# People of Michigan v. Jermaine Marcel Agee

> Michigan Court of Appeals · June 13, 2024

URL: https://www.frixlaw.com/law-library/cases/10023056

## Case

- **Court:** Michigan Court of Appeals
- **Decided:** June 13, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10023056

## How later opinions describe it (automated extraction)

- holding where the defendant did not object to opinion testimony at trial, the issue was not preserved for review
- holding the packaging of marijuana in small plastic bags, and additional plastic bags seized from the property, suggested the defendant intended to break the marijuana into even smaller quantities for sale or distribution, evidencing an intent to distribute

## Opinion text

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 13, 2024
Plaintiff-Appellee,

v No. 365843
Wayne Circuit Court
JERMAINE MARCEL AGEE, LC No. 22-001023-01-FH

Defendant-Appellant.

Before: MURRAY, P.J., and RIORDAN and D. H. SAWYER*, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions of two counts of possession with
intent to deliver a controlled substance, MCL 333.7401(2)(a)(iii) (50 grams or more, but less than
450 grams), and one count of keeping or maintaining a drug house, MCL 333.7405(1)(d). We
affirm.

I. BACKGROUND

This case arises out of the Detroit Police Department’s (“DPD’s”) continued surveillance
and execution of a search warrant at a residential property. Multiple times during surveillance of
the property, Officer Wallace Richards observed people drive up to the property and stay for only
one minute. Defendant would exit, conduct “hand-to-hand” transactions without having long
conversations, and return inside.1 A few days before executing the search warrant, Richards
observed the home for about 15 minutes and saw four people arrive simultaneously but separately
enter the property, stay for less than one minute, and leave. A team of officers executed a search
warrant, and when they entered the property they found defendant sitting with two other men,

1
DPD officers referred to transactions defendant made at the property as “hand-to-hand”
transactions, which they described as transactions where currency was physically exchanged for a
tangible item.
________________________

*Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
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whom the officers had never seen perform hand-to-hand transactions at the property, sitting in the
living room. These two men resided at the property.

The officers seized four sandwich bags containing substances believed to be cocaine from
the living room coffee table, but these substances were never tested and confirmed to be narcotics.
Sandwich bags containing similar substances were found on the kitchen table, but were also never
tested. Officers seized from a kitchen table a large silver scale and a small black and green scale
containing a white residue. A black leather backpack was found on a chair at the kitchen table in
front of where the scales were seized, and a DPD printable E-ticket with defendant’s name, driver’s
license number, and date of birth was found inside the backpack.

Officers also recovered from the kitchen table knotted sandwich bags and a container with
the bottom cut out and narcotics placed inside. The narcotics in the container were tested and
identified as 70.37 grams of cocaine, and 184.51 grams of fentanyl. The parties stipulated to the
weight of these seized narcotics at trial. Two firearms were seized from the second floor of the
property. Small green Ziploc bags, which “were definitely for distribution,” were also seized.

Finally, Sergeant Jeffrey Banks, who supervised collection of all evidence during the raid,
testified a total of $10,619 in cash was seized at the property. From defendant’s pants pocket
$1,760 in cash was seized and comprised of smaller denominations, such as $1, $5, $10 and $20
bills. Officers also seized about $8,700 in cash from inside the backpack. The bills in the backpack
were in larger denominations—mostly $20, $50, and $100 bills. Defendant was arrested at the
scene because Richards identified defendant as the individual he saw conducting hand-to-hand
transactions during surveillance of the property, and was the subject of the search warrant. The
officers theorized the other men who resided at the property were allowing defendant to deal from
the house in exchange for a free supply of narcotics, as this was a common practice among drug
dealers and users.

Together, the DPD officers who searched the property had almost 40 years of experience
in the Narcotics Enforcement Unit, and were trained to identify narcotics, materials used for
packaging and distributing narcotics, and locations where narcotics would be stored and trafficked.
The officers testified the cash found at the property was likely proceeds from narcotics sales, the
Ziploc bags seized were likely used to package narcotics for individual sale, and the firearms were
likely used to ward off theft of large amounts of cash or narcotics. And, despite not establishing
whether defendant resided at the property, the officers explained it was typical for sellers to sell
from others’ homes or abandoned homes to keep law enforcement from finding them. According
to the officers, it was rare for a seller to sell narcotics out of the same home they lived in.

After being convicted, defendant was sentenced, as a fourth-offense habitual offender,
MCL 769.12, to 25 to 40 years’ imprisonment for each count of possession with intent to deliver,
to run concurrently, and time served for his conviction of keeping or maintaining a drug house.
Defendant now appeals his convictions.

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II. ANALYSIS

A. SUFFICIENCY OF THE EVIDENCE

Sufficiency-of-the-evidence arguments are reviewed de novo. People v Osby, 291 Mich
App 412, 415; 804 NW2d 903 (2011). We view the evidence in the light most favorable to the
prosecution to “determine whether a rational trier of fact could find that the essential elements of
the crime were proved beyond a reasonable doubt.” People v Alter, 255 Mich App 194, 201-202;
659 NW2d 667 (2003). When an appellate court reviews the evidence supporting a conviction,
factual conflicts are also to be viewed in a light favorable to the prosecution. People v Wolfe, 440
Mich 508, 515; 489 NW2d 748 (1992), amended 441 Mich 1201 (1992). “The standard of review
is deferential: a reviewing court is required to draw all reasonable inferences and make credibility
choices in support of the jury verdict.” People v Nowack, 462 Mich 392, 400; 614 NW2d 78
(2000). “Circumstantial evidence and reasonable inferences arising from that evidence can
constitute satisfactory proof of the elements of a crime.” Id. (quotation marks and citation
omitted).

“In reviewing the sufficiency of the evidence, [we] must view the evidence—whether
direct or circumstantial—in a light most favorable to the prosecutor and determine whether a
rational trier of fact could find that the essential elements of the crime were proven beyond a
reasonable doubt.” People v Johnson, 340 Mich App 531, 548; 986 NW2d 672 (2022) (quotation
marks and citation omitted). “[We] must defer to the fact-finder’s role in determining the weight
of the evidence and the credibility of the witnesses.” People v Bennett, 290 Mich App 465, 472;
802 NW2d 627 (2010). In addition, “conflicts in the evidence must be resolved in favor of the
prosecution.” Id. (quotation marks, citation, and alteration omitted). “Circumstantial evidence
and any reasonable inferences that arise from such evidence can constitute satisfactory proof of
the elements of a crime.” Johnson, 340 Mich App at 548 (quotation marks and citation omitted).

1. MCL 333.7401(2)(a)(iii)

Defendant contends the evidence was insufficient to sustain his convictions because not all
substances seized from the property were tested, and the prosecution never called an expert witness
to testify about the contents of the recovered substances. He also argues the prosecution failed to
establish a sufficient nexus between him and any controlled substances found at the property.

MCL 333.7401(1) and MCL 333.7401(2)(a)(iii) state:

(1) Except as authorized by this article, a person shall not manufacture, create,
deliver, or possess with intent to manufacture, create, or deliver a controlled
substance, a prescription form, or a counterfeit prescription form.

* * *

(2) A person who violates this section as to:

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(a) A controlled substance classified in schedule 1 or 2 that is a narcotic drug or a
drug described in section [MCL 333.]7214(a)(iv)[2] and:

* * *

(iii) Which is in an amount of 50 grams or more, but less than 450 grams, of any
mixture containing that substance is guilty of a felony punishable by imprisonment
for not more than 20 years or a fine of not more than $250,000.00, or both.
[Emphasis and footnote added.]

A conviction of possession with intent to deliver a controlled substance under MCL
333.7401(2)(a)(iii) requires the prosecution to prove four elements beyond a reasonable doubt: (1)
the recovered substance is a controlled substance under MCL 333.7214; (2) the substance is in a
mixture weighing more than 50 grams but less than 450 grams; (3) defendant was not authorized
to possess the substance; and (4) defendant knowingly possessed the substance intending to deliver
it. People v McGhee, 268 Mich App 600, 622; 709 NW2d 595 (2005).

The parties stipulated at trial to the results of the Michigan State Police laboratory report
indicating 70.37 grams of cocaine and 184.51 grams of fentanyl were seized from the kitchen table
at the property, so the first and second elements are not in dispute. Neither is the third element,
because no evidence was presented defendant was authorized to possess such substances. The
only element in dispute is the fourth element regarding knowing possession with intent to deliver.
As discussed in Wolfe, 440 Mich at 519, knowing possession with intent to deliver has two
components: (1) possession and (2) intent. “A person need not have actual physical possession of
a controlled substance to be guilty of possessing it. Possession may be either actual or
constructive.” Id. at 519-520. When the officers raided the property, they did not find any drugs
on defendant’s person to conclude he actually possessed cocaine and fentanyl, requiring an
analysis of constructive possession.

“[C]onstructive possession exists when the totality of the circumstances indicates a
sufficient nexus between the defendant and the contraband.” Wolfe, 440 Mich at 521. Constructive
possession may be joint, with more than one person possessing a controlled substance. Id. at 520.
Though presence, by itself, at the location where drugs are found is insufficient to prove
constructive possession, the evidence introduced at trial showed a connection between defendant
and the cocaine and fentanyl to establish defendant constructively possessed them. Id. For
example, officers seized over $10,000 in cash at the property, with $1,760 in smaller
denominations being seized from defendant’s person, and $8,700, in larger denominations, being
seized from inside the backpack in the kitchen. The jury could reasonably infer that the backpack
belonged to defendant because a DPD E-ticket with his name on it was found inside.

From their knowledge and experience as Narcotics Enforcement Unit officers, the officers
believed the cash in smaller denominations found on defendant’s person were proceeds from
narcotics sales to individual buyers, and the larger sums of cash in the backpack were from
“middleman” sales to other dealers to then resell to individuals. This, coupled with Richards

2
MCL 333.7214 states fentanyl and cocaine are schedule 2 controlled substances.

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seeing defendant make many hand-to-hand transactions that were short in duration during his
surveillance of the property, established a sufficient nexus between defendant and the large
quantity of cocaine and fentanyl seized at the property to support a conclusion defendant had
constructive possession of the narcotics.3

Intent to deliver can be proved inferentially. Wolfe, 440 Mich at 524. “[A]ctual delivery
of narcotics is not required to prove intent to deliver. Intent to deliver has been inferred from the
quantity of narcotics in a defendant’s possession, from the way in which those narcotics are
packaged, and from other circumstances surrounding arrest.” Id. Even though the smaller Ziploc
bags allegedly containing heroin seized from the coffee table were never tested, it is reasonable to
assume, on the basis of the officers’ testimony about their appearance and presence in close
proximity to the larger quantity of cocaine and fentanyl, they also contained narcotics. During
surveillance, defendant was seen making short, hand-to-hand transactions. Because of the officers’
observations before the raid, and the way the untested substances on the coffee table were
packaged, it was reasonable to infer defendant intended to deliver these controlled substances.
This conclusion is supported by the empty Ziploc bags found on the kitchen table, in addition to
the large and small scales, which still had white residue on them requiring the wearing of gloves
when handling. Further, from testimony by the officers that less than one gram of fentanyl can
cause someone to overdose, it is reasonable to infer possession of 184.51 grams of fentanyl was
not for individual consumption, but evidenced an intent to deliver.

When viewed in the light most favorable to the prosecution, the evidence was sufficient to
support both convictions under MCL 222.7401(2)(a)(iii).

2. MCL 333.7405(1)(d)

Defendant next argues his conviction of keeping and maintaining a drug house should be
vacated because the officers never saw what he was actually exchanging in the hand-to-hand
transactions occurring outside the property. Further, no proof-of-residency documents were
recovered during the search of the property, which defendant contended were critical to linking
him to any illegal acts occurring at the property.

A rational trier of fact could find the testimony of the prosecution’s witnesses to be credible
and conclude the prosecution established beyond a reasonable doubt that defendant kept or
maintained a drug house. MCL 333.7405(1)(d) states a person shall not:

Knowingly keep or maintain a store, shop, warehouse, dwelling, building, vehicle,
boat, aircraft, or other structure or place that is frequented by persons using
controlled substances in violation of this article for the purpose of using controlled

3
See People v Williams, 268 Mich App 416, 422-423; 707 NW2d 624 (2005) (holding the
packaging of marijuana in small plastic bags, and additional plastic bags seized from the property,
suggested the defendant intended to break the marijuana into even smaller quantities for sale or
distribution, evidencing an intent to distribute).

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substances or that is used for keeping or selling controlled substances in violation
of this article. [Emphasis added.]

“[T]he terms ‘keep’ and ‘maintain’ are synonyms.” People v Thompson, 477 Mich 146, 153; 730
NW2d 708 (2007). Both terms also “contain an element of ‘continuity.’ ” Id. at 154. In other
words, “[t]he phrase ‘keep or maintain’ implies usage with some degree of continuity that can be
deduced by actual observation of repeated acts or circumstantial evidence, such as perhaps a secret
compartment or the like, that conduces to the same conclusion.” Id. at 155. The Thompson Court
concurred:

The state need not prove that the property was used for the exclusive purpose of
keeping or distributing controlled substances, but such use must be a substantial
purpose of the users of the property, and the use must be continuous to some degree;
incidental use of the property for keeping or distributing drugs or a single, isolated
occurrence of drug-related activity will not suffice. The purpose [for] which a
person uses property and whether such use is continuous are issues of fact to be
decided on the totality of the evidence of each case; the state is not required to prove
more than a single specific incident involving the keeping or distribution of drugs
if other evidence of continuity exists. [Id. at 156-157, quoting Dawson v State, 894
P2d 672, 678-679 (Alas App, 1995).]

Although Richards did not follow anyone who left the property to verify whether they
purchased drugs from defendant, he observed multiple vehicles arrive at the property, people enter
the house, leave after less than one minute, and drive away. Before executing the search warrant,
Richards also observed defendant at the property on multiple occasions, and defendant was the
primary person observed making hand-to-hand transactions and not leaving for the duration of the
surveillance.

When the officers raided the property, they found scales with white residue on them, empty
and full plastic Ziploc bags, large amounts of cocaine and fentanyl consistent with an intent to
distribute, large amounts of cash on defendant’s person and in his backpack, and a container with
a false bottom to place drugs. While proof of where defendant resided was never produced, the
officers learned the other two men detained during the raid resided at the property. It was the
officers determination, based on their observations, knowledge, and experience, that defendant
was being allowed to use the residence as a drug house in exchange for a free supply of narcotics.

These facts, taken together and viewed in the light most favorable to the prosecution, are
sufficient to sustain defendant’s conviction of keeping or maintaining a drug house.

B. INEFFECTIVE ASSISTANCE OF COUNSEL

Arguments asserting ineffective assistance of counsel are preserved by moving for a new
trial or for a Ginther4 hearing, People v Lopez, 305 Mich App 686, 693; 854 NW2d 205 (2014),
or by filing a motion in this Court to remand to the trial court, People v Abcumby-Blair, 335 Mich

4
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).

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App 210, 227; 966 NW2d 437 (2020). Defendant did not move for a new trial or for a Ginther
hearing, or file a motion to remand in this Court, so the issue of whether his trial counsel was
deficient is unpreserved. Id.

To preserve an argument regarding the admission or exclusion of evidence, a party must
timely object or move to strike the admitted evidence on the record. MRE 103(a)(1). See also
People v Miller (After Remand), 211 Mich App 30, 42; 535 NW2d 518 (1995) (holding where the
defendant did not object to opinion testimony at trial, the issue was not preserved for review).
Defendant’s counsel did not timely object or move to strike the officer’s opinion testimony,
rendering the evidentiary issue unpreserved. Id.

“Whether a person has been denied effective assistance of counsel is a mixed question of
fact and constitutional law.” People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004)
(quotation marks and citation omitted). “A trial court’s findings of fact, if any, are reviewed for
clear error, and [we] review[] the ultimate constitutional issue arising from an ineffective
assistance of counsel claim de novo.” People v Swain, 288 Mich App 609, 643; 794 NW2d 92
(2010) (quotation marks and citation omitted). “Where claims of ineffective assistance of counsel
have not been preserved, our review is limited to mistakes apparent on the record.” Matuszak, 263
Mich App at 48.

In addition, preserved evidentiary issues are reviewed for an abuse of discretion. People v
Orr, 275 Mich App 587, 588; 739 NW2d 385 (2007). Because defendant’s arguments about the
improper admission of opinion testimony were not properly preserved for appellate review, they
are reviewed for plain error affecting substantial rights. People v Carines, 460 Mich 750, 763-
764; 597 NW2d 130 (1999). “An error is plain if it is clear or obvious, and it affects substantial
rights if it affected the outcome of the lower court proceedings.” People v Swenor, 336 Mich App
550, 564; 971 NW2d 33 (2021).

Defendant argues his most substantial defense would have been supported by an
investigation into the other two men at the property. However, defense counsel did not question
why officers did not arrest or further inquire about the two individuals. In addition, defendant
asserts counsel was ineffective for failing to object to the opinion testimony by Banks.

Defense counsel was not ineffective for failing to investigate the two men detained with
defendant at the property, and not objecting to Banks’s testimony. The United States and Michigan
Constitutions protect a defendant’s right to a fair trial. US Const, Am VI; Const 1963, art 1, § 17.
“This includes the right to the effective assistance of counsel.” People v Isrow, 339 Mich App
522, 531; 984 NW2d 528 (2021). “Trial counsel is ineffective when counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.” Id. (quotation marks and citation omitted). “Trial counsel’s
performance is presumed to be effective, and defendant has the heavy burden of proving
otherwise.” Id. “To establish ineffective assistance of counsel, a defendant must show (1) that
trial counsel’s performance was objectively deficient, and (2) that the deficiencies prejudiced the
defendant.” Id. at 531-532 (quotation marks and citation omitted).

“If counsel’s strategy is reasonable, then his or her performance was not deficient.” Isrow,
339 Mich App at 532 (quotation marks and citation omitted). Prejudice is demonstrated when

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“there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland v Washington, 466 US 668, 694; 104 S Ct
2052; 80 L Ed 2d 674 (1984). We presume a defendant receives effective assistance of counsel
and place a heavy burden on the defendant to prove otherwise. People v Seals, 285 Mich App 1,
17; 776 NW2d 314 (2009). “[S]trategic choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional judgments support the limitations
on investigation . . . . [C]ounsel has a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations unnecessary.” People v Grant, 470 Mich
477, 485; 684 NW2d 686 (2004) (quotation marks and citation omitted; alterations in original).
The fact that a trial strategy did not work does not constitute ineffective assistance of counsel.
People v Stewart (On Remand), 219 Mich App 38, 42; 555 NW2d 715 (1996).

Contrary to defendant’s assertions, his trial counsel did try to elicit testimony from the
prosecution’s witnesses about their understanding of who the other two men at the property were,
their residence at the property, and the failure of officers to establish proof of residency for
defendant. On redirect, the prosecution was able to refute any impression defense counsel’s cross-
examination left on the jury by eliciting testimony indicating the reason the officers did not arrest
the other two men was because Richards identified defendant as the man he saw conducting hand-
to-hand transactions during his surveillance, and was the subject of the search warrant.

Defense counsel’s theory was the officers’ failure to establish proof of residency from
evidence obtained during the raid absolved defendant of guilt, but would have implicated the other
two men residing at the property. This was a reasonable strategy considering proof of residency
can contribute to a finding of guilt in keeping or maintaining a drug house, and could refute
constructive possession. The prosecution’s theory, supported by the officers’ testimony, relied on
how it is common for a drug dealer to sell from a drug user’s residence in exchange for a free
supply of drugs. Defense counsel made sure to question the officers about whether the two men
confirmed this was the reason they allowed defendant to sell from their residence, and the officers
admitted it was merely a theory based on their knowledge and experience. The jury found the
prosecution’s theory strong enough to overcome any reasonable doubt the defense attempted to
establish with the proof-of-residency theory.

Defense counsel’s investigation also could have been impeded by the motivation of the
other two men to protect themselves from self-incrimination and invoke their Fifth Amendment
right to remain silent, which the prosecution’s witness, Robert Gibbs, elected to exercise on the
second day of trial. US Const, Am V. Moreover, defense counsel’s cross-examinations regarding
whether defendant possessed any of the firearms seized during the raid were successful in creating
sufficient reasonable doubt for the jury to acquit defendant of any firearm charges. Because of
these circumstances, it cannot be said defense counsel was deficient, or that had he investigated
the two men further, there is a reasonable probability the verdict would have been different. Isrow,
339 Mich App at 532.

Finally, defendant argues his counsel failed to object to Banks’s testimony because Banks,
although an experienced police officer, was a lay witness and not a chemist or doctor medically-
trained to appropriately identify details about drug consumption. Defendant’s argument requires
application of MRE 701 and MRE 702, which govern the admissibility of opinion testimony. MRE

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701 governs the admissibility of opinion testimony by lay witnesses, and states: “If a witness is
not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally
based on the witness’s perception; and (b) helpful to clearly understanding the witness’s testimony
or to determining a fact in issue.” MRE 702 governs the admissibility of expert testimony:

A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if: (a) the expert’s
scientific, technical, or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue; (b) the testimony is based
on sufficient facts or data; (c) the testimony is the product of reliable principles and
methods; and (d) the expert has reliably applied the principles and methods to the
facts of the case.5

As recognized in People v Dobek, 274 Mich App 58, 77; 732 NW2d 546 (2007), the
interplay between MRE 701 and MRE 702 when a police officer provides testimony based on their
training and experience “is not entirely clear.” In Dobek, the prosecutor offered the testimony of
a police officer regarding the incidence of delayed disclosures in sexual assault cases “as simply a
police officer giving lay testimony based on his training and experience without . . . being first
qualified as an expert, while suggesting to the jury that [the officer] was an expert on the subject.”
Id. at 76. The trial court ruled the testimony was lay testimony and admissible under the rules of
evidence. On appeal, this Court held the apparent conflict in caselaw “gives credence to a
conclusion that the prosecutor did not pursue the challenged questioning in bad faith,” and even
assuming expert testimony was required, the officer “was more than qualified to give an expert
opinion on delayed disclosure to the extent of the testimony actually presented.” Id. at 79.

Specifically, the officer in Dobek “did not testify regarding the intricate psychological
underpinnings of delayed disclosure, which would have required different expertise, but instead
focused on its prevalence and commonsense reasons that would explain the behavior, such as
threats or fear of getting into trouble.” Id., at 79 n 9. He instead “testified at length about his
extensive knowledge, experience, training, and education concerning the sexual abuse of
children,” that he had personally investigated hundreds of criminal sexual conduct cases involving
child victims, and received training in the investigation of cases involving delayed disclosure. The
officer’s background and experience informed his knowledge on delayed disclosures which,
according to him, were common and happen frequently with child victims. Id. at 79.

Dobek is dispositive of whether Banks’s testimony was admissible under MRE 701 and
MRE 702. Banks, the raid commander, had been a sergeant in DPD’s Narcotics Enforcement Unit
for four or five years at the time of the raid and received training for identifying narcotics and
substances for narcotics packaging material, and for cultivating informants and how to handle
informants. He also received training in supervising a narcotics unit. His testimony about his
knowledge and experience demonstrated that, although he was not an expert, he had expertise in
narcotics enforcement. Banks had personally participated in executing many search warrants, and
testified, based on his background and experience, that the amount of narcotics in the home was

5
MRE 702 was amended effective May 1, 2024.

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larger than what he normally would see, fentanyl was often used as a substitute for heroin, and less
than one gram of fentanyl can cause overdose. On this record, the disputed testimony was
admissible and the prosecutor acted in good faith in eliciting the testimony. Defendant’s counsel
cannot be ineffective for failing to make what would have been a meritless objection. People v
Putman, 309 Mich App 240, 245; 870 NW2d 593 (2015).

Even if defense counsel erred in failing to object during Banks’s testimony, any error
arising from this testimony was harmless in light of the other evidence, which overwhelmingly
established defendant possessed controlled substances with intent to distribute, and was
maintaining a drug house.6 Defendant was the only person observed engaging in hand-to-hand
transactions outside the property, the lab report confirmed the amount and types of controlled
substances seized from the property, scales and Ziploc bags were found throughout the property,
and defendant was found with large amounts of cash on his person and in his backpack. On the
basis of these facts, it cannot be said, had defense counsel objected to Banks’s testimony, there is
reasonable probability the verdict would have been different. Isrow, 339 Mich App at 532.

Affirmed.

/s/ Christopher M. Murray
/s/ Michael J. Riordan
/s/ David H. Sawyer

6
See People v Rodriguez, 251 Mich App 10, 36-37; 650 NW2d 96 (2002) (holding any error
arising from detective’s expert testimony in drug conspiracy prosecution that the defendant’s
actions were consistent with those of a bodyguard was harmless in light of the nature and effect of
other evidence that established the defendant conspired with accomplices to deliver cocaine);
People v Williams, 240 Mich App 316, 320-322; 614 NW2d 647 (2000) (holding the erroneous
admission of drug profile evidence, indicating that in the opinion of police witnesses, the defendant
was using the codefendant’s home as a “safe house,” was harmless in prosecution for possession
with intent to deliver cocaine, in view of evidence that defendant had a key to a safe containing
cocaine in codefendant’s house and had engaged in controlled buys at that house, and that crack
cocaine was being manufactured at defendant’s house).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10023056. Public record. Not legal advice.