State of Michigan v Carl Jesse Hough

State of Michigan v CARL JESSE HOUGH

No. 302132

Michigan Court of Appeals

January 15, 2013, Decided

Subsequent case developments: Later proceeding at People v Hough, 837 NW2d 275 (Mich, 2013) Motion granted by People v Hough, 838 NW2d 873 (Mich, 2013) Leave to appeal denied by, Motion denied by People v Hough (Mich, Jan. 31, 2014)

Prior case history: Wayne Circuit Court. LC No. 06-008265-FH.

Before: RONAYNE KRAUSE, P.J., and SERVITTO and SHAPIRO, JJ. SHAPIRO, J. (dissenting).

OPINION

     Per Curiam.

     A jury convicted defendant of operating a motor vehicle while intoxicated and causing a serious impairment of another person's body function (OWI), MCL 257.625(5), driving without a valid license and causing a serious impairment of another person's body function, MCL 257.904(5), 10 counts of falsely certifying "to a matter or thing required . . . to be certified" under the Michigan vehicle code, MCL 257.903(1), falsely representing information in an "application for an official state personal identification card," MCL 28.293(1), felon in possession of a firearm, MCL 750.224f, and possession of a firearm during the commission of a felony, MCL 750.227b. The trial court sentenced defendant as a third habitual offender, MCL 769.11, to concurrent prison terms of 3 to 10 years for the OWI and driving with a suspended license convictions, and two to five years for each of the 10 false certification convictions, the false representation on a state identification conviction, and the felon-in-possession conviction, all to be served consecutively to a two-year term of imprisonment for the felony-firearm conviction. Defendant appeals as of right. We affirm.

     This case arose out of a traffic accident that occurred in 2004. Detroit Police Officer Mitchell Quinn responded to the scene of the accident to discover two people trapped inside a car that had crashed into a utility pole; the "entire front end of the car was smashed." Quinn identified defendant as the driver. At the hospital, defendant identified himself to Quinn as Lashawn Scott Key and indicated that "he had left the bar," passed out while driving, and "didn't know what happened." Quinn recalled that defendant smelled of alcohol, had bloodshot eyes and spoke in a slurred manner. Quinn left the hospital to acquire a "search warrant to get blood drawn" from defendant, but on Quinn's return defendant "had checked himself out of the hospital.1" Quinn performed a search for records of "Lashawn Scott Key" and found that "Key's" driving record "showed an individual . . . in his late 30[']s that obtained a driver's license somewhere in his early 30[']s," when most Michigan residents acquired driver's licenses at age 16. Quinn deemed this a "red flag" that "didn't make any sense," and "the further I got to digging into it the more things began to unravel that the person that identified himself as Lashawn Scott Key was not Lashawn Scott Key." Quinn's further investigations, which included photographs from the Secretary of State and the LEIN network, a birth certificate, and conversing with defendant, eventually resulted in defendant providing Quinn with his real name.

     Quinn determined that multiple vehicles and driver's licenses began all pointing to a single address where defendant lived. Quinn executed a search warrant at that residence, looking for "fraudulently obtained identification cards, driver's licenses, any paper work and/or vehicles." He found mail in both defendant's name and the name of Lashawn Scott Key, including a hospital bill addressed to Key, two rifles, and several boxes of ammunition. There were items of mail addressed to other names, as well. Defendant met with Quinn later that day, offering to turn himself in; he admitted that he acquired the guns for protection and got the driver's licenses to drive, and he wanted to be done with "these games." Quinn also noted that he did not need defendant to have admitted to being Lashawn Scott Key because he had "certified documents from the Secretary of State to prove who he is." The photographs on several driver's license or state identification cards, including defendant's and one for Lashawn Scott Key, were all determined to be of the same person.

     Another of those items of proof was a LIEN entry indicating that defendant had noticeable scarring to his upper chest. Apparently--the testimony is not completely clear as to how--Quinn and several other officers personally verified that defendant did in fact have the described scarring, which Quinn described as "appear[ing] to be some sort of bullet wound." At trial, during Quinn's cross-examination, defense counsel had defendant lift up his shirt, which revealed no scarring on defendant's chest. The jury was provided with a copy of defendant's medical records from his treatment at the hospital after the accident. We have unfortunately not had the benefit of receiving a copy of the trial exhibits, and no clear description was provided on the record, but we infer that those records apparently indicated that defendant had some kind of prior scarring somewhere on his upper torso area. After the close of proofs and during jury deliberations, the jury sent a note asking to see the lacerations. Rather than ordering defendant to lift his shirt again, the trial court ordered defendant to remove his shirt entirely, revealing scarring to, apparently, defendant's upper left arm. Defendant was subsequently convicted.

     Defendant first argues that the trial court's order for him to remove his shirt constituted an impermissible reopening of the proofs. We note that the transcripts suggest that the trial court may have been excessively impatient with both attorneys in this matter and, consequently, could have left a better record for our review. However, we are not persuaded that the trial court committed any error mandating reversal.

     The trial court has the discretion to reopen proofs, but that discretion depends on a number of relevant factors, including whether any party would receive an unfair advantage or suffer unfair surprise or prejudice. See People v Keeth, 193 Mich App 555, 560; 484 NW2d 761 (1992). We emphasize, initially, that defendant could have asked the trial court to recall Quinn, to allow defendant to testify if he so chose, or to give another closing argument to the jury in light of the newly-revealed scarring. Defendant could, for example, have re-emphasized that Quinn had described scarring on defendant's chest, not defendant's arm. Had such a request been made and denied, we would be deeply troubled. Defendant did not make any such request. Nevertheless, we do not find that defendant was unfairly prejudiced. Although one witness did testify that defendant and Lashawn Scott Key were different people, defendant's identity was independently established with multiple other evidentiary sources. Furthermore, defendant's removal of his shirt revealed that, as already established, he lacked scarring where Quinn had described it.2

     Defendant next argues that the prosecutor committed misconduct by referring to statements that defendant allegedly made to Quinn, as recounted by Quinn on redirect examination. We disagree. We "review claims of prosecutorial misconduct case by case . . . to determine whether the defendant received a fair and impartial trial." People v Watson, 245 Mich App 572, 586; 629 NW2d 411 (2001). Defendant contends that Quinn was impermissibly permitted to read verbatim from his own police report. Defendant correctly asserts that a police report is hearsay unless shown to fall into an exception. Moncrief v Detroit, 398 Mich 181, 189; 247 NW2d 783 (1976). It appears to us, as the trial court appears to have concluded, Quinn's testimony consisted of defendant's own statements, which are not hearsay. MRE 801(d)(2)(A); MRE 802. Viewed in context, the prosecutor's closing argument, to which defendant also objects, consisted of proper references to defendant's own statements to Officer Quinn as reflected in the trial record. It was not improper for the prosecutor to reference this admissible evidence in his closing argument.

     Defendant also contends that the prosecutor improperly referred to "suspected marijuana" found during the search of defendant's residence. Quinn explained that "some bags of suspected marijuana" were seized, but the police property room destroyed them because the police "didn't seek charges against . . . defendant." We agree with defendant that this testimony was irrelevant and inadmissible because it had no logical connection to any of the charges or issues in this case. MRE 401 and MRE 402. However, the reference was brief and isolated, and because this was not a particularly weak case on the charged offenses, we find no reasonable likelihood that the reference affected defendant's substantial rights. MRE 103(a)(1); People v Carines, 460 Mich 750, 763, 774; 597 NW2d 130 (1999). For the same reason, we cannot conclude that defense counsel was ineffective for failing to object, and indeed, objecting may have only drawn more attention to the reference. See People v Solmonson, 261 Mich App 657, 663-664; 683 NW2d 761 (2004).

     We likewise do not find that the brief reference to the marijuana in the context of the prosecutor's closing and rebuttal arguments adversely impacted defendant's right to a fair trial, especially considering that the trial court instructed the jury that the parties' arguments did not constitute evidence. People v Unger, 278 Mich App 210, 237; 749 NW2d 272 (2008) (noting that the prosecutor's "comments were relatively brief," the trial court instructed the jury not to consider as evidence the parties' arguments, and that "jurors are presumed to follow their instructions"). Even assuming that defense counsel unreasonably failed to object to the prosecutor's marijuana reference, there is no reasonable probability that the lack of an objection affected the outcome of defendant's trial. Solmonson, 261 Mich App at 663-664.

     Defendant also complains that the prosecutor improperly argued facts not in evidence when he stated in his closing argument, "Same exact house where all these magazine clips were found for those guns. I don't know how many of you are hunters. This is no hunting rifle." (Emphasis added). During trial, Officer Quinn described the two guns as "assault rifle[s]." It does not appear that any kind of definition of "hunting rifle" or "assault rifle" was ever provided on the record. However, it is a matter of common knowledge that there are various different kinds of guns optimized for different purposes, and the evidence reflected that defendant had acquired the guns for "protection." Whatever the nature of the guns might have been, the prosecutor's assertion that the guns were not for the purpose of hunting was a fair argument based on the evidence in the record. See People v Thomas, 260 Mich App 450, 456; 678 NW2d 631 (2004) (a prosecutor has "great latitude to argue the evidence and all inferences relating to his theory of the case"). Consequently, defense counsel need not have lodged a meritless objection to the prosecutor's remarks. Id. at 457.

     Defendant next argues that the trial court should have granted his motion for severance of the OWI and driving with a suspended license counts, which arose from a November 2004 accident, and the fraudulent document and firearm counts, which arose from Officer Quinn's February 2006 warrant search. Defendant has not provided us with a transcript of the trial court's severance ruling or any recitation of the trial court's rationale for denying the motion. MCR 7.210(B)(1)(a). Therefore, defendant has not properly presented this issue for appellate review. PT Today, Inc v Comm'r of the Office of Fin & Ins Servs, 270 Mich App 110, 151-152; 715 NW2d 398 (2006). We thus review his severance argument only to ascertain whether any plain error affected his substantial rights. Carines, 460 Mich at 763.

     The Michigan Court Rules provide that the trial court may sever joined charges "when appropriate to promote fairness to the parties and a fair determination of the defendant's guilt or innocence," MCR 6.120(B), and, upon a proper motion, must sever charges that are unrelated as defined by MCR 6.120(B)(1). MCR 6.120(C). MCR 6.120(B) provides:

     (1) Joinder is appropriate if the offenses are related. For purposes of this rule, offenses are related if they are based on

     (a) the same conduct or transaction, or

     (b) a series of connected acts, or

     (c) a series of acts constituting parts of a single scheme or plan.

     (2) Other relevant factors include the timeliness of the motion, the drain on the parties' resources, the potential for confusion or prejudice stemming from either the number of charges or the complexity or nature of the evidence, the potential for harassment, the convenience of witnesses, and the parties' readiness for trial . . .

We conclude that the charges at issue here arose from "a series of connected acts." MCR 6.120(B)(1)(b). Consequently, the trial court was not obligated to grant defendant's motion to sever.

     Quinn responded to an accident scene and first conversed with defendant a short while later at a hospital, where defendant identified himself as Lashawn Scott Key. That prompted Quinn to investigate the name in the LEIN system, which gave rise to Quinn's suspicions that it was a false identity and prompted further investigation by Quinn. Quinn's further investigation culminated in the search of a residence "that had the most things registered to it" in "the names . . . associated with Carl Hough," where the police found many items of mail bearing the names Lashawn Scott Key and Carl Hough and two assault rifles. Notwithstanding that the various charges against defendant were "distinct in point of law," the charges "spring out of . . . [a] connected series of facts" that defendant set in motion by giving Quinn a false identification in November 2004. People v Williams, 483 Mich 226, 241; 769 NW2d 605 (2009) (internal quotation and citation omitted). Furthermore, none of the considerations mentioned in MCR 6.120(B)(2) weighs significantly in favor of severance. In summary, the trial court did not clearly err to the extent that it found severance inappropriate because all the charges against defendant derived from "a series of connected acts," and the court correctly denied defendant's motion for severance. MCR 6.120(B)(2)(b); Williams, 483 Mich at 231. The court's ruling does not reflect any error, plain or otherwise.

     Defendant next argues that his felony-firearm conviction, predicated on the offense of felon in possession, constitutes double jeopardy. This argument has been rejected by our Supreme Court. People v Calloway, 469 Mich 448, 452; 671 NW2d 733 (2003).3 We therefore reject this claim of error.

     Defendant finally argues that the trial court should have granted his motion to suppress the firearms because they were not mentioned in the search warrant and, because firearms are not per se contraband, their criminality could not have been immediately apparent at the execution of the search. We disagree, and we find that, under the circumstances, the guns could be seized pursuant to the plain view exception to the warrant requirement.

     "The plain view doctrine allows police officers to seize, without a warrant, items in plain view if the officers are lawfully in a position from which they view the item, and if the item's incriminating character is immediately apparent." People v Champion, 452 Mich 92, 101; 549 NW2d 849 (1996). "Immediately apparent" "means that without further search the officers have probable cause to believe the items are seizable." Id. at 102-103 (internal quotation and citation omitted). "'To constitute probable cause . . . , there must be such reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant an ordinarily cautious man in the belief that the person arrested is guilty of the offense charged.'" Matthews v Blue Cross & Blue Shield of Mich, 456 Mich 365, 387; 572 NW2d 603 (1998), quoting Wilson v Bowen, 64 Mich 133, 138; 31 NW 81 (1887). "Probable cause . . . is a commonsense concept dealing with practical considerations of everyday life that must be viewed from the perspective of reasonable and prudent persons, not legal technicians." Peterson Novelties, Inc v City of Berkley, 259 Mich App 1, 19; 672 NW2d 351 (2003).

     The evidence indicated that Quinn was aware that defendant was a felon at the time the search warrant was executed and that defendant was tied to the residence, and consequently defendant was not permitted to possess firearms. MCL 750.224f. During the execution of the search, defendant called the only person present, who had moved in recently, and talked to Quinn, identifying himself and asking why Quinn "was tearing his house up." That person also indicated that at least one of the guns had been brought there by defendant. Although the marijuana was inadmissible at trial, the suspected presence thereof could have suggested that the guns were present during the commission of another felony. Consequently, we conclude that Quinn did have probable cause to believe that the guns were present illegally. The trial court therefore properly denied the motion to suppress.

     Affirmed.

     /s/ Amy Ronayne Krause

     /s/ Deborah A. Servitto

DISSENT BY: SHAPIRO

DISSENT

     SHAPIRO, J. (dissenting).

     I must respectfully dissent because the trial court improperly reopened proofs after the jury had been instructed and had already begun deliberations. The majority cites People v Keeth, 193 Mich App 555; 484 NW2d 761 (1992) for the principle that a trial court has discretion to reopen proofs. That is surely the case--so long as the jury has not already begun its deliberations. Keeth, like all the other cases establishing this principle involved a reopening of proofs before the jury was instructed and began deliberations. An extension of this discretion from before deliberations to during deliberations is a change in kind, not merely a change in degree and one which I believe undermines the sanctity of jury deliberations.

     The prosecution's brief, recognizing that there was no authority for the proposition that proofs could be reopened during deliberations, argued that the trial court was merely allowing the jury another view of the defendant's chest that had been shown during the trial. If this were the case, I would find no error as it would, like a reread of testimony, not constitute new proofs. However, the record reveals that this was not the case. The defendant's bare chest was viewed by the jury during the cross-examination of one of the police officers concerning identification. The officer's report had noted that the perpetrator had old chest scarring that the officer saw while questioning him in the hospital. Defense counsel asked defendant to "pull up your shirt" and asked the officer if he saw any such scarring on defendant. The officer replied that he did not. The prosecution did not ask the court to have defendant take off his shirt, or show his shoulders nor did he ask the police officer in redirect whether the officer may have been mistaken about the location of the scar. The prosecution did not seek to call any other witnesses as to the defendant's scarring. Defense counsel reminded the jury of this discrepancy in closing argument when he said to the jury: "You had an opportunity to look at Mr. Hough's chest. There was nothing on that chest. Nothing." During his closing arguments, the prosecutor did not suggest that the jury had not had a good view nor that the scarring may have been on parts of the defendant's torso that were not visible when he merely pulled up his shirt.

     The jury retired to deliberate at 11:48 a.m. and the judge sent the exhibits into the jury room immediately thereafter. At 2:42 p.m. the jury sent a note to the judge that read: "Can we see [defendant] to observe [lacerations]?" and another note that read: "Can we see three facial lacerations and the gunshot wound left arm and right hip?"1 The court initially stated "you can show them back what was already introduced," but then directed that the defendant take off his shirt entirely. Defense counsel objected that the jury had only been shown his chest and to require defendant to take off his shirt completely would also display his shoulder which the jury had not been shown during trial. The court then stated "I don't care if the shoulders are shown or not . . ." but then again stated that the defendant's "whole shirt and everything from the waist up can be removed as far as I'm concerned." The significance of the jury now seeing defendant's shoulder for the first time was not lost on the prosecutor who during discussion of a request for testimony to be reread stated, "I have a strong belief that once the defendant--once the jury sees the defendant without his shirt on that they probably will not need that testimony [reread]."

     I agree that the defendant's shoulder scarring was powerful evidence of identity and guilt. Had the prosecutor asked the court to require defendant to remove his shirt completely during proofs in light of his voluntary removal of it partway, it would have been proper to require it. Indeed, had the prosecution requested that proofs be reopened prior to deliberations for that purpose, I would agree that it was proper. It would also have been wholly proper for the prosecutor to read from the admitted medical records if they indicated shoulder rather than chest scarring.

     Unfortunately, however, none of these occurred. Proofs were closed; the jury was instructed and had retired to deliberate. After three hours of deliberations they asked to observe portions of defendant's body that they had not been shown during trial and that they had not asked to see during trial. I am not aware of any law that provides for admission of new proofs during jury deliberations and such a procedure undermines the sanctity of jury deliberations upon which our system most fundamentally relies. I would therefore reverse and remand for a new trial.

     /s/ Douglas B. Shapiro