*1 JONES v MARGARET PEOPLE op Decision the Court Separate Jury Examination —Discretion. 1. Dire — —Voir request to conduct the voir dire examina- Denial of defendant’s individually separately prospective jurors of was not tion alleged the defendant had discretion where that an abuse of heroin, involved, highly emotional and the issue the sale prospective juror would the examination one contami- jury if individualized voir the remainder of dire nate given permitted; the trial court is consid- examination was controlling the form and of voir latitude erable discretion examination, opportunity had the best to evaluate the dire existing potential prejudice when claimed. or actual Defenses—Entrapment. 2. Criminal Law — simultaneously deny the commission A defendant cannot entrapment. the defense crime and assert Drugs Entrapment. 3. and Narcotics — purchase drugs agent’s mere offer to does not A undercover entrapment. constitute Bronson, P. J. 4. Criminal Witnesses —Indorsement—Accom- Law —Res Gestae plices —Statutes. prosecutor permits argument
The statute obligated impeach gestae any he is to call res witness which currently applied destroys that a for the rule the rationale gestae duty accomplice res no indorse an as a has [1, [2] [4, [3] [6] Am [7,10] 53 Am 25 Am Jur 8] 21 Am Jur 21 Am Jur 9] 47 Am Jur 21 Am Jur Jur 2d, Jur, 2d, 2d, 2d, References 2d, Drugs, Criminal Law 144. Criminal Criminal Law 471. Trial 637. 2d, Jury Criminal Law § Narcotics, § § 197. Law 145. for Points § § § and Poisons §§ 118. in Headnotes 43, 46, 47. People v appeal persuasive controlling witness is of but because of precedents properly is more addressed to the (MCLA 767.40a). Supreme Appeals to the Court of Court than *2 5. Criminal Law —Res Gestae Witnesses —Indorsement—Accom- plices. charged accomplice formally prose-
An need not be to excuse the indorsing accomplice gestae witness, the as cution from a res supported gestae the where evidence conclusion that a res accomplice knowing police agent witness an rather a was than judge by concluding the trial did abuse discretion the accomplice. witness anwas Evidence—Hearsay—Admissions—Declarations 6. Criminal Law — Against Interest. Hearsay testimony credibility which relevant was the of the witness, primary regarding prosecution's by a statement made police agent agent stealing money a in which the admitted witness, prosecutor’s properly by from the excluded extrajudicial trial court because an statement is inadmissible recognized exception hearsay rule; it unless satisfíes a to the exception applicable the admissions was not to the statement police agent party trial, since was not a to the and the exception against for declarations interest made a third party inapplicable "penal” a because interest was involved exception traditionally and this has been limited to declara- against "proprietary” "pecuniary” tions or interests. Argument 7. Criminal Law — of Counsel —Prosecutor’s Remarks— Prejudice. prosecutor’s closing jury A a entreated to return by misconstruing description a conviction a defendant’s being "junkie” "slip tongue” herself as a that this of the being constituted defendant’s admission of a seller of heroin "junkie” person going selling because is a "a iswho out and prejudicial purpose, jury, narcotics” contained a inBamed the sought prejudiced defendant’s conviction innuendo and her eyes jury, thereby creating miscarriage justice in the of the a requiring despite register reversal failure defendant to objection preserve appeal. an and to for issue
Opinion O’Hara, J. Jury Separate 8. —Voir Dire — Examination —Court Rules. personalized Denial of a defense motion to conduct voir dire jurors examination of the was not error if is because there App 48 right, personalized provide dire of the court rule should
be voir 511.3). (GCR1953, for it 9. Criminal Gestae Law —Res Witnesses —Indorsement—Accom- plices. up police party set an undercover
A who offered to officer with sellers, suggested possible the defendant as a some narcotics source, present with the officer and the and who was alleged accomplice sale of heroin was not an at the time of the defendant, prosecution and the failure of indorse gestae party resulted in a res witness reversible error. as Argument 10. Law — Counsel —Prosecutor’s Remarks. Criminal closing argument prosecutor’s that the A comment being \junkie” description constituted an of herself as admis- person going "junkie" who is out sion is ”a since permissible testimony comment on defendant’s narcotics” was express prosecutor was entitled to his view as to because the what the term meant. Washtenaw, Jr., Ager, F. Appeal from William *3 7, 1973, February at Lans- J. Submitted Division. 13164.) (Docket 23, ing. July No. Decided 1973. appeal applied Leave to for. selling of heroin.
Margaret Jones was convicted Reversed and remanded. appeals. Defendant General, Kelley, Attorney Frank J. Robert A. Derengoski, Delhey, William F General, Solicitor Hensel, and John J. Prosecuting Assist- Attorney, Prosecuting people. Attorney, ant for Hamilton, Walter K appeal. for defendant on Fitzgerald J., and P. and Before: Bronson, JJ. O’Hara,* by jury P. J. Defendant was convicted
Bronson, to serve of heroin and sentenced verdict 335.152; MSA years. term of 20 to 21 MCLA prison * Justice, Appeals Supreme sitting Court on the Court Former assignment pursuant in 1968. amended to Const art as § conviction appeals 18.1122. From this defendant as raising right, allegations error, five a matter seriatim. we consider produced The evidence at following trial estab- background of appeal. the factual lished Ray- Sain, mond an undercover narcotics officer for the Department, Pontiac Police was the chief prosecu- tion witness. He testified that three to days five 24, 1971, prior February he came Ann Arbor "through subject” another was introduced to Ricky Ricky Cole. Cole him up offered set some narcotics sellers. 24, 1971,
On February Officer Sain obtained some from Ann money Arbor Police Depart- ment and searched for sellers narcotics with the assistance of After an Cole. unsuccessful attempt seller, to find one suggested Cole as a possible Sain source. Officer pro- testified he ceeded to defendant’s residence and inquired whether she had any narcotics for sale. Defendant answered that he should have come the previous night only because she had a couple spoons left. gave Officer Sain bill for two $100 spoons, placed which were in a packet, tinfoil received two change. bills in $20
Ricky Cole was called as a defense witness and testified that while he was in apart- Sain, ment with Officer no sale place. took Al- though Officer Sain asked defendant about availability of heroin for purchase, he stated that *4 replied that she didn’t at have the any present time. This witness further testified that Officer Sain packets had two tinfoil in his car entering before apartment. defendant’s Defendant testified in her own reaf- behalf and firmed Cole’s testimony place. no that sale took She admitted that Sain present apart- her App 334 48 Mich
338 1971, expressing a desire to February ment on However, of heroin. large she quantities purchase get merely offered to some for testified that she evidence, of this the jury At the conclusion him. of heroin. guilty found defendant abuse his discretion judge Did the trial I. motion conduct the voir a defense denying prospective jurors inde- dire examination pendently separately? charged that she
Defendant contends
mandatorily
imposed a 20-
capital offense
alleges
Defendant
further
minimum sentence.
year
was,
of heroin
in the
fall
sale
that
issue
issue. In view of these
highly emotional
factors,
that
the examination
feared
contaminate
the re-
prospective juror would
one
if
dire
individualized
voir
jury
mainder
not permitted.
examination was
discretion in
given
are
considerable
judges
Trial
and latitude
of voir dire
controlling
the form
Lockhart, People 70
examination.
Allen,
(1955); Mich
NW2d 802
Lambo,
People v
(1958);
Mich
Jenkins,
(1967); 320; 154 NW2d
This Court
159 NW2d
Talison,
459;
Defendant the rationale for currently applied the rule our by courts that duty has no an indorse accom- plice gestae as a res witness vanished in 1942 our Legislature when enacted 767.40a; MCLA 28.980(1). permits MSA Since this pros- statute gestae ecutor to impeach any res witness which he law, is to call obligated attendant burdens of vouching accomplice calling for an him as a prosecution is removed. witness reviewing authorities,
After
the cited
recog-
we
persuasive
nize the
appeal
argu-
of defendant’s
ment. Due to the
of controlling
prece-
duration
dents we decline defendant’s invitation to establish
rule
new
of law. This
is
properly
more
See,
e.g., People v
Supreme
addressed to our
Court.
Henderson,
(1973).
53;
47 Mich App
Defendant argues alternatively Cole Ricky was not an accomplice alleged but sale gestae rather res prosecution witness which the required was to indorse. The record establishes participation Cole’s active charged. the crime Although Cole not charged as a codefendant below, charged the case he heroin to Officer Sain day. later the same We find no need for the accomplice to formally charged be Cf. the accomplice exception before is applicable. Raider, People v (1931); 239 387 NW Moore, Mich App Peck, People (1971); 197 NW2d supports the conclusion The evidence accomplice of defendant an rather that Code was police. for the We do not knowing agent than a *6 record, upon this judge, find that the trial abused concluding that Cole an by discretion accomplice. commit judge by Did trial reversible error
III.
motion for directed ver-
defendant’s
denying
of
upon
entrapment?
the defense
dict based
entrapped
she was
be-
Defendant
claims
the initial contact or offer
cause Officer Sain made
the idea of
narcotics
implemented
present
In the
case defendant denied
her mind.
making
to
Sain. It is
sale of heroin
Officer
well
any
that a defendant
jurisdiction
established
this
deny the
simultaneously
cannot
commission
Peo-
entrapment.
the defense of
crime and assert
White,
35;
v
App
26 Mich
ple Nelson
NW2d
(1970); People
Claugherty,
(1971).
had
Assuming
solely upon
relied
prevail. The
entrapment,
she could not
defense of
agent’s
purchase drugs
mere
to
undercover
offer
United
Sherman v
entrapment.
does not constitute
States,
819; 2 L
2d 848
356 US
78 S Ct
Ed
Turner,
(1958);
Nadort,
(1972);
NW2d 799
these
84;
The trial judge denied the admission of this upon evidence the basis that it was hearsay. We agree and find that this extrajudicial statement was inadmissible unless it satisfies a currently recognized exception to the hearsay rule. The Lavier, Elliotte v Court in 300 NW (1941), distinguished between admissions and against declarations interest. The admissions ex- ception is applicable since Brenda Carnes was not a party the trial challenged below. The testimony arguably appears to constitute a decla- against ration interest. This exception for declara- against tions interest made by a third party has traditionally been limited to against declarations "proprietary” interests, or "pecuniary” declara- against "penal” tions being interests not included. (2d See ed), McCormick on Evidence 673. p § Mississippi, But see Chambers v 410 US S App 48 Finan, In Potter v L 35 Ed 2d 297 Ct 696, 702; (1967), 150 NW2d against a declaration interest this Court defined in proprietary or pecuniary interest terms finding any Michigan precedent declarant. the Not of a against the declaration existence supporting rule, hearsay the exception interests we penal proffered testimony the inadmis- conclude sible. deny a fair prosecutor Did the defendant trial
V. closing in prejudicial argu- statements ment? prosecutor’s
During the assistant cross-examina- a "junkie” referred herself as tion statement, junkies the "a lot us would get * ** our in [p]ool money and have a together upon The assistant seized this set”. following offered argu- characterization ments to jury: " * * * significant, thing really I think is when [0]ne heroin, supply her her where she I asked about * * * it, slip right get made a she at end of would examination, junkies at cross she said times us would significant, junkies. us get together very say She didn’t — get together, she us addicts or users would but said And, just people claim
junkies. that’s what junkie, person case, who is is this case, going heroin. out and narcotics
[*] [*] [*] heroin, got she said at "When asked where she her get together. junkies us That’s the defend- times would *8 slip ant, it that’s the true just she let a normal but case, despite every- in this and defendant thing her ailments else, she in her own words characterized herself narcotics, one that’s what who sells junkie, as a * * * charged with in this case (Emphasis she’s .” added.) People 343 v Opinionby had Although not defined the term prosecutor "junkie”, argued the assistant to the person a is "a jury "junkie” that who is going out which in narcotics” this case was her- object oin. Defense did not argu- counsel to this ment but rather chose offer the rebuttal defini- tion a "junkie” "user” merely of narcot- closing ics to the jury argument. register
Since defendant
failed to
an objection to
prosecutor’s argument,
the assistant
she has failed
preserve
for appeal
this issue
absent a miscar-
v
justice. People Humphreys, 24
riage of
App
Mich
411;
People Montevecchio,
v
(1970);
now
*9
App 334
48
and his trial
prosecutor
tactics are
This assistant
Although
prosecutor
the
Court.
stranger
no
to this
counsel,
than defense
no less an advocate
is
in People
the Court
v
following
statement
277, 290-291; 169
Brocato,
App
17 Mich
NW2d
(1969),
instructive:
is
prosecutor
to see that
duty
"It
is the
protect
and to
the interest
fair trial
defendant has a
'
protecting
concerned with
people,
are as
who
convicting
guilty, People
v Evans
innocent as with
(1888),
In this sense a
"(A) A lawyer shall not: administration of "(5) Engage in conduct justice.”* [*] [*] [*] is prejudicial to the We trust this direct criticism will constitute a repetition sufficient deterrent to a of such conduct *10 provide guidance and to the prosecuting bar. Finding that this assistant prosecutor’s conduct miscarriage created a of justice, we reverse defend- ant’s conviction and remand for a new trial.
Reversed and remanded. Fitzgerald
Judge concurs in the result only. result). O’Hara, (concurring in J. I agree that the denial of the defense motion person to conduct alized voir dire not was reversible error. If there is personalized to be right, voir dire of the rul1 ought provide for it.
I do not agree that Cole an accomplice I Jones. cannot see how he possibly I prosecution could be. think the obligated endorse him and call him so that the defense could cross-examine him. Simple justice process, or due used, whichever term is demanded it. regard This I as reversible error. rule,
As to the accomplice exception
I said all I
Mitchell,
People
could on
in
subject
(1973).
App 361;
(1972),
resentencing in
remanded for