                          STATE OF MICHIGAN

                            COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     June 19, 2018
               Plaintiff-Appellee,

v                                                                    No. 337329
                                                                     Monroe Circuit Court
JONTELE SWANSON-DEVILL GOODWIN,                                      LC No. 16-242675-FH

               Defendant-Appellant.


Before: SAWYER, P.J., and CAVANAGH and FORT HOOD, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of two counts of possession with
intent to deliver less than 50 grams of a controlled substance, MCL 333.7401(2)(a)(iv), three
counts felon in possession of a firearm, MCL 750.224f(2), felon in possession of ammunition,
MCL 750.224f(6), and possession of a firearm during commission of a felony (felony-firearm),
MCL 750.227b. The trial court sentenced defendant as a fourth-offense habitual offender, MCL
769.12, to concurrent prison terms of 132 to 360 months for each possession with intent to
deliver conviction and 36 to 360 months for each felon-in-possession conviction, to be served
consecutive to a two-year term of imprisonment for the felony-firearm conviction. We affirm.

        On March 15, 2016, officers assigned to the Monroe Area Narcotics Team and
Investigative Services (MANTIS) arranged a controlled buy in which an informant purchased
heroin from defendant at a residence on Sigler Road in Monroe County. Defendant was renting
a room in the house and allegedly supplied the owner with heroin in lieu of paying rent. On the
morning of March 16, 2016, police officers searched the residence pursuant to a search warrant.
The search uncovered suspected narcotics packaged in preparation for sale. Laboratory analysis
revealed that the seized substances were heroin and crack cocaine. Officers also found three
firearms and ammunition in the room occupied by defendant.

                        I. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant raises claims of ineffective assistance of counsel. Defendant did not raise
these claims in a motion for a new trial or a request for an evidentiary hearing in the trial court.




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Although defendant filed a motion in this Court to remand for a Ginther1 hearing, the motion
was limited to defendant’s claim pertaining to counsel’s failure to request a Franks2 hearing. In
any event, this Court denied the motion. “When, as in this case, an evidentiary hearing has not
been held, our review is limited to mistakes apparent from the record.” People v Thorne, 322
Mich App 340, 347; ___ NW2d ___ (2017). “Whether a defendant has been denied the effective
assistance of counsel is a mixed question of fact and constitutional law.” People v Solloway, 316
Mich App 174, 187; 891 NW2d 255 (2016). To establish ineffective assistance of counsel, a
defendant must show that “(1) counsel’s performance was deficient, meaning that it fell below an
objective standard of reasonableness, and (2) but for counsel’s error, there is a reasonable
probability that the outcome of the defendant’s trial could have been different.” Id. at 188
(citations omitted). “This Court does not second-guess counsel on matters of trial strategy, nor
does it assess counsel’s competence with the benefit of hindsight.” People v Foster, 319 Mich
App 365, 391; 901 NW2d 127 (2017). A defendant “bears the burden of establishing the factual
predicate for his claim.” People v Putman, 309 Mich App 240, 248; 870 NW2d 593 (2015)
(quotation marks and citation omitted).

                     A. FAILURE TO STIPULATE TO PRIOR FELONIES

        Defendant argues that defense counsel, instead of stipulating to the bare fact that he was a
convicted felon and ineligible to possess a firearm or ammunition, was ineffective for stipulating
to the specific facts that he was previously convicted of assault with a dangerous weapon and
unarmed robbery. He contends that this allowed the prosecutor to exploit the unnecessarily
broad stipulation by repeatedly reminding the jury that defendant had a past history of violent
offenses. The record does not fully support defendant’s factual assertion.

        The record discloses that defense counsel agreed before trial to stipulate that defendant
was previously convicted of unarmed robbery, felonious assault, and uttering and publishing a
false instrument. However, the trial record does not indicate that this stipulation was, in fact,
presented to the jury. The prosecutor referred to the stipulation in opening statement and closing
argument, but the stipulation was not actually introduced at trial, and the trial court instructed the
jury that the attorneys’ statements are not evidence. Defendant’s status as a convicted felon was
independently established by defendant’s probation officer, Lori Lehmann, who testified at trial
that defendant was on probation for an unspecified felony conviction on March 15-16, 2016.
Defendant contends that he was prejudiced by the jurors’ knowledge that he was convicted of
unarmed robbery and assault with a dangerous weapon, but other than the prosecutor’s
statements during opening statement and closing argument, the factual basis of defendant’s
argument is not supported by the record. Although defense counsel’s statement at the pretrial
hearing can be construed as a stipulation that defendant was previously convicted of the specific
offenses of unarmed robbery and felonious assault, there is no record establishing that this
stipulation was actually presented to the jury.



1
    People v Ginther, 390 Mich 436, 441-442; 212 NW2d 922 (1973).
2
    Franks v Delaware, 438 US 154, 155-156; 98 S Ct 2674; 57 L Ed 2d 667 (1978).


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        In analyzing a claim of ineffective assistance, this Court “must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” People v LeBlanc, 465 Mich 575, 578; 640 NW2d 246 (2002), quoting Strickland v
Washington, 466 US 668, 689; 104 S Ct 2052; 80 L Ed 2d 674 (1984). There is no apparent
strategic basis for disclosing defendant’s felonies instead of stipulating to the fact that he was a
felon ineligible to possess a firearm. See Old Chief v United States, 519 US 172, 185; 117 S Ct
644; 136 L Ed 2d 574 (1997); People v Swint, 225 Mich App 353, 378; 572 NW2d 666 (1997).
But because the record does not establish that the challenged stipulation was actually presented
to the jury, defendant cannot establish that he was prejudiced by counsel’s stipulation.

        Defendant also argues that he was prejudiced by the stipulation to the extent that it
permitted disclosure of his recent parole and probation status at the time of the charged offenses.
As indicated, however, the stipulation was not actually presented to the jury. Lehmann’s
testimony that defendant was on probation for an unspecified felony is comparable to the non-
specific stipulation that defendant argues was the appropriate strategy. Accordingly, this portion
of defendant’s argument is also without merit.

                       B. FAILURE TO REQUEST FRANKS HEARING

       Defendant argues that defense counsel was ineffective for failing to request a Franks
hearing for the purpose of challenging the credibility of the informant named in the affidavit that
was submitted in support of the search warrant. We disagree.

       The United States and Michigan Constitutions provide that a search warrant may be
issued only on a showing of probable cause, supported by oath or affirmation. US Const, Am
IV; Const 1963, art 1, § 11; People v Franklin, 500 Mich 92, 100; 894 NW2d 561 (2017). In
Franks v Delaware, 438 US 154, 155-156; 98 S Ct 2674; 57 L Ed 2d 667 (1978), the United
States Supreme Court addressed “whether an individual may be constitutionally entitled to
challenge the veracity of a warrant affidavit after the warrant has been issued.” Franklin, 500
Mich at 102 (emphasis in original). The Supreme Court held that “where the defendant makes a
substantial preliminary showing that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the
allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment
requires that a hearing be held at the defendant’s request.” See also People v Martin, 271 Mich
App 280, 311-312; 721 NW2d 815 (2006), aff’d 482 Mich 851 (2008). The Court in Franks
summarized the standards a defendant must satisfy to obtain an evidentiary hearing:

               In sum, and to repeat with some embellishment what we stated at the
       beginning of this opinion: There is, of course, a presumption of validity with
       respect to the affidavit supporting the search warrant. To mandate an evidentiary
       hearing, the challenger’s attack must be more than conclusory and must be
       supported by more than a mere desire to cross-examine. There must be
       allegations of deliberate falsehood or of reckless disregard for the truth, and those
       allegations must be accompanied by an offer of proof. They should point out
       specifically the portion of the warrant affidavit that is claimed to be false; and
       they should be accompanied by a statement of supporting reasons. Affidavits or
       sworn or otherwise reliable statements of witnesses should be furnished, or their

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       absence satisfactorily explained. Allegations of negligence or innocent mistake
       are insufficient. The deliberate falsity or reckless disregard whose impeachment
       is permitted today is only that of the affiant, not of any nongovernmental
       informant. Finally, if these requirements are met, and if, when material that is the
       subject of the alleged falsity or reckless disregard is set to one side, there remains
       sufficient content in the warrant affidavit to support a finding of probable cause,
       no hearing is required. On the other hand, if the remaining content is insufficient,
       the defendant is entitled, under the Fourth and Fourteenth Amendments, to his
       hearing. Whether he will prevail at that hearing is, of course, another issue.
       [Franks, 438 US at 171-172.]

        Defendant argues that Detective Sean Street’s affidavit was deficient because it failed to
address the informant’s veracity or reliability. In fact, the affidavit states, “Affiant certifies that
the CI is credible and reliable accredited to the below listed facts gathered by Affiant . . . .”
Moreover, the affidavit states that the informant’s information regarding defendant’s narcotics
dealings at the Sigler Road residence was corroborated by an anonymous source. Defendant
notes that the informant was compensated for participating in the controlled buy, which
defendant argues likely affected his credibility. However, the purpose of a Franks hearing is to
address the veracity of the affiant, not an informant. See Franklin, 500 Mich at 102; Martin, 271
Mich App at 311-312. Defendant raises disparities between Street’s trial testimony and the
affidavit, but none of these rises to the level of a material discrepancy. At most, defendant has
shown some minor discrepancies that do not rise to the level of a deliberate falsehood or reckless
disregard of the truth. Franks, 438 US at 471-472. Accordingly, defendant has failed to make a
sufficient preliminary showing of a false statement entitling him to a Franks hearing.

        Defendant’s failure to establish grounds for a Franks hearing negates both prongs of the
test for ineffective assistance of counsel. “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).

                             II. PROSECUTORIAL MISCONDUCT

        Defendant argues that misconduct by the prosecutor denied him a fair trial. To preserve a
claim of prosecutorial misconduct, a defendant must contemporaneously object and request a
curative instruction. People v Bennett, 290 Mich App 465, 475; 802 NW2d 627 (2010).
Defendant failed to object to the conduct that he challenges here, leaving his claims unpreserved.

        “The test of prosecutorial misconduct is whether the defendant was denied a fair and
impartial trial.” People v Brown, 279 Mich App 116, 134; 755 NW2d 664 (2008). “The
defendant bears the burden of demonstrating that such an error resulted in a miscarriage of
justice.” Id. “Allegations of prosecutorial misconduct are considered on a case-by-case basis,
and the reviewing court must consider the prosecutor’s remarks in context.” Bennett, 290 Mich
App at 475. “Unpreserved claims of prosecutorial misconduct are reviewed for plain error
affecting substantial rights.” People v Brown, 294 Mich App 377, 382; 811 NW2d 531 (2011).




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                            A. INFLAMMATORY STATEMENTS

        Defendant argues that the prosecutor made inflammatory arguments and injected issues
unrelated to his guilt or innocence of the charged offenses, with the intent to prejudice the jurors
against him. This argument is based on the prosecutor’s remarks in her opening statement that
defendant was still on probation for assault with a dangerous weapon and that he had been on
parole for unarmed robbery until January 2016. He argues that these statements were irrelevant,
unfairly prejudicial, and unsupported by evidence.

        “The prosecutor may not inject issues into a trial that are broader than the defendant’s
guilt or innocence.” People v Lane, 308 Mich App 38, 66; 862 NW2d 446 (2014). “Although a
prosecutor may not argue facts not in evidence or mischaracterize the evidence presented, the
prosecutor may argue reasonable inferences from the evidence.” People v Watson, 245 Mich
App 572, 588; 629 NW2d 411 (2001).

        The parties agreed at a pretrial hearing to stipulate to defendant’s prior convictions of
assault with a dangerous weapon and unarmed robbery. Although defendant now argues that
trial counsel should not have entered into this stipulation, the stipulation entitled the prosecutor
to anticipate that this evidence would be admitted. Ultimately, the stipulation was not entered
into evidence, and Lehmann did not give testimony supporting the statement that defendant
recently completed parole for unarmed robbery. “Opening statement is the appropriate time to
state the facts that will be proved at trial.” Ericksen, 288 Mich App at 200. In light of the
pretrial stipulation, the prosecutor legitimately anticipated that this evidence would be admitted.
Further, the prosecutor simply stated the information, without inflammatory or emotional
language, and presented it in the proper context of addressing defendant’s eligibility to possess a
firearm or ammunition, and not for a purpose of attacking defendant’s character. Accordingly,
the prosecutor’s statement was not inflammatory or designed to prejudice the jury against
defendant. Although the prosecutor’s statements could be considered plain error to the extent
that the agreed stipulations were not actually entered into evidence, thus leaving the identity of
defendant’s convictions and his recent parole status unsupported by evidence, these errors did
not affect defendant’s substantial rights considering (1) that defendant was not contesting the
identity of his prior convictions or recent parole status, and (2) Lehmann testified that defendant
was a convicted felon who was on probation at the time of the charged offenses. Accordingly,
defendant is not entitled to appellate relief on the basis of this unpreserved issue. Brown, 294
Mich App at 382.

                          B. EVIDENCE REGARDING FENTANYL

        Defendant also argues that the prosecutor elicited inflammatory and irrelevant testimony
concerning the hazards of fentanyl. This argument pertains to Street’s testimony regarding a
photograph depicting latex gloves that were recovered during the search. The prosecutor initially
asked Street the open-ended question “And [Exhibit] 44?” Street replied, “Just latex gloves,” but
then added that fentanyl had become a hazard when handling heroin. The prosecutor then asked
if the State Police had issued new protocols for handling narcotics. Street replied affirmatively,
and added that several police officers had been injured from exposure to fentanyl, including a
recent incident in which 12 officers required treatment by Narcan.


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        “The prosecutor is entitled to attempt to introduce evidence that he legitimately believes
will be accepted by the court, as long as that attempt does not prejudice the defendant.” People v
Noble, 238 Mich App 647, 660-661; 608 NW2d 123 (1999). Defendant argues that Street’s
testimony regarding fentanyl was irrelevant and unfairly prejudicial. “Generally, all relevant
evidence is admissible at trial,” while “[e]vidence which is not relevant is not admissible.”
People v Powell, 303 Mich App 271, 277; 842 NW2d 538 (2013); MRE 402. “Relevant
evidence is evidence that has ‘any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it would be
without the evidence.’ ” Powell, 303 Mich App at 277, quoting MRE 401. “[A] material fact
need not be an element of a crime or cause of action or defense but it must, at least, be in issue in
the sense that it is within the range of litigated matters in controversy.” Powell, 303 Mich App at
277 (citation and quotation marks omitted).

        Street was qualified as an expert in narcotics law enforcement. Accordingly, he was
permitted to give testimony that would “assist the trier of fact to understand the evidence or to
determine a fact in issue . . . .” MRE 702. Within the scope of his expertise, he explained how
items such as Chore Boy pads, Zig-Zag rolling papers, and lottery tickets were related to drug
use and drug dealing. The prosecutor’s question regarding latex gloves was similarly related to
the prosecutor’s efforts to link items found in the house to drug dealing. Street’s testimony that
drug dealers and other persons handling narcotics in powdered form use latex gloves to protect
themselves from fentanyl was relevant to explaining how this evidence further supported a
finding that the drugs found in the Sigler Road house were related to drug dealing. Although
there was no evidence that any of the heroin defendant possessed, sold, or handled contained
fentanyl, evidence that defendant had latex gloves was relevant to whether he possessed
narcotics with the intent to sell. Moreover, the evidence was not unfairly prejudicial. Street did
not testify or imply that defendant had any connection to incidents in which police officers were
exposed to fentanyl.

        Furthermore, the prosecutor’s question regarding protocols for handling powdered
narcotics did not necessarily anticipate that Street would volunteer the information regarding the
recent incident involving 12 injured officers. “As a general rule, unresponsive testimony by a
prosecution witness does not justify a mistrial unless the prosecutor knew in advance that the
witness would give the unresponsive testimony or the prosecutor conspired with or encouraged
the witness to give that testimony.” People v Hackney, 183 Mich App 516, 531; 455 NW2d 358
(1990). In the absence of any clear indication that the prosecutor intentionally elicited testimony
about the dangers of fentanyl, defendant cannot establish a plain error affecting his substantial
rights. Brown, 294 Mich App at 382.

                     C. STATEMENTS REGARDING WITNESS’S FEAR

        Defendant argues that the prosecutor exceeded the permissible scope of arguing that a
defense witness, Goltowski, “might be afraid of him. I’m not—we’re not sure why. That’s not
in evidence but it appears she’s trying to help him with her testimony.” Defendant argues that
these statements implied to the jury that the prosecutor had special knowledge that Goltowski’s




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testimony was motivated by fear. Defendant argues that the potential for unfair prejudice was
especially strong because the attorneys made their arguments after the trial court instructed the
jury, leaving the jurors susceptible to the prosecutor’s influence.3

        “A prosecutor may not make a factual statement to the jury that is not supported by the
evidence, . . . but he or she is free to argue the evidence and all reasonable inferences arising
from it as they related to his or her theory of the case . . . .” People v Dobek, 274 Mich App 58,
66; 732 NW2d 546 (2007) (citations omitted). A prosecutor may not argue that he or she has
some special knowledge, unknown to the jury, concerning a witness’s truthfulness. People v
Bahoda, 448 Mich 261, 276; 531 NW2d 659 (1995). In this case, it was reasonable for the
prosecutor to infer that Goltowski’s testimony was not truthful. The prosecutor referenced
Street’s testimony and Goltowski’s admission that she had stated, the day before her testimony,
that she never saw drugs in the house, contrary to her trial testimony that she was intoxicated
during the raid, and that she knew items were seized from the house during the raid. The
prosecutor noted that defendant had guns in the house. Moreover, the prosecutor did not imply
that she had any special knowledge that Goltowski was afraid of defendant. Indeed, the
prosecutor acknowledged that there was no direct evidence of Goltowski’s fear and conceded
“we’re not sure why” and “[t]hat’s not in evidence.” We disagree with defendant’s argument
that the prosecutor was attempting to evade the trial court’s pretrial ruling denying the
prosecutor’s motion to admit evidence of defendant’s solicitation to murder two witnesses. The
prosecutor made no reference to that evidence and acknowledged there was no evidence
explaining why the witness might be afraid of defendant. Further, the prosecutor’s statements at
defendant’s sentencing, urging the trial court to rely on the solicitation charges to score offense
variable 19 (interference with the administration of justice), MCL 777.39, have no bearing on
how the jury perceived the prosecutor’s remarks at trial. Accordingly, there was no plain error.

       Because defendant has not established any individual errors by the prosecutor, his
argument that the cumulative effect of multiple errors by the prosecutor denied him a fair trial is
without merit. Dobek, 274 Mich App at 106.

                          III. DEFENDANT’S STANDARD 4 BRIEF

      Defendant raises additional issues in a pro se supplemental brief, filed pursuant to
Supreme Court Administrative Order No. 2004-6, Standard 4, none of which have merit.

                            A. SUFFICIENCY OF THE EVIDENCE

       Defendant argues that the evidence was insufficient to support his convictions. “A
challenge to the sufficiency of the evidence in a jury trial is reviewed de novo, viewing the
evidence in the light most favorable to the prosecution, to determine whether the trier of fact
could have found that the essential elements of the crime were proved beyond a reasonable
doubt.” People v Gaines, 306 Mich App 289, 296; 856 NW2d 222 (2014).


3
 Contrary to what defendant asserts, the record discloses that the prosecutor made this statement
during her main closing argument, not her rebuttal argument.


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        Defendant’s sole argument is that one item of evidence, Exhibit 65, was not subjected to
laboratory analysis, but was only field tested. However, other laboratory reports, admitted by
stipulation as Exhibits 50 through 53, stated that items of evidence were analyzed and
determined to contain .9 grams of heroin, 7.2 grams of crack cocaine, and cocaine in the amounts
6.6 grams and 3.2 grams, respectively. The evidence was sufficient to support defendant’s
convictions, even without Exhibit 65.

                       B. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant also argues that defense counsel was ineffective for failing to adequately
investigate defendant’s alibi defense. He asserts that because Troyneisha Patterson testified that
she was not sure of the exact time that she drove defendant to an auto repair shop on March 15,
defense counsel should have called the owner of the repair shop to support the alibi defense.

       Defense counsel is obligated to prepare, investigate, and present all substantial defenses.
People v Chapo, 283 Mich App 360, 371; 770 NW2d 68 (2009). “A substantial defense is one
that might have made a difference in the outcome of the trial.” Id. Decisions concerning which
witnesses to call are matters of strategy. Solloway, 316 Mich App at 189. Failure to call a
witness constitutes ineffective assistance only if the defendant is deprived of a substantial
defense. Id.

        Patterson testified that she dropped off defendant to pick up his car from a repair shop at
4:00 p.m., and that he remained with her until 7:00 or 8:00 p.m. This testimony placed defendant
away from the Sigler Road home at the time the informant called defendant about the controlled
buy at 5:30 p.m. Patterson’s credibility was undermined by the conflict between her testimony
and a text message on defendant’s phone, in which he informed another person at 2:30 p.m. that
he had just picked up his car. Patterson also admitted that she did not remember exact times, that
she did not come forward with her information after defendant’s arrest, and that she was
uncooperative when questioned by Detective Streets. Therefore, defendant argues, defense
counsel should have investigated the owner of the repair shop as a potential alibi witness. Even
if it would have been prudent to investigate the repair shop owner, defendant has not provided
any offer of proof indicating whether this witness could have given favorable alibi testimony.
Accordingly, defendant has not established that he was deprived of a substantial defense. People
v Pickens, 446 Mich 298, 327; 521 NW2d 797 (1994); Solloway, 316 Mich App at 189.

       Affirmed.



                                                            /s/ David H. Sawyer
                                                            /s/ Mark J. Cavanagh
                                                            /s/ Karen M. Fort Hood




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