                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    September 20, 2018
               Plaintiff-Appellee,

v                                                                   No. 335667
                                                                    Wayne Circuit Court
DESHAUN JONTAE EMERY,                                               LC No. 16-002011-01-FH

               Defendant-Appellant.


Before: TUKEL, P.J., and BECKERING and SHAPIRO, JJ.

PER CURIAM.

      Following a jury trial, defendant was convicted of possession with intent to deliver 50 or
more but less than 450 grams of cocaine, MCL 333.7401(2)(a)(iii). Defendant was sentenced to
6 to 20 years’ imprisonment for the conviction. On appeal, he argues that the trial court
committed numerous errors and that he received ineffective assistance of counsel. We affirm.

                                I. FACTUAL BACKGROUND

         Officer Derek Trosper initiated a traffic stop after seeing a vehicle with an obstructed
license plate driving above the posted speed limit. Defendant was the driver of the vehicle and
his girlfriend, Kalaurie Elhady, was in the front passenger seat. Officer Trosper approached the
vehicle, spoke with defendant, and learned that defendant did not have a valid driver’s license.
Officer Trosper testified that he could smell freshly burnt marijuana coming from inside the
vehicle. Other officers arrived on the scene and it was determined that defendant had
outstanding warrants. Defendant was arrested for driving without a valid license and was placed
in the back of Officer Trosper’s patrol car. Elhady was placed in the back of a different patrol
car.
         An officer conducted a search of the vehicle and, on the front passenger seat, found a red
bag containing crack cocaine and heroin. A drug-sniffing dog searched the vehicle and indicated
at the driver’s side door, the rear driver’s side door, and the front passenger door. The dog also
alerted to the red bag and an ashtray, which contained “two burnt marijuana cigar ends.” The
police confiscated defendant’s and Elhady’s phones. Both phones contained text messages
indicative of drug-related activity. Officer Trosper transported defendant to the police station,




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where he was interviewed. After being read his Miranda1 rights, defendant stated that he
intended to deliver the crack cocaine in exchange for money and marijuana. He denied any
knowledge of the heroin.

        Defendant was charged with possession of 50 or more but less than 450 grams of cocaine
with intent to deliver, possession of less than 50 grams of heroin with intent to deliver, MCL
333.7401(a)(iv), and possession of marijuana, MCL 333.7403(2)(d).2 At trial, defendant testified
that he was unaware that Elhady’s bag contained drugs, but that he decided to tell the police that
they were his in order to protect Elhady. The jury acquitted defendant of the heroin and
marijuana charges, but convicted him on the cocaine charge.

                                          II. ANALYSIS

                                  A. MOTIONS TO SUPPRESS

       Defendant argues that the trial court erred when, after holding a Walker3 hearing, it
denied his initial motion to suppress his confession. We disagree.4

       “Statements made by a defendant during a custodial interrogation are inadmissible unless
the defendant voluntarily, knowingly, and intelligently waived his or her right against self-
incrimination.” People v Roberts, 292 Mich App 492, 505; 808 NW2d 290 (2011). The
prosecution has the burden of proving the voluntariness of a defendant’s statement by a
preponderance of the evidence. People v Daoud, 462 Mich 621, 634; 614 NW2d 152 (2000).
“Voluntariness is determined by examining the totality of the circumstances surrounding a
statement to establish if it was the product of an essentially free and unconstrained decision by its
maker.” Roberts, 292 Mich App at 505. A confession must be made without intimidation,
coercion, or deception. People v Akins, 259 Mich App 545, 564; 675 NW2d 863 (2003).
“[P]romises of leniency may be coercive if they are broken or illusory.” United States v
Johnson, 351 F3d 254, 262 (CA 6, 2003).

       Defendant argues that his confession was involuntary because the arresting officers told
him that unless either he or his girlfriend admitted ownership of the drugs, they would both go to
jail. Defendant also testified that the officer who transported him to the station said that the


1
    Miranda v Arizona, 384 US 435; 86 S Ct 1602; 16 L Ed 2d 694 (1966).
2
 Elhady pleaded guilty to attempted possession with intent to deliver 50 or more but less than
450 grams of cocaine, MCL 333.7401(2)(a)(iii).
3
    People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).
4
  After a suppression hearing, we review the trial court’s factual findings for clear error, and we
review de novo the court’s ultimate decision of whether to suppress the statements to police.
People v Smart, 304 Mich App 244, 247; 850 NW2d 579 (2014). “A finding is clearly erroneous
if it leaves us with a definite and firm conviction that the trial court made a mistake.” People v
Manning, 243 Mich App 615, 620; 624 NW2d 746 (2000).



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officer in charge of the case could “work out a deal.” Defendant testified that he took this to
mean that if he confessed his girlfriend would be released without charges. However, he did not
testify to any statements by the transporting officer other than the general statement about “a
deal” or any mention by the officer of defendant’s girlfriend. Finally, defendant testified that the
officer who interviewed him, Officer David Archambeau, told him while walking to the
interview room that if he cooperated his girlfriend would be released. Archambeau testified and
denied that defendant spoke to him on the condition that Elhady would not be charged.
Archambeau recalled telling defendant that if his girlfriend was not involved “then she would be
released.” The trial court reviewed the video of the interview and found that there was no
evidence of any promises being made to defendant. Defendant does not dispute this finding on
appeal. Therefore, we cannot conclude that defendant was coerced into testifying because of a
broken promise. See United States v McWhorter, 515 Fed Appx 511, 518 (CA 6, 2013).
Further, Archambeau’s statement that Elhady would be released if she was not involved in the
crime was not false. In sum, even accepting the facts as presented by defendant, we find no basis
to conclude that defendant was promised that if he confessed his girlfriend would be released.

        Even if we assume that that the statements made to defendant before the interview
influenced his decision to confess, under the totality of the circumstances, defendant’s decision
to confess was the product of free decision-making. The video shows that the interview was a
casual, wide-ranging conversation with no indicia of compulsion. Importantly, defendant was
read his Miranda rights and signed the corresponding form. See Berkemer v McCarty, 468 US
420, 433 n 20; 104 S Ct 3138; 82 L Ed 2d 317 (1984) (“[C]ases in which a defendant can make a
colorable argument that a self-incriminating statement was ‘compelled’ despite the fact that law
enforcement authorities adhered to the dictates of Miranda are rare.”). In addition, defendant did
not merely take responsibility for the drugs, he also attempted to provide additional information
to the officers pertinent to their investigation in order to bargain for a lesser charge for himself.
Thus, there is no basis for us to conclude that the confession was the product of a simple quid pro
quo, i.e., a confession in exchange for his girlfriend not being charged, as defendant suggests.
For those reasons, the trial court correctly concluded that defendant’s confession was voluntary.

        On the first day of trial, defendant again moved the trial court to suppress his statements.
Defendant argues that the trial court erred in not granting his second request. We disagree. First,
defendant has abandoned this argument by failing to properly elaborate on it or support it with
legal authority. People v Johnson, 315 Mich App 163, 199; 889 NW2d 513 (2016). Setting that
aside, defense counsel asserted that there was a recording of the arrest containing an officer
asking defendant, “who’s going to take the fall for this . . . you or your girl.” Counsel indicated
that this was an “unMirandized statement” that tainted defendant’s confession. But it was
unclear from counsel’s argument whether defendant even responded to the officer’s question.
Accordingly, the prosecutor argued that there was no evidence that defendant responded to the
officer’s question. Moreover, given that the drugs were found in the car occupied only by
defendant and his girlfriend, the officer’s question was directed at the investigation and was not
an improper attempt to force a confession. Under those circumstances, the trial court did not err
in denying defendant’s second motion to suppress.

       Defendant also suggests that the trial court erred in not compelling Elhady to be present
for the suppression hearing. However, at the Walker hearing defendant called Elhady as a



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witness, and she asserted her constitutional right against self-incrimination. Therefore, this
argument is without merit. Further, defendant fails to identify any legal authority supporting his
contention that he should have been able to explore on the record Elhady’s reasons for not
testifying. We also note that the trial court declined defendant’s request for Elhady to be called
as a witness at trial in the event that she changed her mind about testifying. But, in a criminal
case, a lawyer cannot call a witness who he knows will assert her Fifth Amendment right not to
testify. People v Giacalone, 399 Mich 642, 645; 250 NW2d 492 (1977). Therefore, the trial
court’s ruling was not erroneous.

                           B. APPOINTMENT OF EXPERT WITNESS

        Defendant also argues that the trial court erred in denying his motion for an expert
witness to determine the weight of the drugs. “To obtain appointment of an expert, an indigent
defendant must demonstrate a nexus between the facts of the case and the need for an expert.”
People Carnicom, 272 Mich App 614, 617; 727 NW2d 399 (2006). In this case, defendant
sought an independent expert to weigh the drugs because he had reason to believe that the
cocaine weighed less than 50 grams. The prosecutor informed the trial court that preliminary
tests showed that there were 144 grams of cocaine recovered from the vehicle.5 Therefore, the
trial court did not abuse its discretion in denying defendant’s motion for an independent expert.
Carnicom, 272 Mich App at 617.

                             C. SUFFICIENCY OF THE EVIDENCE

       Next, defendant contends that there was insufficient evidence to convict him of
possession with intent to deliver 50 or more but less than 450 grams of cocaine. We disagree.

        “A court reviewing the sufficiency of the evidence must view the evidence in the light
most favorable to the prosecution and determine whether the evidence was sufficient to allow
any rational trier of fact to find guilt beyond a reasonable doubt.” People v Kloosterman, 296
Mich App 636, 639; 823 NW2d 134 (2012). “All conflicts in the evidence must be resolved in
favor of the prosecution.” People v Kanaan, 278 Mich App 594, 619; 751 NW2d 57 (2008).
“To convict a defendant of possession with intent to deliver, the prosecution must prove (1) that
the recovered substance is a narcotic, (2) the weight of the substance, (3) that the defendant was
not authorized to possess the substance, and (4) that the defendant knowingly possessed the
substance intending to deliver it.” People v McGhee, 268 Mich App 600, 612; 709 NW2d 595
(2005).

        Defendant argues that, if his confession is excluded, there is insufficient evidence to
establish that he possessed the cocaine. But the trial court correctly denied his motions to
suppress, and his statements to the police were properly presented as evidence to the jury. His
confession plainly provided sufficient evidence to uphold his conviction. And there was
circumstantial evidence supporting defendant’s conviction. “Circumstantial evidence and the


5
    At trial, the evidence was that the cocaine, without the packaging, weighed 130.35 grams.



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reasonable inferences that arise from that evidence can constitute satisfactory proof of the
elements of the crime.” People v Kosik, 303 Mich App 146, 151; 841 NW2d 906 (2013). He
was driving a vehicle in which a bag containing drugs was found on the passenger seat. A
canine search indicated at the driver’s door, the rear driver’s side door, and the passenger door.
We note that possession can be actual or constructive. McGhee, 268 Mich App at 622. Further,
defendant’s phone had text messages of people requesting to purchase “boy and girl,” which,
according to Officer Archambeau, refers to heroin and cocaine, respectively. Viewing the
evidence in a light most favorable to the prosecution, a rational jury could find beyond a
reasonable doubt that defendant possessed cocaine with the intention of delivering it.

                            D. AMENDMENT OF WITNESS LIST

       Defendant argues that he was denied his right to present a defense when the trial court
denied his motion to amend his witness list. We disagree.

        On the second day of trial, defendant sought to add his sister to the witness list. Defense
counsel explained that defendant’s sister had recently “friended” Elhady on Facebook and
discovered posts made by Elhady which “could be beneficial and helpful to the defense in this
matter.” The trial court denied the motion, reasoning that admitting Elhady’s Facebook posts
through defendant’s sister would be hearsay. Considering that defendant does not dispute the
trial court’s ruling that the posts would be hearsay or identify an applicable exception to the rule
against hearsay, the trial court did not abuse its discretion in denying his motion to amend. See
People v Yost, 278 Mich App 341, 379; 749 NW2d 753 (2008).

                       E. INEFFECTIVE ASSISTANCE OF COUNSEL

        Finally, defendant argues that he was denied the effective assistance of counsel when
defense counsel opened the door to the introduction of evidence about defendant’s outstanding
warrants and the role they played in his arrest. Defendant contends that defense counsel’s error
allowed unduly prejudicial testimony to be heard by the jury, thereby damaging defendant’s
credibility. 6

        “To prevail on a claim of ineffective assistance of counsel, a defendant bears a heavy
burden to establish 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 would have been different.” People v
Solloway, 316 Mich App 174, 188; 891 NW2d 255 (2016). “There is a presumption that counsel
was effective, and a defendant must overcome the strong presumption that counsel’s challenged
actions were sound trial strategy.” People v Cooper, 309 Mich App 74, 80; 867 NW2d 452
(2015). To show prejudice, “the defendant must show the existence of a reasonable probability



6
 Because defendant did not preserve this issue before the trial court, our review is limited to the
existing record. People v Nix, 301 Mich App 195, 207; 836 NW2d 224 (2013).



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that, but for counsel’s error, the result of the proceeding would have been different.” People v
Carbin, 463 Mich 590, 600; 623 NW2d 884 (2001).

         Before jury selection, defense counsel noted that some of the arrest videos made
reference to defendant’s outstanding warrants, including a warrant for robbery. The prosecutor
agreed with defense counsel that evidence of defendant’s warrants was more prejudicial than
probative. It was agreed that certain pieces of evidence would be redacted accordingly. During
trial, defense counsel asked Officer Trosper if he could tell that it was an African American
driving the vehicle when he initiated the stop, and Trosper said that he could not. Defense
counsel then began inquiring into the Trosper’s decision to arrest defendant for driving with a
suspended license. “Couldn’t you just have issued him a ticket,” counsel asked. Shortly after,
outside the presence of the jury, the prosecutor informed the trial court that on redirect
examination she would be asking the officer about “the fact that he also arrested [defendant]
because of outstanding warrants.” The trial court ruled that it would allow the prosecutor “to ask
about the warrants without making reference to what the warrant [was] for.” When cross-
examination resumed, Trosper confirmed that defendant’s warrants factored into his decision to
arrest him.

        Defendant argues that his counsel erred by opening the door to this evidence. From the
line of questioning, it appears that defense counsel’s strategy was to make it seem as if Trosper
pulled defendant over because of his race rather than the traffic violation. Defense counsel also
cast doubt on Trosper’s decision to detain defendant for driving with a suspended license,
perhaps suggesting that the officer was acting out of prejudice. We presume that defense counsel
was acting strategically, and we will not review his actions with the benefit of hindsight.
Solloway, 316 Mich App at 188. Defense counsel “is given wide discretion in matters of trial
strategy because many calculated risks may be necessary in order to win difficult cases.” People
v Unger, 278 Mich App 210, 242; 749 NW2d 272 (2008). This was a difficult case because
defendant confessed to one of the crimes. And “[t]he fact that defense counsel’s strategy may
not have worked does not constitute ineffective assistance of counsel.” People v Steward (On
Remand), 219 Mich App 38, 42; 555 NW2d 715 (1996). Even if defense counsel erred,
defendant has not established prejudice from that error. Defendant was convicted of the crime he
confessed to, and was acquitted of two others. Clearly, the jury was not unduly swayed by the
evidence of defendant’s warrants.

       Affirmed.


                                                            /s/ Jonathan Tukel
                                                            /s/ Jane M. Beckering
                                                            /s/ Douglas B. Shapiro




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