PEOPLE v KOEHLER
No. 16756
Court of Appeals of Michigan
August 12, 1974
54 Mich. App. 624
OPINION OF THE COURT
1. DRUGS AND NARCOTICS—EVIDENCE—CHEMICAL ANALYSIS—DISCRETION.
Admitting into evidence in a criminal trial three unanalyzed tablets allegedly containing LSD was not an abuse of discretion where a police officer testified that he had purchased from the defendant four purple tablets said by defendant to be LSD, and where the prosecution‘s expert witness testified that he had scientifically analyzed one of the four purple tablets given him for analysis, that his analysis conclusively demonstrated the presence of LSD in the tablet tested, and that the remaining tablets appeared to be physically identical with the one tablet analyzed; the defendant‘s objection with respect to the three unanalyzed tablets is more properly addressed to their probative value than to their admissibility.
2. DRUGS AND NARCOTICS—SALE OR DELIVERY—EVIDENCE—USABLE AMOUNT.
It is not incumbent upon the prosecution to prove that a defendant charged with sale or delivery of narcotics delivered a usable amount of narcotics.
3. DRUGS AND NARCOTICS—EVIDENCE—OTHER OFFENSES—ADMISSIBILITY.
Introduction of testimony concerning a police officer‘s attempted purchase of PCP, an illegal narcotic drug, from a defendant charged with delivery of heroin and LSD was not reversible error where the testimony was arguably admissible to show the defendant‘s scheme, plan, or intent as a dealer in illegal
REFERENCES FOR POINTS IN HEADNOTES
[1] 25 Am Jur 2d, Drugs and Narcotics § 44 et seq.
[2] 25 Am Jur 2d, Drugs and Narcotics §§ 20-22.
[3] 25 Am Jur 2d, Drugs and Narcotics §§ 46, 47.
[4] 21 Am Jur 2d, Criminal Law §§ 143-145.
Entrapment to commit bribery or offer to bribe. 69 ALR2d 1397.
[5] 41 Am Jur 2d, Indictment and Information §§ 56, 60.
[6-8] 58 Am Jur, Witnesses § 3; 29 Am Jur 2d, Evidence § 708 et seq.
4. CRIMINAL LAW—DEFENSES—ENTRAPMENT—OBJECTIVE TEST—RETROACTIVITY.
The Michigan Supreme Court decision which adopted an objective standard with respect to the defense of entrapment is not retroactive.
5. INDICTMENT AND INFORMATION—WITNESSES—RES GESTAE WITNESSES—INDORSEMENT OF WITNESSES—PRODUCTION OF WITNESSES.
The prosecution has a clear duty to indorse the names of all res gestae witnesses upon the information and to produce them for examination at trial (
6. CRIMINAL LAW—WITNESSES—RES GESTAE WITNESSES—PRODUCTION OF WITNESSES—EXCEPTIONS.
There are four well-recognized exceptions to the general rule requiring production of res gestae witnesses at trial: when the prosecution makes a showing of due diligence in attempting to produce the witness; when the testimony of the missing res gestae witness would be merely cumulative; when the res gestae witness was a participant in the crime; and when the identity of the res gestae witness is made known to the defendant during trial, or even before, and the defendant does not move for the indorsement or production of the witness.
7. CRIMINAL LAW—WITNESSES—RES GESTAE WITNESSES—PRODUCTION OF WITNESSES—MISCARRIAGE OF JUSTICE.
Failure of the prosecution to produce a res gestae witness at trial could have resulted in a miscarriage of justice where a key witness with respect to a crucial question of entrapment was not produced and where the defendant‘s only hope for acquittal rested on the defense of entrapment; the case must be remanded to the trial court for a hearing to determine whether the testimony of the res gestae witness would have been cumulative.
A decision of the Michigan Supreme Court establishing a precedent to remand cases where the nonproduction of res gestae witnesses may have possibly resulted in a miscarriage of justice is by its express terms prospective and does not apply to an appeal filed prior to the decision‘s publication date.
Appeal from Berrien, Julian Hughes, J. Submitted Division 3 June 3, 1974, at Lansing. (Docket No. 16756.) Decided August 12, 1974.
Michael D. Koehler was convicted of delivery of heroin and delivery of LSD. Defendant appeals. Remanded with instructions.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and John Smietanka, Prosecuting Attorney (Prosecuting Attorneys Appellate Service, Howard C. Marderosian, Acting Director, of counsel), for the people.
Judith K. Munger, Assistant State Appellate Defender, for defendant.
Before: MCGREGOR, P. J., and R. B. BURNS and O‘HARA,* JJ.
MCGREGOR, P. J. Defendant appeals as of right his jury conviction, on October 26, 1972, of delivery of heroin, contrary to
On July 20, 1972, a complaint and warrant were
* Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to
At trial, the people‘s case opened with the testimony of Michigan State Police Officer Huston, who stated that, on May 24, 1972, he and a police informant, Janice Stevens, drove to defendant‘s residence in Berrien County, Michigan, where the witness spoke with defendant and stated he would like to purchase some heroin. According to Officer Huston, he and the defendant walked to the rear of an old car on defendant‘s premises and defendant opened the trunk, removed a small box therefrom, and exhibited to the witness four small paper packets, a quantity of small brown tablets, and a quantity of purple tablets. In response to Huston‘s query, defendant identified the purple tablets as LSD, described the brown tablets as PCP (Phencyclidine), and sold to the witness two paper packets allegedly containing heroin for $20 and four purple tablets allegedly composed of LSD for $4. The witness averred that there was no haggling between the parties concerning the price, that defendant identified the material in the paper packets as heroin and the purple tablets as LSD, and, as Officer Huston prepared to leave, asked him if he (Huston) had a “works“.
During cross-examination, Huston stated that he met with Janice Stevens at approximately 10:30 a.m. on May 24, 1972, because she had previously
Donald Collins, an employee of the Michigan Department of State Police Scientific Laboratory Unit, testified that the total weight of white powder in the two packets turned over to him for analysis amounted to approximately 0.1 gram, and averred that his laboratory analyses confirmed that each packet contained heroin.
“Q. Do you have any opinion as to the quality of that one packet, the one pill that you examined?
“A. I am going to base this on a chemical reactivity and my instrumental analysis, it reacted very well in the instrumental analysis indicating that it was above the average.”
The defense initiated its case, based on the defense of entrapment, with the testimony of Larry Johnson, who stated that on the day in question he was working at a gasoline service station in St. Joseph, Michigan, when Officer Huston and Mrs. Stevens drove into the station, inquired where the defendant lived, and asked Johnson to show them defendant‘s residence because Mrs. Stevens wanted to get some “acid” from him. According to the witness, he then drove his vehicle to defendant‘s home while Huston and Mrs. Stevens followed in their own car, but returned to the service station upon finding that defendant was not then at home. The witness related that, before leaving the station, Mrs. Stevens had told him that Huston‘s brother was “strung out” and “needed some stuff“, and averred that he cooperated with Huston and Mrs. Stevens because the latter was a close friend whom he
On cross-examination, Mr. Johnson testified that Mrs. Stevens had told him that Huston‘s brother was “all strung up” and stated that it was his understanding that Huston‘s brother was a “junkie“.
Douglas Fast testified that at approximately noon on May 24, he drove Larry Johnson from the gas station to defendant‘s house while Huston and Mrs. Stevens followed in their own vehicle. Although the witness did not hear any conversation between defendant and Johnson or Huston, he stated that on the way to defendant‘s residence, Johnson had told him that they were driving there because Huston had a brother who “was in pretty bad shape and needed some stuff“. On cross-examination, Fast reiterated his testimony regarding Johnson‘s conversation with him concerning Huston‘s brother.
Testifying in his own behalf, defendant related that on the day in question, Mrs. Stevens, Johnson, and Huston came to his house and, after conversation, Huston stated that he needed to buy some acid and that defendant agreed to sell him drugs because “I trusted him because I trusted the people who he was with“. Defendant candidly
On cross-examination, defendant agreed that he remembered having had heroin and LSD in the trunk of his automobile and that he had sold some of these drugs to Huston on the day in question. The defendant acknowledged that he “probably” would have sold drugs to Mrs. Stevens and to Larry Johnson if they had wanted to buy them, whereupon the following colloquy ensued:
“Q. So the only people that you would sell to are the ones that you know well enough that you are pretty sure they wouldn‘t be a ‘narc‘, wouldn‘t turn you in, is that right?
“A. Yes.
“Q. You were ready, willing and able to sell to anybody that you knew were [sic] safe, right?
“A. A person I trusted, yes.”
Later, during cross-examination, the following exchange occurred:
“Q. Now, you heard your two friends, Larry Johnson and Douglas Fast talk about Bill‘s brother being strung out. I didn‘t hear you testify about that.
“A. I never heard about that.
“Q. You didn‘t hear about that?
“A. No, sir.
“Q. That wasn‘t the reason you sold them drugs because his brother was strung out then?
“A. No, Janice told me that he was from Chicago and that he needed it bad, is what she told me.
* * *
“Q. So you sold heroin and LSD to Bill because you thought it was safe to do so, right?
“A. Yah, I said that before.”
During defense counsel‘s cross-examination of Detective Whitford, the following colloquy transpired:
“Q. Do you know where Janice Stevens is today?
“A. No, I do not.
“Q. You were in pretty close contact with her, weren‘t you?
“A. No, sir, I never was in that close of contact.
“Q. But you met with her at Howard Johnson‘s that morning?
“A. That is correct.
“Q. She came there voluntarily, isn‘t that correct?
“A. That is correct.
“Q. So you don‘t know where she‘s at today?
“A. I do not.
“Q. She could also tell us that they never stopped at a gas station, is that correct?
“A. That is correct.
“Q. Or she could deny that too, couldn‘t she?
“A. Not if she were telling the truth, no.
“Q. But you don‘t know where she‘s at?
“A. No, I don‘t.”
Redirect examination then proceeded as follows:
“Q. Do you know of any efforts that have been made to find out where she‘s at to secure her for a witness today?
“Q. What efforts are those?
“A. The Michigan State Police Post at the Benton Harbor Post and the Sheriff‘s office from this county, both have been notified and attempted to locate her and have been unable to do so.”
During his closing argument, defense counsel stated:
“You know who Janice is. Now, she wasn‘t here today—and by the way, Mr. Whitford told you that the Michigan State Police and the Sheriff‘s office has been looking for her. Do you know who they have been looking for her for? Me. I requested her. They didn‘t request her. Why did I request her? Because, again, when the defense of entrapment came up it became critical that I show you that he went—that Huston tried to go there and couldn‘t do it.”
Defendant was convicted of both counts by the jury and on December 4, 1972, was sentenced to serve 3 to 20 years in prison on Count I, and 3 to 7 years on Count II.
On appeal, defendant claims that the trial court abused its discretion by admitting into evidence the three unanalyzed tablets allegedly containing LSD.
We cannot agree. Officer Huston testified that he purchased four purple tablets from defendant, after defendant told him the tablets were LSD, and testified at trial that the three purple tablets introduced by the people appeared to be the same ones he had purchased from the defendant. The prosecution‘s expert witness testified that he had scientifically analyzed one of the four purple tablets given him for analysis and that his analyses conclusively demonstrated the presence of LSD in the tablet tested, and that, although he did not
Relying upon People v Harrington, 33 Mich App 548; 190 NW2d 343 (1971), lv den, 385 Mich 775 (1971), defendant argues that it was incumbent upon the prosecution to prove that the defendant had delivered a usable amount of heroin or LSD to Officer Huston. Defendant‘s reliance is misplaced. This Court has held that Harrington, a case involving the unlawful possession of narcotics, is inapplicable to a prosecution for sale or delivery of narcotics. People v Gaffney, 51 Mich App 526, 529; 215 NW2d 587, 589 (1974); See also People v McCullough, 51 Mich App 534, 536; 215 NW2d 774, 775-776 (1974).
Defendant next argues that the introduction of Officer Huston‘s testimony concerning his attempted purchase of PCP from defendant was reversible error because it tended to show the commission of a distinct criminal offense with which defendant was not charged.
Defendant‘s argument is not well taken for a number of reasons. First, it is arguable that the testimony regarding the PCP was admissible at trial to show defendant‘s scheme, plan, or intent as a dealer in illegal narcotic drugs. See
Defendant next contends that he was entrapped as a matter of law and that the trial court‘s instructions with respect to that question were prejudicial and reversibly erroneous.
Defendant‘s argument is predicated upon the recent decision of our Supreme Court in People v Turner, 390 Mich 7; 210 NW2d 336 (1973), in which an objective standard with respect to the defense of entrapment is adopted. However, this Court has refused to accord Turner retroactive
We come finally to defendant‘s most forceful and persuasive argument: that his conviction must be reversed because the prosecutor failed to endorse the name of Janice Stevens on the information and failed to produce her as a witness at the trial.
It will be recalled that Janice Stevens was the police informant who initially indicated to Officer Huston that she might be able to lead him to a dope dealer, and who accompanied Huston in his vehicle to defendant‘s home at the time of the drug purchase, on May 24, 1972. Throughout the trial, Mrs. Stevens in absentia played a central role. Defense counsel, in his opening statement, indicated that he planned to present as a witness “possibly a young lady by the name of Janice Stevens” and the trial judge at one point during the trial stated:
“I don‘t see the problem here of the confidential informant or anything else so far as Mrs. Stevens is involved. Mrs. Stevens’ name has been mentioned as a possible witness in this case, which has also been testified here already. I don‘t see any problem there now as far as she is concerned. Furthermore, I understand there are some subpoenas out for her right now.
“Mr. Black [assistant prosecutor]: That is correct, your Honor.”
Defense counsel‘s reference during his closing argument to Mrs. Stevens’ absence at trial has already been discussed above.
Defendant asserts, the testimony indicates, and
The law in Michigan imposes a clear duty on the prosecution to endorse the names of all res gestae witnesses upon the information and to produce them for examination at trial.
“(1) When the prosecution makes a showing of due diligence in attempting to produce the witness, People v Gibson, 253 Mich 476; 235 NW 225 (1931), and People v Kern, 6 Mich App 406; 149 NW2d 216 (1967);
“(2) When the testimony of the missing res gestae witness would be merely cumulative, 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 605, p 782;
“(3) When the res gestae witness was a participant in the crime, People v Lyle Brown, 37 Mich App 25; 194 NW2d 450 (1971);
“(4) When the identity of the res gestae witness is made known to the defendant during trial, or even before, and defendant does not move for the indorse-
In the present case, defense counsel failed formally to move for Mrs. Stevens’ endorsement or production at trial. In light of the fact that he obviously knew of her importance prior to trial, we would normally hold that defendant is barred from appellate relief by the fourth exception above stated.
However, we cannot ignore the Michigan Supreme Court‘s recent decision in People v Robinson, 390 Mich 629; 213 NW2d 106 (1973), in which Justice COLEMAN, writing on behalf of a unanimous Court, stated:
“There is but one issue. Is defendant denied a fair trial when the prosecutor fails to indorse on the information the name of a possible res gestae witness who was, or should have been, known to him prior to trial and when he fails to produce such witness at trial?
“Defendant says that the duty of the prosecutor to indorse and produce all res gestae witnesses is an essential ingredient of a fair trial. Although no objection was raised during trial, failure of the prosecutor to act is said to demand reversal.
“The people reply by claiming that the record does not show that the prosecution knew of the unindorsed witness before trial. Even if they had, any testimony in addition to that presented at trial would have been cumulative. The people also remind us that defendant‘s trial counsel did not seek an adjournment or move that the witness be indorsed or even mention his existence.
* * *
“During the trial, defendant‘s attorney on two occasions affirmatively waived the presence of certain witnesses. Three were unable to be brought into court despite the prosecution‘s diligent efforts. One witness was deceased. The doctor who pronounced Howard Wright‘s death and two police officers stationed at the hospital were waived. Two other patrolmen were waived as their testimony would have been cumulative. At no time was the presence of Eugene Smith formally waived or excused. At no time did defendant‘s counsel seek to have Eugene Smith indorsed or produced.
* * *
“In order to prevent what might possibly be a useless new trial, but also in order to avoid a possible miscarriage of justice, we retain jurisdiction and remand to the trial court pursuant to
If ever there were a case where the prosecution‘s failure to produce a res gestae witness at trial could result in a “possible miscarriage of justice“, this is it. Because defendant admitted delivery of heroin and LSD to Officer Huston, his only hope for acquittal rested on the defense of entrapment. Concerning that defense, what witness could be more vital than the informant who served as the liaison between police and the defendant? Certainly Mrs. Stevens’ testimony would have been crucial and perhaps decisive during the jury‘s deliberations with respect to the question of entrapment. If the Supreme Court remands because one of three dozen witnesses is not produced at trial, can we do less where the key witness with respect to the
In accordance with People v Robinson, supra, and People v James, 51 Mich App 777, 784-785; 216 NW2d 473 (1974), we retain jurisdiction of this case and remand to the trial court for a hearing to determine whether or not Mrs. Stevens’ testimony would have been cumulative. The trial judge shall require the prosecutor to produce Mrs. Stevens at a hearing within 45 days from the release of this opinion. Mrs. Stevens shall be examined regarding her knowledge of the crime of which the defendant was convicted. At the conclusion of the hearing, the trial judge shall either grant the defendant a new trial or shall, within ten days after the end of the hearing, state his reasons for denying defendant a new trial. The trial judge‘s findings and a transcript of the hearing shall be forwarded to this Court. Defendant may file a supplemental brief within 15 days after the trial court reaches its decision, and the people may file their brief within 15 days after receipt of defendant‘s brief. If Mrs. Stevens cannot be located, the prosecutor must “bear the consequences” of the same and defendant shall be granted a new trial. People v King, 50 Mich App 487, 491; 213 NW2d 597 (1973).
Remanded for further proceedings consistent with this opinion. We retain jurisdiction.
R. B. BURNS, J., concurred.
O‘HARA, J. (dissenting). The opinion relied upon by my colleague to mandate remand is by its express terms prospective and limited to appeals filed after its date of publication (January 28, 1974). See People v Robinson, 390 Mich 629, 634; 213 NW2d 106, 109 (1973).
I find no error and vote to affirm the conviction.