claims ineffective assistance of counsel based on his attorney’s failure to object
to the delay in defendant’s circuit-court arraignment, which should have occurred within 14 days
of the bindover to circuit court. See MCL 766.13. But “[u]nless the defendant demonstrates actual
prejudice, failure to hold the arraignment on the scheduled date is to be deemed harmless error.”
MCR 6.113(A). Defendant was bound over at the preliminary examination on January 15, 2021,
and his arraignment was set for February 5, 2021, but it did not take place until February 22, 2021.
Nevertheless, defendant has made no showing of prejudice resulting from that delay, so he cannot
obtain any relief on appeal. Moreover, his claim of ineffective assistance of counsel on that ground
necessarily fails for want of prejudice.
Finally, defendant makes a sweeping allegation that the prosecutor elicited false testimony,
fabricated evidence, made inappropriate arguments, and improperly vouched for the credibility of
the confidential informant. This hodgepodge of unpreserved errors is subject to review simply for
plain error that affected defendant’s substantial rights. Defendant implores us to conclude that the
prosecutor must have knowingly presented false testimony because inconsistencies in the various
witnesses’ accounts surfaced at trial. For example, Detective Nau admitted that, at the preliminary
examination, he had mistakenly referred to the box containing the methamphetamine as dark green
instead of black. Also, the confidential informant explained that a “guy in the backseat” took the
box from the back seat and handed it to defendant, whereas a law-enforcement officer testified that
the box was taken from the “cargo area,” not the back seat. But such minor inconsistencies do not
establish that the prosecutor knowingly presented false testimony. People v Bass, 317 Mich App
241, 275; 893 NW2d 140 (2016). The confidential informant stated that the controlled transaction
was very stressful for him and that the stress “may have caused [him] to not remember every single
thing that took place that day.” Similarly, the drug deal was observed by law-enforcement officers,
whose memories of minute details did not always align.
In his closing argument, the prosecutor conceded that there were inconsistencies, stating:
Unfortunately, not everyone came in and testified exactly the same. I—
honestly, I submit to you that that’s more believable, that’s more credible. They
had come in, their stories didn’t all align. They didn't sit there, we didn't coach
them, we didn’t have everybody versed on what to say. No, they came in and they
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told the truth as they knew it. And it’s unfortunate but it didn’t always line up. But
the key details did. The main things all did line up.
* * *
[A confidential informant] only gets his deal if he tells the truth. Not if he tells us
what we want to hear, but if he tells the truth. That’s the important thing to
understand.
Defendant contends that the prosecutor improperly vouched for the witnesses by making those
arguments. But a prosecutor may argue that a witness has no reason to lie as long as the prosecutor
does not imply special knowledge of the witness’s truthfulness. People v Thomas, 260 Mich App
450, 455; 678 NW2d 631 (2004). Although defendant faults the prosecutor for not conceding all
of the inconsistencies in the evidence, the prosecutor was not obligated to recite every detail from
the case. In sum, the prosecutor properly handled the minor inconsistencies that emerged at trial,
so defendant is not entitled to any relief on the basis of the insubstantial inconsistencies. Although
defendant implies that he must be not guilty because of inconsistencies in the evidence presented,
the prosecutor accurately explained that the primary details were consistent—a controlled buy took
place and was closely observed by law-enforcement officers, the confidential informant ended up
with methamphetamine, and the people in defendant’s vehicle wound up with the prerecorded bills
in their possession. All of that plainly supports defendant’s two convictions by jury verdict.
Affirmed.
/s/ Mark T. Boonstra
/s/ Michael F. Gadola
/s/ Christopher P. Yates
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