People of Michigan v. Marquis Deangelo Nelson

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

February 24, 2022

Plaintiff-Appellee,

V No. 353548

Calhoun Circuit Court

MARQUIS DEANGELO NELSON, LC No. 19-002838-FH

Defendant-Appellant.

Before: STEPHENS, P.J., and SAWYER and SERVITTO, JJ.

PER CURIAM.

Defendant appeals as of right his jury-trial conviction of delivering less than 50 grams of

heroin, MCL 333.7401(2)(a)(iv). He was sentenced as a fourth-offense habitual offender, MCL

769.12, to serve 46 months’ to 25 years’ imprisonment. We affirm.

I. RIGHT TO COUNSEL OF CHOICE

First, defendant argues that the trial court deprived him of his Sixth Amendment right to

retain counsel of his choice when it denied his request for an adjournment to retain a different

attorney who had previously represented him.

“This Court reviews the grant or denial of an adjournment for an abuse of discretion.”

People v Snider, 239 Mich App 393, 421; 608 NW2d 502 (2000). But when denial of a con-

tinuance implicates constitutional rights, the issue is reviewed de novo. People v Akins, 259 Mich

App 545, 559; 675 NW2d 863 (2003).

Criminal defendants have a constitutional right to defend themselves through an attorney

of their choice. People v Arquette, 202 Mich App 227, 231; 507 NW2d 824 (1993); Const 1963,

art 1, § 13; US Const, Am VI. “However, the right to counsel of choice is not absolute. A

balancing of the accused’s right to counsel of his choice and the public’s interest in the prompt and

efficient administration of justice is done in order to determine whether an accused’s right to

choose counsel has been violated.” Akins, 259 Mich App at 557.

-1-

When reviewing a trial court’s decision to deny a defense attorney’s motion

to withdraw and a defendant’s motion for a continuance to obtain another attorney,

we consider the following factors: (1) whether the defendant is asserting a con-

stitutional right, (2) whether the defendant has a legitimate reason for asserting the

right, such as a bona fide dispute with his attorney, (3) whether the defendant was

negligent in asserting his right, (4) whether the defendant is merely attempting to

delay trial, and (5) whether the defendant demonstrated prejudice resulting from

the trial court’s decision. [People v Echavarria, 233 Mich App 356, 369; 592

NW2d 737 (1999).]

When a defendant’s choice of counsel has been improperly denied, “it is unnecessary to conduct

an ineffectiveness or prejudice inquiry to establish a Sixth Amendment violation. Deprivation of

the right is ‘complete’ when the defendant is erroneously prevented from being represented by the

lawyer he wants, regardless of the quality of the representation he received.” United States v

Gonzalez-Lopez, 548 US 140, 148; 126 S Ct 2557; 165 L Ed 2d 409 (2006).

The trial court did not abuse its discretion in denying defendant’s request for an

adjournment. While defendant asserted a constitutional right to retain counsel of choice, he did

not express any reasons for asserting his right, such as by alleging a bona fide dispute with his

attorney or articulating any complaints with her performance. Moreover, defendant failed to

diligently exercise his right to counsel of choice. Defendant’s charges were issued on September

12, 2019, his appointed attorney entered her appearance on September 16, 2019, and he was bound

over for trial on October 1, 2019, after a preliminary examination. Thus, the record reflects that

this case was pending for at least five months before trial and defendant was aware that he was

being represented by appointed counsel, but he did not take steps to retain other counsel.1

Defendant proceeded to trial with appointed counsel, rather than the counsel of his choice, because

he was did not assert his right to retain a different attorney in reasonable time. Further, although

the trial court did not find, and the record does not seem to indicate, that defendant made his request

with the intention of delaying trial, accommodating him on the eve of trial would have caused a

delay and worked against the efficient administration of justice.

In sum, while defendant asserted his right to retain his counsel of choice, he failed to

establish that he had a legitimate reason for asserting the right as he did, and his delay in doing so

was his own responsibility. For these reasons, the trial court did not abuse its discretion in denying

defendant’s request for an adjournment so that he could retain other counsel.

1

Defendant argues that he did not retain different counsel in time partly because he was

uninformed about his trial date. However, any lack of notice of the trial date was caused by his

failure to keep his attorney apprised of his change of address. Regardless of his knowledge of the

specific date of trial, he knew the charges were pending and the case was advancing to trial.

-2-

II. IMPROPER TESTIMONY

Next, defendant argues that the testimony of two police officers exceeded the limits of

drug-profile evidence because it was admitted as substantive, rather than background, evidence.

Defendant did not object to the admission of the challenged testimony at trial.

Accordingly, this evidentiary claim is unpreserved. People v Thorpe, 504 Mich 230, 252; 934

NW2d 693 (2019). Generally, “[a] trial court’s decision to admit evidence is reviewed for a clear

abuse of discretion.” People v Coy, 258 Mich App 1, 12; 669 NW2d 831 (2003). “Similarly, the

determination regarding the qualification of an expert and the admissibility of expert testimony is

within the trial court’s discretion.” People v Murray, 234 Mich App 46, 52; 593 NW2d 690 (1999).

However, unpreserved evidentiary error is reviewed for plain error. Coy, 258 Mich App 12. “To

avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have

occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial

rights.” People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).

“Drug profile evidence has been described as an informal compilation of characteristics

often displayed by those trafficking in drugs.” Murray, 234 Mich App at 52 (quotation marks and

citation omitted). “A profile is simply an investigative technique. It is nothing more than a listing

of characteristics that in the opinion of law enforcement officers are typical of a person engaged

in a specific illegal activity.” People v Hubbard, 209 Mich App 234, 239; 530 NW2d 130 (1995)

(citation omitted). “Such evidence is inherently prejudicial to the defendant because the profile

may suggest that innocuous events indicate criminal activity.” Murray, 234 Mich App at 53

(quotation marks and citation omitted). “[W]hen the testimony at issue is a drug profile, the expert

may not move beyond an explanation of the typical characteristics of drug dealing—in an effort to

provide context for the jury in assessing an alleged episode of drug dealing—and opine that the

defendant is guilty merely because he fits the drug profile.” Id.

“Clearly, there is often a very fine line between the probative use of profile evidence as

background or modus operandi evidence and its prejudicial use as substantive evidence; the

admissibility of profile evidence must effectively be determined case by case.” Id. at 54-55. “A

danger of prejudice exists in that a jury may accept a law enforcement officer’s testimony that the

defendant was engaging in criminal behavior as substantive evidence of the defendant’s guilt.”

Hubbard, 209 Mich App at 241. Therefore, “courts must take into consideration the particular

circumstances of a case and enable profile testimony that aids the jury in intelligently under-

standing the evidentiary backdrop of the case, and the modus operandi of drug dealers, but stop

short of enabling profile testimony that purports to comment directly or substantively on a

defendant’s guilt.” Murray, 234 Mich App at 56.

Several factors may be considered to determine the admissibility of drug profile evidence.

“First, the reason given and accepted for the admission of the profile testimony must only be for a

proper use—to assist the jury as background or modus operandi explanation.” Id. at 56. “Second,

the profile, without more, should not normally enable a jury to infer the defendant’s guilt.” Id. at

57. “Third, because the focus is primarily on the jury’s use of the profile, courts must make clear

what is and what is not an appropriate use of the profile evidence. Thus, it is usually necessary for

the court to instruct the jury with regard to the proper and limited use of profile testimony.” Id.

“Fourth, the expert witness should not express his opinion, based on a profile, that the defendant

-3-

is guilty, nor should he expressly compare the defendant’s characteristics to the profile in such a

way that guilt is necessarily implied.” Id. While “the distinction between admissible and

inadmissible drug profile evidence is often highly subtle, courts nevertheless must evaluate such

evidence carefully in order to determine whether it is being used to explain the significance of

otherwise innocuous circumstantial evidence, or rather to demonstrate that the defendant fits the

profile and is therefore guilty.” Id. at 58.

Defendant first challenges the testimony of Officer Mikael Ziegler, arguing that Officer

Ziegler gave impermissible drug profile testimony when he testified that he saw a hand-to-hand

drug transaction occur between defendant and a buyer, that defendant made several stops with his

vehicle to deal narcotics, and that it was more than likely, and very reasonable, to conclude that

defendant was dealing narcotics on the day in question.

We conclude that Officer Ziegler’s testimony was admitted for the proper purpose of

helping the jury understand the drug trafficking aspect of the case, and the profile information he

provided was not such as should cause a jury hastily to infer defendant’s guilt. General information

about the typical behavior of drug dealers, including background information about common

counter-surveillance maneuvers, common methods for selling controlled substances, and the

amount of controlled substances normally carried by dealers in the area, was helpful to explain the

significance of otherwise innocuous circumstantial evidence but, on its own, should not have

encouraged the jury to infer defendant’s guilt from it.

However, although the trial court instructed the jury about the use of expert testimony, it

did not make clear what was and was not an appropriate use of Officer Ziegler’s profile testimony.

Moreover, Ziegler’s testimony went beyond the scope of permissible drug profile evidence. He

did not merely provide background information about typical characteristics of drug dealers to

help explain otherwise innocuous evidence, he also expressly compared defendant’s characteristics

to the profile in a way that guilt was necessarily implied, and, at times, commented substantively

on defendant’s guilt. Specifically, Ziegler described defendant’s driving, compared it to counter-

surveillance measures used by drug dealers, and testified conclusively that defendant was using

counter-surveillance techniques to avoid police detection. Additionally, rather than limiting his

testimony to his own observations of defendant’s actions or explaining the typical behavior of drug

dealers, Ziegler testified that he witnessed defendant stop his car on the side of the road, accept

another man’s money, and give him narcotics in exchange. Ziegler further testified further that,

considering all of the evidence, it was “more than likely and very reasonabl[e]” that defendant was

dealing narcotics that day, and that, in his expert opinion, defendant sold narcotics to the other

man. These were the very elements the prosecution was tasked with proving. MCL

333.7401(2)(a)(iv). See also People v Dickinson, 321 Mich App 1, 12; 909 NW2d 24 (2017)

(explaining that “[t]he elements of delivery of less than 50 grams of heroin are (1) a defendant’s

delivery (2) of less than 50 grams (3) of heroin or a mixture containing heroin (4) with knowledge

that he or she was delivering heroin”). While evidence explaining the significance of the officers’

observations in this case could have been properly admitted to help the jury understand the

evidentiary backdrop of the case, Ziegler’s testimony went beyond what was permissible when he

commented substantively on defendant’s guilt. Accordingly, its admission amounted to plain

error.

-4-

However, defendant has not shown that the error affected the outcome of the proceedings

in light of the strength of the other evidence. Not all of the officers’ testimony was objectionable,

and even without Officer Ziegler’s impermissible opinions, the remaining police testimony

indicated that defendant drove around town making short stops at a variety of residences, which

was consistent with typical drug-dealing behavior, engaged in driving maneuvers consistent with

counter-surveillance techniques, and participated in a short exchange with a man on the side of the

road where defendant and the man traded items before parting ways.

Additionally, the man who engaged in the short transaction with defendant on the side of

the road testified at trial, and his account of the exchange aligned with the officers’ observations.

The man confirmed that he purchased heroin from defendant during that transaction, and the

substance found in the man’s possession immediately following the exchange tested positive for

heroin. Considering the other evidence of defendant’s guilt, defendant has failed to show that the

error in the admission of Officer Ziegler’s drug profile testimony affected the outcome of the trial.

Carines, 460 Mich at 763. Accordingly, reversal is not warranted.

Defendant also challenges Sergeant Kurt Roth’s testimony that he believed defendant

engaged in a hand-to-hand narcotics transaction that day. Sergeant Roth was not qualified as an

expert witness at trial, and defendant argues that his testimony went beyond the realm of

permissible lay opinion and ultimately embraced the issue of guilt.

Under MRE 701, a lay witness’s “testimony in the form of opinions or inferences is limited

to those opinions or inferences which are (a) rationally based on the perception of the witness and

(b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in

issue.” Further, “[a] witness may not opine about the defendant’s guilt or innocence in a criminal

case.” People v Heft, 299 Mich App 69, 81; 829 NW2d 266 (2012).2

Viewed in its entirety, Sergeant Roth’s testimony did not amount to an opinion that

defendant was guilty merely because he fit the drug profile evidence. Roth testified on the basis

of his experience with narcotics sales that the movements between defendant and the other man

looked like a hand-to-hand narcotics transaction. However, his testimony was clear that he did not

actually see what was transferred. While Roth’s characterization of the incident as a hand-to-hand

narcotics transfer was similar to some of Officer Ziegler’s statements, the distinction between the

two is important: Roth focused on his perception of the hand motions defendant and the other man

made, whereas Ziegler compared defendant’s behavior to the typical behavior of drug dealers and

used those comparisons to form conclusions about defendant’s actions and, ultimately, his guilt.

Because Roth’s statement was based on his perception, and assisted the jurors in determining

2

Additionally, where a witness provides lay opinion testimony based on his or her personal

experience and knowledge, and he or she would have qualified as an expert, any error in failing to

qualify that witness as an expert is harmless. People v Dobek, 274 Mich App 58, 76-79; 732

NW2d 546 (2007). We have little doubt that Sergeant Roth would have qualified as an expert on

the basis of his experience and training.

-5-

whether defendant was involved in narcotics trafficking, it was admissible under MRE 701, and

there was no plain error in its admission.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant also argues that he was denied the effective assistance of counsel when defense

counsel failed to object to the testimony of Officer Ziegler and Sergeant Roth. Because there has

been no evidentiary hearing to develop defendant’s claims of ineffective assistance, our review is

limited to counsel’s mistakes apparent from the existing record. People v Horn, 279 Mich App

31, 38; 755 NW2d 212 (2008).

The effective assistance of counsel is presumed and a defendant bears a heavy burden to

prove otherwise. People v Rockey, 237 Mich App 74, 76; 601 NW2d 887 (1999). “[T]o find that

a defendant’s right to effective assistance of counsel was so undermined that it justifies reversal of

an otherwise valid conviction, a defendant must show that counsel’s performance fell below an

objective standard of reasonableness, and that the representation so prejudiced the defendant as to

deprive him of a fair trial.” People v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994). To

establish deficient performance, “a defendant must overcome the strong presumption that his

counsel’s action constituted sound trial strategy under the circumstances.” People v Toma, 462

Mich 281, 302; 613 NW2d 694 (2000). “As for prejudice, a defendant must demonstrate a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different.” Id. at 302-303 (quotation marks and citation omitted).

Regarding Sergeant Roth’s testimony, defendant cannot demonstrate that defense

counsel’s performance was deficient for failing to object, because, as explained above, Roth’s

testimony was properly admitted. See People v Ericksen, 288 Mich App 192, 201; 793 NW2d 120

(2010) (“[f]ailing to advance a meritless argument or raise a futile objection does not constitute

ineffective assistance of counsel”).

Regarding Officer Ziegler’s testimony, although “there are times when it is better not to

object and draw attention to an improper comment,” People v Bahoda, 448 Mich 261, 287 n 54;

531 NW2d 659 (1995), we agree with defendant that there was no strategic reason for declining to

object. Ziegler stated his improper opinion several times, such that an objection by defense counsel

likely would not have drawn additional attention to it. Additionally, although the prosecution

argues that defense counsel did not object because she planned to strategically use this testimony

to support the defense theory that the officers were predisposed to see drug deals where there were

none, the same argument could have been made even with an objection to Ziegler’s opinion that

defendant was guilty. Because there was no reasonable strategic decision for failing to object to

Ziegler’s testimony, defense counsel’s failure to object rendered her performance deficient in that

regard.

However, defendant has not shown a reasonable probability that, but for defense counsel’s

error, the result of the proceeding would have been different. As explained above, other evidence

was admitted to support defendant’s guilt, including the testimony of the man who purchased

heroin from defendant. Moreover, not all of Officer Ziegler’s testimony was objectionable. Even

without the impermissible testimony, the evidence indicated that defendant drove around town

making short stops at a variety of residences, engaged in evasive driving maneuvers, and

-6-

participated in a short exchange on the side of the road where defendant and the other man traded

items before parting ways. The prosecution presented ample evidence for the jury to find

defendant guilty of the charged offense, and it is unlikely that an objection to Ziegler’s

objectionable testimony would have affected the outcome of the trial. Therefore, defendant’s

ineffective assistance claim must fail.

IV. NOTICE OF INTENT TO SEEK SENTENCING ENHANCEMENT

Defendant alternatively argues that his sentence is invalid because the prosecution failed

to provide proper notice of its intent to seek a sentencing enhancement as required by MCL 769.13.

Defendant did not challenge below the prosecution’s failure to file a proof of service for

the notice of intent to seek a sentence enhancement, thus leaving this issue unpreserved. See

People v Anderson, 322 Mich App 622, 634; 912 NW2d 607 (2018). The issue whether habitual-

offender notice requirements were met is “reviewed de novo as a question of law because it

involves the interpretation and application of statutory provisions and court rules.” People v Head,

323 Mich App 526, 542; 917 NW2d 752 (2018). However, unpreserved claims related to an

habitual-offender notice are reviewed for plain error affecting a defendant’s substantial rights.

People v Burkett, ___ Mich App ___, ___; ___ NW2d ___ (issued 6/17/2021); (Docket No.

351882); slip op at 7.

MCL 769.13 provides, in relevant part, as follows:

(1) In a criminal action, the prosecuting attorney may seek to enhance the

sentence of the defendant as provided under [MCL 769.10, MCL 769.11, or MCL

769.12], by filing a written notice of his or her intent to do so within 21 days after

the defendant’s arraignment on the information charging the underlying offense or,

if arraignment is waived, within 21 days after the filing of the information charging

the underlying offense.

(2) A notice of intent to seek an enhanced sentence filed under subsection

(1) shall list the prior conviction or convictions that will or may be relied upon for

purposes of sentence enhancement. The notice shall be filed with the court and

served upon the defendant or his or her attorney within the time provided in

subsection (1). The notice may be personally served upon the defendant or his or

her attorney at the arraignment on the information charging the underlying offense,

or may be served in the manner provided by law or court rule for service of written

pleadings. The prosecuting attorney shall file a written proof of service with the

clerk of the court. [Emphasis added.]

Additionally, MCR 6.112(F) provides as follows:

A notice of intent to seek an enhanced sentence pursuant to MCL 769.13

must list the prior convictions that may be relied upon for purposes of sentence

enhancement. The notice must be filed within 21 days after the defendant’s

arraignment on the information charging the underlying offense or, if arraignment

is waived or eliminated as allowed under MCR 6.113(E), within 21 days after the

filing of the information charging the underlying offense.

-7-

“The purpose of the notice requirement is to provide the accused with notice, at an early stage in

the proceedings, of the potential consequences should the accused be convicted of the underlying

offense.” Head, 323 Mich App at 543 (quotation marks and citation omitted).

In People v Cobley, 463 Mich 893; 618 NW2d 768 (2000), our Supreme Court vacated the

defendant’s sentence and ordered that he be resentenced because the prosecutor failed to prove

that the notice of sentence enhancement was served on the defendant within 21 days after the

defendant was arraigned. However, this Court later held that “[t]he failure to file a proof of service

of the notice of intent to enhance the defendant’s sentence may be harmless if the defendant

received the notice of the prosecutor’s intent to seek an enhanced sentence and the defendant was

not prejudiced in his ability to respond to the habitual-offender notification.” Head, 323 Mich App

at 543-544. This Court concluded that the prosecution’s failure to file the required proof of service

did not require resentencing because

(1) the charging documents apprised the defendant of his fourth-offense habitual-

offender status, (2) the defendant received actual notice of the enhancement on the

record at a preliminary examination, (3) the defendant and defense counsel

exhibited no surprise at sentencing when the defendant was sentenced as a fourth-

offense habitual offender, (4) the prosecutor’s intention to enhance the sentence

was acknowledged on the record by defendant and defense counsel at a pretrial

hearing during the discussion of the prosecutor’s final plea offer, and (5) and the

defendant did not claim that he had any viable challenge to his status as a fourth-

offense habitual offender. [Burkett, ___ Mich App at ___; slip op at 8 (quotation

marks, alteration brackets, and citations omitted).]

Here, defendant argues that Head should not be applicable, and, instead, this Court should

apply the analysis set forth in People v Straughter, unpublished per curiam opinion of the Court

of Appeals, issued April 11, 2017 (Docket No. 328956). In Straughter, the prosecution failed to

provide notice of sentence enhancement as required by MCL 769.13, and this Court, relying on

Cobley, vacated the defendant’s sentence as a habitual offender and remanded the case for

resentencing without habitual enhancement. However, Head, as a published decision of this Court,

is binding, MCR 7.215(J)(1), and Straughter, as an unpublished opinion, is not, MCR 7.215(C)(1).

See also Burkett, ___ Mich App at ___; slip op at 8 (resolving a conflict between Straughter and

Head by stating, “We are bound to follow Head, a published decision by this Court that has not

been reversed or modified”).

In this case, there is no proof of service of the notice of intent to enhance defendant’s

sentence in the lower court file received by this Court, and the prosecution does not appear to argue

that a proof of service was ever filed. However, it appears that defendant had actual notice of the

sentence enhancement. The warrant, complaint, felony information, and amended felony

information all contained notice that defendant was being charged as a fourth-offense habitual

offender, and listed each conviction upon which the prosecution intended to rely to support the

enhancement. The Register of Actions reflects that defendant was arraigned on September 12,

2019. Nothing on the record suggests, and defendant does not assert, that he or his counsel did not

receive copies of those documents at arraignment or in reasonable time thereafter.

-8-

Moreover, defendant was not prejudiced in his ability to respond to the enhanced sentence.

Neither defendant nor his counsel appeared to be surprised when he was ultimately sentenced as a

fourth habitual offender. The presentence investigation report and sentencing information report

contain repeated references to defendant’s status as a fourth habitual offender, and neither

defendant nor his counsel raised any issues related to the habitual offender status at sentencing,

despite their both having reviewed the reports. Additionally, as in Head, defendant “has not

asserted in the trial court or on appeal that he had any viable challenge to his fourth-offense

habitual-offender status.” Head, 323 Mich App at 545. Because defendant had actual notice of

the prosecutor’s intent to seek an enhanced sentence, and because defendant was not prejudiced in

his ability to respond to that facet of sentencing, any error in the prosecution’s failure to file a

proof of service was harmless. Defendant has not established plain error affecting his substantial

rights and thus is not entitled to resentencing.

Affirmed.

/s/ David H. Sawyer

/s/ Deborah A. Servitto

-9-