                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    August 9, 2016
               Plaintiff-Appellee,

v                                                                   No. 327562
                                                                    Muskegon Circuit Court
JAMES DANGELO SIMS,                                                 LC No. 13-064152-FH

               Defendant-Appellant.


Before: SERVITTO, P.J., and MARKEY and GLEICHER, JJ.

PER CURIAM.

        A jury convicted defendant of possession with intent to deliver less than 50 grams of
heroin, MCL 333.7401(2)(a)(iv), and possession of less than 25 grams of cocaine, MCL
333.7403(2)(a)(v), enhanced as second or subsequent offenses. MCL 333.7413(2). Although
defendant aptly argues that the search warrant issued for his home lacked a probable cause basis,
relief is not warranted because the executing officers acted in good faith. Defendant also
correctly posits that the court improperly admitted evidence of his past drug-related offenses.
This improperly admitted evidence was harmless, however, in light of the substantial evidence of
defendant’s guilt. The remainder of defendant’s challenges lack merit and we therefore affirm.

                                       I. BACKGROUND

        On November 7, 2013, members of the West Michigan Enforcement Team (WEMET),
search warrant in hand, searched defendant’s home on suspicion of cocaine trafficking. When
the officers arrived, defendant was standing in the kitchen, near a window facing the street. The
officers observed defendant take flight deeper in the home. Fearing the destruction of evidence
or escape of their suspect, the officers forced entry.

        During the subsequent search, the officers discovered in the kitchen two “chunks” of
black tar heroin, totaling 18.7 grams, a scale, a box of plastic baggies, scissors, a red cellular
telephone, and a razor blade coated in cocaine residue. The cellular telephone included incoming
texts referring to the recipient by defendant’s nickname and messages indicative of drugs
transactions. In the garage, officers found a “white powdery substance” believed to be a “cutting
agent” used to dilute the purity of heroin and cocaine to increase the overall amount of product to
sell. On defendant’s person, the officers found $1,545. The bills were mostly in $20
denominations (the street price of .1 gram of heroin) and were found in bundles in three different
pockets. John Riley, defendant’s friend who also resided in the home, possessed a small amount
                                                -1-
of marijuana and drug paraphernalia, but no cash. A trace amount of cocaine was found in
Riley’s bedroom.

        At trial, both Riley and defendant claimed that Riley was a drug dealer, not defendant.
The prosecution contended that defendant was a midlevel dealer and Riley worked for him as a
“drug runner.” Consistent with this theory, the prosecution established that defendant conducted
all his financial affairs, including the purchase of large items such as his home and vehicles,
using cash. The jury accepted the prosecution’s theory and convicted defendant as charged.

                                   II. SEARCH WARRANT

        Defendant argues that the evidence recovered during the search of his home should have
been suppressed because the search warrant was constitutionally invalid. Defendant raised this
issue in a pretrial motion to suppress, which the trial court denied. We review for clear error a
trial court’s factual findings on a motion to suppress, but review de novo the court’s ultimate
determination and underlying constitutional questions. People v Brown, 297 Mich App 670,
674; 825 NW2d 91 (2012); People v Conat, 238 Mich App 134, 144; 605 NW2d 49 (1999).

        US Const Am IV and Const 1963, art 1, § 11 “ ‘guarantee the right of persons to be
secure against unreasonable searches and seizures.’ ” People v Hellstrom, 264 Mich App 187,
192; 690 NW2d 293 (2004), quoting People v Kazmierczak, 461 Mich 411, 417; 605 NW2d 667
(2000). “A search or seizure is considered unreasonable when it is conducted pursuant to an
invalid warrant . . . where the police officer’s conduct does not fall within one of the specific
exceptions to the warrant requirement.” Hellstrom, 264 Mich App at 192. “Generally, in order
for a search executed pursuant to a warrant to be valid, the warrant must be based on probable
cause.” Id.

        “Probable cause exists where there is a substantial basis for inferring a fair probability
that contraband or evidence of a crime will be found in a particular place.” Id. (quotation marks
and citation omitted). Probable cause may be found from facts averred in an affidavit. MCL
764.1a(2); MCR 6.102(B). To create probable cause based on information supplied by an
unnamed informant, the affidavit must contain “affirmative allegations from which the judge or
district magistrate may conclude that the person spoke with personal knowledge of the
information and either that the unnamed person is credible or that the information is reliable.”
MCL 780.653(b). Ultimately, however,

       “The task of the issuing magistrate is simply to make a practical, common-sense
       decision whether, given all the circumstances set forth in the affidavit before him,
       including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay
       information, there is a fair probability that contraband or evidence of a crime will
       be found in a particular place.” [People v Keller, 479 Mich 467, 475; 739 NW2d
       505 (2007), quoting Illinois v Gates, 462 US 213, 238-239; 103 S Ct 2317; 76 L
       Ed 2d 527 (1983).]

“[T]he duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis
for . . . conclud[ing]’ that probable cause existed.” Keller, 479 Mich at 475, quoting Gates, 462
US at 239. If probable cause is lacking, the search warrant is invalid and any evidence seized

                                               -2-
pursuant to that warrant must be excluded absent an applicable exception to the exclusionary
rule. People v Stevens (After Remand), 460 Mich 626, 633-634; 597 NW2d 53 (1999).

         Defendant justifiably argues that the search warrant affidavit was insufficient to establish
probable cause. The affidavit was based almost entirely on the representations of an unnamed
informant. As such, information bearing on the informant’s knowledge base and historical
veracity and/or reliability was required by MCL 780.653(b). Such information was “highly
relevant” to the ultimate constitutional determination of whether there was sufficient probable
cause. Gates, 462 US at 230; Keller, 479 Mich at 475. The current affidavit contained a basis
for the informant’s knowledge—that the informant had been inside defendant’s home where he
saw a large quantity of cocaine. But it lacked any facts bearing upon the informant’s veracity or
reliability. Although the affidavit alleged that detectives had previously used the informant to
make “over 10 controlled buys of illegal drugs including cocaine” and that these buys had
resulted in “over 10 search warrants, over 10 arrest warrants and over 10 criminal convictions,”
the affiant never suggested that the informant had provided any information to prompt these
controlled buys. Indeed, there were no allegations that the informant had ever provided
information to detectives that had proven credible or reliable upon investigation. Cf People v
Walker, 401 Mich 572, 582-583; 259 NW2d 1 (1977). See also United States v Weaver, 99 F3d
1372, 1379 (CA 6, 1996). As the magistrate who issues a warrant is required to look at the
totality of the circumstances in assessing probable cause, an affiant may make up for the
deficiency in one area (such as the lack of information regarding the informant’s veracity and
reliability) by making a “strong showing” of some other factor. Gates, 462 US at 233. “[I]t is
possible that weak factual information may be bolstered if the authorities undertook probative
efforts to corroborate an informant’s claims through independent investigations.” Weaver, 99 F
3d at 1379, citing Gates, 462 US at 242. See also Keller, 479 Mich at 483 n 43; People v
Waclawski, 286 Mich App 634, 699; 780 NW2d 321 (2009). Here, however, the only
independent investigation conducted by the affiant was to confirm defendant’s nickname, that he
did in fact live at the subject address, and that he had prior convictions for drug-related offenses.
This investigation in no way corroborated the informant’s tip that defendant possessed a large
quantity of cocaine.

        In sum, the search warrant affidavit in this case violated not only the requirements of
MCL 780.653, but was constitutionally deficient. The trial court thus erred in finding sufficient
probable cause to support issuing a warrant. Nonetheless, the trial court ultimately did not abuse
its discretion in denying defendant’s suppression motion because the police acted in good faith
reliance on the search warrant.

       As noted above, where a search warrant is deemed constitutionally invalid, all evidence
seized pursuant to that warrant must be excluded unless a recognized exception to the
exclusionary rule applies. One such exception is the “good-faith” exception, set forth by the
United States Supreme Court in United States v Leon, 468 US 897, 920-922; 104 S Ct 3405; 82
L Ed 2d 677 (1984), and adopted by our Supreme Court in People v Goldston, 470 Mich 523,
541; 682 NW2d 479 (2004). As its name implies, evidence secured based on an invalid warrant
need not be excluded if the police acted in “good faith” in executing the warrant.

       [A] warrant issued by a magistrate normally suffices to establish that the law
       enforcement officer has acted in good faith in conducting the search.

                                                -3-
       Nevertheless, the officer’s reliance on the magistrate’s probable-cause
       determination and on the technical sufficiency of the warrant he issues must be
       objectively reasonable, and it is clear that in some circumstances the officer will
       have no reasonable grounds for believing that the warrant was properly issued.

                Suppression therefore remains an appropriate remedy if the magistrate or
       judge in issuing a warrant was misled by information in an affidavit that the
       affiant knew was false or would have known was false except for his reckless
       disregard of the truth. The exception we recognize today will also not apply in
       cases where the issuing magistrate wholly abandoned his judicial role . . . . In
       such circumstances, no reasonably well trained officer should rely on the
       warrant.[1] Nor would an officer manifest objective good faith in relying on a
       warrant based on an affidavit so lacking in indicia of probable cause as to render
       official belief in its existence entirely unreasonable. Finally, depending on the
       circumstances of the particular case, a warrant may be so facially deficient—i.e.,
       in failing to particularize the place to be searched or the things to be seized—that
       the executing officers cannot reasonably presume it to be valid. [Hellstrom, 264
       Mich App at 196-197, quoting Leon, 468 US at 922-923 (quotation marks and
       citations omitted).]

        Even though the subject warrant was based on inadequate information to support a
finding of probable cause, the inadequacy was not so overwhelming that it would preclude a
finding that the police officers acted in good-faith reliance upon it. The affidavit was not
“facially deficient.” Rather, it adequately described the location to be searched and the evidence
to be seized. The affidavit was not “ ‘so lacking in indicia of probable cause’ ” that the officers
could not objectively believe that the warrant was valid. Leo, 468 US at 923 (citations omitted);
Hellstrom, 264 Mich App at 199. Defendant does not suggest that the affidavit contained any
intentionally false or misleading information. Leon, 468 US at 923; Hellstrom, 264 Mich App at
199. Finally, there is no evidence to indicate that the issuing magistrate wholly abandoned his
judicial role in determining that the affidavit constituted sufficient probable cause. Leon, 468 US
at 923; Hellstrom, 264 Mich App at 200. In the face of these facts, the deterrent purpose of the
exclusionary rule would not be served by suppressing the evidence.

                              III. RIGHT OF CONFRONTATION

       Defendant contends that he was denied his Sixth Amendment right to confront the
witnesses against him when the prosecution failed to present the confidential informant at a
suppression hearing. Although defendant requested in his pretrial motion to suppress that the
confidential informant be produced for examination, he did not raise confrontation clause


1
  Abandoning the judicial role “requires more than reaching a different legal conclusion from
that of an appellate court.” Keller, 479 Mich at 474 n 17. Rather, it requires a showing that the
magistrate, for some articulable reason, could not have acted in a neutral and detached manner in
regard to the warrant application. See Lo-Ji Sales Inc v New York, 442 US 319, 329; 99 S Ct
2319; 60 L Ed 2d 920 (1979).


                                                -4-
concerns. Thus, our review is limited to plain error affecting defendant’s substantial rights.
People v Walker (On Remand), 273 Mich App 56, 66; 728 NW2d 902 (2006).

         Pursuant to US Const, Am VI “ ‘[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against him[.]’ ” People v Sardy, ___ Mich App
___, ___; ___ NW2d ___ (Docket No. 319227, issued December 29, 2015); slip op at 3
(alterations in original). Similarly, under Const 1963, art 1, § 20, “ ‘[i]n every criminal
prosecution, the accused shall have the right . . . to be confronted with the witnesses against him
or her[.]” Id. The Confrontation Clauses bar the admission of “testimonial” statements of a
witness who does not appear at trial, unless the witness was “unavailable” to testify as defined in
the rules of evidence and the defendant had a prior opportunity to cross-examine the witness.
Walker (On Remand), 273 Mich App at 60-61; Sardy, ___ Mich App at ___; slip op at 3.

       “A statement made by a confidential informant to the authorities generally constitutes a
testimonial statement.” People v Chambers, 277 Mich App 1, 10; 742 NW2d 610 (2007), citing
United States v Cromer, 389 F 3d 662, 675 (CA 6, 2004). Had the informant’s out-of-court
statements to the WEMET team been admitted at defendant’s trial, defendant’s right of
confrontation would have been implicated. Walker (On Remand), 273 Mich App at 60-61.
However, none of the informant’s statements were admitted into evidence at trial. Neither were
they admitted at any pretrial evidentiary hearing. Accordingly, the informant was not a witness
against defendant and defendant had no one to confront. As such, defendant’s right of
confrontation was not infringed.2

                                  IV. OTHER ACTS EVIDENCE

        Defendant challenges the trial court’s admission of other-acts evidence against him,
specifically information regarding his prior drug-related crimes. We review a trial court’s
decision whether to admit evidence for an abuse of discretion, but preliminary questions whether
a rule of evidence precludes admissibility de novo. People v Lukity, 460 Mich 484, 488; 596
NW2d 607 (1999). “A trial court abuses its discretion when its decision falls outside the range
of reasonable and principled outcomes.” People v Duncan, 494 Mich 713, 722-723; 835 NW2d
399 (2013). A preserved error in the admission of evidence does not constitute grounds for
reversal unless defendant can show a miscarriage of justice; that is, that “it is more probable than
not that a different outcome would have resulted without the error.” Lukity, 460 Mich at 495.

       Evidence of a defendant’s “other crimes, wrongs, or acts” is inadmissible to demonstrate
a defendant’s propensity to act in conformity with those acts. MRE 404(b)(1); People v Starr,


2
  Defendant argues that the trial court erred in the first instance by refusing to hold an evidentiary
hearing at which the informant could have been produced for examination. However, the police
are generally “not bound to disclose the sources of the information which led to the apprehension
of the prisoner” absent a showing by the defendant that disclosure of the informant’s identity “is
relevant and helpful to the defense of an accused, or is essential to a fair determination of a
cause[.]” People v Underwood, 447 Mich 695, 702-705; 526 NW2d 903 (1994) (citations
omitted). Defendant made no such showing in this case.


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457 Mich 490, 494; 577 NW2d 673 (1998). However, other-acts evidence may be admissible
under MRE 404(b) for other, noncharacter purposes, such as to establish “proof of motive,
opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or
absence of mistake or accident when the same is material[.]” MRE 404(b)(1); Starr, 457 Mich at
495-496.3 In People v VanderVliet, 444 Mich 52; 508 NW2d 114 (1993), our Supreme Court set
forth the controlling test to determine the admissibility of other-acts evidence under MRE
404(b). Under that test, a court must determine first that the evidence is offered for a proper,
noncharacter purpose; second that the evidence is relevant to that purpose under MRE 402; and
third that the probative value of the evidence is not substantially outweighed by the danger of
unfair prejudice under MRE 403. Id. at 74-75. Finally, upon the admission of other-acts
evidence, the trial court may provide a limiting instruction to the jury under MRE 105. Id. at 75.

       Here, the trial court admitted evidence of defendant’s three previous arrests, spanning
from seven to 11 years before the charged conduct, for possession and/or sale of crack cocaine.
In one instance, a police officer observed defendant selling cocaine. In the other two, officers
found defendant in possession of cocaine under circumstances indicating that he intended to sell
it. The prosecution offered, and the trial court agreed, that the evidence was admissible for
several noncharacter purposes, including establishing defendant’s knowledge, intent, and a
common plan or scheme.

        The prior acts were not sufficiently similar to the current acts to be relevant or probative.
In the current case, the evidence suggested that someone in defendant’s home was processing
heroin in preparation of mass sales. In the earlier matters, defendant was caught with cocaine on
his person, either in the act of selling or packaged such that a sale must be imminent. As to a
common scheme or plan, “something more” than “mere similarity” between the charged and
prior acts is required. People v Sabin (After Remand), 463 Mich 43, 64-65; 614 NW2d 888
(2000) (citation omitted). That “something more” is missing from this case. As to defendant’s
knowledge and intent, the fact that defendant had previously been arrested for possessing crack
cocaine with the apparent intent to sell did not make it any more probable that defendant knew of
the heroin and cocaine residue found in his home or that he intended to sell these drugs. The
only logical inference to be drawn from this evidence is that which is specifically prohibited by
MRE 404(b), i.e., that “defendant has been around drugs in the past and, thus, is the kind of
person who would knowingly possess and intend to deliver” drugs again. Crawford, 458 Mich at
396-397. Even if the evidence had some logical relevance distinct from the impermissible
character inference, its limited probative value was substantially outweighed by the potential for
unfair prejudice. MRE 403. Accordingly, the trial court abused its discretion in admitting the
challenged evidence.

        Even though the challenged evidence was admitted in error, defendant is not entitled to
relief. Simply put, the untainted evidence in this case overwhelmingly established defendant’s



3
 The trial court erroneously based its analysis on MCL 768.27 instead of the evidentiary rule.
This error was harmless as the analysis is the same under either the statute or the rule of
evidence. See People v Watkins, 491 Mich 450, 469 n 44; 818 NW2d 296 (2012).


                                                -6-
guilt with respect to both charges. Police found cocaine residue and a large amount of heroin,
along with equipment and materials necessary to prepare the heroin for sale. While defendant
and Riley each testified that the drugs belonged to Riley, and defendant claimed ignorance, the
weight of the evidence proved otherwise. Specifically, defendant—not Riley—was the one
initially seen by the officers standing in the kitchen right next to the drugs; defendant—not
Riley—ran from the officers; defendant—not Riley—was found in possession of a large amount
of cash; and the evidence supported that defendant—not Riley—was the owner of the red
cellular telephone found next to the heroin, which contained a plethora of information supporting
that defendant was engaged in narcotics trafficking. Given the overwhelming evidence against
defendant, it is unlikely that the jury would have reached a different outcome in the absence of
the other-acts evidence. Lukity, 460 Mich at 495.

                                V. ASSISTANCE OF COUNSEL

       Defendant finally challenges defense counsel’s failure to call Ronald Williams at trial.
Williams swore in an affidavit presented on appeal that he had purchased heroin from Riley in
the past, but never from defendant. Williams further indicated that WEMET officers tried to
convince him to testify against defendant but that any such testimony would have been false.
Defendant requested a remand to the trial court for a hearing on this issue, which this Court
denied. People v Sims, unpublished order of the Court of Appeals, entered January 6, 2016
(Docket No. 527562). We discern no reason to remand and limit our review to mistakes
apparent on the existing record. People v Horn, 279 Mich App 31, 38; 755 NW2d 212 (2008).

       US Const, Am VI and Const 1963, art 1, § 20 protect a defendant’s right to the assistance
of counsel. “[T]he right to counsel is the right to effective assistance of counsel.” United States
v Cronic, 466 US 648, 653; 104 S Ct 2039; 80 L Ed 2d 657 (1984). Effective assistance is
presumed and a defendant bears a heavy burden of proving otherwise. People v Vaughn, 491
Mich 642, 670; 821 NW2d 288 (2012). To prevail on an ineffective assistance claim, a
defendant must establish that (1) his defense counsel’s performance was objectively deficient
and (2) the deficient performance prejudiced his defense. Strickland v Washington, 466 US 668,
687; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Pickens, 446 Mich 298, 302-303; 521
NW2d 797 (1994).

        On this record, we cannot conclude that counsel’s failure to call Williams at trial was
objectively unreasonable. Generally, “[d]ecisions regarding what evidence to present, whether to
call witnesses, and how to question witnesses are presumed to be matters of trial strategy.”
Horn, 279 Mich App at 39 (citations omitted). Even if the jury believed Williams, his likely
testimony would have been entirely consistent with the prosecution’s theory that Riley “ran”
drugs for defendant. In any event, given the evidence discussed above, the failure to call
Williams did not deprive defendant of a substantial defense, People v Rice (On Remand), 235
Mich App 429, 445; 597 NW2d 843 (1999), and there is no reasonable probability that the
outcome would have been different had Williams testified.




                                                -7-
We affirm.


                   /s/ Deborah A. Servitto
                   /s/ Jane E. Markey
                   /s/ Elizabeth L. Gleicher




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