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Opinion Date: 06/14/2012
e-Journal Date: 06/21/2012
Full Text Opinion

Practice Area(s):   Criminal Law

Issues: Sufficiency of the evidence to show that defendant possessed and specifically intended to distribute cocaine; People v. Ericksen; People v. Passage; People v. McGhee; Possession "actual" or "constructive"; People v. Flick; People v. Wolfe; "Mere presence" is insufficient to show possession; People v. Hardiman; Ineffective assistance of counsel as to the search warrant; People v. Williams; People v. Davis; Whether there was "probable cause" to issue the search warrant; People v. Warren
Court: Michigan Court of Appeals (Unpublished)
Case Name: People v. Moore
e-Journal Number: 51896
Judge(s): Per Curiam - Jansen, Cavanagh, and Hoekstra

The court held that there was sufficient evidence to support the defendant's conviction of possession with intent to deliver 50 grams or more, but less than 450 grams of cocaine and defense counsel was not ineffective. Thus, the court affirmed. A police officer (H) observed defendant exit the house at a particular address twice on 3/2/10. H watched defendant get into multiple vehicles that pulled up a few houses away, stay inside the vehicle for two or three minutes, and then return to the house. Based on H's experience as a narcotics sergeant, he believed these were drug transactions. A LEIN check showed the defendant lived at the particular address, and H matched the photograph under defendant's name on the LEIN check to the person he saw make the transactions. Later, police executed a search warrant for the particular address. They found defendant's brother KM in one of the home's three bedrooms. A second bedroom contained women's clothing, and had a feminine decor. No one was in the third bedroom, which in addition to other furniture contained a crib and baby mattress. Defendant has a two-year old son and a one-year old daughter. In this room, police found $7,610 hidden under the baby mattress and four baggies of cocaine in the closet next to a digital scale. Police officer I, who found the cocaine and the scale, testified that these types of scales are often used by drug dealers. The police also found paperwork, bills, and a notice of intent to shut off services from DTE Energy in the same closet where the cocaine and scale were discovered. Defendant's name was on the paperwork, bills, and notice. A social security statement with his name and address on it and a judgment for child support with defendant's name were also discovered in the closet. A lab report showed that at least 117.9 grams of cocaine was found in the closet, which if made into crack rocks could be sold for as much as $7,200. Some of the cocaine had already been turned into crack. This evidence, when viewed in the light most favorable to the prosecution, could allow a reasonable jury to find beyond a reasonable doubt that defendant exercised control and dominion over the cocaine and intended to distribute it. Defendant also argued on appeal that defense counsel was ineffective because he failed to investigate three potential witnesses who were present at the home when the search warrant was executed and because he failed to move to suppress the evidence recovered from the search on the ground that the affidavit underlying the warrant did not establish probable cause. The court noted that the affidavit in support of the search warrant and the warrant were not part of the lower court record, defendant simply attached them to his brief on appeal. Defendant could not enlarge the lower court record by including these documents for the first time on appeal. Thus, the court had no basis on which to decide the issue. Defendant made no effort to expand the record by moving to remand or for a new trial or evidentiary hearing below, and he did not suggest these remedies on appeal. Thus, he failed to establish ineffective assistance of counsel.

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