People v. EdmondsPeople v. Edmonds
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- Before:
- Brennan
Defendant, Cleveland Edmonds, appeals as of right from his jury conviction of delivery of heroin, contrary to
On the morning of April 22, 1977, Philip “Pete” Cagle, a heroin addict and police informant, met Officer Ralph Fogarty, a deputy with the Jackson
Defendant raises several claims of error on appeal, the first being that the prosecutor deliberately suppressed and later destroyed tape recordings favorable to defendant. Before trial defendant brought a motion to produce which in pertinent part reads as follows:
“1. That in the Preliminary Examination Transcript and prior trial testimony, the informant testified that he was wired with a microphone and transmitter.
“2.. If any recordings of any type or any notes taken from any person receiving transmission of the same were taken, the defendant feels they would exculpate this defendant.
“3. That if the Prosecution or any officer or persons have possession of the aforesaid they should be ordered to produce the same for defendant’s inspection prior to the trial * * *.”
At the hearing on defendant’s motion the prosecutor attested to the fact that no tape recordings
There is nothing in the record to indicate that there was a tape recording of the transaction that occurred on the morning of April 22, 1977. Tapes of conversations that took place on other days could have little bearing on the charged transaction. Their production was unnecessary to the preparation of the defense and irrelevant to the interests of a fair trial. People v Jessee Smith, 81 Mich App 190, 198; 265 NW2d 77 (1978).
Defendant next argues that the examining magistrate abused his discretion and denied defendant due process of law when he refused to grant defendant a continuance to allow defendant to procure retained counsel. However, defendant did not object before or during trial to the action of the examining magistrate, nor has he shown that he was prejudiced by the magistrate’s refusal to grant a continuance. Under these circumstances the magistrate’s action does not require reversal of defendant’s conviction. See People v Wilson, 397 Mich 76; 243 NW2d 257 (1976), People v Frederick Lester, 78 Mich App 21; 259 NW2d 370 (1977), People v Debreczeny, 74 Mich App 391; 253 NW2d 776 (1977).
Defendant next challenges the validity of this conviction as violative of the double jeopardy clause. The informant made two purchases of heroin from defendant, one in the morning and one in the afternoon of April 22, 1977. Defendant was previously convicted of the afternoon buy and argued below that application of the “same transaction” test prohibits bringing of charges based on the earlier buy. We disagree.
The “same transaction” test for double jeopardy as set forth in
People v White,
390 Mich 245; 212
Defendant next argues that the trial court’s failure to sua sponte hold an entrapment hearing warrants reversal. Defendant made no effort to have the trial court pass on the issue of entrapment thus appellate review is precluded. See People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
We next address defendant’s claim that it was improper for the prosecutor to confront the co-defendant with instances when he had delivered heroin in the presence of defendant. The codefendant, Robert Elmore, testified that he had never sold heroin to the informant but had stored it for him on many occasions. On direct examination Elmore testified that he thought that defendant Edmonds was an informant and that he, Elmore, had made no deliveries of heroin in the presence of defendant.
On cross-examination the prosecutor asked Elmore if he had delivered heroin on specified dates to the informant in the presence of defendant. Over defendant’s objection, the trial court ruled that the questions were proper to impeach the witness. We agree with this ruling. Matters which may not be admissible on direct examination may
We next consider the propriety of the lower court’s use of both the habitual offenders statute,
The controlled substances act was enacted to regulate the control, manufacture, production, sale, possession, use, etc., of controlled substances, with penalties for violation of the act specifically delineated. As such the act represents this state’s comprehensive policy toward the use of controlled substances. As a specific and comprehensive measure the act’s sentence-augmentation provision controls over the general habitual offender statute. Accordingly the sentence on a second or subsequent drug offense is under the purview of § 48 of the controlled substance act exclusively. 1 In accordance with the above the defendant’s sentence is reduced to 26 years 8 months to 40 years.
The remaining claims of error relating to the alleged bolstering of the prosecution’s witness before attack and the alleged improper considerations at sentencing have not been preserved by
Defendant’s conviction is affirmed with sentence reduced in conformity with this opinion.
Notes
It must be noted that application of the controlled substances act penalty augmentation is proper when the defendant is being sentenced on a drug conviction. If the defendant commits a nondrug felony after one or more drug convictions then the habitual offender act applies upon conviction of that nondrug felony. For other reasons which prohibit the use of the third-felony provision of the habitual offender act on the facts of this case see People v Covington, 70 Mich App 188; 245 NW2d 558 (1976).