*1 v FARRIS PEOPLE of Drugs Law —Statutes—Con- and Narcotics —Constitutional 1. Intent— Law —Criminal trolled Act —Criminal Substances Presumptions —Defenses—Self-Incrimination. Substances statutory presumption of the Controlled section
The possession provides of more than two Act of 1971 which possession prima of with marijuana facie evidence of is ounces constitutionally infirm because there is no intent to deliver is possession proven of of the fact between rational connection presumed marijuana and the fact of of two ounces or more presumption impermissi- deliver, statutory a intent to and such (US privilege against bly compromises self-incrimination 1, 17; 335.341[2]). Const, V; art MCLA § Am Const Drugs Substances Law —Controlled Narcotics —Criminal 2. —Intent—Presumptions—Inferences. give will of a controlled substance
Possession of amounts presumption, rise, infer- of a to an the artificial boost without person possessing deliver it. it intended to ence that the Guilty Drugs Plea —Factual Law — and Narcotics —Criminal Marijuana—Intent—Quan- Basis —Controlled Substances — tity Appeal— and Error. guilty, considering plea judge, of is an offered when A trial guilt supportive required of himself that facts both to assure satisfy was in fact himself that the crime adduced and to are guilty defendant; acceptance plea of of a committed marijuana not be possession to deliver will with of upheld appeal where the record reveals on marijuana quantity as a impermissibly seized considered the of intent. for the element substitute Courts—Guilty Plea —Factual Basis —Defend- 4. Criminal Law — Appellate Review —Court Rules. Recitation — ant required by derive court rule to statute and A trial court Headnotes for Points Reference Narcotics, seq. 2d, Drugs, 40 et and Poisons § 25 Am Jur [1-5] Opinion of the Court guilty directly factual for from basis defendant or through testimony developed trial; at a full adversarial complete from recitation of facts the defendant should be provide appellate obtained for on the record to increased cer- *2 (MCLA tainty challenged reviewing guilty pleas 768.34; when GCR1963, [b]). 785.7[3] by Burns, T. M. Drugs Marijuana—Intent— 5. and Narcotics —Criminal Law — Presumptions Judges— —Inferences—Harmful Effects — Jury. Appeals, holding
A recent the Court that while it may person presumed possessing be two or more marijuana jury may readily ounces of to intended deliver it a amount, possession infer go such intent from of a does not enough attempt far in its throw out to the harmful effects of rule; judge jury may two-ounce neither a nor a rely possessed on the amount of a controlled substance to determine whether defendant had the to intent deliver. Appeal Monroe, from Kelly, James J. J. Submit- 16, 1975, ted Division 2 January at Lansing. (Docket 20329.) No. May Decided convicted,
Mark A. Farris was on his plea of guilty, of possession of marijuana with intent to deliver. appeals. Defendant Reversed and re- manded.
Frank Kelley, J. A. General, Robert Attorney Derengoski, Rostash, General, James J. Solicitor Prosecuting Attorney (Prosecuting Ap- Attorneys Service, Wilson, R. pellate Edward Director, Atkinson, Lee W. Special Assistant Attorney Gen- eral), for the people. Bern’s,
Marvin L. for defendant appeal. on Before: T. M. J.P. and E.D. Holbrook M. J. and JJ. Kelly, 419 op
M. J. J. charged Defendant was with and Kelly, pled guilty possessing a controlled substance, marijuana, deliver; with MCLA 18.1070(41)(l)(c). 335.341(l)(c); MSA He was sen- tenced a prison term of 18 months to 4 years appeals. At the outset it is well to mention that defend- pleaded ant Farris guilty 1, 1974, on February at 335.341(2); which time MCLA MSA 18.1070(41X2), had not as yet challenged been as far as constitu- tionality of the act was concerned. After People v guilty plea 514; Mich App (1974), NW2d was decided and found the act unconstitutional. This statement is made in fair- ness to the who did not have the benefit of Serra at the time the was taken.
The issue squarely before us entails deciding the *3 Serra, of People v applicability supra, to a guilty plea proceeding. Serra held, agree, we two-ounce presumption1 embodied in MCLA 18.1070(41)(2) 335.341(2); MSA is unconstitutional. It impermissibly compromises the privilege against self-incrimination.2 18.1070(41X2) 335.341(2);
"MCLA MSA is infirm in that there no is rational connection proven between the (possession fact of two marijuana) ounces of and the (intent deliver) presumed fact light of today’s ” experience’ People 'common 514, v 55 App Mich (1974). 528; 28, 223 NW2d 35-36 "possession
Proof of the crime of with intent deliver” require does not presump- crutch of a tion. 1 marijuana prima "Possession more than two ounces of is facie possession
evidence of with intent to deliver.” 2 Const, V; 1963, 1, Am Const US art 17.§ App 61 Mich op "Statutory presumptions merely expedite are aids to prosecution. Possession of amounts of a controlled rise, give substance will without the artificial boost of a presumption, person to an inference that the possessing intended to it.” supra, deliver Mich
We are record, unable say, from this inferred the intent to deliver from the ("it large quantity pounds”) possessed. was We that, instead, believe the statutory was on the trial judge’s mind at taking and at sentencing.
The following dialogue occurred while the plea was taken: "MR. FARRIS I believe October 5th or [defendant]:
6th, 6th, yes, possession October I was arrested for with to deliver marihuana. "THE charge against COURT: That you, you possess did it unlawfully with intent to deliver it.
"MR. pleading FARRIS: And I’m guilty. Well,
"THE you possess COURT: did marihuana on that date?
"MR. FARRIS: Yes.
[*] [*] [*] "THE COURT: And how much —what was the an- swer, yes?
"MR. FARRIS: It was over two ounces.
"THE COURT: Over two ounces?
"MR. FARRIS: Yes.
"THE COURT: About many how ounces it?was Oh, "MR. FARRIS: I really couldn’t tell you exactly. *4 It pounds. was Pounds,
"THE plural? COURT: Yes, "MR. FARRIS: sir. what, "THE COURT: And there are in sixteen ounces pound?
a Yes, "MR. FARRIS: sir.” op was equation
There is no doubt an created. It us, however, that the appears determinitive but the fact "pounds” was not it quantum appel- over It is clear from the was two ounces. the crucial response thought lant’s that he mea- appel- was ounces. We believe both the sure two guided by lant and the presump- the court were tion. the
Our conclusion is reinforced court’s refer- upon to the the accused to ence burden cast rebut (at offending presumption sentencing): the admission, Defendant, by "The his own had in his quantity of marihuana with possession a substantial the is, pled guilty intent offense, it. That he to that deliver attempt portion and no to rebut the of the [sic] presumption.” gives which rise to the statute Defendant claims erro the factual basis for neously failed to determine nothing other than the plea since there was in two ounce to indicate he people The claim marijuana. tended to deliver the involved, that, of the amount the intent because deliver is inferable. readily 785.7(3) of GCR read: portions
Relevant "(b) plea accept guilty The shall not until court and, through that a crime was committed is satisfied defendant, personal interrogation that defendant participated therein. "(c) description any of his actions and If defendant’s presented evidence to the court on otherwise admissible the record during plea taking proceedings would support finding substantially that defendant charged offense or the offense to which guilty fact of the pleading, rejected by shall be the court.” he is rule, the court this subsection perceive As we *5 App 422 417 Burns, by Dissent T. M. P. J.
provides protection double to an accused. is, That a trial judge required is both to assure himself that facts supportive of guilt are adduced and to satisfy himself that the crime was in fact commit- ted the defendant.
In the case, instant the record reveals that attention of the trial judge focused on the amount involved and not on defendant’s intent. Although the people argue that judge considered the quantity as circumstantial intent, evidence of the record reveals impermissibly considered the quantity as a substitute for the element If, of intent. as we held in irrational for a jury presume intent solely from the fact that more than two ounces pos- were sessed, it is equally improper for the plea taking judge to reach the same conclusion.
We reluctantly conclude that the record does not reveal the factual basis for finding specific to deliver. As was said in People Schneff, 392 15, (1974): Mich 25-26; 47, 219 NW2d 53 "It is our 768.35; that MCLA MSA 28.1058 [to 1963, the same effect as 785.7(3)(b)] GCR requires the trial court to derive the factual guilty plea basis for a directly from defendant through or testimony developed at a full adversarial trial. procedure This provides also the best method for assurance that a defendant under- stands the A charge nature of the pleading. which he is complete recitation of facts from the defendant also provides for appellate increased certainty when review- ing (Footnote challenged omitted.) guilty pleas.”
Reversed and remanded. Holbrook, J.,
D. E. concurred. Burns, T. M. P. J. (concurring part, in dissenting part). I concur with my brothers this cause 423 v Farris by T. M. must be reversed and remanded because of non- compliance 1963, 785.7(3), with GCR I but cannot agree with their position, People v upon based (1974), Mich NW2d the trial court would have been in compliance with the court if it had rule inferred the intent *6 to deliver from large quantity of marihuana pos- sessed.
My quarrel is not with the majority’s reasoning bar, in the case at but rather with this Court’s opinion in Serra. I read Serra to say that a jury may readily person infer that a possessing a large amount of a controlled substance intended to de- liver it.1 I do not believe that the Serra Court intended reading, such a nor Ido think that such an inference should be It my opinion allowed. that neither a judge nor a jury may rely on the amount of a controlled possessed substance to determine whether a defendant had the intent deliver.
It is true that Serra recognized twice to deliver could be permissibly inferred from the quantity However, involved.2 I do not believe that the Serra Court intended to mean that a defendant could be convicted of charge of possession with intent by deliver merely show- ing that the defendant possessed a large amount of marihuana or any other controlled substance. Such a reading would totally obliterate the benefi- cial effects of Serra’s holding that the two-ounce presumption rule is unconstitutional.
It opinion is my in declaring the two-ounce presumption rule the Serra unconstitutional, Court inadvertently, through an unfortunate words, choice of actually strengthened by rule 1My reading excerpts of Serra is based on of the found on pages 520 and 525. supra, pp [May- T. M. implying jury properly that a could infer that a person possessing a amount of a controlled substance meaning prosecutor it. If intended to deliver this be the true then we have not denied "the evidentiary crutch”,
the use of this but rather we have sanctioned its use to an extent greater employed even than was before the Serra opinion was issued. say jury may presume
To that a intent from possessed the amount of a controlled substance but may only illogical infer such intent is not ambiguous, but furthermore assumes that the av- erage jury legal will be able to make the distinc- presumption tion between and inference. Labels alone are not sufficient to make the distinction. Appellate courts, trial courts and advocates have difficulty years attempting had over the when distinguish from an inference. If legal profession difficulty, has had such how honestly expect jury laymen can we to be able *7 to do so? my opinion
It written, as is for all purposes, legal nullity. opinion intents and The simply go enough attempt did not far in its to throw out the harmful effects of the two-ounce presumption By allowing jury rule. the to draw an inference of intent from the mere fact of the possessed, amount of a controlled substance the placed Serra Court has defendant in the same position that he inwas before the Serra only was released. The evidence which can effec- tively the rebut inference is the defendant’s own testimony as to his intent. This was true before today. despite Serra Thus, is still true compelled a defendant is still to take the in stand right against violation of his self-incrimination by M. T. granted by gan4 States3 and the the United Michi- both that the I am sure members of
Constitutions. intend such a result. the Serra Court did Rather, I the Serra Court intended believe that encompass I what if it is have men- their decision to opinion. is, in tioned That irrational for presume jury solely to from the fact a more than two irrational requisite intent possessed, equally it is were
ounces jury a trial to infer for a or Attempting fact. from that effectively distinguish presumption from an in- futility, particularly ference is an exercise in jury. cases tried before a Neither permitted. nor inference should be point closing. I wish to make one more before charged The offense with defendant was which was possessing a controlled substance with intent deliver. Intent to deliver is an element of this prosecutor5 proven by the offense which should be just any any offense, like other element of other involving i.e., means of evidence. Prosecutions require pre- controlled do not either a substances sumption or an to convince the trier inference of something possessor fact that other intended personal Regardless than use. the amounts at prosecution required issue, the to intro- should be prosecutor duce evidence of the kind the suggested in Serra use, the defendant should be forced to expert acquaintances namely, witnesses and The trier of fact will then be free to defendant. weigh the evidence on both sides and resolve the regard presumptions question it without before any or inferences of kind. to ask the defendant intent.
accepting guilty plea to 3 Const, Am In reference to Const US *8 art V. 1, guilty pleas, § point specific blank whether he entertained I think that intent crime is for the trial court the better practice in the illicit App 417 M. T. shortcomings opin- of the Serra Because of the pursued case ion, I our would like to see Supreme However, of the noncom- because Court. pliance I concur 785.7(3), with GCR majority. opinion of the result called for in the