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People v Delgado, Docket No. 58501 — Supreme Court of Michigan (Dec. 27, 1978)

Factual and Procedural Background

Michael Delgado was tried by a jury and convicted of delivery of a controlled substance (heroin) in violation of MCLA 335.341(1)(a); MSA 18.1070(41)(1)(a). The conviction arose from undercover transactions between Delgado and City of Detroit undercover officer Vincent Mazzara. The dealings began with a January 15 meeting in which Delgado agreed to sell a sample (one ounce) and, if satisfactory, a larger quantity (quarter kilo) later. Mazzara purchased an ounce from Delgado on January 17, 1974, and later purchased three ounces on January 22, 1974. The information in the instant case charged delivery on January 22 only; the January 17 sale was charged in a separate information. Defense counsel moved to consolidate the two cases; the trial court denied consolidation. Testimony and a tape recording concerning the January 17 transaction were admitted at the January 22 trial as "similar acts" evidence. After conviction, the Court of Appeals affirmed in an unpublished per curiam opinion. Leave to appeal was granted to this Court. The Court of Appeals' affirmation and this Court's review culminated in the opinion here summarized.

Legal Issues Presented

  1. Whether evidence and a recorded conversation concerning the January 17 sale (a separate charged transaction) were admissible at the January 22 trial.
  2. Whether the trial court erred in failing to instruct the jury that knowledge that the substance was heroin is an element of the offense of delivery of a controlled substance.
  3. Whether certain statements by the prosecutor in closing argument were improper and warrant reversal.

Arguments of the Parties

Defendant's Arguments

  • The January 17 evidence (including a recorded telephone conversation and testimony about the January 17 sale) tended to show commission of a separate and distinct crime and therefore should have been excluded.
  • The trial court should have instructed the jury that knowledge that the substance was heroin is an essential element of the offense of delivery.
  • The prosecutor's closing argument contained improper remarks (six instances alleged) that require reversal; although one objection was sustained at trial, the defendant now challenges five additional remarks for which no contemporaneous objection was made.

People's Arguments

  • The January 17 evidence was admissible as part of the course of dealing and to present the "complete story" surrounding the charged January 22 delivery (the prosecutor relied on the "similar acts" statute to justify admission).
  • The statute proscribing delivery does not require that knowledge of the character of the substance be pleaded or instructed as an element, and prior Michigan case law (People v Rios) supports that view.
  • Because the defendant did not object to most of the challenged remarks at trial, appellate review is limited and reversal is not warranted absent a miscarriage of justice; the remarks were not fatally prejudicial.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
State v Villavicencio, 95 Ariz. 199; 388 P.2d 245 (1964) Evidence of other criminal acts admissible when so blended or connected with the charged crime that proof of one incidentally involves the other or explains circumstances. Cited to support admission of January 17 evidence as part of the "complete story" surrounding the January 22 sale.
People v Wardwell, 167 Cal.App.2d 560; 334 P.2d 641 (1959) Authority for admission of other acts when connected to charged offense. Used as supporting authority for admitting the prior sale evidence as connected to the charged sale.
McCormick on Evidence (2d ed), § 190 Treatise authority discussing admissibility of related acts and evidentiary principles. Cited as doctrinal support for admitting the January 17 transaction evidence to present the entire transaction.
State v Page, 395 S.W.2d 146 (Mo, 1965) Case authority on admissibility of other acts evidence. Listed among cases supporting the general admissibility principle applied to the January 17 evidence.
United States v McCartney, 264 F.2d 629 (CA 7, 1959) Federal appellate authority on related acts admissibility. Included as part of the array of authorities justifying admission of the prior sale evidence.
Guajardo v State, 168 Tex Crim 503; 329 S.W.2d 878 (1959) State case on admissibility of similar or related acts. Cited among cases supporting the court's admissibility analysis.
State v Kuhnley, 74 Ariz. 10; 242 P.2d 843 (1952) Authority on admissibility of prior acts in criminal trials. Referenced as supporting precedent for admitting evidence of the January 17 sale.
1 Wigmore, Evidence (3d ed), § 218 Treatise authority concerning evidence of related acts. Relied upon as scholarly support for the admissibility principle applied.
1 Wharton's Criminal Evidence (12th ed), § 284 Treatise authority on related acts and evidence. Used as additional doctrinal support for admitting the prior transaction evidence.
People v Rios, 386 Mich. 172; 191 N.W.2d 297 (1971) Interpreted statutory elements of unlawful sale of narcotics; prior Michigan case holding that knowledge of character of substance was not an essential element under the predecessor statute. Applied to conclude the present delivery statute (which like its predecessor does not mention knowledge) did not require a jury instruction that knowledge was a separate element.
People v Duncan, 402 Mich. 1, 16; 260 N.W.2d 58 (1977) When no contemporaneous objection is made to prosecutorial argument, appellate review is generally precluded unless failure to consider the issue would result in a miscarriage of justice. Invoked to preclude reversal on unobjected-to prosecutorial remarks absent a showing of miscarriage of justice.
People v Allen, 351 Mich. 535, 544; 88 N.W.2d 433 (1958) Prosecutorial remarks must be fatally prejudicial or entirely without provocation to warrant reversal. Applied to hold the challenged remarks were not fatally prejudicial; therefore they did not warrant reversal.

Court's Reasoning and Analysis

The Court divided its analysis into three parts corresponding to the principal issues raised.

I. Admissibility of January 17 Evidence:

  • The Court reasoned that events often form a connected sequence and that when an antecedent event explains or leads to the charged event, the jury is ordinarily entitled to hear the "complete story." The Court cited authorities supporting the proposition that evidence of other acts is admissible when so blended or connected with the charged crime that proof of one incidentally involves the other.
  • The Court found that an agreement reached on January 15 anticipated an initial sample purchase (the January 17 sale) as a condition precedent to a later, larger purchase (the January 22 sale). Mazzara's testimony had already informed the jury of the existence of a prior sale, and the admitted January 22 tape made reference to the prior sale. Thus, the evidence of the January 17 sale was inextricably related to, and explanatory of, the charged January 22 sale; it followed as an effect from a cause.
  • The Court observed that the defendant's inconsistent objections had not kept the jury unaware of a prior sale but had only prevented the jury from knowing the detailed course of dealings; the jurors were entitled to the facts of the January 17 sale as integral to the events incidental to the January 22 sale.
  • The Court expressly stated it was unnecessary to decide whether the evidence was admissible under the "similar acts" statute (MCLA 768.27; MSA 28.1050) and declined to intimate a view on that statutory question.

II. Knowledge Instruction:

  • The Court examined whether the trial judge erred by not instructing the jury that knowledge the substance was heroin is an element of the offense. Relying on People v Rios and the language of the statutory provision, the Court concluded the delivery statute did not mention knowledge and prior Michigan precedent did not treat knowledge as an essential element.
  • Although the Court noted that better practice suggests giving a knowledge instruction in delivery cases to ensure mens rea requirements are protected, it found the omission here was not reversible error. The facts showed the defendant did not contest knowledge of the substance at trial, did not request a knowledge instruction, and centered his defense on attacking the undercover officer's credibility and denying any transaction.

III. Prosecutorial Closing Argument:

  • The Court addressed six alleged improprieties in the prosecutor's closing remarks. One remark was sustained at trial; the defendant made no trial objections to the other five. The Court applied the principle that appellate review of unobjected-to prosecutorial argument is precluded unless failure to consider it would produce a miscarriage of justice (People v Duncan).
  • The Court concluded that while some remarks might have been better left unsaid, they were not "fatally prejudicial or entirely without provocation" (People v Allen) and therefore did not warrant reversal.

Holding and Implications

Holding: The Court affirmed the defendant's conviction.

Implications:

  • The Court held that testimony and a recorded conversation concerning a prior, related sale (January 17) were properly before the jury when those facts were inextricably related to and explanatory of the charged sale (January 22); the Court declined to decide whether the evidence was admissible under MCLA 768.27; MSA 28.1050.
  • The Court held that the delivery statute, as interpreted in People v Rios, did not require the trial judge to instruct that knowledge the substance was heroin is a separate element; however, the opinion notes that it is better practice to give such an instruction where evidence reasonably raises the issue of knowledge.
  • The Court held that the prosecutor's unobjected-to closing remarks did not require reversal; appellate review was foreclosed absent a miscarriage of justice and the remarks were not fatally prejudicial.
  • Direct effect: the conviction and verdict were affirmed. The Court did not announce a new rule invalidating prior practices; it expressly avoided resolving the admissibility question under the similar-acts statute and limited its decision to the facts and law as discussed.

Opinion by RYAN, J.; concurrence in result by WILLIAMS, J., who stated he would rely on the "similar acts" statute (MCLA 768.27; MSA 28.1050).

PEOPLE v. DELGADO

RYAN, J.

Michael Delgado was tried by a jury and convicted of delivery of a controlled substance, heroin, MCLA 335.341(1)(a); MSA 18.1070(41)(1)(a). His conviction was affirmed by the Court of Appeals in an unpublished per curiam opinion. We granted leave to appeal. 399 Mich. 837 (1977).

The defendant's conviction arose out of a course of continuing conduct in which he sold a quantity of heroin to one Vincent Mazzara, a City of Detroit undercover police officer. During the course of the dealing, Delgado delivered heroin to Mazzara on two occasions, January 17 and 22, 1974. The information filed in the instant case charged defendant only with delivery of heroin on January 22. In a separate information, defendant was charged with selling an ounce of heroin to Mazzara on January 17.

Before the trial concerning the January 22 sale, which is the matter before us, the defendant's attorney moved to consolidate the two cases based upon considerations of expedience and collateral estoppel and, because, as he put it: "[it] is just one entire transaction, even though there are two different dates." The trial judge denied the motion because she believed there were two separate transactions and no "compelling factual reason or legal reason to consolidate them for trial". Testimony concerning the January 17 sale was admitted at defendant's trial on the justification that it constituted a "similar act" within the meaning of MCLA 768.27; MSA 28.1050. On appeal defendant contests the admissibility of the "similar acts" testimony; he has not contested the denial of the motion to consolidate.

In making the motion to consolidate, defendant's attorney argued, "My thinking is that both cases were one, even though they arose at two separate times". "[B]oth cases arose out of the exact same agreement, but just to make two different deliveries at different times."
"Because prior to the alleged delivery on the 17th, there was discussion as to a continuing type thing. And it wasn't like the rape case, you know, leaving and saying I will be back tomorrow night, be waiting for me. This was like an agreed upon arrangement at the time the alleged first agreement was made, or the alleged delivery was made. So, I believe that [it] is just one entire transaction, even though there are two different dates."

The prosecutor states in his brief on appeal that the January 17, 1974 charge was dismissed on July 17, 1975.

The people's case is built primarily around the testimony of undercover officer Mazzara. Mazzara's testimony begins with his introduction to defendant, Delgado. A mutual acquaintance, Herbert Schpre, arranged a meeting between Mazzara and defendant in consideration of a promise that if Mazzara purchased heroin from Delgado, Schpre would receive 10% of the purchase price. At this meeting, which occurred on January 15, defendant took the position that he would sell nothing less than a quarter kilo of heroin. As the buyer, Mazzara maintained that he would first like a sample of the heroin and explained that if he liked the sample he would then buy a quarter kilo. After much discussion defendant acceded to Mazzara's terms and agreed to sell him a single ounce as a sample, as soon as the drug became available.

At the conclusion of Mazzara's direct examination, the prosecutor sought to introduce a tape recording of a January 17 telephone conversation between the witness and the defendant. The defendant objected to the admission of the tape on the ground that the judge had earlier ruled that it was not part of the same transaction and that the probative value of the evidence was outweighed by its unduly prejudicial character so as to preclude its introduction under the "similar acts" statute. Overruling defendant's challenge, the trial judge permitted the recording to be admitted under the statute.

"In any criminal case where the defendant's motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant." MCLA 768.27; MSA 28.1050.
The foregoing statute has since been superseded by MRE 404(b).

After Mazzara testified that he had placed a telephone call at 1:30 a.m. on January 17 to defendant at the Ball Park Bar, which defendant owned, the prosecutor proceeded to play the recorded telephone conversation for the court and jury. In that conversation defendant told Mazzara to come to the bar, and Mazzara asserted that he had "got the cash and everything".

Mazzara testified that he arrived at the bar at about 2 a.m. and that defendant took him to his car in the parking area where Mazzara purchased one ounce of very dark heroin from Mexico for $1600. Mazzara told defendant that if "his people" liked the sample, he would "get back with him to possibly purchase a quarter kilo".

Mazzara's testimony continued with his description of a meeting with defendant at the Ball Park Bar at about midnight on January 22. Mazzara told defendant he wanted to buy a quarter kilo of heroin and wanted to deal directly with defendant because Schpre's percentage was too high. Defendant gave Mazzara his home phone number and told Mazzara to call him at home at around 3 a.m.

Mazzara made the 3 a.m. telephone call as instructed. A tape recording of that conversation was received as evidence without objection and played for the jury. In that conversation defendant said he had three ounces of the "same kind", but stronger, at a price of "eighteen". Mazzara agreed to meet defendant at defendant's house.

Mazzara arrived at defendant's house at about 3:30 a.m. on January 22. He purchased three ounces of dark brown Mexican heroin for $5400. Mazzara said if he liked the heroin he would call back within a day or two to buy a larger quantity.

After the close of the people's proofs, defendant rested without presenting any evidence. In closing argument, defense counsel vigorously attacked Mazzara's credibility and argued the existence of reasonable doubt.

I

The first issue involves the question of admissibility of evidence of defendant's January 17 sale of heroin to Mazzara.

Defendant contends that the introduction of the evidence concerning the January 17 delivery of heroin tended to show that he was guilty of a separate and distinct criminal act. Accordingly, he asserts that the recorded conversation of January 17 and the testimony relative to the alleged purchase on the 17th should not have been admitted into evidence. We disagree.

It is the nature of things that an event often does not occur singly and independently, isolated from all others, but, instead, is connected with some antecedent event from which the fact or event in question follows as an effect from a cause. When such is the case and the antecedent event incidentally involves the commission of another crime, the principle that the jury is entitled to hear the "complete story" ordinarily supports the admission of such evidence. State v Villavicencio, 95 Ariz. 199; 388 P.2d 245 (1964); People v Wardwell, 167 Cal.App.2d 560; 334 P.2d 641 (1959); McCormick on Evidence (2d ed), § 190.

Stated differently:

"Evidence of other criminal acts is admissible when so blended or connected with the crime of which defendant is accused that proof of one incidentally involves the other or explains the circumstances of the crime." State v Villavicencio, supra, at 201.

See also State v Page, 395 S.W.2d 146 (Mo, 1965); United States v McCartney, 264 F.2d 629 (CA 7, 1959); Guajardo v State, 168 Tex Crim 503; 329 S.W.2d 878 (1959); State v Kuhnley, 74 Ariz. 10; 242 P.2d 843 (1952); 1 Wigmore, Evidence (3d ed), § 218; 1 Wharton's Criminal Evidence (12th ed), § 284.

The foregoing principle is applicable to this case. An agreement for an initial sale of sample heroin and a subsequent sale of a larger quantity of heroin was reached at the January 15 meeting between Mazzara and defendant. Mazzara's testimony concerning this meeting clearly delineated an anticipated course of dealing in which the sample purchase of heroin would be made as a condition precedent to a subsequent purchase of a greater quantity of the same, if the sample proved to be of adequate quality. Mazzara's testimony to that effect was received without objection. When later in Mazzara's testimony the defendant objected to admission of the telephone recording of the 17th, which concerned the negotiations for the sample purchase, the jury had already been made aware of the fact that there had been two separate but interrelated sales of heroin. In addition, the recorded telephone conversation of the 22nd setting up the sale to be made on that date, which was received without objection, made clear reference to the prior sale. In that conversation defendant said he had three ounces of the "same kind", but "stronger" at a price of "eighteen".

The defendant's peculiar and inconsistent pattern of objection did not serve to insulate the jury from awareness of the fact that there had been a prior sale, but served only to keep from the jury the specific details of the course of dealing between the 15th and the 22nd and interrupted the continuity of the testimony relating to it.

As the recital of the facts discloses, the sale on the 17th and the sale on the 22nd were inextricably related, one to the other. Quite literally, the sale on the 22nd followed from the sale on the 17th, as does an effect follow from a cause. The jurors were entitled to have before them the facts concerning the sale of January 17 as an integral part of the events which were incidental to the January 22 sale.

In finding that the evidence was properly before the jury, we deem it unnecessary to decide whether the evidence was admissible under the "similar acts" statute and intimate no view with respect thereto.

II

Defendant next contends that the trial judge erred reversibly in failing to instruct that knowledge that the substance delivered was heroin is an element of the offense of delivery of a controlled substance.

In addition to reading the pertinent statute and the information, the trial judge instructed on the elements of the offense:
"Now, in order to establish the defendant's guilt to your satisfaction beyond a reasonable doubt, the people are required to establish certain elements which constitute the offense of delivery of heroin.
"First, the people must establish that the defendant, Michael Delgado, did in fact deliver to Vincent Mazzara heroin on or about the 22nd day of January, 1974. In that connection, delivery is defined in its ordinary term as a transfer of a thing, a substance or an article from one person to another.
"You must also be satisfied that the substance at issue here, people's exhibit 4, is heroin. And, of course, you have heard the testimony of Mrs. Reynolds, who testified regarding the identification of the nature of the substance referred to as people's exhibit 4.
"So, if you are convinced beyond a reasonable doubt that people's exhibit 4 is heroin, and that on or about January 22, 1974, that Michael Delgado transferred or delivered that heroin to Vincent Mazzara through a sale, it would be your duty to return a verdict of guilty.
"On the other hand, if the evidence offers a reasonable doubt as to the guilt of the defendant, Michael Delgado, on those elements, it would be your duty to return a verdict of not guilty."




We reject this claim of error. In People v Rios, 386 Mich. 172; 191 N.W.2d 297 (1971), this Court looked to the statute prohibiting the unlawful sale of narcotics in order to determine the essential elements of that offense. The statutory provision at issue in Rios was the predecessor to the "delivery" statute at issue in this case. In Rios, after reviewing the former statute, this Court held that the elements of an unlawful sale of narcotics were: "(1) the lack of license; (2) sale of a prohibited narcotic drug; (3) to another identifiable person." The former statute made no mention of knowledge of the character of the substance and this Court did not find knowledge to be an essential element of the offense. Similarly, the present statute prohibiting the unlawful delivery of a controlled substance makes no mention of knowledge. Accordingly, we cannot reasonably conclude that either the case law or the statute proscribing the delivery of heroin required the trial judge, at the time this case was tried, to instruct the jury that knowledge that the substance was heroin is a separate element of the offense of the delivery of a controlled substance.

Although neither the case law nor the statute mandates an instruction to the jury that knowledge is an essential element of the crime, better practice suggests that the instruction be given in "delivery" cases to guarantee fundamental criminal mens rea requirements. The knowledge instruction is essential, of course, in cases wherein there is reasonably raised in the evidence the issue of whether the defendant, particularly an aider and abettor, knows the nature of the substance which he is delivering.

Proposed CJI 12:2:03 requires that the defendant have transferred a substance, "knowing that the substance was [list substance] and intending to so deliver it to another person". The committee commentary acknowledges that neither the definition of delivery nor the provision proscribing delivery uses the terms "knowledge" or "knowing". Notwithstanding this fact, the committee decided, after considerable debate, to adopt the instruction in view of the differing penalties for various substances under the Controlled Substances Act and because of the problem of the innocent carrier. 2 Michigan Criminal Jury Instructions (Ann Arbor: Institute of Continuing Legal Education), p 12-30.

The case before us, however, is not at all analogous to such instances. At trial, Delgado did not argue that as the alleged seller of the heroin he lacked knowledge that the substance involved was a narcotic, or that the people failed to prove his knowledge to that effect. Rather, the defendant's tactic was to attack the general credibility of police agent Mazzara. The determinative factor in the case was the credibility of Mazzara in relating the events of the alleged transaction between himself and the defendant. Essentially, the defendant's sole claim was that there was no transaction whatsoever between himself and Mazzara. Defendant did not request a specific instruction on knowledge nor did he object to the court's failure to give a knowledge instruction.

We find no reversible error in the trial judge's failure to give a knowledge instruction in this case.

III

Defendant's final contention is that the prosecutor's closing argument was improper in six instances. Although defendant's objection to the first of those remarks was sustained, defendant made no objection at trial to the remaining five remarks he now argues were improper. Defendant did not request a cautionary instruction, and no instruction specifically directed toward the prosecutor's argument was given. The trial judge did instruct generally that "the law, of course, does not permit jurors to be governed by sympathy, by prejudice or by public opinion", that the jury was to "consider only the evidence in the case" and that attorneys' "statements and arguments are not evidence".

Where no objection to prosecutorial argument is made below, appellate review is precluded unless failure to consider the issue would result in a miscarriage of justice. People v Duncan, 402 Mich. 1, 16; 260 N.W.2d 58 (1977) (opinion by RYAN, J.), and cases cited therein. While some of the remarks here might have been better left unsaid, the remarks were not "fatally prejudicial or entirely without provocation". People v Allen, 351 Mich. 535, 544; 88 N.W.2d 433 (1958).

Affirmed.

KAVANAGH, C.J., and LEVIN, COLEMAN, FITZGERALD, and BLAIR MOODY, JR., JJ., concurred with RYAN, J.

WILLIAMS, J. (concurring in result).

I would rely on the "similar acts" statute, MCLA 768.27; MSA 28.1050.

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PEOPLE v. DELGADO
(Dec 27, 1978)