If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

UNPUBLISHED

March 11, 2021

v No. 350665

Kent Circuit Court

ASTAVIAN DNTAE MCMILLIAN, LC No. 18-009549-FH

Defendant-Appellant.

Before: REDFORD, P.J., and SAWYER and BOONSTRA, JJ.

PER CURIAM.

Defendant appeals by right his conviction of possession of a controlled substance (cocaine) 

less than 25 grams, MCL 333.7403(2)(a)(v). Defendant was found guilty after a three-day jury 

trial. Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to serve 6 to 

15 years’ imprisonment. Defendant argues that his sentence was an unreasonable departure from 

the guidelines range and violated the principle of proportionality. Defendant further argues that 

the trial court abused its discretion by admitting evidence of a detective’s testimony regarding the 

location of a key witness, and that the trial judge’s response to an objection violated the principle 

of impartiality. In a Standard 4 brief, defendant argues that the police did not have probable cause 

to execute a search warrant. We affirm.

Detectives with the Grand Rapids Police Department received information from multiple 

confidential sources regarding defendant. This information led them to conduct surveillance on 

defendant’s apartment. While conducting surveillance, a detective saw defendant enter the 

apartment’s garage with another individual for approximately 10 to 15 seconds. After that, the 

individual left, and defendant went back into the apartment. Detectives determined that the other 

individual had a history of drug offenses, including possession with intent to deliver cocaine and 

heroin over 50 grams. The detectives were aware that defendant also had a history of drug 

offenses.

On the basis of this information, detectives obtained and executed a search warrant on 

defendant’s apartment and garage. Defendant’s girlfriend was present in the apartment when the 
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search warrant was executed; defendant was not. In the garage, detectives found cocaine in 

multiple places. Defendant’s driver’s license was found near the cocaine. 

The garage is located in a single building, separate from the apartment, but attached to 

garages for the other apartments in the building. The rafters over the garages are accessible by all 

of the garages. In the rafters over the garage adjacent to defendant’s garage, detectives found a 

large amount of cocaine. This was accessible from defendant’s garage. The occupant of the 

neighboring garage denied any knowledge of the cocaine, and her garage appeared as though it 

had not been used recently.

Defendant was charged with delivery or manufacture of a controlled substance (cocaine),

50 to 450 grams, MCL 333.7401(2)(a)(iii); possession of a controlled substance (cocaine), 50 to 

450 grams, MCL 333.7403(2)(a)(iii); felon in possession of a firearm, MCL 750.224f; second or 

subsequent drug offense, MCL 333.7413(2); felony-firearm, MCL 750.227b(1); and possession of 

a controlled substance (cocaine), less than 25 grams, MCL 333.7403(2)(a)(v). At trial, defendant 

was found guilty of only possession of a controlled substance (cocaine), less than 25 grams.

I. UPWARD DEPARTURE FROM SENTENCING GUIDELINES

Defendant first argues that the trial court erred by imposing an out-of-guidelines sentence 

that exceeded the maximum recommended sentence by 50%. We disagree. The proper inquiry 

when reviewing a sentence for reasonableness is whether the trial court abused its discretion by 

violating the principle of proportionality. People v Steanhouse, 500 Mich 453, 477; 902 NW2d 

327 (2017) (Steanhouse II). The trial court abuses its discretion if it violates the principle of 

proportionality “by failing to provide adequate reasons for the extent of the departure sentence 

imposed . . . .” Id. at 476.

A trial court is required to calculate and consider the recommended sentencing guidelines 

range when determining a defendant’s sentence. People v Lockridge, 498 Mich 358, 391-392; 870 

NW2d 502 (2015). However, the court is not required to impose a minimum sentence within the 

guidelines range. Id. at 365. The sentence range calculated under the guidelines is advisory only. 

Id. 

A sentence that departs from the recommended guidelines range may be imposed when the 

trial court determines that the recommended range is disproportionate to the seriousness of the 

crime. People v Steanhouse (On Remand) 322 Mich App 233, 238; 911 NW2d 253 (2017) 

(Steanhouse III), vacated in part on other grounds People v Steanhouse, 504 Mich 969; 933 NW2d 

276 (2019) (Steanhouse IV). Sentences that depart from the recommended guidelines range are 

reviewed by appellate courts for reasonableness. Lockridge, 498 Mich at 392.

Steanhouse II, 500 Mich at 459-460 directs us to apply the principle of proportionality set 

forth in People v Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). Factors that may be 

considered under the principle of proportionality standard include, but are not limited to:

(1) the seriousness of the offense; (2) factors that were inadequately considered by 

the guidelines; and (3) factors not considered by the guidelines, such as the 

relationship between the victim and the aggressor, the defendant’s misconduct 
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while in custody, the defendant’s expressions of remorse, and the defendant’s 

potential for rehabilitation. [Steanhouse III, 322 Mich App at 238-239.]

In reviewing a sentence, we must evaluate whether reasons exist that justify departure from the 

recommended guidelines range and whether the extent of the departure satisfies the principle of 

proportionality. Id. at 239. “[E]ven in cases in which reasons exist to justify a departure sentence, 

the trial court’s articulation of the reasons for imposing a departure sentence must explain how the 

extent of the departure is proportionate to the seriousness of the circumstances surrounding the 

offense and the offender.” Id.

In explaining its sentence, the trial court cited three issues. First, the trial court stated that 

the guidelines did not adequately account for defendant’s 21 prior convictions. “This Court has 

affirmed upward departure sentences where the minimum sentencing guidelines did not adequately 

account for a defendant’s prolific criminal history, recidivism, and poor prospects for 

rehabilitation.” People v Abcumby-Blair, ___ Mich App ___, ___; ___ NW2d ___ (2020) (Docket 

No. 347369, rel’d 12/22/2020); slip op p 16. Defendant’s convictions are sorted into four prior 

record variable (PRV) categories. For PRVs 1, 3, and 5, defendant’s scores are in categories lower 

than the highest category. Moving to a higher category would require more convictions. 

Therefore, these PRV scores account for all defendant’s convictions that fall into those categories. 

PRV 2 was scored in the highest category, indicating “4 or more low-severity felonies.” Because 

this is the highest category, it is possible that this score does not account for all of defendant’s 

convictions for low-severity felonies.

The trial court’s second factor is that defendant “failed probation” four times. This could 

reasonably be viewed as a negative factor not accounted for by the guidelines. That is, it is relevant 

that defendant had been given past opportunities to reform his conduct and failed to take advantage 

of those opportunities. 

The final factor referred to by the trial court is that this is defendant’s eighth drug offense. 

While to some extent these prior offenses are considered in defendant’s PRV scores, those scores 

do not necessarily fully account for an extensive pattern of criminal conduct of the same nature. 

“[E]ven in cases in which reasons exist to justify a departure sentence, the trial court’s 

articulation of the reasons for imposing a departure sentence must explain how the extent of the 

departure is proportionate to the seriousness of the circumstances surrounding the offense and the 

offender.” Steanhouse III, 322 Mich App at 239. If a trial court does not clearly address its reasons 

for the extent of the departure, we may not substitute its own judgment regarding the justifications 

relied upon by the trial court. People v Smith, 482 Mich 292, 304; 754 NW2d 284 (2008). Under 

the sentencing guidelines, the defendant’s recommended maximum-minimum sentence for 

possession of cocaine, less than 25 grams is 34 months. The minimum sentence of 6 years (72 

months) imposed by the trial court is an increase of 50% over the maximum sentence indicated by 

the guidelines range. 

The trial court explained its sentence as follows:

You're 32 years old, sir. Your record is absolutely terrible. You have 

six prior felonies, 15 prior misdemeanors and a juvenile court record. You've
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been involved with the court system for at least half of your life, it started in 

2003 when you were 16 years old. You have had six different jail sentences, 

you've been placed on probation several times and four of those you have had 

your probation revoked. That tells me you're not the type of individual that 

would be successful on probation.

You've been to prison before, and as I review your record this is your 

eighth drug case. This was involving a search warrant at your girlfriend's 

apartment where you were staying. There was a garage stall that was part of

a building with other garages and there was cocaine that was found on the bench 

along with your driver's license in that area. And then in the rafters there was 

a large amount of cocaine. There was a gun found that had your DNA in it, but

you were found not guilty by the jury of the gun charge.

Your sentencing guidelines call for a minimum sentence between 2 and 34 

months. I am aware of People v Lockridge. It says guidelines are now advisory 

only in the State of Michigan, that I need to impose a reasonable sentence and 

one that is proportionate under People v Melbourne [sic]. I am of the opinion 

that I am imposing a reasonable and proportionate sentence. Also I am aware 

of People v Tanner that says that the minimum may be no more than two-thirds 

of the maximum and in this case that would be 10 years.

I do not believe that the guidelines take into effect the fact that you've had 

21 convictions. I do not believe that the guidelines take into effect that you've failed 

probation four times. I do not believe that the guidelines take into effect that you 

have--that this is your eighth drug conviction.

We are satisfied with the trial court’s explanation of the sentence and its reasons for imposing an 

out-of-guidelines sentence.

II. EFFORTS TO SECURE WITNESS

Defendant next argues that the trial court abused its discretion by allowing testimony 

regarding the detective’s attempts to locate defendant’s girlfriend. We disagree.

“A trial court’s decision to admit evidence will not be disturbed absent an abuse of 

discretion.” People v Denson, 500 Mich 385, 396; 902 NW2d 306 (2017). “However, whether a 

rule or statute precludes admission of evidence is a preliminary question of law that this Court 

reviews de novo.” Id. Admission of evidence that is inadmissible is an abuse of discretion. People 

v Lukity, 460 Mich 484, 488; 596 NW2d 607 (1999).

To be admissible, evidence must be relevant. MRE 402. Relevant evidence is “evidence 

having any tendency to make the existence of any fact that is of consequence to the determination 

of the action more probable or less probable than it would be without the evidence.” MRE 401. 

Further, relevant evidence may be excluded. MRE 403 provides:

Although relevant, evidence may be excluded if its probative value is 

substantially outweighed by the danger of unfair prejudice, confusion of the issues, 
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or misleading the jury, or by considerations of undue delay, waste of time, or 

needless presentation of cumulative evidence.

“All evidence offered by the parties is ‘prejudicial’ to some extent, but the fear of prejudice does 

not generally render the evidence inadmissible. It is only when the probative value is substantially 

outweighed by the danger of unfair prejudice that evidence is excluded.” People v Mills, 450 Mich 

61, 75; 537 NW2d 909 (1995). “Unfair prejudice” is “the tendency of the proposed evidence to 

adversely affect the objecting party’s position by injecting considerations extraneous to the merits 

of the lawsuit, e.g., the jury’s bias, sympathy, anger, or shock.” People v Fisher, 449 Mich 441, 

452; 537 NW2d 577 (1995) (quotation marks and citation omitted).

In this case, defense counsel objected to the detective’s testimony regarding attempts to 

locate defendant’s girlfriend, stating that this testimony should be excluded because it was 

irrelevant. Defendant also argued that this testimony was unfairly prejudicial because it created

an inference that defendant was responsible for her absence. The trial court allowed the 

questioning of the detective on this topic, answering defense counsel’s objection by suggesting 

that he could cross-examine the detective on this subject. 

A gun that was found in the apartment shared by defendant and his girlfriend was registered 

to the girlfriend. Defendant’s DNA was found on the gun. Furthermore, because they shared the 

apartment, including the garage, she could be assumed to have had access to the cocaine. She was 

present during the execution of the search warrant. Had she been present for trial, her testimony 

would have been directly relevant to whether defendant possessed the gun and the cocaine. 

Because she is an important witness, attempts to secure her testimony are also relevant and 

probative to these issues. See People v Eccles, 260 Mich App 379, 388; 677 NW2d 76 (2004) (“A 

prosecutor who fails to produce an endorsed witness may show that the witness could not be 

produced despite the exercise of due diligence.”).

Defendant has not shown that the inclusion of this evidence was unfairly prejudicial. 

Because the testimony merely involved attempts to locate a key witness who was unavailable at 

trial, the inclusion of the detective’s testimony did not involve extraneous considerations invoking 

the jury’s bias, sympathy, anger, or shock. Further, the testimony was not given undue weight in 

light of the other evidence presented. See People v Blackston, 481 Mich 451, 462; 751 NW2d 408 

(2008) (“Unfair prejudice may exist where there is a danger that the evidence will be given undue 

or preemptive weight by the jury or where it would be inequitable to allow use of the evidence.”). 

Defendant was acquitted of both charges involving the gun, as well as the major cocaine charges. 

Defendant was convicted of possession of the smaller amounts of cocaine found in the garage. 

Because defendant’s driver’s license was found in close proximity to the cocaine in the garage, the 

jury could have reasonably concluded that the cocaine belonged to defendant on the basis of that 

fact alone, regardless of any testimony Berry would have given or efforts taken to locate her. 

Therefore, the trial court did not abuse its discretion by allowing this testimony.

III. JUDICIAL IMPARTIALITY

Defendant argues that the trial court’s comments in response to an objection reflected bias 

on the part of the court and denied defendant a fair trial. We do not find that these comments, in 

the context in which they were made, demonstrate judicial bias or impropriety; however, we will 
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address the issue because even if there were error by the trial court, which we do not believe there 

was, the defendant would not be entitled to relief as a result. Because the isolated comments did 

not directly involve the elements of the offense for which defendant was convicted, and because 

the jury was instructed not to treat judicial comments as evidence, defendant was not denied a fair 

trial on the basis of these remarks.

“The question whether judicial misconduct denied defendant a fair trial is a question of 

constitutional law that this Court reviews de novo.” People v Stevens, 498 Mich 162, 168; 869 

NW2d 233 (2015). Because defendant failed to preserve the issue of judicial misconduct by 

objecting at trial, we review the trial court’s conduct for plain error affecting substantial rights. 

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

When claiming judicial bias, a defendant bears the burden to overcome a “heavy 

presumption of judicial impartiality.” People v Willis, 322 Mich App 579, 588; 914 NW2d 384 

(2018).

A trial judge’s conduct deprives a party of a fair trial if the conduct pierces 

the veil of judicial impartiality. A judge’s conduct pierces this veil and violates the 

constitutional guarantee of a fair trial when, considering the totality of the 

circumstances, it is reasonably likely that the judge’s conduct improperly 

influenced the jury by creating the appearance of advocacy or partiality against a 

party. In evaluating the totality of the circumstances, the reviewing court should 

inquire into a variety of factors including, but not limited to, the nature of the trial 

judge’s conduct, the tone and demeanor of the judge, the scope of the judicial 

conduct in the context of the length and complexity of the trial and issues therein, 

the extent to which the judge’s conduct was directed at one side more than the other, 

and the presence of any curative instructions, either at the time of an inappropriate 

occurrence or at the end of trial. When the issue is preserved and a reviewing court 

determines that the trial judge’s conduct pierced the veil of judicial impartiality, the 

court may not apply harmless-error review. Rather, the judgment must be reversed 

and the case remanded for a new trial. [Stevens, 498 Mich at 164.]

A single instance generally will not create the appearance of bias, although “a single 

instance of misconduct may be so egregious that it pierces the veil of impartiality.” Id. at 171. 

“Because it is well established that jurors are presumed to follow their instructions, a curative 

instruction will often ensure a fair trial despite minor or brief inappropriate conduct.” Id. at 177 

(quotation marks and citation omitted).

In this case, defendant’s claim that the judge’s conduct pierced the veil of judicial 

impartiality and violated defendant’s constitutional guarantee of a fair trial is based entirely on the 

following colloquy:

[Defense Counsel]: I’m going to object, there’s an insinuation that my client 

had something to do with this. She showed up to court here to testify in the [] trial 

a couple months ago.

The Court: Counsel, are you testifying now?
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[Defense Counsel]: No, I’m objecting because there’s an insinuation that 

my client is involved.

The Court: The only one that’s made any insinuation is you, Counsel. Go 

ahead and proceed.

* * *

Q. While we do not have contact with her have you learned since yesterday 

of any information that the defendant, in fact, has contact with her?

A. Yes. There’s been at least five phone calls. One of the techniques in 

our job is we listen to a lot of jail calls. We listened to five calls, at least five calls 

made from [defendant] to that number that we have identified as her, as 

[defendant’s girlfriend]. So within the last 24 hours—within the last 24 hours he’s 

contacted her at least five times.

Defendant claims that he was prejudiced by the trial court’s comments that defense counsel 

was “testifying” and that “the only one that’s made an insinuation is you.” Defendant also states 

that the judge improperly allowed the testimony regarding the phone calls, which contained the 

very insinuation that defense counsel objected to. Defendant claims that the judge’s remarks, 

combined with the testimony left the jury with the impression that defendant attempted to ensure 

that the witness did not testify.

Although the admission of the comments and the testimony by the detective establishes 

that defendant was in contact with his girlfriend, there is no specific mention that defendant was 

advising her not to testify. Whether she was available to testify is not a central issue in this case. 

Defendant was found guilty of possession of less than 25 grams of cocaine. This conviction was 

supported by the presence of cocaine in the garage associated with the apartment where defendant 

was living, and that cocaine was found in close proximity with defendant’s driver’s license. 

Although the witness may have had knowledge of the cocaine in the garage, she was more likely 

to have had firsthand knowledge of the questions involving the gun. Because defendant was 

acquitted of all charges related to the gun, as well as the major charges related to the cocaine, he 

could not have been prejudiced by the judge’s statement or the testimony related to the phone calls.

Moreover, the trial court instructed the jury at the beginning and end of the trial regarding 

how to treat its comments. See id. In the preliminary jury instructions, the judge stated:

My responsibilities as judge in this trial are to make sure that the trial is run 

fairly and efficiently, to make decisions about evidence and instruct you on the law 

that applies in this case. You must take the law as I give it to you, nothing I say is 

meant to reflect my own opinion about the facts of this case.

In the closing jury instructions, the judge stated, “My comments, rulings, questions and 

instructions are also not evidence.” Because jurors are presumed to follow instructions, the 

instruction given alleviated any claim of error arising from the trial court’s comments.
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Therefore, defendant failed to show how the trial court’s comments deprived him of a fair 

trial. See id. at 171.

IV. PROBABLE CAUSE

Defendant makes a constitutional argument that the surveillance of defendant’s apartment 

was unsupported by sufficient evidence to establish probable cause. We disagree.

Review of a search warrant “requires the reviewing court to ask only whether a reasonably 

cautious person could have concluded that there was a ‘substantial basis’ for the finding of 

probable cause.” People v Whitfield, 461 Mich 441, 445-446; 607 NW2d 61 (2000). “To provide 

adequate support for a warrant, the affidavit need not prove anything.” Id. at 445. “Probable cause 

sufficient to support issuing a search warrant exists when all the facts and circumstances would 

lead a reasonable person to believe that the evidence of a crime or the contraband sought is in the 

place requested to be searched.” People v Brannon, 194 Mich App 121, 132; 486 NW2d 83 (1992).

In this case, the police officer received information from multiple informants about 

defendant. On the basis of that information, the police conducted surveillance of defendant’s 

apartment for a period of approximately one month. While conducting surveillance, the police 

saw defendant and another individual enter defendant’s garage for approximately 10 to 15 seconds. 

After determining that the individual’s criminal history included multiple convictions for drug 

related offenses, including possession with intent to deliver cocaine or heroin over 50 grams, and 

already having an awareness of defendant’s criminal history including numerous drug offenses, 

the police received and executed a search warrant. These facts gave the police a reasonable 

suspicion that drug activity was taking place in the defendant’s garage or apartment, leading the 

detective to obtain a search warrant. Therefore, defendant’s argument that there was insufficient 

probable cause for a search warrant is without merit. 

Affirmed. 

/s/ James Robert Redford

/s/ David H. Sawyer

/s/ Mark T. Boonstra