*1 App 168 KEY PEOPLE v PEOPLE v KAIGLER 17, 1982, 57393, 57516. March at Detroit. Docket Nos. Submitted 4, 1982. Decided November convicted, trial, Kaigler joint Key Elmer were each in a Earl cocaine, grams delivery of Recorder’s Court of of less than 50 Talbot, Detroit, appealed, J. Both defendants Michael J. Appeals appeals. Several issues the Court of consolidated appeal. on Held: are raised along narcotic 1. The classification of cocaine with various providing punishment possession, drugs purposes for its punishment delivery, does not render that or manufacture guarantee and unusual in violation of the constitutional cruel against punishment. unusual cruel and along with narcotic 2. The classification of cocaine resulting equal in a denial of not an irrational classification protection. provisions of the Health 3. The controlled substances Public [1, 21 Am Jur [2] [5] [4] [3] [6] [8] [7] Admissibility, Validity Review of excessiveness of sentence in narcotics case. 55 ALR3d Length 2] 21A Am Jur 25 Am Jur Am Jur 29 Am Jur 29 Am Jur 29 Am Jur 21 Am Jur 29 ing granting charged. 41 ALR Fed 497. evdience of other ing offenses. ALR3d 812. Am Jur cruel and unusual of sentence as violation of constitution of state statute 2d, 2d, 2d, 2d, 2d, 2d, 2d, References 2d, 2d, under Rule Drugs, Drugs, Evidence 320. Evidence 148 et Evidence Evidence 333. Criminal Law 626. Criminal Law 680. probation Criminal Law crimes, wrongs, 1192. Narcotics, Narcotics, punishment. imposing § §§ § § for Points in Headnotes 404(b) § suspension § and Poisons § §§ and Poisons 2. seq. of Federal Rules of mandatory 539, or acts not similar to offense 33 ALR3d 335. 627. of sentence § 48. sentence or provisions for narcotics Evidence, prohibit- prohibit- Michigan title-object of the clause do not violate Code Constitution. comply failure to with GCR trial court’s 4. The timely objec- procedure, jury and the defendants’ selection *2 procedure, of the defendants’ mandates reversal to that tion
convictions. cocaine to a third defendant delivered 5. Evidence that that which he was
person time he delivered at the same Key’s knowledge charged to show was admitted with error, knowledge not as and intent were This was intent. case, having asserted both defendants issues in contested drug transaction with which they involved in the were not charged. they were remanded. Reversed and J., disposi- majority in its Brennan, concurred with the V. J. challenges under to the statute which
tion of the defendants’ necessity they and with the for reversal because were convicted hold, however, procedure jury used. He would selection party Key’s transaction with the third that the evidence of Knowledge elements of the offense and intent are admissible. charged prosecutor and the defendants were with which present every obliged element of the crime evidence on regardless theory of the case. of the defendant’s Opinion of the Court — — 1. Cocaine Cruel and Unusual Pun- Controlled Substances ishment. prescribed penalties posses- statutorily for the The fact that the sion, delivery manufacture of cocaine are the same as not, drugs those classified as narcotic does for substances itself, punishment penalties unusual make those cruel and (MCL333.7401; 14.15[7401]). MSA — — 2. Law Cruel and Unusual Constitutional Law Criminal Punishment. determining punishment is cruel and
The test for whether a punishment unusual is whether the is in excess would be suitable to fit the crime. — — of Con- Controlled Cocaine Classification Substances trolled Substances. placing is not as narcotic of cocaine in the same class (MCL333.7401; 14.15[7401]). an irrational MSA classification 121' Mich Jury— —
4. Criminal Law Selection Rules. jury procedure comply The use of a selection which fails to concerning jurors the court rule the selection of and which is objected process begins requires to before the selection reversal showing prejudice of a defendant’s conviction even without a (GCR 511). — — 5. Criminal Law Evidence Other Criminal Offenses. Generally, tending evidence to show the commission of other criminal offenses a defendant is inadmissible on the issue of guilt charged. his or innocence of the offense — — 6. Criminal Law Evidence Other Criminal Offenses. Prior to the admission of evidence of a defendant’s other criminal acts, gestae exception under the res to the rule that evidence of a defendant’s other criminal offenses is inadmissible on the guilt charged, issue of his or innocence of the crime a trial probative court proffered must determine that the value of the outweighs any prejudicial evidence effect. — — — 7. Criminal Law Evidence Similar Acts Evidence Rules of Evidence. other, Evidence of a defendant’s similar criminal acts must meet *3 (1) four criteria to be admissible: there must be substantial showing act; evidence (2) that the defendant committed the other prove purpose the evidence of the other act must tend to a permitted (3) evidence; purpose under the rules of must be (4) case; probative a material issue in the and value of the outweigh prejudicial evidence to be admitted must effect (MRE 404[b]). by Partial Brennan, V. J. Concurrence and Partial Dissent J. — Charged — 8. Criminal Law of Elements Offense Defendant’s Theory. prosecutor obligation A proving every has the each and ele- ment of beyond doubt, a crime regardless a reasonable presented theory by the defense. Kelley, Attorney Frank J. General, Louis J. Caruso, General, Solicitor Cahalan, William L. Prosecuting Attorney, Reilly Wilson, Edward Prin- cipal (in Attorney, Appeals, George Best, and A. II Key) (in Kaigler), and Frank J. Bernacki Assis- Prosecuting Attorney, people. tants for the Key Opinion of the Court Svenson, Vesta appeal. for defendant on Key & P.C. Gerald K. Evelyn, Evelyn), McGinnis (by Kaigler appeal. for defendant on P.J., Before: J. H. and V. J. and Gillis, Brennan J. JJ. N. Lambros,* Defendants were convicted by Per Curiam. 2, 1981, at a trial on jury joint February held than 50 delivery grams less of a substance cocaine, 333.7401(2)(a)(iv); containing MCL MSA 14.15(7401)(2)(a)(iv). Defendant was Key sentenced in prison. to 11 to 20 Defendant years Kaigler was sentenced to 4 to 20 years prison. appeals Their have been consolidated this Court.
Detroit Mangum Police Officer John was an undercover officer in the narcotics section. He 29, 1980, testified that on July he went dwelling located at 2422 and Elmhurst. He porch met on the Key and asked him for a $60 packet of cocaine. The officer gave Key $60 recorded currency upstairs then went returned with Kaigler. After the three men dis- cussed a purchase, Kaigler future gave the officer a manila coin envelope. was later determined the substance inside envelope weighed .40 grams and contained cocaine. Defendants were arrested on August 1980, in connection with this incident. Kaigler, behalf,
Defendant on his own testifying stated that on July he resided at Elmhurst and Key resided hall at 2422 across the Kaigler Elmhurst. testified that he could not re- member where he doing was or what he at the *4 time the crime occurred. allegedly any He denied involvement in the alleged crime and stated that
* judge, sitting Appeals by assignment. Circuit on the Court of op the Court Mangum
the first time he ever saw Officer was on he August day was arrested. Key
Defendant also took the stand in his own behalf and denied involvement offense. It was of the case that Key’s theory framed him because had police they been unable him in charge to arrest and connection with stolen activity they automobile which believed he was in. engaged Dwayne testified in Talley support of this theory.
Defendants first claim that the statute under they which were convicted violates the constitu- against tional bar cruel and unusual punishment it places because cocaine in the same class as drugs. narcotic
Defendants are incorrect to the they extent argue that cocaine is classified in the statute as a drug. narcotic Cocaine is classified in schedule 2 along drugs. 333.7214; with certain narcotic MCL 14.15(7214). that, MSA is true under MCL 333.7401; 14.15(7401), MSA proscribed conduct in- volving subject cocaine is to the same penalty as proscribed involving conduct narcotic drugs classi- However, fied in schedules MCL 14.15(7401)(2)(a) 333.7401(2)(a); MSA recognizes that cocaine something other than a narcotic drug. It states:
"(2) person A who violates this section as to: "(a) A controlled substance classified in schedule which is either a narcotic or described in section 7214(a)(iv) [i.e., cocaine and its derivatives and chemical * * equivalents] *.” Legislature perceived the abuse of cocaine as a serious public prescribed threat health and penalties manufacture, possession, delivery, etc., accordingly. The fact that cocaine is treated *5 People 173 Opinion of the Court manner as substances in the same statute in the drugs, not, in and of does as narcotic classified punishment. . unusual itself, cruel and constitute People attempted analogy to v Lor- Defendants’ 827 is 167; 194 NW2d entzen, Mich 387 the since-re- That case involved merit. without Drug pealed Act, PA 1937 as Narcotic penalized sale, the unlicensed amended, which giving away any dispensation of or otherwise prison mandatory marijuana quantity awith of applied equally years. The statute of sentence regardless prior presence or absence of of the penal- provision different no and made offenses drugs quantities in- were different ties when penalty Supreme that the Court found The volved. it the conscience. excessive that shocked was so provides present contrast, differ- statute In proscribed penalties For conduct. in a manner for different ent example, simple possession is treated posses- manufacturing, delivery or than different In or deliver. intent to manufacture sion with addition, prescribed penalties are where different See are involved. different amounts of §§ 7401 and 7403. governing unusual dominant test cruel and
punishment
punishment
is in
"the
whether
fit the
excess of
that
suitable to
would be
p
supra,
Lorentzen,
v Stewart
crime”.
(On Rehearing),
540, 554; 256 NW2d
400 Mich
(1977).
of cocaine
We conclude that
the treatment
in
standard.
not violate
the Public Health Code does
cocaine
Defendants next claim that inclusion of
along
in schedule 2
"hard” narcotic
result-
such as heroin is an irrational classification
ing
equal protection.
in a denial of
rely
Sinclair,
Defendants
on
case,
91; 194
In
NW2d
the defen-
dant was convicted of unlawful possession of two
cigarettes,
in violation
former
marijuana
MCL
335.153;
18.1123,
MSA
and was sentenced to 9-1/2
imprisonment.
to 10 years
Although a majority of
aside
justices
conviction,
voted to set
only
sitting
three
the six
justices
agreed
the case
marijuana
the classification of
with "hard”
*6
drugs
equal protection.
narcotic
violated
Swainson, writing
separately,
Justice
framed
the
as
marijuana
issue
"whether
be
may
constitu-
if,
fact,
classified as a
tionally
drug
narcotic
it is
not a narcotic”.
Justices Williams and Swainson took judicial notice of the existing scientific knowledge regard- ing marijuana. Justice Williams emphasized the following quote from testimony given by Stanley Yolles, M.D., F. the congressional before subcom- public mittee on health and welfare of the inter- state foreign and commerce on Septem- committee ber 1969: agreement "There total among competent scientists physicians that marihuana is not a narcotic morphine
like To society hallucinogen. heroin but rather a mild equate risks—either the or to individual the risks inherent use of hard —with ” medically narcotics is neither nor legally defensible.’ deleted.) (Emphasis At Sinclair the time decided, there was a general consensus in the scientific medical communities consequences of marijuana use were much less harmful than the effects of v op the Court opinions of Justice drugs. narcotic Williams were on and Justice Swainson based this consen- widespread agree- is the absence of such sus. concerning the effects of cocaine which dis- ment tinguishes present case from Sinclair. Defen- authority dants cite no which would lead this to conclude cocaine is harmless social intoxicant, Legislature’s or that classification of cocaine in the same schedule as narcotic drugs is irrational. Appellate
Defendants on the Illinois rely Court’s 898; decision in 93 Ill 3d McCarty, (1981). However, 418 NE2d that decision was Supreme reversed Court of Illinois Peo 86 Ill ple McCarty 2d NE2d 147 In McCarty, cocaine was included within the statu- drugs”. definition of "narcotic The Illinois tory Appellate Court found that cocaine had none of the characteristics of narcotic and concluded the Legislature’s classification violated the equal protection clauses of the United States and Illinois Constitutions. Supreme
The Illinois Court reversed. The court *7 began its analysis a discussion of the nature and effects of cocaine. The court stated: opinion’ "The 'consensus of medical is that cocaine is not a narcotic. The characteristics of narcotic are (1) they that botanically, opium are related to the (2) poppy; sants; pharmacologically, depres- psychoactive are (3) is, physiologically, addicting, they are that produce tolerance and withdrawal. Tolerance means that amount of the the syndrome’ toms. require larger with continued body use the will a drug produce the same effect. When drug is withdrawn from the user a 'withdrawal unpleasant symp-
will occur with variety a of "Cocaine is not opium poppy related to the but is a substance derived from coca narcot- leaves. Unlike the op the Court depressants, ics which are cocaine is a central nervous
system include increase in heart rate and blood eye pupil state cally physiological stimulant. Its short-term effects pressure and produces euphoric it dilation. To the user fatigue hunger. physi- and reduces is not produce addictive in that it does not tolerance or experts opinion Both it withdrawal. were that psychosis not hallucinations may does cause a cause or but perceptual experiences disorder which a user crawling sensation of insects or on the skin. Both agreed experts dictive but felt that such can psychologically cocaine be ad- dependency seen in only is 1% 'compulsive.’ of users labeled body by nasally "Cocaine is taken into the most users 'snorting’ 'sniffing.’ A percentage or small of users (1%) inject intravenously. experts cocaine Both were of opinion generally the that it is Nasal irritation, that cocaine is not harmful quickly cleanly body. eliminated from the however, ingestion may, cause chronic nasal perforation which can result in the of the septum. nasal Other common side effects are irritabil- weight ity, insomnia and loss. Death can occur from a large overdose but is rare in recreational use. Cocaine recognized has a medical use as a local anesthetic. "Although experts opinion both were of the behavior, cocaine has no causal connection to criminal both activity, including conceded that criminal violent crime, illegal trafficking associated with the of co Dr. caine. Fort divergence testified that there is some opinion among experts, especially between human re researchers, searchers dangerous and animal as to the Although ness cocaine to experts users. both were opinion danger exag that the of cocaine had been gerated, drug neither felt that was harmless or legalization.” advocated its 86 Ill 2d 251-252. The court then addressed the con- defendant’s tention that classification of cocaine statutory as a narcotic was invalid because of the undisputed fact medically cocaine is not a narcotic. pharmacologically This contention was *8 Opinion op the Court legislative that a is not body on the basis rejected existing to follow defini- previously bound legally in by persons terms created other fields. tions of addressing continued the issue of by The court classifying there was a rational basis for whether ampheta- narcotics instead of with cocaine with The following justifica- mines and barbiturates. the state were found by by tions advanced provide a rational basis Supreme Illinois for the legislature’s judgment to classify cocaine purposes with "true” narcotic substances for the imposing penalties:
(1) profit illegal The enormous from cocaine crime, great including traffic has led to a deal of crime, importers violent as and dealers major compete each other.
(2) correlation between the strong There is a use opiates. of cocaine and the use of heroin and the (3) potential There is a for harm inherent connection, In illegal use cocaine. this court showing cited studies the use of cocaine may nervousness, depression, fatigue, sleepiness, cause hallucinations, hunger, psychosis, psychological de- Welti, pendence Quoting and even death. from Use, Death Caused by Recreational Cocaine 2519, Journal of the American Medical Association it noted: " report again 'This demonstrates that cocaine cannot regarded drug despite be belief and as a safe recreational current Welti, legal controversy.’ Death Caused Use, Recreational Cocaine 24 J.A.M.A. (1979).” 86 Ill 2d NE2d
(4) danger There inherent the increase the practice of smoking paste coca or freebase cocaine.
The court concluded: *9 App 168 Mich Opinion the Court (21 the Federal Controlled Substances Act "Under seq.), drug, is as a narcotic USC 801 et cocaine listed purposes. along opiates, penalty the It is also with drug’ by a 'narcotic the Uniform treated as Drug Narcotic Act, adopted by great major been the which has Moreover, legislatures. ity of State our research has that all courts which have dealt with the revealed issue, exception with the of one trial court in identical the State of cocaine as a 'narcotic’ for Michigan, upheld have the classification of (Citations purposes.” penalty omitted.) 86 Ill 2d 258. with the Illinois agree Supreme
We
Court’s
becoming
decision. While cocaine use is
more and
in
the
acceptable
society,
more
our
health conse-
quences of such use remain in doubt. This distin-
guishes the
case from the
present
Supreme Court’s
People
supra.
Sinclair,
v
marijuana
in
analysis
Legislature
We conclude
the
did not create an
placing
irrational
classification
cocaine
along
drugs.
schedule
with narcotic
defendant
reject
Key’s
We also
claim that
1978,
7,
Health
Public
Code of
art
violates
title-object
Michigan
clause of the
Constitution.
Trupiano,
v
App 416;
See
97 Mich
lv den
One raised defendants requires our attention as it likely is to recur on retrial if not here. addressed concerns the testimony involving one Aldo Chaverest. the Briefly, testi- mony during established the July transaction also delivered a manila coin enve- to lope person a third later identified as Aldo Chaverest. Chaverest was arrested and the enve- lope was later determined to contain cocaine. This admitted, evidence was over objection, purpose of showing Key’s knowledge intent. The jury was instructed that the evidence could be used only determining Key’s intent or absence of mistake or accident. assign Both defendants error to the admission of this testimony. general tending rule is that evidence to
show the commission of other criminal offenses by the defendant is inadmissible on the his issue of guilt or innocence of charged. People v the offense DerMartzex, 390 Mich 213 97 NW2d (1973). The DerMartzex following Court stated the reason for the rule:
"Evidence of other crimes is
it
barred because
has
App 168
121 Mich
180
Opinion of the Court
probative value such evi-
that whatever
decided
been
disadvantage
outweighed by of divert-
has is
dence
objective appraisal of the
from an
ing the trier of fact
guards
guilt
innocence.
'This rule of law
or
defendant’s
against
convicting
person because he is a
an accused
prevents
trier
Barring
evidence
man.
such
bad
person
guilty of
inferring that
the accused
is
from
fact
because he has committed other
offense
Matthews,
17 Mich
crimes.’
similar acts or
(1969).”
48, 52;
meanor of a after the offense is claimed to have shortly before or committed, part may as a of the res be shown been is not rendered inadmissible gestae. Proof of such acts they may tend to show the commission by the fact 84, 86; Savage, 225 Mich of another crime.” ” (1923).’ 195 NW court, to admission of evidence prior The trial find that gestae exception, under the res should *11 probative and that the the evidence is relevant outweighs any value effect. prejudicial Stoker, supra, case, 807. In the instant Officer p Mangum’s delivery testimony regarding Key’s res of the envelope part the to Chaverest was offense, properly gestae charged of the and was However, Chav- regarding admitted. the testimony the the contents of subsequent erest’s arrest and acts or envelope seized from him did not involve at time the conduct of the accused the Key People Opinion op the Court latter evidence was committed. This was offense gestae properly ex- res under the admissible not ception. necessary to whether determine therefore
It is regarding testimony Chaverest’s arrest and the the envelope him was seized from the contents of 404(b), MRE of similar acts. as evidence admissible MSA 28.1050. 768.27; MCL sought admitted, evi- similar acts to be When characteristics: four essential must exhibit dence (1) showing evidence must be substantial there (2) act; other the the defendant committed prove to act must tend the other evidence of (3) purpose permitted purpose the rule; under the (4) case; issue in the a material must be probative to be admitted evidence value outweigh prejudicial v Gil effect. must (1980); App bert, 459, 472; 300 NW2d 593, 601; 296 NW2d Rohn, Mich Iv den present case, the court admitted the trial In purpose challenged for the limited evidence knowledge showing envelope that defendant had Mangum con- he delivered to Officer that, However, find while tained cocaine. we knowledge permitted purposes un- and intent are 404(b), not MRE elements contested der those were Kaigler not claim case. did issues lack of they intent, had not been but asserted that Man- Officer involved transaction with any, gum. challenged testimony little, if The had probative highly prejudicial. value and on retrial. evidence should not be admitted raised, find we As the balance of the issues they not be merit or need are either without light disposition. of our addressed trial. for a new Reversed and remanded *12 Brennan, Partial Concurrence V. J. J. Brennan, J.V. J. (concurring part; dissenting part). I agree with the majority’s disposition of issues regarding defendants’ constitutional challenges to the statute under which they were convicted. I also concur in the findings relating to the jury selection error because of the clear man- date of Miller, 307 NW2d
However, I do not concur in the find- majority’s ing Officer Mangum’s testimony regarding Chaverest’s arrest and the contents the enve- lope seized from him which he purchased from had Key was not admissible. Chaverest’s purchase was contemporaneous with Officer Mangum’s purchase and Chaverest was arrested immediately after leaving the scene of the delivery involved herein and the cocaine was taken from him. The majori- ty’s position that, because the defense was no- ninvolvement with this officer and the defendants did not claim intent, lack of the prosecutor could not or need not introduce this evidence showing knowledge and intent since these were not mate- rial issues in the I case. cannot subscribe to this theory. The prosecutor has the obligation, regard- less of defense, prove to each and ele- every ment of the offense beyond a reasonable doubt and knowledge and intent are necessary elements. De- position fendant’s or defense is not relevant controlling on the prosecutor’s obligation prove these elements. These are always material issues.