PEOPLE v. WHITE

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Docket Number

Docket No. 10524.

Attorney(S)

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Donald A. Burge, Prosecuting Attorney, and Robert L. Pangle, Chief Appellate Attorney, for the people. James T. Brignall, for defendant on appeal.

Judges

R.B. BURNS, P.J. (dissenting).

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LEVIN, J.

The defendant, Norma White, appeals her conviction by a jury of selling or dispensing marijuana. MCLA 335.152; MSA 18.1122. Under that statute the court was required to impose a sentence of not less than 20 years nor more than life. She was sentenced to serve a term of 20 years to 20 years and 1 day.

The people's evidence tended to show that at 10:30 p.m. on September 5, 1969 the defendant admitted to her home James Ball, a police informer, and Joseph Young, an undercover narcotics agent for the Michigan State Police, and that she sold them a quantity of marijuana for $10, and that they left before 11 p.m.

The defense was alibi. Five persons testified that on September 5 the defendant was at a party from 6 o'clock in the evening until at least 11 o'clock.

During the direct examination of informer Ball and narcotics agent Young they testified that they asked the defendant whether she could furnish a quantity of "smack" and that she replied she could not. In response to the prosecutor's follow-up question, "What does smack refer to?", Ball said that smack is a street term for heroin.

The defendant's attorney moved for a mistrial on the ground that his client was charged with the sale of marijuana, not the sale of heroin, and that the reference to the possibility that the defendant might be a heroin seller was prejudicial. The motion was denied. In our opinion the motion should have been granted.

This is not a case of a witness blurting out an unanticipated remark. Ball and Young were the people's principal witnesses. They were testifying about what occurred at the defendant's home when the marijuana was purchased. Both witnesses gave precisely the same testimony about the attempted purchase of smack; the witnesses' references to smack were not inadvertent. The prosecutor's request that Ball define the term "smack" was obviously deliberate.

In the judgment of a considerable portion of the citizenry there is an enormous difference between selling marijuana and selling heroin. This judgment is reflected in the recent amendment of the statutes which reduces the maximum prison term for the "delivery" of marijuana to 4 years, while the maximum penalty for the delivery of heroin is set at 20 years. (The maximum prison term for possession of marijuana has been reduced to one year, while the maximum for possession of heroin is four years.) These substantial differences in the maximum penalties adumbrate the extent of the difference in the public's attitude regarding marijuana and heroin.

1971 PA 196, § 41; MCLA 335.341; MSA 18.1070(41).

We are persuaded that the clear innuendo of the prosecutor's questions and the witnesses' responses was that the defendant, whether she could then supply heroin or not, was a seller of heroin, not just a seller of marijuana. In the light of the commonly-held attitude regarding sellers of heroin, this was highly prejudical. The jurors, who represented a cross section of the community from which they were drawn, could well have been influenced unfavorably to the defendant by the unsavory innuendo deliberately and extraneously injected by the prosecutor. A mistrial should have been granted.

See People v. Greenway, 365 Mich. 547, 551 (1962); People v. Camel, 11 Mich. App. 219, 221 (1968); People v. Ignofo, 315 Mich. 626, 636 (1946); People v. Montevecchio, 32 Mich. App. 163 (1971); People v. Milkovich, 31 Mich. App. 582, 585 (1971); Cachola v. The Kroger Co, 32 Mich. App. 557, 558 (1971).

Before the new trial the defendant may renew her motion for dismissal in the light of United States v. Marion, 404 U.S. 307; 92 S Ct 455; 30 L Ed 2d 468 (1971), and the record made at the trial and any other evidence that can be produced, on the ground that she suffered "actual prejudice" as a result of the five-month delay between the date, September 5, 1969, that the charged offense occurred, and the date, February 9, 1970, that the people obtained an arrest warrant.

"Events of the trial may demonstrate actual prejudice". United States v. Marion, 404 U.S. 307, 326; 92 S Ct 455, 466; 30 L Ed 2d 468, 482 (1971).

There is no need to discuss the defendant's contention that the people failed to establish that she did not have a license to sell narcotics. Recently, in People v. Rios, 386 Mich. 172, 180-181 (1971), the Michigan Supreme Court outlined procedures that can be followed in making such proof.

The photograph of the defendant taken, according to the photographer, at the party between 8 and 9 o'clock on the evening in question, and the photographs of other persons said to have been taken at the party between 7:30 and 10:30 o'clock tend to corroborate the testimony of the defendant and her alibi witnesses that there was a party which the witnesses and the defendant attended. Although the time sequences during which the photographs were taken do not obviate the possibility that the defendant was both at the party and made the illegal sale between 10:30 and 11 o'clock, the photographs were of some probative value.

During his cross-examination of one of the alibi witnesses, the prosecutor asked the witness whether she had made certain statements to the police. At the time, the prosecutor was holding a document in his hand. After he finished this line of questioning the defendant's lawyer asked to see the "statement". The judge refused to allow him to see the document saying that "there was no statement read into the record. He had a pencil and paper in his hand. He asked this witness if she made certain oral statements to the man that visited her". During oral argument in our Court an assistant prosecutor indicated that the trial prosecutor may have been bluffing — that there was no written statement or memorandum of a statement of the witness.

The defendant's trial lawyer needed to see the document in the trial prosecutor's hand to determine whether its contents might enable him to rehabilitate the credibility of the witness which had been weakened by the innuendo that she had given a different account to the police reflected in the document. After the witness had finished her testimony, there could be no justification for shielding the document from scrutiny. Even if — and on this we need intimate no opinion — a prosecutor may properly attempt to bluff a witness, he has no right to bluff the jury. The judge should have directed the prosecutor to yield the document for examination so that the jury might become apprised of its true contents.

It appears that the court reporter was under the impression that the trial prosecutor was purporting to read from the document he was holding in his hand. The reporter placed the portions of the prosecutor's questions consisting of the statements allegedly made by the witness to the police in quotation marks, viz: "Q. Did you tell the detective you stated at that party, `Well, it is 11 o'clock, and Norma and I have to go to work.'?
"A. If he got that down there, I must have said it.
"Q. I am asking you if you told him that?
"A. I don't know. If he has got it there, I must have said it."

Cf. People v. Dellabonda, 265 Mich. 486, 499 (1933); People v. Marra, 27 Mich. App. 1, 7, 14 (1970).
Cf. People v. Wimberly, 384 Mich. 62, 68 (1970), where the Michigan Supreme Court declared: "Once a witness has testified at trial we hold as a matter of law that the traditional reasons for secrecy no longer exist and, as a matter of right, the defendant is entitled to all the testimony that witness gave before the grand jury relevant to the defendant's guilt or innocence."

The judge did not err in allowing the technician employed by the Kalamazoo Police Department to testify that in his opinion the substance purchased from the defendant was marijuana.

The contention that Ball and Young should not have been permitted to relate statements alleged to have been made by the defendant when she sold them the marijuana because before the statements were made an investigation had focused on her and she was, therefore, entitled to the protection of an advance independent judicial determination of probable cause before the investigating team "invaded" her privacy and to be represented by counsel during the "interrogation" that led to the claimed unlawful sale is, in the present state of the law, manifestly without merit.

There was sufficient evidence to support the jury's verdict.

Reversed and remanded for a new trial.

T.M. BURNS, J., concurred.

R.B. BURNS, P.J. (dissenting).

Defendant appeals her jury conviction of unlawful sale of narcotics. MCLA § 335.152 (Stat Ann 1971 Rev § 18.1122).

The complaint and warrant were not filed and the arrest was not made until approximately five months subsequent to the date on which the offense was alleged to have occurred.

This five-month delay between the alleged offense and issuance of the complaint and warrant is urged by defendant as a denial of due process. As was made clear in People v. Hernandez (1968), 15 Mich. App. 141, 146, evidence of prejudice and not the mere fact of delay is the relevant factor in determining whether constitutional rights of due process were violated. Although the prosecution has not offered any reason for the delay, we find no evidence that the pre-arrest delay impaired defendant's capacity to prepare her defense. The burden of bringing forth such evidence rests with the defendant. United States v. Capaldo (CA2, 1968), 402 F.2d 821; United States v. Scully (CA2, 1969), 415 F.2d 680.

See, also People v. Iaconis (1971), 29 Mich. App. 443.

See People v. Albert White (1970), 27 Mich. App. 432.

Michigan's Criminal Statute of Limitations serves as protection against long nonprejudicial delays. MCLA § 767.24 (Stat Ann 1954 Rev § 28.964).

See United States v. Ewell (1966), 383 U.S. 116 ( 86 S Ct 773, 15 L Ed 2d 627).

Defendant's defense at trial level was alibi; she claims to have been at a party at the time the prosecution claims she sold an undercover agent and a police informer a package of marijuana. The pre-arrest delay, it is claimed, dulled the memories of the defendant's alibi witnesses as to the time she left the party. The time factor is a crucial issue since prosecution witnesses claim the sale was made before 11 p.m. The alibi witnesses clearly made out defendant's alibi defense. Although they were not positive of the exact time defendant left the party, they were all sure it was after 11 p.m. The jury simply chose to disbelieve their testimony.

Defendant's bare assertion that the delay rendered inaccessible, testimony of an unidentified person present in defendant's home when the sale occurred does not prove any "specific prejudicial effect". People v. Albert White (1970), 27 Mich. App. 432, 435.

In an attempt to corroborate the testimony pertaining to her presence at the party, defendant attempted to introduce into evidence certain photographs depicting the defendant at a party. The trial judge refused their admission on the ground that they were not relevant to any material point in issue. In his decision on the admissibility of evidence, the trial judge possesses a great deal of discretion. People v. Becker (1942), 300 Mich. 562. If the proffered evidence is helpful in throwing light upon a material point in issue, then it may be admitted. People v. Cybulski (1968), 11 Mich. App. 244. The photographs would not have been particularly useful in this case. The prosecution did not contest her presence at the party and the photographs did not shed any light upon the crucial issue of time.

Testimony established that the photographs were being taken "all evening".

Defendant's objection to the trial court's failure to permit her to examine alleged statements made to a police officer is without merit since the record on appeal does not reveal the use or existence of any such written statements. The trial court properly refused defense counsel's motion by saying:

"There was no statement read into the record. He [the prosecutor] had a pencil and paper in his hand. He [the prosecutor] asked this witness if she made certain oral statements to the man that visited her."

At trial the prosecution submitted a certificate from the Michigan Department of Licensing and Regulation. This certificate proved defendant's lack of license to sell narcotics and, according to defendant, denied to her the constitutional right to confront and cross-examine witnesses. Such a certificate has been statutorily declared " prima facie proof of the facts stated therein", and does not deprive defendant of her constitutional rights. If defendant would have been licensed it would have been a simple matter for her counsel to prove this by affirmative action. In People v. Braswell (1968), 12 Mich. App. 685, introduction of a certificate to prove lack of license to carry a concealed weapon was upheld against the identical constitutional attack presented by defendant. For the reasons stated in Braswell, we find defendant's constitutional attack on the certificate's evidentiary introduction invalid.

MCLA § 335.54a (Stat Ann 1971 Cum Supp § 18.1074[1]).

Defendant next objects to the testimony of the informer and the undercover agent which included statements made by defendant during the illegal sale. The defendant voluntarily admitted both men into her home and then sold them a quantity of marijuana. The record clearly indicates the absence of any coercion. The trial judge properly found defendant's statements related to the sale and thus part of the res gestae. People v. Henderson (1970), 25 Mich. App. 28, 32.

Next defendant objects to the unsubstantiated testimony concerning smack and the prosecutor's explanation of this slang expression for heroin.

The prosecutor did not solicit nor dwell on the point; he simply clarified the expression for the jury. The defendant was not prejudiced, and in any event her failure to request a curative instruction precludes objection on appeal. People v. Walsh (1970), 27 Mich. App. 100.

Defendant next objects to the use of a nonexpert to prove the substance sold was marijuana. The testifying technician was extensively examined as to his qualifications as an expert witness. We find no abuse in the trial court's decision to allow the testimony and thus do not reverse it. See People v. Hawthorne (1940), 293 Mich. 15.

Defendant's final objection, as to the weight of the evidence, will not be considered because of her failure to move for a new trial. See People v. Mattison (1970), 26 Mich. 453.

PEOPLE v. WHITE

PEOPLE v. WHITE

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