People v. Konrad

v Konrad PEOPLE v KONRAD 17). (Calendar 8, Argued Docket No. 96938. March No. Decided July 1995. charged Mark Konrad was the Detroit Recorder’s Court with grams with intent to deliver over 650 of cocaine and conspiracy court, grams over 650 of cocaine. The Teranes, J., suppress Paul S. denied the defendant’s motion to Thereafter, the evidence. the was defendant convicted of both charges, granted but a new his own was trial on motion. On retrial, jury by charges, a the defendant convicted of both Jones, Murphy, P.J., Appeals, J. Vera M. The Court of and Shepherd JJ., unpub- T. G. Kavanagh, and reversed in an 113526). (Docket opinion per remand, lished curiam No. On the Court, P.J., JJ., and Gribbs Murphy, Shepherd, affirmed (Docket 150317). unpublished opinion per in an curiam No. appeals, asserting defendant that there was insufficient evi- satisfy possession. dence the element of opinion by joined by In an Justice Boyle, Riley, Justices Supreme Mallett, Weaver, the Court held: There was sufficient evidence from which a rational trier of fact could conclude the cocaine. by 1. properly the Statements defendant to the admitted, denying trial and the court did nоt err his motion corpus designed for a directed verdict. The rule is delicti prevent a use defendant’s confession to convict him of a Specifically, provides crime that did not occur. the rule that a may defendant’s confession not be admitted unless there is independent direct or circumstantial evidence of the confession case, corpus to establish crime. In delicti was independent established of the defendant’s confes- possessed by sion that the cocaine existed and was someone. identity perpetrator part Proof of the is not a corpus delicti. It is sufficient to show crime was committed someone. Ample presented 2. evidence was which a from rational trier beyond of fact could conclude doubt reasonable constructively possessed through defendant cocaine agent. physical possession Proof of actual cocaine is unneces- conviction; sary proof possession, for a will Opinion the Court may joint, with be exclusive and need not be suffice. Possession constructively possessing actually person or one more than question is whether The essential controlled substance. the controlled sub- or control over had dominion recognized right stance, au- the or in this case means which thority the substance. criminal milieu the Affirmed. joined by and Brickley, Justices Levin Chief Justice proved dissenting, trial are Cavanagh, that the facts stated possession support of the defendant’s conviction insufficient to of cocaine. physical possession proof of controlled direct of actual While necessary for a convic- of arrest is not at the time substances 14.15(7401), analysis 333.7401; of MSA an under MCL tion and control measured dominion constructive possession. vague test of in a and overinclusive results agent of question an at the time is did the defendant or

basic physical substances of controlled arrest have actual or the evidence that the defendant or can it be inferred from i.e., posses- agent possession, had constructive the earlier had sion? case, possessed argue the defendant In expand meaning subject drugs of the term is to prior prece- meаning beyond ordinary contravention its may Supreme the defendant be Court. While dent of crime, i.e., attempted possession, culpable he for an inchoate posses- guilty offense of to be substantive cannot be said sion. Kelley, Attorney General, L. Thomas Frank J. Casey, O’Hair, General, D. Pros- John Solicitor Baughman, ecuting Attorney, Timothy Chief, A. Oíga Ag- Training Appeals, Research, peo- Prosecuting Attorney, nello, for the Assistant ple. defendant. Ziemba for the

Carl question presented is whether J. Boyle, con- from which to there was sufficient We cocaine. clude was, decision of the and affirm the hold that there Appeals. Court . v Konrad Opinion of the Court

i leading The events to the arrest of the defen- 30, 1984, dant took on in a place August Kmart Livonia, it parking appears lot where undercover officers of the Livonia Depart- Police- gave ment in marked funds to a woman $550 named Laurie Clark for the purpose purchasing Sergeant gave cocaine. Peter Kunst the money to Clark, Ms.. who then drove her car across parking lot to a fence that ran between parking Kmart lot and the neighboring McDon- parking According officers, ald’s lot. to surveillance car, got man into her and Ms. Clark drove the car several feet before stopping. The same man car, then left jumped over the fence into the lot, McDonald’s parking got on a motorcycle, and sped away. police arrested Laurie Clark and a man

named Gordon Grimes for the cocaine delivery Kthe mart lot. parking police did not find any of the marked money either Ms. Clark’s or Mr. Grime’s possession.

Backup surveillance officers the motor- followed cycle for a short Although sight distance. lost they traffic, of it in they managed to record the license plate number. The registered was motorcycle to defendant, Mark Konrad.1 thereafter,

Shortly police a number of officers arrived at Konrad’s home. Parked in the driveway was the motorcycle had been at the scene of the controlled purchase. Sergeant John Jandasek testified that a woman answered door and let the officers into the house he where arrested the prosecution’s The source of the facts described thus'far is the response suppress to a motion to filed before defendant’s first presented question. trial. This information was not at the trial We solely background. it include 449 Mich 263 Opinion Court said, time, defendant. At the defendant you looking "What are for is in a locked room keys.” Sergeant the basement. I have the Jandasek police custody left the defendant in the of other request officers while he went a warrant to search the house. Bryant that he

Officer William testified searched arrest. In the incident his defen- pockets, large currency dant’s he found roll a key. Bryant and a Officer testified a scout car arrived to take the defendant to the station. being away, As he was led the defendant said to wife, "Call Joel and tell him not to come my look at bike.” The defendant then said to Bryant, guy supposed Officer "This to come and my motorcycle. buy look at I think he wants to it.” phone The defendant’s him wife asked for a num- gave ber, and the defendant it to her. Mrs. Konrad began walking then toward the kitchen where phone her, was located when the defendant said to now, "Not do it later.”

Sergeant Kunst testified that when he arrived home, undеrcover, the defendant’s still officers already awaiting there a search warrant. As away people waited, he turned he' ten to twelve during forty-five who arrived at the house min- period. waiting ute Just after 6:30 as he p.m., yard, young approached carry- in the front man ing top egg-shaped a box. On of the box was an object wrapped masking tape partially pair covered with a of khaki shorts and a Detroit Tigers cap. person baseball As the came close Sergeant house, he asked Kunst whether Sergeant defendant was home. Kunst told the Hamp, man, later identified as Joel that the defen- dant was not home but that his wife was inside. Sergeant you something asked, Kunst "Do have v Konrad Opinion of the Court Hamp up

for him?” said that he did and walked walkway. Sergeant Hamp followed, Kunst entered the As Sergeant Inside, himself house. Sitner identified as police Hamp Sergeant turned, officer. knocked floor, Kunst to the and ran out of the house.. Sergeant Kunst and another officer chased the appre- foot, defendant several blocks on before hending arresting egg-shaped objеct, him. The Hamp dropped lawn, which had on the contained grams 881.8 of cocaine.' Sergeant key

Later, Kunst used the taken from open a door in the basement. baggies, scales, There he found two boxes of over zip-lock baggies, one hundred partially and at fifteen least empty cutting-agents. filled or bottles sifters, He also found two which are used to mix diluting powders. paneling cocaine with Behind just corner, $10,000 he found under cash. Sergeant phone bedroom, From the Kunst seized a special equipment. electronic Sergeant Kunst testified that he returned to the midnight, point station about at which he thirty interviewed the defendant utes. min- about Sergeant Kunst testified2 Konrad con- arranged purchase fessed that he cocaine gave $40,000 from a man named Chris. He later payment kilogram for the of cocaine to a man named Todd who had come to his house. Konrad traveling understood that Chris would be either to Tennessee or Florida to obtain it. On the afternoon August Hamp 30, 1984, Joel called Konrad and error, reporter part transcript Because of a court unavailаble, including portions second trial is of Officer Kunst’s and testimony. testimony rely on the as it Officer Perkins’ appears stipulated, We officers’ transcript in the of the first trial because defense counsel has argument, both in his brief and at oral that the officers’ testimony first trial. essentially the same as it was at the at the second trial was 449 Mich 263 Opinion op the Court together,” meaning "everything him told that Hamp ready to had the cocaine and was They arranged Hamp deliver it to Konrad. it to at seven that would deliver Konrad’s home evening. Konrad told Kunst that this was Officer shipment the fourth such from Chris and be previous transactions, Joel. In each of the three the cocaine to Konrad’s home. Joel had delivered having $80,000 Konrad confessed to earned in the year by selling cocaine, last and described how he spent profits. had He also told Kunst that he purchased special phone that could detect taps. wire

Officer Perkins also interviewed the defendant. giving He testified that Konrad had admitted payment $40,000 to Joel as for the cocaine. Perkins also testified that Konrad told him that he knew trаveling Joel would be either to Florida or Ten- pick up nessee to the cocaine. Konrad confessed selling recently that he had started cocaine and obtaining kilogram good that Joel was at a price. charged

The defendant was with grams cocaine, intent to deliver over 650 MCL 14.15(7401), conspiracy 333.7401; MSA and with amount, the same 750.157a; MCL MSA 28.354(1). December, He was tried in charges, granted of both but was convicted new trial on his own motion. November, 1988,

In defendant was tried a sec- jury. ond time and convicted a Recorder’s Court initially reversing After the defendant’s convic- Appeals unpub- tion,3 the Court of affirmed in an ground The Court reversed defendant’s conviction on the prosecutor 780.601; Agreement had violated the Interstate on Detainers. MCL 4.147(1). prosecutor’s application MSA On for leave to however, appeal, Appeals this Court ordered the Court of to direct the hearing findings Recorder’s Court to hold a and make about whether Konead Opinion of the Court applied opinion per curiam. The defendant

lished appeal. granted for leave to We leave to this Court there was sufficient evidence "limited to whether satisfy . . . .” 447 the element of

n claims that the trial court erred The defendant denying motion ‍​‌​‌​​‌‌‌‌​‌​‌​‌‌‌‌​‌​​​​‌​‌‌‌​​​‌​‌‌‌​​​​​​‌​​​‍for a directed verdict of in acquittal with intent to

on the count deliver because there was insufficient This claim rests on that he the cocaine. argument the defendant’s that his statements corpus police excluded under the should have been denying delicti rule: "the trial court erred the record is motion for a directed verdict because any evidence whatever —aside from the devoid of allegedly contained in the two statements evidence made support defendant to the —to prosecution’s theory that either con- structively possessed the cocaine or that he aided Hamp Hamp’s physical and abetted light specific grant . . . .” In of our cocaine argument, order, which concerns the admissi- bility sufficiency, than its is not of evidence rather well taken. argument

Moreover, is fallacious. The cor- pus designed prevent delicti rule is the use of to convict him of a crime defendant’s confession that did not Miсh People Williams, 422 occur. See v (1985); People 381, 391; 373 567 v NW2d Hughey, App 585, 587-588; 186 Mich NW2d (1990). provides Specifically, that a the rule may admitted unless defendant’s confession not be requested disposition. Because it had the defendant had ever a final defendant, prosecutor, who asked for a trial state been the not the iad, proceeded conviction. the Court to aifirm the court under 449 Mich 263 op Opinion the Court indepen- there is direct or circumstantial evidence (1) establishing dent of the confession the occur- (for specific injury example, rence of the cases of death in homicide) (2) agency some criminal injury. People Cotton, the source of the 377, 394; 478 NW2d Legislature person person has established that no

may legally cocaine unless that statutory exception, falls within a see MCL 14.15(7401); 333.7401; MSA 333.7403; MCL MSA 14.15(7403), proving excep- and the burden of an person claiming it, tion falls on the see MCL 14.15(7531). 333.7531; MSA We have no common- authority body law to redefine the of this crime. corpus Therefore, the delicti was satisfied evi- independent dence of defendant’s confession that possessed by the cocaine existed and was someone. e.g., See, Orio, 938, United States v Di 150 F2d (CA 1945) (the corpus delicti for of an unregistered by independent still was satisfied still). evidence of the existence of an unlawful proof corpus defendant’s contention that delicti requires evidence that the cocaine was con- structively possessed by the defendant is incorrect. identity perpetrator "Proof of the of the of the act part corpus or crime is not a of the Di delicti.” Orio, 150 F2d 939. It is sufficient to show that the crime was committed someone. See also LaFave (2d ed), 1.4(b), pp Scott, & § Criminal Law 18-19. In position authority, the the words a noted the that corpus identity delicti of a crime includes the perpetrator of the argued is "too absurd indeed to be require

with,” because it would the proved entire crime be before a confession could (Chad- Wigmore, ever be 7 admitted. Evidence rev), p 2072, § bourn 526.

hi Given that the defendant’s statements to 271 People v Konrad Opinion op the Court admitted, we hold that the trial properly for a denying court did not err his motion there argues directed verdict. The pos- wаs insufficient evidence to establish that he question.4 the cocaine in Proof of actual sessed however, for a physical possession, unnecessary is 333.7401; 14.15(7401); conviction under MCL MSA suffice. See proof will (1992). Wolfe, supra at 508, 519-520; 748 489 NW2d Moreover, need not exclusive be person actually with more than one may joint, be possessing or a controlled substance. constructively Staten, v Id. United States 520; 189 US DC (1978). 100, 105; 581 F2d 878 is whether question essential the had dominion or control over controlled sub- Germaine, v 623, 627; People 234 Mich 208 stance. (1926). 705 In the foremost discussion of what NW to have dominion or control over necessary that a defendant drugs, Judge explained Posner in his hands or on literally "need not have them premises occupies that he but he must have the (not au- right legal right, recognized the but the milieu) them, in his criminal thority the deposit legal posses- owner of a safe box has though sion of the contents even the bank has Manzella, United States v actual custody.” (CA 1986). 1263, 7, our Court Similarly, F2d that, recognized regarding predecessor has stat- ute, peddler it not the actual only "reach[es] in trade in hand or narcotics who carries his stock it, nar- kingpin secretes but it reaches of the challenges sufficiency proofs Although the defendant of the n sufficiency specifically challenge generally, he does not evidence, regarding to deliver. We note that evidence including intent substance, quantity packaging is sufficient to drugs. finding possessor justify Cf. intended to deliver Wolfe, NW2d 272 449 263 Mich Opinion op the Court cotics traffic who disposition controls its but never v himself possesses the stuff.” People Harper, 365 (1962). 494, 507; Mich 808 NW2d This Court approved also the notion of construc- in People v tive Bercheny, (1972). 431; defendant, NW2d along others, with five had been convicted of possession heroin, heroin, of to conspiracy and control Id. at 434. of heroin. When the entered the house where the arrest took place, the defendants "were in found a small living room which a located, quantity heroin was to which all of the defendants were situated in close Peo- proximity.” Iaconis, ple 29 Mich App 185 NW2d The Court Appeals held that evidence was sufficient support a finding that defendants or controlled the heroin: people prеsented tending to show among things that, occasions, other on several premises

while question were under surveil- lance, frequently defendants prem- arrived at the time; ises and remained there that certain of the periods for short premises defendants left the a manner which indicated to an officer on the scene, who experience testified that he had had observing persons heroin, under the influence of they influence; such an under that when defendants, as well as premises, others entered the they through procedure, often went they did raid, i.e., on night they would kncsk on door, fan, through look again, window knock window, after opened which a blind was in a again, closed them; that, and the door opened was then night on the of the raid defendants were found in a small room in heroin and narcotic proximity close paraphernalia; that one defen- dant, night arrests, on the had blood marks on his shirt and a raised black and blue mark and afín, two red dots on his and another had on scars portion inner of both arms. [Id. 459.] 273 People Konrad v Opinion of the Court adopting granted affirmed, leave аnd This Court Appeals.5 opinion 387 Mich 435. Court of the of the ample present case, evidence6 In there could conclude trier of fact from which a rational beyond the defendant doubt that a reasonable through constructively his the cocaine supra agent, Hamp. Wolfe, at 514. The See Joel permits the conclusion that defen- evidence drugs they paid and that had for the dant power, in is, and he had the intention —that by Judge Posner, to exercise the sense referred to evidence that control over them. There is arrangement prior with Joel defendant made a purchase kilogram Hamp of co- to and others paid already cocaine, caine, for the that he had seven that he told Joel to come to his house about evening, arrested, that, after he had been direct Joel not to had instructed his wife to he after 6:30 and acknowl- come. Joel arrived edged p.m. something for the defendant.7 that he discussing pos- Although constructive most cases 5 (Mo, McGee, distinguished State v 473 SW2d 686 This Court also 1971), marijuana found the defendant. That case involved heroin in rеlied on (the Bercheny open piles) in a house was in in containers that quently, inference as in the instant case.” 387 Mich Conse shared with two friends. 473 SW2d 687. marijuana presence the same "did not raise 434-435. 6 evidence, prosecution relying on circumstantial Even a case negate every theory consistent with the defen need not dant’s reasonable innocence, merely sufficient to convince but introduce evidence contradictory jury evidence the a reasonable defendant in the face of whatever Wolford, 478, 480; App may provide. People 473 431 415 189 Mich v 195, 197; Gravedoni, (1991); People App Mich NW2d 767 v Daniels, 703, 707; (1988); App People v NW2d 221 NW2d dissenting opinion argues "[tjhere was no jury beyond produced a reasonable doubt purpose could conclude at trial from which reasonable Hamp agent defendant for the that” was an appears Post at 283. The dissent of this transaction. equivalent Hamp of the defen- assume that if was not criminal employee, cannot be then the defendant dant’s full-time exclusive found formal case, responsible any not the even under for of his аcts. This is agents provide agency principles' for "authorized which 449 Mich 263 Opinion of the Court through agents session a defendant’s involve agents who have sold substances,8' controlled Mich- igan recognized courts have that defendants also may constructively possess substances that their agents bought have Davis, them. In (1981), 311 NW2d 411 readily Court held that "a finder of fact could 'acquire[d] conclude that defendant had or ob- ” possession,’ prescription drugs tained] that a agreed pick up, pay - co-worker had for, "whereupon defendant, deliver to the the defen- pur- dant would reimburse the co-worker for the price.” appre- chase Id. at 525. The co-worker was prescription hended after he obtained the panel but before he delivered it to defendant. The rejected argument defendant’s "since he never had of the substance, controlled the most he could have been convicted of is an attempt to obtain a controlled substance . . . .” Id. jurisdictions support

Decisions from other strongly result. The circumstances indicate that package Hamp belonged carried Mr. to the single conduct a involving transaction or a series of transactions not continuity agent” 2d, 3(2), Agency, p "special service.” Restatement § 15. A principal by can bind a conveyances contracts or that he is 2d, Agency, 161A, authorized to pp 382-383; make. See Restatement § Flushing Rowen & Blair Operating Corp, Electric Co 239 NW2d 633 Hamp We do not equivalent hold that Joel was the criminal of the general agent, might defendant’s which render the defendant liable any Hamp possessed for during cocaine only that time. We hold there is sufficient evidence to possessing convict the defendant of procured by Hamp cocaine that had been belonged but that to the Assuming arguendo defendant. ern, principles gov- that the Restatement provides regarding it assigned that wide discretion transac- special, opposed tion is general, consistent with agency. as Restate- 2d, Agency, 3, p ment comment to 16. § appears practical reality This to reflect the that law enforcement likely apprehend is much drug more drug detect and dealers than buyers, relatively greater penalties drug and that dealеrs make likely go subsequently appeal them more to trial and their convic tions, leading published appellate to more decisions. v Konrad Opinion of the Court delivery. merely awaited defendant Appeals for the Fifth Cir- Court of United States finding support a sufficient to held these facts cuit v Ha- in United States of constructive 1976). (CA case, 5, In that rold, 531 F2d 704 waiting in a car at Tom Barber Airport his wife while Intercontinental Houston picked up freight package to him addressed an air filled with heroin.” 160 balloons that "contained pack- apparently took never He along age, wife, and his because passenger, Harold, were ar- Richard with their Nevertheless, to the car. rested as she returned challenge sufficiency rejected his the court package con- "The fact that of the evidence: taining Barber, to Tom the heroin was addressed picked up apparently it his wife and that agent enough car, in his he waited outside while by Tom and control to indicate sufficient dominion pos- finding support of constructive Barber to 705. session.” Id: at addition, the de indicates that

In the evidence paid already In some for the cocaine. fendant had circumstances, that evidence that courts have held paid already can be for ‍​‌​‌​​‌‌‌‌​‌​‌​‌‌‌‌​‌​​​​‌​‌‌‌​​​‌​‌‌‌​​​​​​‌​​​‍cocaine a defendant had sufficient to session. pos finding support 1443, Russo, 796 F2d In United States v (CA 1986), explained the court might "[wjhile clearer on have been the evidence point, and that Sanchez it does tend to show in and at least a financial interest Granados had drugs they ownership part were dis of the until sold, Granados were tributed, Sanchez and and possession paid. This constitute constructive would by Sanchez.”9 9 "neglect[ed] dissenting opinion to state that we have asserts played and sale in distribution

the active role the defendant[s] "[o]bviously, a drugs.” statement Post at 287. The dissent’s these Opinion of the Court The evidence that the transaction had been completed distinguishes present case from (CA Batimana, 9, United States v 623 F2d 1366 1980), on which the defendant relies. Like Mr. Konrad, the in defendants Batimana did not have possession. Konrad, actual however, Unlike Mr. only defendants Batimana were shown drug package have viewed the contents of the yet completed had not that their "[F]or transaction. all appears, negotiating may further have re- [the mained before Lavadia deliverer in Batimana] relinquished would have his dominion and Santiago . control 371, . . .” States, v United 889 F2d (CA 1989). 1, points Defendant also to the decision Appeals United States Court of for the Sixth Cir- (CA cuit in 6, Ward, United 243, States v 37 F3d 1994), proposition "[fronting for the co- caine, without control, additional elements of finding of constructive was based on much more than the drugs,” defendant’s the misrepresents financial interest in the id. at opinion. issue, passage including portions Russo at dissenting opinion, although omitted state that the defendants’ financial, involvement was more than their financial interest alone support finding possession: would be sufficient to Sanchez contends that the evidence does not show that he was ever in actual drugs. or constructive of the might While the point, have been clearer on this it does tend to show that Sanchez and Granados had a financial part ownership drugs interest and at least they until distributed, sold, paid. and Sanchez and Granados were possession by This would constitute constructive Sanchez. In case, any at Sanchez did drugs aid and abet the Tampa by participating supplying participating them and planning importation Tampa. their into His actions mani- offense, fested his intent to aid in the commission of an and he shared drugs actually possessed criminal intent with those who Tampa. light When we view the evidence in a most government,

favorable to the we hold that the evidence was jury beyond sufficient for the to find a reasonable doubt that guilty possessing Sanchez was with intent to distribute marijuana methaqualone .... F2d [796 1461.] v Konrad by Dissenting Opinion Brickley, C.J. nothing more than a variation on traditional relationship.” buyer-seller case, however, was That continuing enterprise prosecution criminal of a passage by defendant under 21 USC 848. The cited government proven concerns whether the people "for whom narcotics laws were violated organizer supervisor . . . .” or the defendant is an words, issue, in whether the defen- other managed people supervised controlled, or dant selling drugs. stands for 37 F3d 247. The case super- proposition not that a defendant does meaning manage person vise or within selling simply by him cocaine on credit. USC 848 It question whether the'de- does not address the controlling impor- More fendant was tantly, the cocaine. person it does not address the role of the selling, receiving, opposed the cocaine on credit.

IV foregoing reasons, For the we hold that there was sufficient evidence from which a rational trier of fact could conclude that the defendant question. the cocaine in Because of our resolution sufficiency issue, of this we need not address the supporting prosecutor’s the evidence alternate theory the defendant aided and abetted Mr. —that Hamp. Therefore, we affirm the decision of the Appeals. Court of JJ., concurred

Riley, Mallett, Weaver, J. Boyle, ap- (dissenting). At issue in this C.J. Brickley, peal is whether there was sufficient evidence from possessed cocaine which to conclude the defendant for purposes 333.7401; MSA of MCL 449 Mich Dissenting Opinion Brickley, 14.15(7401). majority has concluded that while physical defendant did not have actual of thе drugs, posses- of doctrine constructive sufficiently sion is the defendant. broad to include the of conduct majority I

Because believe that the parameters purpose has misconstrued the of n problematic precedent, doctrine, this I and has set a respectfully dissent.

i dispute There can be no that the defendant was highly drug Michigan’s who, active dealer under statutory scheme, deserves and has received life imprisonment. charge In addition to the in issue appeal, 14.15(7401), pos- 333.7401; MCL MSA grams session with intent to deliver over 650 of cocaine, defendant was convicted of 750.157a; MCL 28.354(1), conspiracy MSA over 650 grams appeals of cocaine. Because defendant’s con- cerning charge failed, the latter have all undoubtedly imprisoned will spective remain for life irre- presently

of Hence, how this Court rules. primary significance the value as of this decision will be its

precedent.

ii concept "possession” major has been a controversy source of contention and in narcotics Traditionally, imposition cases. of criminal liability possession was limited to situations possession Singer, which actual existed. See Con- possession structive of controlled substances: A problem, North Dakota look at a nationwide However, ND L R common sense and the needs of law enforcement have dictated a interpretation concept simply broader than physical possession. majority Hence, actual People v Konrad Dissenting Opinion Brickley, C.J. opinion provides, agree, proof and I that direct physical actual, time at the of arrest is necessary not for a conviction under MCL 14.15(7401). 333.7401; quire at 271. MSA Ante To re- proof such would render it difficult to en- Michigan’s drug possession force statutes. It is not infrequent drug sup- that at the time of arrest a plier physical or user is not in actual drugs. expansion application generally analyzed

statutes has been under the possession.” example, rubric of "constructive For Mumford, 230 NW2d (1975), entered the defendant’s apartment pursuant to a search warrant 'and standing found the defendant near a coffee table living brandishing gun. room On the coffee grams strainer, tinfoil, table was a and 7.8 of occupant heroin. Thе defendant was the sole of the apartment, and his wallet and mail addressed to him were found the bedroom. The Court of Appeals concluded that the defendant could be constructively said to have the heroin though actually, physically possess even he did not it at the time of his arrest: bearing posses-

The circumstantial on sion presence this case consists of defendant’s exclusive apartment in the under circumstances inhabitant, indicating that he was an not a mere Additionally, visitor. defendant was near the coffee which, view, plain appeared table on were what paraphernalia. to be narcotics and narcotics Fi- nally, jury reasonably could infer from the fact gun, that defendant brandished a that he was exercising knowledge control over the heroin with of its character. [Id. 283.] possession” "Constructive is a doctrine used to 449 Mich 263 Brickley, C. J. Dissenting Opinion application possession-type crimes broaden the to include situations trol cannot be physical

in which actual con- directly proved. Scott, LaFave & (Student ed), 3.2(3), p § Substantive Criminal Law 286. purpose possession of the constructive expаnd scope possession is to stat- doctrine encompass actual utes to possession those cases which shown,

at the time of arrest cannot be but "where the inference that there has been strong.” possession exceedingly at one time is First Report Marijuana Commission of National Drug Appendix, p Abuse, Hence, and possession” prior actual "constructive refers physical possession that can inferred from the be surrounding circumstances an arrest.

The doctrine of constructive has also drug kingpins used to been reach others who representatives actually utilize trolled handle con- pointed out in substances. As United States 1986) (CA Manzella, 7, v 791 F2d "[i]t guilty if would be odd a dealer could not be possession, merely because he had resources to drugs.” flunky custody hire a to have In (1981), Davis, NW2d agent agreed pick up an of the defendant an illegal pay substance, it, it deliver to the agent appre- defendant. The defendant’s by police hended officers after he obtained the substance, but before he was able to it to deliver Appeals the defendаnt. The Court of held defendant had constructive of the con- though because, trolled substance had actual even he never illegal substance, person purchased possessed another the sub- agent. stance as his Id. at 527. agency principal agent law,

In legal identity; and his share a it is a fundamental rule that principal bound, ‍​‌​‌​​‌‌‌‌​‌​‌​‌‌‌‌​‌​​​​‌​‌‌‌​​​‌​‌‌‌​​​​​​‌​​​‍for, is and liable the acts of his People v Konrad Dissenting Opinion by Brickley,

agent apparent done with the actual or authority Aaron, See, e.g., People v principal. 672, 731; People v (1980); NW2d Lawton, 341, App 352; 196 Mich 492 NW2d 810 (1992). It principals drug follows that in the trade are for the agents, liable actions of their and that a drug possess drugs boss can be said found the hands of his minions. states, including in most

Generally, Michigan, person possession has constructive of narcotics See, that are under his "dominion and control.” Wolfe, e.g., People v 508; 440 Mich 489 NW2d 748 Germaine, (1992); (1926). NW2d 705 This test has been criticized for failing provide any guidance real in determin- whether ing person possessed drugs. Two com- "defining mentators have stated that the traditional terms of dominion or control simply not informative in any functional manner. The terms 'dominion’ nothing 'control’ are more than labels used by courts to characterize Con- given Stevens, sets of facts.” Whitebread & structive narcotics cases: To have not, and have 751, 58 Va LR 759-760 Circuit Judge Tamm of the United States Court of Appeals for the District of Columbia Circuit stated in a concurrence: legerdemain compounded rhetorical in this appear

area of the law invokes abstractions which designed particular more to achieve a result in an individual case than to stabilize and formalize a objective index of workable standards. The more cases one reads on constructive deeper plunged subjectivity. is he into a thicket of Holland, States v 144 US DC [United 227, 4; (1971).] n 445 F2d 701 Hence, deciding whether 449 by Dissenting Opinion Brickley, of MCL in violation substances controlled 14.15(7401), we must be careful 333.7401; MSA beyond As I believe is and buzzwords. look demonstrated labels analysis opinion, majority an possession "dominion” and "con- measured vague test of and overinclusive trol” results possession. question cases The basic agent or his had the defendant must be whether physical of controlled substances actual "possession,” i.e., arrest, or had at the time that from the evidence it can be inferred .whether agent time the defendant or at some earlier actually physically the cocaine at ever issue, possession.”1 i.e., had "constructive hi majority there in fact concludes that was a rational trier of sufficient evidence from which beyond doubt that fact could conclude a reasonable constructively possessed the cocaine permits that "The the conclusion at issue: drugs paid that for the and the defendant they is, the intention his—that that he had power over them.” ... to exercise control reaching conclusion, the ma- Ante at 273. In Hamp jority perfunctorily that Joel that declares agent defendant, therefore defen- drugs Hamp’s posses- dant had control Citing supra, majority specifically Davis, sion. argues Michigan recognized courts have modify “possession” The use of the term "constructive” ambiguous admittedly confusion and is a source of considerable above, possession. surrounding I As stated doctrine possession properly context of believe the use of this term interpret majority it to mean that means “inferable.” The seems while not ever which, amounting to actual there are facts or conduct physical possession, be concluded to be should nonetheless below, purposes I articulate I find of the law. For the reasons for the this interpretation untenable. v Konrad Dissenting Opinion by Brickley, C.J. may constructively

defendants substances agents bought them. their have Ante Undoubtedly 274. any if. this is true and this rule had dispositive. it

relevance to this case would be However, it does not. Agency section,

In its first the Restatement of agency fiduciary as "the defines relation which by from the results manifestation of consent one person to another that the other shall act on his subject by control, behalf and to his and consent Agency, 2d, 1 the other so to act.” Restatement p § 1, Parfet, 165; 7. See also Saums v 270 Mich (1935). "agent” person having 258 express 235 NW An is a implied authority represent or or act on person princi behalf of another who is called his pal. (1952); Burton, Burton v 51 NW2d 297 Co,

Lincoln v Fairfield-Nobel 514; 257 NW2d produced

There was no evidence at trial from jury beyond whiсh a reasonable could conclude Hamp repre- reasonable doubt that acted for or authority sented defendant the defendant’s majority points control. The to the facts that de- arranged Hamp pur- fendant and others to kilogram Hamp cocaine, chase a instructed delivery, and, when to come to his house with the arrest, after his instructed his wife to "direct” Joel presentation not to come. Ante at 273. This incomplete evidence is and also fails to show requisite authority necessary or control for an agency relationship. presented by

The uncontroverted evidence prosecutor2 arranged was that defendant for the person during golf cocaine with a named Chris game approximately two weeks before defendant’s noteworthy presented It is that all evidence at trial was that of prosecutor. present the waived his Defendant did not a case and in fact also opening statement. 449 Mich Opinion Dissenting Brickley, During meeting, defendant told Chris arrest. "ready,” that which indicated to Chris that he was This was the defendant needed more cocaine. supplied fourth time that Chris Hamp Subsequently, either or a with cocaine. person house known as Todd3 came to defendant’s kilogram paid $40,000 cash for a and defendant only suggest cocaine. This evidence can Hamp, agent acting all, if it him as an was was person Only meeting named Chris. after apparent agent engage did with Chris interesting Chris, defendant. It is dant, not defen- "kingpin,” appears i.e., here to be sort disposition cocaine one who controls the but possesses it, never himself the doctrine of intended to reach. constructive was testimony at trial further showed that on August Hamp called defendant and asked him delivery meet him to execute a somewhere "together.” everything Defendant told because Hamp stop by approxi- to instead his house at mately being Later, led 7:00 as defendant was p.m. away by police, he his wife to from his home told him call "Joel” and tell not to come to look at his motorcycle. majority apparently The believes that meetings ability to schedule and cancel dem- by onstrates sufficient control defendant shоw relationship Hamp. agency he had an with Joel agency The test of whether an has been created principal right is whether the has a to control the agent. Peach, 195 actions of the Meretta v (1992). any However, 491 NW2d A threshold of amount of control is not sufficient. control must obtain order to establish an testimony a of two Livonia officers. There was conflict person "Todd” One stated that defendant picked up picked up told him that a named $40,000 Hamp while the other stated that it was who money. People v Konrad Dissenting Opinion Brickley,

agency relationship. Co, Little v Howard Johnson App 675, 680; 455 NW2d 390 ability appointment, to schedule an in which one person informs another when he is or is not avail- appointment able, or to cancel an does not involve necessary. the level of control If this were the agency relationship case, an would be established person pizza delivery when a orders a or cancels laundry. noteworthy supra,

It is Manzella, heavily depended case so majority, on Judge Posner concluded that defendant did not constructively рossess narcotics.4 This is notewor- thy because defendant exercised a level of control similar to the defendant Manzella, this case. In charged the defendant was of co- caine with intent to distribute. The defendant suppliers served as a broker for various and would prospective buyers suppliers. match with these Judge ability Posner found this to schedule meet- ings finding pos- insufficient for a delivery. session unless the defendant could assure presented 791 F2d 1267. There was no at trial that the defendant in Manzella or the defen- delivery dant any in this case could assure the depended fact, cocaine. In on Chris and agents supply for his of cocaine. majority points Michigan Davis, also Appeals properly case in which the Court of found agency relationship. an case, In gave prescription agreed, to a co-worker who request, pick up prescrip- the defendant’s pay tion, it, defendant, and deliver it to the whereupon the defendant would reimburse the co- why Judge It is unclear Posner’s discussion in this case is the necessary "foremost discussion of what is to have dominiоn or control drugs However, given findings over . . . .” Ante Judge at 271. the of Posner, happily agree majority point. I with the this on , Mich Opinion Dissenting Brickley, C.J. price. purchase 524. for the worker an attributes of the classic case exhibits This relationship. agency authority evidence there was While ability represent and the and consent

to agent Davis, no such of an control the actions to presented us. in the case before iv agency, declaration to its In addition independently highlights majority facts as two constructively defendant conclude that to sufficient possessed (1) drugs the fact issue: (2) delivery,” drugs "merely the fact awaited drugs. my paid To for that defendant mind, simply are in combination factors these finding support a insufficient indepen- clearly possession, dently. insufficient and are majority support conclusion, the does In of its precedent state, instead but not turn to argues majority authority. The looks to federal that United (CA 5, Harold, F2d 704 States v drugs 1976), proposition for the stands delivery” "merely are in the constructive await disagree. recipient. I In intended car while Harold, waited the defendant up package picked airport into an wife went picked she had After to the defendant. addressed package, car, up returned to before she but were arrested. and his wife finding on the was based of constructive theory fact, agency the United In discussed above. spe- Appeals the Fifth Circuit States Court relationship agency pointed cifically be- ascribing and his wife tween the the defendant: constructive containing package the heroin that the The fact v Konrad Dissenting by Opinion Brickley, Barber, was addressed to Tom and that his wife picked up it apparently agent as his he while car, waited in enough outside to indicate sufficient dominion and support control Tom Barber to finding possession. of constructive [Id. Emphasis at 705. added.] The court made no mention of the fact that "merely delivery” drugs defendant awaited finding possession. key constructive A to its appears agency conclusion ‍​‌​‌​​‌‌‌‌​‌​‌​‌‌‌‌​‌​​​​‌​‌‌‌​​​‌​‌‌‌​​​​​​‌​​​‍to have been the rela- tionship between the defendant and his wife. The drugs fact that were addressed to the defen- simply premise dant corroborates the that his wife acting agent. as his majority The also contends that United States v (CA 1986), Russo, 796 F2d 1443 stands for the proposition payment drugs may that constitute possession. Again, disagree. constructive I The majority states: addition, In the evidence indicates that the de- already paid

fendant had for the cocaine. In some circumstánces, courts have held that evidence that a already paid defendant had for cocaine can be support finding sufficient to pos- of constructive Russo, session. In United States v the court ex- plained might the evidence have been "[w]hile point, clearer on this it does tend to show that Sanchez and Granados had a financial interest part ownership and at least drugs they until distributed, sold, were were and Sanchez and Granados paid.” added; Emphasis at 275. citation [Ante omitted.] neglects majority to state the active role the played in the distribution and sale of drugs. partnership Sanchez,

these Defendant supplier drugs Granados, was the main organization. participated the Bedami Sanchez 449 Dissenting Opinion Brickley, C.J. importation drug planning schemes. of several the He provided drugs ventures, and at for these drugs a "stash” himself at least once unloaded inspected drugs Moreover, himself to house. he safely they Russo, delivered. make sure Obviously, finding of con- 1460-1461. 796 F2d than on much more structive was based drugs. in the financial interest the defendant’s legal opinion precarious majority on a rests my it It is is so because foundation. belief posses- expanded the has doctrine delimiting beyond I In what its limits. sion outer proper parameters to be the of constructive believe possession, authority I turn this state. to the

v Except prohibition cases, this Court for several concept only has addressed People possession of controlled substances supra. case, officer Wolfe, In an undercover purchased Saginaw apart- a some cocaine at crack Shortly thereafter, ment with marked bills. apartment individ- raided found six unspecified shotgun, uals, loaded and an number a packets In defendant’s of crack cocaine. beeper, possession, they bills, the marked found apartment. key We to the back door and a follows: the doctrine of described physical posses- actual person A need not have guilty of a controlled substance to be sion possessing or may it. be either actual Possession Likewise, possession may be found constructive. is not the owner when even . . . recovered narcotics. case, no direct evidence

In this there was v Konrad Dissenting Opinion by Brickley, actually possessed defendant Wolfe the cocaine. Rather, the evidence at trial showed that he con- structively possessed cocaine,i.e., that "he had right to exercise control of the cocaine and present.” knew that it tions [Id. at 519-520.Cita- omitted.]

We went on in Wolfe to state that constructive totality exists when the of the circum- stances indicates a sufficient nexus between the defendant and the contraband. Id. at 522. readily distinguished

The case at bar can be present Wolfe, from Wolfe. In the defendant was drugs being the house from which the possessed key sold, he house, to the and he was evidently premises. Further, control of the there working was substantial evidence that he was drug-selling operation. others in a From those jury properly facts, the inferred that the defendant actually at some time the cocaine. conspired possess The defendant in this case drugs, with the intent to deliver them. He also diligent made efforts to the cocaine—he paid drugs for the and he came within an hour of receiving drugs them. But he never did. The ar- rived too late. The defendant had been arrested police drugs and removed the before the were drugs Further, delivered. the were not delivered to agent an of the defendant. reviewing

In the relevant state, case law of this apparent possession it is that constructive of con- always trolled mum, meant, substances has at mini- a supporting that there was some evidence an inference that at some time before arrest the agent actually physically pos- defendant or his sessed the controlled substance at issue. I can find possession no case of constructive from this state 263 449 Mich 290 Dissenting Opinion Brickley, provides Moreover, I believe otherwise.5 that to by the Minnesota As stated the better rule. be only possession Supreme Court, constructive application to those of the broadens prove or actual "the state cannot cases in which physical possession time but where at the of arrest strong the at one defendant the inference time physically did the and substance possessory in the sub- his interest not abandon stance but to dominion rather continued exercise 5 494; (1962), People Harper, 113 808 mari Mich NW2d In v automobile; People juana in was in the trunk of the defendant’s found (1920), Heide, 1; the defendant had 211 Mich 178 NW v Vander corresponded baggage possession that to the trunks in his checks 54; stored; Williams, App liquor People in v 188 Mich where was (1991), by police in an was discovered officers NW2d 4 abandoned home the the defendant destroy packets attempting of cocaine of because officers; 405; App presence People Downey, v 183 Mich in (1990), drugs found in the closet the defen 454 NW2d 235 dant’s were drugs; home; in he owned the the defendant also stated that (1984), Richardson, 622; App People v 139 Mich 362 NW2d 853 in in of a water located one of the cocaine was found a drawer bed apartment. in drawer werе the Also found the several bedrooms of receipts them; personal papers defendant’s on other with the name and (1982), McManus, 380; App People in v 121 Mich 328 NW2d 636 drugs kept in in the desk in the room which he were found defendant’s records; Sammons, People personal v all and business in (1981), App 351; provided police the 478 NW2d 901 defendant cocaine, sample participated regarding in discussions officer with a sales, expressed the in the denomination of bills used future to interest officer, drugs, police purchase do and the "we” not like the told time; money People keep drugs v the in the room at the same and 103 Mich (1981), 151; forty-three Delongchamps, App 302 NW2d 626 pound rented marijuana found in the trunk of the defendant’s bale of was card; automobile, defendant’s credit which was rented codefendant, ignition key of a while the was found in the defendant; People key trunk found in (1977), 444; Maliskey, App at the time of his v 77 Mich 258 NW2d narcotics; arrest, appeared to be under the influence arm, moreover, and had needle marks on his narcotics building paraphernalia found in which the and narcotics defendant was arrested; Iaconis, People and in v (1971), frequently arrived a home 185 NW2d 609 defendants moreover, heroin; periods under on the short night of time the influence raid, proximity of a defendants were found paraphernalia, and one of the defendants heroin and narcotics mark two his shirt and a raised black and blue blood marks on Wolfe, People my See discussions of v red dots on his arm. also Davis, Mumford, opinion. People v in the text of this 291 v Konrad Dissenting Opinion Brickley, up

and control over it to the time of the arrest.” (Minn, Florine, 609, v State NW2d 610-611 1975). argue pos- To case subject drugs expand meaning sessed the is to the "possession” beyond ordinary of the term its meaning prior precedent of contravention of People Harper, 494, this Court. v 365 Mich 506- (1962); 507; Mumford, 113 NW2d 808 see also supra person at 282-283. If a makes a mail order purchase with his credit card and then awaits delivery, object argue "possesses” few would that he the paid perhaps

for which he has until he or (i.e., agent) another member of the household delivery. has received I have no the doubt mightily tried to obtain of culpa- may cocaine, but he failed. And while he be posses- attempted crime, i.e., ble for an inchoate guilty sion, he cannot be said to be of substan- possession. tive offense Legislature separate category created "attempt” specifically inchoate crimes for cases "attempts” such this. It as is the nature of attempted completed. People not crime is v Robinson, 179 NW2d 239 (1970). "attempt” An been has defined an overt act crime, done the intent to commit the and except which, for the interference of some cause preventing carrying intent, out of the would have resulted in the commission of the crime. People Davenport, App 256, 263; 165 Mich NW2d 450 The defendant the intent drugs per- commit the crime of formed an overt act in furtherance of this intent paid when he for them. But for the interference of police, who arrested defendant and took custody, him into the defendant’s intent would fulfilled, have he been would have come into Dissenting Opinion Brickley, C.J. drugs. arrest The defendant’s incomplete, criminal act the defendant’s rendered Legisla- prosecuted only be he should and opinion majority appropriate. The has deemed ture possession indistinguishable the crimes renders attempted possession. and importantly, perhaps Finally, a common- most and application rule established sense disturbing majority presents The ma- results. person suggests jority said to that a can be pur- paid for their if he has controlled substances delivery. merely if Even awaits or if he chase conjunction, required ‍​‌​‌​​‌‌‌‌​‌​‌​‌‌‌‌​‌​​​​‌​‌‌‌​​​‌​‌‌‌​​​​​​‌​​​‍are elements these highly trou- new rule of constructive example, unscrupulous enforce- law For blesome. bargain at a offer narcotics ment officers could price. payment, person made As soon as majority opinion, police pursuant could, to the constructively possessed person the merely establish delivery. drugs and awaited drugs actually deliver, nor must have not need receipt actually them. In take entrap- questions presenting serious addition ment, this formulation culpability. limits of criminal too far the

extends VI parameters majority has misconstrued posses- purpose the doctrine of constructive proved are insuffi- at trial Because the facts sion. support conviction, defendant’s cient to respectfully dissent. I JJ., Cavanagh, concurred with

Levin Brickley,

Case Details

Case Name: People v. Konrad

Court Name: Michigan Supreme Court

Date Published: Jul 19, 1995

Citation: 536 N.W.2d 517

Docket Number: 96938, (Calendar No. 17)

Court Abbreviation: Mich.