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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ROBERT A. BEATON, Defendant-Appellant.

UNPUBLISHED April 23, 1999

Nos. 204578;204742;205327 Oakland Circuit Court LC No. 96-148147 FH 96-146729 FH 96-149530 FH

Before: Cavanagh, P.J., and Holbrook, Jr. and Whitbeck, JJ. PER CURIAM. Separate juries convicted defendant of three controlled substance crimes in three different trials. However, there was a consolidated sentencing hearing for all three convictions, and this Court consolidated defendant's three appeals. As there are overlapping issues of double jeopardy, sentencing error and other alleged errors, we address the three cases separately and affirm. I. Basic Facts A. No 204742: The June 3 Buy In this case, the jury convicted defendant of delivery of less than fifty grams of cocaine. MCL 333.7401(2)(a)(v); MCL 14.15(7401)(2)(a)(iv). The trial court sentenced defendant as a second major controlled substances offender to two to forty years' imprisonment, consecutive to his sentences for the other two convictions at issue in this consolidated appeal. At trial, Officer Mark Zupic testified that, in an undercover capacity, he was in Royal Oak at about 10:30 p.m. on June 3, 1996, as he had obtained information that defendant would be in the area of the Backstage night club with cocaine for sale and that he met defendant at that location. According to Officer Zupic, defendant entered the officer's car and produced a small plastic bag that contained an off-white powder and "chunky substance" that Officer Zupic believed was cocaine. Defendant tore the bag open and indicated that both he and Officer Zupic would "do some cocaine," but Officer Zupic declined. Officer Zupic testified that after defendant left the officer's car, Officer Zupic eventually went to a blue Geo Tracker where defendant was in the driver's seat and another white male was in the

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passenger seat. Defendant handed a clear plastic baggie to the passenger who wrapped the baggie in a piece of paper and handed it to Officer Zupic. Officer Zupic gave the passenger $500 in cash (the "June 3 buy"). Officer Zupic described the baggie as the same baggie that defendant had previously opened when he was in the officer's car and testified that he recognized the baggie because its top was ripped off. The baggie contained an off-white "powder and lumpy substance" that Officer Zupic believed to be cocaine.1 B. No 204578: The June 6 Arrest The trial in this case was held before a visiting judge. The jury convicted defendant of possession with intent to deliver less than fifty grams of cocaine. MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv). Another visiting judge sentenced defendant to two to forty years' imprisonment, consecutive to his sentences for the other two convictions at issue in this consolidated appeal. At trial, Detective Sergeant Terry Richardson testified that on June 6, 1996, he was in the area of 8 Mile and Southfield Road anticipating defendant's arrival at a Burger King. According to Detective Richardson, from an undercover vehicle parked on a side street he observed defendant and a passenger arrive at the Burger King in a Geo Tracker; Detective Moilanen substantially corroborated Detective Richardson's testimony with respect to observing defendant at the Burger King. According to Detective Richardson, the Geo Tracker pulled into a parking spot at the Burger King and eventually left that spot and began to head for an exit, onto the public street. However, a marked Southfield police car stopped the Geo Tracker and Detective Richardson arrested defendant for a prior narcotics delivery (the "June 6 arrest"). Detective Richardson testified that he searched defendant and found a clear plastic baggie in defendant's left front pants pocket that contained another plastic baggie that, in turn, contained a white powdery substance. Defendant Richardson also testified that he found $495 in cash. Detective Moilanen testified that he searched defendant's vehicle and found a cellular telephone, a pager and a small film canister that contained "rocks" of suspected crack cocaine.2 Detective Moilanen estimated that the value of that amount of cocaine would be from $100 to $150, noting that the rocks were much larger than a $20 rock of crack cocaine. He also testified that the approximate value of a gram of powder cocaine is $100. C. No. 205327: The September 14 Search In this case, a jury convicted defendant of possession with intent to deliver less than fifty grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), based on the discovery of a quantity of cocaine, in a bedroom apparently occupied by defendant, by police during a search on September 14, 1996, at 39072 Polo Club Drive, Apartment 205 in Farmington Hills (the "September 14 search"). The trial court sentenced defendant to four to twenty years' imprisonment for this crime. At trial, Officer Anthony Tomasi testified that on September 13, 1996, at about 10:30 p.m., he was at the White Castle restaurant at I-96 and Telegraph Road and that he had been requested by Officers James Turner and Adam Pasciak to assist with the surveillance of a vehicle. Officers Turner

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and Pasciak were in the same vehicle, Officer Tomasi was by himself in another vehicle and Officer Jason Haas was by himself in a third vehicle. Officer Pasciak testified that he and Officer Turner had been observing a black Grand Prix. Officer Pasciak said that a gray Ford Thunderbird pulled up next to the Grand Prix, that the driver of the Grand Prix seemed somewhat nervous and that both vehicles then exited the parking lot. The officers followed the two vehicles in their unmarked cars. Officers Tomasi and Pasciak testified that, along a side street, the two vehicles stopped and the passenger from the gray Thunderbird entered the dark colored Grand Prix. The police later then tried to stop the Grand Prix, its passenger ran away and, eventually, Officer Pasciak found defendant hiding under an evergreen tree in a back yard. Officer Tomasi testified that he followed the gray Thunderbird and radioed to have a marked police car stop the gray Thunderbird, which the marked police car did. Officer Tomasi searched the gray Thunderbird and found a small "nylon-type" bag on the front passenger seat that contained a teaspoon with a white powder residue that he believed to be cocaine. Officer Tomasi also found a Choreboy scouring pad and a hand-held gram scale. He indicated that, from his training and experience, such a scouring pad was quite often used in smoking crack cocaine. The scouring pad showed a "white-type substance." Officer Tomasi also indicated that he found a "Uno playing card," which he opined was sometimes used with powder cocaine "to make yourself a line to do that cocaine." Officer Tomasi also testified that there was a cellular telephone on the front passenger seat that he had in his possession for about one and one-half hours. Officer Tomasi indicated that there were about ten incoming calls on the cellular telephone during that time, sometimes the same person calling more than once, asking if "C.C." was there and asking to buy. Evangelo Alexander Bageris identified defendant and testified that he knew defendant as "Robert" or "C.C." and that he believed that many people called defendant "C.C." Bageris indicated that he knew defendant and Robert Kolpacke as social acquaintances. According to Bageris, on the evening of September 13, 1996, he first saw defendant at Robert Kolpacke's apartment at the Polo Club Apartments in Farmington Hills. Bageris testified that, when he went to that apartment, defendant was there "most of the time." Eventually, Bageris left the apartment with defendant to go to the White Castle "on I-96, Jefferies." Bageris testified that defendant was carrying a bag but that defendant had told him that he did not have "anything" on him, which Bageris indicated that he took as a reference to drugs. Bageris testified that he thought defendant might have drugs on him "[b]ecause he's known for that" and that was how Bageris and defendant knew each other. Bageris also indicated that he and defendant had "partied" together with cocaine, that defendant provided the cocaine and that he sometimes gave defendant money for the cocaine. Bageris said that he had bought cocaine from defendant a day or two before September 13, 1996. Bageris testified that he was driving a gray Thunderbird that belonged to his parent(s), that at the White Castle defendant asked him to pull up next to a black car and that defendant talked to the person in that car. Bageris testified that he and defendant stayed at the White Castle for a "couple minutes"

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and then the person in the black car asked them to follow him. Bageris further testified that they drove out on a service drive and stopped at the light, that defendant "jumped out of the car," that defendant left his bag in the car and that none of the items in the bag belonged to Bageris. On September 14, 1996, the police executed a search warrant at 39072 Polo Club Drive, Apartment 205. In the south bedroom, Officer Tomasi testified that he found mail addressed to "Robert Beaton" and a duffel bag that contained a jewelry box that in turn contained small "zip-lock" bags. The bag also contained a shoe box that had a package full of "snow seals" or "econo seals" that are used to hold cocaine and two bottles of Inositol, which is used as a cutting agent with cocaine. The bag also contained more mail addressed to defendant, as well as a small amount of loose marijuana. Officer Tomasi testified that one of the bottles of Inositol was empty, while the other was about three quarters full. Officer Tomasi further testified that a box in the room contained mail and cards addressed to defendant, as well as what may have been a "tally sheet" with names of people and numbers next to those names. Officer Tomasi also testified that he found a coffee grinder in the bottom cabinet of the entertainment center in the south bedroom. When Officer Tomasi removed the lid of the grinder, he found "quite a bit of white powder" that he believed to be cocaine.3 Officer Tomasi also found a digital scale on the top shelf of the entertainment center. Inside a closet, Officer Tomasi found "a brown, small bottle that had a clear liquid in it." Officer Tomasi opined that the person who possessed the cocaine in the south bedroom did so with the intent to sell it based on the amount of packaging material found, the Inositol powder which was used "for cutting the cocaine" and the scale. Officer Turner testified that he searched the area of the apartment between the living room and kitchen. He found a note on a shelf that stated, "Robbie, thanks as always, maybe less cut?" and was signed, "Love, Robbie, Robert, Bob, Bert" [and one other name that was apparently illegible]. Officer Turner testified that he had heard the word "cut" used "to mean an agent used to greaten [sic] a quantity of something such as cocaine." Officer Jason Haas testified that he was assigned to search the north bedroom of the apartment. In that bedroom, Officer Hass found "Papers of Residency" for Robert Kolpacke. He also found a black plate with visible white powder residue and a cut drinking straw. Officer Valentino Zavala testified that, in December 1994 and January 1995, he was assigned to the Michigan State Police Down River Area Narcotics Organization. Officer Zavala testified that, on December 5, 1994, he contacted a person via pager and/or telephone about buying narcotics and spoke with that person. According to Officer Zavala, the next day he received a telephone call from the same person, who identified himself as "C.C." Officer Zavala said that he made arrangements to meet "C.C." at a gas station in Southgate, Michigan, to buy cocaine. Eventually, Officer Zavala met defendant at that location. Defendant was in the driver's seat of a white Chevrolet Cavalier and had a female passenger. Defendant indicated to Officer Zavala that he was "C.C." Defendant then directed Officer Zavala to drive Officer Zavala's vehicle with defendant as a passenger to the back of a Ramada Inn a short distance away, which Officer Zavala did. After Officer Zavala parked the car as directed, defendant produced a bag that contained other bags, known as "snow seals, or bindles," that held an -4

off-white, powdery substance that Officer Zavala believed to be cocaine.4 Officer Zavala described defendant using a pen, without an ink cartridge, to ingest some of the white powder and offering it to Officer Zavala to do the same. Officer Zavala declined with the excuse that he was "already messed up" and had to drive a long way. Eventually, Officer Zavala asked defendant "how much for the packages," defendant wrote "65" on a newspaper that was inside the vehicle and Officer Zavala then gave defendant $60 in pre-marked Michigan State Police funds, which defendant took without complaint. After placing the money in his pocket, defendant directed Officer Zavala to drive him back to his vehicle. Before exiting the vehicle, defendant encouraged Officer Zavala to call him again. Officer Zavala also indicated that he learned that defendant was living at 20209 Newman in the Brownston area at that time. Detective Sergeant Tyrone Mitchell, employed with the Michigan State Police, testified that he participated in the execution of a search warrant at 20209 Newman Street in Brownston Township on January 17, 1995 and that he spoke with defendant, who was under arrest at the time, in connection with that search. Detective Mitchell also testified that defendant told him that defendant had been the sole occupant of that residence and that he had some cocaine in the top dresser drawer in his bedroom. Officer Zavala, who acted as the evidence officer during the search, testified that he located about nine and one-half grams of cocaine in a bedroom. Three grams of marijuana were also located in the same bedroom and the "cutting agent" Inositol was located in a kitchen cabinet. Somewhere in the residence, "snow seal paper wafers" and a scale that was "like a gram, ounce scale" were also found. A coffee grinder was also found from which .78 grams of white powder, suspected to be cocaine, was scraped. There were also paper bundles inside a dresser that contained a white powdery substance. II. Defendant's Claims A. No. 204742 (1) Prior Bad Acts Evidence Defendant argues that, in cross-examination by defense counsel, a police officer improperly injected "other acts" evidence regarding an investigation of defendant a month prior to the date of the alleged incident. Further, defendant argues, the prosecution similarly made an improper argument in closing argument by referring to defendant having delivered cocaine a few days earlier. This issue was not preserved below. This Court ordinarily reviews an unpreserved evidentiary issue for manifest injustice. See, e.g. In re Snyder, 223 Mich App 85, 92; 566 NW2d 18 (1997). We conclude that, in light of the overwhelming evidence of guilt, any possible error connected with this issue does not involve manifest injustice warranting a reversal of defendant's conviction. Defendant's argument is unfocused, but apparently is based on the testimony of Officer Zupic about an earlier drug related transaction that Officer Zupic had with defendant. Prior to this testimony, Officer Zupic testified on cross-examination by defense counsel that he knew defendant was gay. In particular, defense counsel elicited testimony about "Paula" introducing defendant and Officer Zupic at a bar. Defense counsel also asked Officer Zupic if he discussed his "sexual preferences" with defendant

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or led defendant on "that you were gay and may be interested in a sexual context [sic] with him," both of which Officer Zupic denied. Apparently as part of a response to this, the prosecution elicited more detailed testimony from Officer Zupic about what occurred at the meeting between defendant, Officer Zupic and "Paula," including testimony to the effect that defendant sold Officer Zupic cocaine on that earlier occasion. Apparently, defense counsel's motivation for going into this area was to suggest that Officer Zupic unfairly or inappropriately enticed defendant into selling him cocaine by suggesting the possibility of a romantic relationship or sexual contact between the two of them. This testimony was immaterial to the jury trial and should not have been offered by the defense since a claim of entrapment as a bar to prosecution is properly raised by and decided by a trial court as a legal issue with no input from a jury. People v Patrick, 178 Mich App 152, 160-161; 443 NW2d 499 (1989). In our view, therefore, while the "other acts" testimony from the prosecution does not appear to have been offered for a proper purpose, the fact that the prosecution was responding to a "defense" outside the province of the jury is a substantial factor weighing against a finding of manifest injustice. Most importantly, we conclude that any possible error in connection with this issue was harmless beyond a reasonable doubt, given the key testimony from Officer Zupic that defendant and the passenger in his vehicle provided Officer Zupic with a baggie that contained suspected cocaine in connection with the officer giving the passenger $500. Quite obviously, the jury believed this testimony to be truthful in reaching its verdict. We see no reasonable basis on which the testimony at issue would have significantly bolstered the extent to which Officer Zupic appeared credible to the jury. Thus, we find no manifest injustice from the admission of the prior bad acts evidence or the prosecution's argument based on that evidence. (2) Double Jeopardy Defendant repeats the same argument that he raises in No. 204578, below. As stated there, defendant's convictions in each of these three consolidated cases did not violate the right against double jeopardy because each conviction was based on a separate and discrete incident or transaction. (3) Amendment Of The Information On the first day of trial, the trial court granted the prosecution's motion to amend the information from a charge of possession of less than fifty grams of cocaine with intent to deliver to a charge of actual delivery. Defendant argues that this prejudiced him, violated his rights to due process and was "a profound change requiring an entirely new defense." We hold that the trial court did not err by granting the prosecution's motion to amend the information. The charge against defendant was based on his alleged participation in selling cocaine to an undercover police officer. Accordingly, he was on notice that he had to defend against such a charge. We conclude that the formal change of the alleged crime from possession of less than fifty grams of cocaine with intent to deliver to the closely analogous crime of actual delivery of less than fifty grams of cocaine did not prejudice defendant. See People v Weathersby, 204 Mich App 98, 103-104; 514

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NW2d 493 (1994) (no error in amending indictment where the amendment "merely reiterated what was already known to defendant through other procedures" and no new evidence was need to support the amendment). Thus, the trial court did not abuse its discretion by amending the information. (4) Failure To Excuse Juror Defendant argues that the trial court should have dismissed one of the jurors for cause. Defendant notes that he sought to have this juror dismissed after exhausting his peremptory challenges, that this juror had "donated a house to a charity auction to be used for a limited time and the [elected county] Prosecutor so used it" and that this juror donated $500 to the Prosecutor's campaign and invited him to a party to meet people. As will be discussed below, defense trial counsel requested the trial court to remove the juror at issue. While it may be debatable whether this issue is preserved as trial counsel did not state that there were grounds for removal for cause, we treat this issue as being preserved. This Court reviews a trial court's decision on whether to excuse a juror for cause for an abuse of discretion, except where a prospective juror is in a category enumerated by MCR 2.511(D) and must automatically be excused for cause. See People v Walker, 162 Mich App 60, 63-64; 412 NW2d 244 (1987). We conclude that the trial court did not abuse its discretion in refusing to remove the juror for cause. The juror apparently volunteered, at a point after being preliminarily selected for the jury and after defense counsel's ensuing exhaustion of peremptory challenges, that he was in the banking business and that he did substantial entertaining. The juror stated that he had put the use of his property up for a charity auction for a school, freely admitted that he gave $500 to the Prosecutor's campaign and invited the Prosecutor to a Christmas or holiday party. The mere fact that a potential juror is acquainted with the prosecuting attorney does not warrant an inference of bias. Walker, supra at 64. Thus, the fact that the juror invited the Prosecutor to a holiday party was, in our view, not a reasonable basis to excuse that juror for cause. Further, there is no reason to believe that the fact that the Prosecutor prevailed in the auction and therefore spent a weekend at the juror's Lake Tahoe home would prejudice the juror. Indeed, the juror presumably had no way of knowing who would bid the most for this prize at the auction. With regard to the campaign donation, inasmuch as county Prosecutors are popularly elected, many active members of the community will presumably take sides when there is a serious electoral contest for that position. That a juror has sided with the winning candidate and may even generally support the polices of an incumbent Prosecutor hardly means that the juror will not fairly consider an individual case on its merits, particularly where, as here, the Prosecutor was not directly involved in presenting the case. In our view, it would be unreasonable to conclude that, merely because the juror had made a significant campaign donation to the Prosecutor's campaign, the juror would be prejudiced for the prosecution in this case. While defendant analogizes this case to Walker, supra, we find that case to be inapposite. This Court in Walker concluded that a juror should have been excused for cause where that juror was a

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police officer who had "worked closely with the prosecutor and certain police witnesses over a course of ten years." Id. at 64-65. In Walker, "[t]he very nature of this relationship necessarily includes the elements of cooperation and trust in the successful prosecution of criminal defendants." Id. at 65. Here, there is no indication that the juror was in any way actively involved with the prosecution in handling criminal cases or otherwise closely connected with the governmental functions of the Prosecutor's office. In sum, the trial court did not abuse its discretion by refusing to excuse this juror. (5) Hearsay Defendant notes that Officer Zupic testified that the passenger in defendant's car told him not to be "sketchy" and that the trial court erred by admitting this testimony under the conspiracy exception to the hearsay rule. Defendant preserved this issue by objecting to eliciting of testimony from Officer Zupic about the passenger's statement as constituting inadmissible hearsay. We review this issue for a clear abuse of discretion. People v Starr, 457 Mich 490, 494; 577 NW2d 673 (1998). We find that the testimony at issue did not constitute hearsay, regardless of whether it would fall under the coconspirator exclusion from the definition of hearsay. Officer Zupic testified that the passenger in defendant's car said to him, "Don't be so sketchy next time." While defendant claims that this was inadmissible hearsay, this testimony did not fall under the definition of hearsay at all because the statement by the passenger was not assertive in nature. Hearsay, in part, is "offered in evidence to prove the truth of the matter asserted" (emphasis supplied). MRE 801(c). The statement was not an assertion, but was rather a request or command to Officer Zupic to not be "sketchy," and is incapable of being considered true or false. People v Jones (On Reh After Remand), 228 Mich App 191, 205; 579 NW2d 82 (1998) (a command that is incapable of being true or false is not hearsay). Thus, defendant has not established any error because the testimony at issue was simply not hearsay. (6) Evidence Of Flight Defendant's argument on this issue is virtually incoherent but, in essence, appears to be that the admission of certain testimony from Officer Moilanen about defendant's conduct in driving away from his meeting with Officer Zupic was improper because it did not amount to admissible evidence of flight. Defendant did not preserve this issue below. This Court ordinarily reviews an unpreserved evidentiary issue for manifest injustice. See, e.g. In re Snyder, supra. Officer Moilanen testified that he followed the vehicle being driven by defendant after it left the area where defendant met with Officer Zupic. In this regard, Officer Moilanen testified, apparently as evidence of flight, as follows: I thought he was going to go south on Woodward. He got all the way over - well, not all the way over, he got in the right center lane, and he looked like he was going to go south on Woodward

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