Conviction Reversed on Bad 404(b) Evidence in Drug Case

Yesterday, the Michigan Court of Appeals reversed the conviction of Farrin Lee Felton after the Court determined that the trial court in Kalkaska County had impermissibly allowed the introduction of MRE 404(b) evidence in Felton's drug delivery trial.

After the defendant and two others were pulled over by the the police, the officers arrested the driver, Johnson, for driving on a suspended license. Upon searching him, the officers discovered a quantity of cocaine and heroin secreted in his underwear.  Johnson was charged with two counts of possession with intent to deliver less than 50 grams.  He worked out a deal with the prosecution where his two 20-year felonies would be reduced to simple possession with a sentence agreement of probation under Sec. 7411, in exchange for his testimony that Felton, the back seat passenger, was the person actually guilty of possessing with intent to deliver the drugs and that he had given them to Johnson to hide when the trio was pulled over.

Prior to trial, the court had issued a scheduling order in January which directed the parties to file witness lists prior to the June 6 final pretrial and set the trial for June 20.  The prosecution filed a witness list prior to June 6, but then filed an amended list on June 8, adding two 404(b) witnesses.  The prosecution also filed a late 404(b) notice the same day.  One witness was a retired undercover officer from Macomb County who testified he bought drugs from the defendant four years prior in Clinton Township.  The second was a local addict who claimed he bought drugs from the defendant a few days before the defendant's arrest.  

The Court, in a unanimous opinion written by Judge Douglas Shapiro, held that the trial court erred in admitting the 404(b) testimony because the testimony was both procedurally improper and substantively inadmissible.  Procedurally, the prosecution had not only violated the trial court's order by adding the witnesses after the deadline, but had also violated MRE 404(b)(2), which states that the prosecution is to notify the defendant of any 404(b) witnesses 14 days before trial unless the court finds good cause.  The Court refused to accept the prosecution's argument that they could not find the Macomb County police report in time or that it was too difficult to find the retired officer.  "No efforts were made during the six months between the filing of the Information and defendant’s June 20 trial. There is no basis on the record to conclude that over a six-month period, the prosecution, with reasonable diligence, could not have obtained the report from either the Macomb County police or the Macomb prosecutor’s office."  They reached the same conclusion as it related to the local drug addict, who had been arrested months earlier.

Most importantly, the Court held the 404(b) evidence amounted to nothing but propensity evidence - because he did it before, he must have done it this time.  The trial prosecutor helped the Court by making arguments in his closing like:

"How do we know that he was mixed up in that kind of stuff? Aside from the evidence you heard up here. Oh, wait he sold the exact same drugs [to Blackwell] a few years before. The exact same drugs. Clearly, he has a method of getting them. He got them before. Clearly, he has an in with somebody who can provide these drugs. Gary Johnson testified to all of this, and the testimony was confirmed by Dylan Caswell. What did he do with the illegal drugs just days before the arrest in this case was made? He sold them [to Caswell]."

Finally, the Court determined that, based on the paucity of evidence (absent the 404(b) witnesses) the prosecution presented tying the defendant to the drugs seized from Johnson, the error was not harmless beyond a reasonable doubt.  Felton's conviction of two counts of possession with the intent to deliver less than 50 grams of cocaine and heroin, and his three to 20 year sentence, was reversed.

Michael Faraone, of Lansing, represented the defendant on appeal, and the the trial judge was George Mertz.