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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v RICHARD ALLEN WOLFE, JR., Defendant-Appellant.

UNPUBLISHED December 1, 2005

No. 256441 Oakland Circuit Court LC No. 2003-188385-FH

Before: Whitbeck, C.J., and Saad and O'Connell, JJ. PER CURIAM. The jury convicted defendant of possession with intent to deliver fifty or more but less than 450 grams of cocaine, MCL 333.7401(2)(a)(iii), carrying a concealed weapon ("CCW"), MCL 750.227, and possession of a firearm during the commission of a felony, MCL 750.227b.1 The trial court sentenced defendant to a prison term of ten to twenty years for the possession with intent to deliver cocaine conviction, and eighteen days for the CCW conviction, to be served consecutive to a two-year prison term for the felony-firearm conviction. He appeals of right, and we affirm defendant's convictions and sentences. I. Facts On May 18, 2002, Pontiac Police Officers Charles Janczarek and Michael Miller observed defendant speeding and driving erratically. Defendant straddled traffic lanes, nearly struck two parked cars, and abruptly turned into an alley with a steep incline and rough, rocky pavement. Defendant's car hit the top of the incline, and stopped. Defendant got out of the car, dropped a cell phone, and staggered toward the officers. Janczarek observed that defendant's eyes were bloodshot, and that his breath smelled of alcohol. Miller asked defendant if he had been drinking, and defendant replied that he had consumed seven or eight beers during the previous four hours. The officers conducted a pat-down search of defendant and found plastic bags full of Vicodin pills, a rolled-up twenty-dollar bill, more than $3,000 in cash, and a small quantity of

1

An additional charge of operating a vehicle while impaired, MCL 257.625(3), was dismissed.

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cocaine. Janczarek administered a horizontal gaze nystagmus test, which is a field sobriety test in which the officer checks for involuntary eye movements while the suspect follows the officer's finger with his eyes. Defendant's eyeballs jerked, indicating that he was intoxicated. Janczarek did not offer any other field sobriety tests, because the pavement in the alley was too rough and uneven for the walk-a-straight-line or stand-on-one-leg tests. Janczarek did not have the equipment for performing a Breathalyzer test, and he did not call for the equipment because time was of the essence. Janczarek arrested defendant for operating a vehicle under the influence of alcohol. Janczarek searched defendant's car and found a duffle bag containing 73.68 grams of cocaine, a type of scale commonly used in drug dealing, and a revolver. Before trial, defendant moved to suppress the evidence found in the duffle bag and contended that the search was illegal because the officers lacked probable cause to arrest him. The trial court determined that the officers had probable cause to arrest defendant for driving under the influence of alcohol, and therefore denied his motion to suppress. On the second day of trial, defendant attempted to call two witnesses to testify that other persons had access to defendant's car shortly before the police discovered the contraband. The trial court did not permit these witnesses to testify, because they were not identified on defendant's pretrial witness list. At trial, defendant claimed that the duffle bag and its contents belonged to his girlfriend's ex-husband. He testified that he was living with his girlfriend, Shelly Wallace, when her exhusband was released from prison and reconciled with her. Defendant left Wallace's house and moved in with a friend. Several of his friends helped him move his possessions out of her house, and he believed one of them inadvertently put the duffle bag in his car. On redirect examination, after the prosecutor attempted to elicit discrepancies in defendant's theory, defense counsel asked defendant whether he knew if the police had questioned Wallace. Defendant replied, "I know that they haven't." On recross examination, the prosecutor asked defendant whether he had spoken with Wallace, suggesting that he could not know whether the police had questioned her because he no longer had contact with her. Defendant replied, "Me and Shelly are still friends. If they had spoke to her, she would have said something to me." The following exchange ensued: Q. Are you still friends now? A. Yeah. Q. Even after she tried to evict you in

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