PEOPLE v PEGENAU
Docket No. 96696
Supreme Court of Michigan
August 31, 1994
447 Mich 278
Argued April 6, 1994 (Calendar No. 6)
In separate opinions, the Supreme Court reversed the judgment of the Court of Appeals and reinstated the defendant‘s conviction.
Justice MALLETT, joined by Justices LEVIN and BRICKLEY, stated that
Section 7531 provides that a defendant seeking to establish an exemption to
While
The prosecutor‘s remarks during opening and closing argument fairly and accurately outlined the law as it would be stated in the court‘s instructions to the jury, and otherwise was permissible comment on the evidence. Furthermore, the court‘s instructions were sufficient to remove any possibility that the jury would be misled into thinking that the defendant was required to produce actual documentary evidence of a prescription or to bear the burden of persuasion regarding an element of the offense.
Chief Justice CAVANAGH, joined by Justice LEVIN, concurring in part and dissenting in part, stated that where, as in this case, a prima facie case of possession of a controlled substance in violation of
In this case, the defendant presented some competent evidence that he obtained the controlled substances pursuant to a valid prescription, sufficient to rebut the prima fаcie case of statutory violation. However, the defendant is not entitled to a new trial. The jury was properly instructed regarding the prosecution‘s burden of proof, and there is no reason to upset its finding that the prosecution proved the absence of a prescription beyond a reasonable doubt.
Justice BOYLE, joined by Justices RILEY and GRIFFIN, concurring in the result, stated that
It is incumbent on a defendant charged with an offense regarding a substance that may be lawfully possessed pursuant to a license or order form to prove that possession is authorized by the existence of such permission. Possession of prescription drugs is subject to criminal penalty only when it is not authorized by a prescription. Both the burden of production and the burden of proving the exemption are on the person claiming it. The lead opinion endorses an interpretation of
Section 7531 is an obvious and constitutional statute, which relieves the state of the burden of negating an exemption, and places the burden of proof of an exemption on the person claiming it. The approach of the lead opinion may reflect an unarticulated concern for the consequences of creating affirmative defenses that shift the burdens of production and persuasion. To the extent that it can be assumed that this is the concern, it should be clearly understood that
Unlike a case of presumed wrongful conduct in which the prosecutor‘s burden is proportional to the defendant‘s proofs, a simple assertion by the defendant that possession is by prescription increases the prosecutor‘s burden of proof to the point that a conscientious jury may be obligated to find that the government had not shown guilt beyond a reasonable doubt. This increase in the prosecutor‘s burden is not rationally tied to the truth, but to the nature of the regulated activity. The Legislature understood how difficult it would be for a prosecutor to rebut a defendant‘s simple assertion in a case such as the present. It also understood how difficult it would be to regulate the activity employing such an approach. That presumably is why the Legislature placed the burdens of production and persuasion on the defendant. Thus properly understood, applying the exemption or exception provision of
Reversed and reinstated.
199 Mich App 161; 501 NW2d 211 (1993) reversed.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Gary L. Walker, Prosecuting Attorney, and Terrence E. Dean, Assistant Prosecuting Attorney, for the people.
Mark Peter Stevens for the defendant.
MALLETT, J. In this criminal matter, the Court of Appeals reversed defendant Robert Paul Pegenau, Jr.‘s, jury conviction for unlawful possession of Valium and Xanax.1 We granted the prosecutor‘s application for leave to appeal2 to determine: (1) the constitutionality of
I
On February 1, 1988, defendant was arrested for drunk driving. Pursuant to a custodial search, an officer discovered a bottle of pills in his jacket poсket. Some of these pills were later identified as
At trial, the sole issue was whether defendant possessed the drugs pursuant to a doctor‘s prescription.4 Section 7531 places the burden of proving existence of a prescription on the defendant:
(1) It is not necessary for this state to negate any exemption or exception in this article in a complaint, information, indictment, or other pleading or in a trial, hearing, or other proceeding under this article. The burden of proof of an exemption or exception is upon the person claiming it.
(2) In the absence of proof that a person is the authorized holder of an appropriate license or order form issued under this article, the person is presumed not to be the holder of the license or order form. The burden of proof is upon the person to rebut the presumption. [
MCL 333.7531 ;MSA 14.15(7531) .]
At the beginning of trial, outside the presence of the jury, defense counsel posed the issue how the burden of proof pursuant to
The trial court indicated that it would study the issue, but, rather than keep the jury waiting, the attorneys should proceed with opening arguments without referring to the burden of proof issue. However, the assistant prosecutor stated in opening argument:
If there is some evidence in this case that there was a prescription or some type of evidence that there might have been a prescription in this case, then it will be my job to prove to you that there was, in fact, no valid prescription for these drugs. Now, what I want you to consider in this case on that point is, is there a prescription presented to you? Do you have a piece of paper that indicates that a doctor wrote it out and gave him a prescription? Is there a doctor—going to be a doctor in Court testifying? Yes, I gave him a prescription for these drugs on this—on such and such a date.
Defense counsel objected on the ground that the argument improperly shifted the burden of proof to the defendant. The trial court overruled the objection, stating that the prosecutor could outline what he thought the proofs would show.
The prosecution presented its case through testimony of the arresting officer and the officer who booked defendant. The arresting officer testified that at the time of the arrest, he asked defendant if he was taking any medication, if he was under a doctor‘s care, and if he was suffering from any physical disabilities. Defendant answered “no” to each of these questions. Later, while booking the defendant, an officer discovered an unlabeled white bottle in defendant‘s jacket pocket containing an
Defendant testified that he has had a longstanding and recurrent back problem dating back to the 1970s. He explained that it frequently flared up while he was working at out-of-town locations in the air conditioning and refrigeration business. He testified that he had been treated in as many as twelve cities for such work-related injuries by various doctors who would prescribe tranquilizers, such as Valium, and pain killers, such as Darvocet or Tylenol with codeine. Defendant testified that because he did not have medical insurance, he paid for the prescribed medications in cash. He would empty the remnants of his various prescriptions into a single plastic container and carry this with him for convenience. He conceded that he was unable to remember the names of any of his treating physicians or to produce a written prescription or other written documentation for the drugs.
Defendant‘s dentist testified that dental records showed he had prescribed Tylenol with codeine and Darvocet for defendant in 1987.6 Defendant also produced a 1985 drug store receipt for two unidentified prescriptions. A physician specializing in clinical pathology, Dr. Ronald Sanders, testified that after examining defendant and reviewing his medical records, the defendant did in fact suffer
In closing argument, the prosecutor outlined the elements of the offense. He stated:
The only possible question is then, the Judge is going to tell you, that there is a fourth element. Once some evidence of a prescription has been introduced in this trial—and there is some evidence of that, then it‘s the prosecution‘s burden to prove beyond a reasonable doubt, that there was no prescription. And that‘s what this case comes down to. Was there a prescription or not?
As you are making that decision on the fourth element—the first three have been proven to you beyond a reasonable doubt, by the defendant‘s own admission—as you‘re making your decision on the fourth element, you are to consider credibility.
Later in the argument, the prosecutor commented on defendant‘s inability to produce documentary proof of a prescription and his inability to remember any of his treating physicians.7 Defendant objected to these comments and now argues that
The trial court instructed the jury that the defendant was not required to prove his innocence or to introduce any evidence at all. The court further instructed that the prosecution was required to prove beyond a reasonable doubt that the controlled substances were not obtained as a result of a valid prescription. The jury was not instructed regarding defendant‘s burden pursuant to
The Court of Appeals reversed, holding that the trial court erred in not granting defendant‘s motion for new trial. The Court indicated that because defendant had met his initial burden by coming forward with some evidence of a prescription, the prosecution should have been required to prove absence of a prescription beyond a reasonable doubt. The Court also suggested that defendant was denied a fair trial because of the prosecutor‘s impermissible burden-shifting argument and the prosecutor‘s remarks to the jury that defendant had to produce documentary proof to
We granted the prosecutor leave to appeal and hold that the Court of Appeals erred in reversing defendant‘s conviction and remanding for a new trial.
II
Defendant challenges the constitutionality of
Defendant argues that Michigan has followed the same test as that applied in Turner. The test requires that for the presumption to be upheld, there must be ” ‘substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend.’ ” People v Rafalko, 26 Mich App 565, 569; 182 NW2d 732 (1970), quoting Leary v United States, 395 US 6, 36; 89 S Ct 1532; 23 L Ed 2d 57 (1969). See also People v Battle, 161 Mich App 99, 101; 409 NW2d 739 (1987).
Defendant argues that there is no basis for feeling substantially assured that the mere act of possession of Valium or Xanax equates with un
Although defendant‘s argument appears to have some force, it misses the mark. Defendant casts the statute in terms of a presumption. While Turner provides the appropriate analysis relevant to presumptions, the statutory provisions involved here do not create a presumption. Rather than allowing the jury to presume an element of the crime on the basis of proof of a poorly correlated fact,
The United States Supreme Court discussed the constitutionality of requiring a defendant to bear the burden of proof relevant to an affirmative defense in Patterson v New York, 432 US 197; 97 S Ct 2319; 53 L Ed 2d 281 (1977).10 Pursuant to Patterson, a statute that places the burden of proof on a defendant is not violative of due process if the fact the defendant is required to prove is not determinative of an essential element of the crime as defined in the statute. McCormick, Evidence (3d ed), § 347, p 990, describes the test in this way:
Only a true affirmative defense . . . may operate to allocate the burden of persuasion to the accused. Such a defense would consist of facts which exonerate the defendant or reduce the de-
gree of the offense and do not simply disprove an element of the crime.
Applying this test, we agree with the analysis of the Court of Appeals in People v Bailey, 85 Mich App 594; 272 NW2d 147 (1978). Bailey also involved the Controlled Substances Act and allocation of the burden of proof regarding authorization to the defendant.11 Bailey explained that requiring the defendant to bear the initial burden of proof regarding authorization is not violative of the constitution because lack of authorization is by statute clearly not an element of the crime.
Unquestionably, as a matter of constitutional law the people must prove beyond a reasonable doubt every element of the crime charged. In re Winship, 397 US 358; 90 S Ct 1068; 25 L Ed 2d 368 (1970). Because [
MCL 335.356(2) ;MSA 18.1070(56)(2) ] provides that the people need not prove lack of authorization, and because it is axiomatic that a statute must be construed so as to render it constitutional whenever possible, we believe that the conclusion that, under the present statute, lack of authorization is not an element of the crime of delivery is inescapable. [85 Mich App 597, n 3.]
The statute here is analogous to the concealed weapon statute interpreted by this Court in People v Henderson, 391 Mich 612; 218 NW2d 2 (1974). The statutory provisions at issue there,
The Henderson Court noted that the operative words of the statute were ” ‘any person who shall carry a pistol . . . in any vehicle operated or occupied by him . . . shall be guilty of a felony.’ ” Id. at 616. This Court held that the language concerning absence of a license did not add an element to the crime, but simply acknowledged that persons may be authorized by license to carry a pistol. Regarding placing the burden of proof on a defendant to show a license, this Court stated:
Accordingly we hold that upon a showing that a defendant has carried a pistol in a vehicle operated or occupied by him, [a] prima facie case of violation of the statute has been made out. Upon the establishment of such a prima facie case, the defendant has the burden of injecting the issue of license by offering some proof—not necessarily by official record—that he has been so licensed. The people thereupon are obliged to establish the contrary beyond a reasonable doubt.
We read
MCL 776.20 ;MSA 28.1274(1) , supra not as absolving the state from proving one element of
a crime, for to do so would vitiate the presumption of innocence. Rather, we read this statute as an appropriate legislative expression that lack of a license is not an element of the offense . . . . [Id. at 616-617.]13
Similarly, the statute at issue here prohibits knowing or intentional possession of a controlled substance without a valid prescription or other authorization. The statute provides:
A person shall not knowingly or intentionally possess a controlled substance or an official prescription form or a prescription form unless the controlled substance, official prescription form, or prescription form was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner‘s professional practice, or except as otherwise authorized by this article. [
MCL 333.7403(1) ;MSA 14.15(7403)(1) . Emphasis added.]
We hold that the operative words defining the elements of the crime are “A person shall not knowingly or intentionally possess a controlled substance . . . .” The language concerning a prescription or other authorization refers to an exemption rather than an element of the crime.14
Having determined the constitutionality of §§ 7403 and 7531, we turn to the operation of the statute in the present case. Defendant argues that the trial court erred in denying his motion for a directed verdict. He contends that the police officers’ testimony recounting his assertion that he had a prescription satisfied his burden of production. Defendant reasons that, at this point, the prosecution was required to prove lack of a prescription beyond a reasonable doubt and that it failed to do so.
The issue as we see it is whether defendant met his burden pursuant to
At the time defendant moved for a directed verdict, he had not presented any evidence of a prescription. Indeed, the only indication of a prescription came from a police officer called by the prosecution who testified that defendant informed him that he had a prescription. We hold that this alone is insufficient to meet defendant‘s burden of proof pursuant to
If such evidence were enough to satisfy defendant‘s burden under
Defendant also claims that the trial court erred in denying his motion for a new trial. The Court of Appeals agreed with this claim. We disagree.
The Court of Appeals held that because defendant produced some competent evidence of a prescription, the prosecution “should have been required then to prove beyond a reasonable doubt that defendant lacked authorization for the controlled substances.”17 199 Mich App 165.
The Court of Appeals correctly determined that the “some competent evidence” standard applies. People v Wooster, 143 Mich App 513, 517; 372 NW2d 353 (1985); People v Bailey, supra; People v Bates, 91 Mich App 506, 516; 283 NW2d 785 (1979). However, we hold that to satisfy this standard in the context of the possession statute, defendant must come forward with more than his own mere assertion that he had a prescription.
In this case, defendant‘s evidence consisted of his own testimony regarding how he came to possess the various medications found in his jacket pocket, testimony by Dr. Sanders indicating that the drugs were the type that might have been prescribed for defendant‘s back problems, and testimony by defendant‘s dentist that he had prescribed Tylenol with codeine, one of the drugs found in defendant‘s possession for which he was not charged. Circumstantial evidence was elicited that the drugs were not a “bootleg” version that might have inferred that they were obtained unlawfully. An old drug store receipt that was never linked to the specific controlled substances at issue was also produced.
While Dr. Sanders’ testimony validated that defendant had a back problem for which Valium and Xanax may indeed be prescribed, this evidence was not competent evidence that defendant did in fact have a prescription for the drugs. The testimony helped substantiate defendant‘s story about why he possessed the drugs, but did did not provide competent evidence for his claim of a prescription.19 Further, his testimony that the white container found in defendant‘s pocket was of the type frequently given by physicians dispensing from their offices five to ten years ago does not lend any support to defendant‘s claim. Defendant
Likewise, the dentist‘s testimony does not provide competent evidence of a prescription for Valium and Xanax. He testified about prescribing Tylenol with codeine in 1987. We fail to see any connection between that testimony and defendant‘s claim for having prescriptions for the Valium and Xanax found in his possession in 1988.
Circumstantial evidence that the drugs were not a “bootleg” version is not competent evidence of a prescription. Unlawful possession of Valium and Xanax can occur in numerous ways other than through a black market trade. Even if Mr. Pegenau had obtained the drugs from a family member or friend, who had obtained them pursuant to a valid prescription, his possession would be unlawful under the act.
Finally, the 1985 Shop-Ko pharmacy receipt does not provide competent evidence of a prescription. Defendant‘s explanation for being unable to locatе any prescribing physicians is that he was out of town when he sought treatment for his recurrent back problem. We do not see the relevancy of a local unspecific pharmacy receipt to defendant‘s claim of having obtained out-of-town prescriptions for these drugs.
Defendant‘s testimony consisting of his assertion that he had a prescription is the only evidence directly related to his claim of having a prescription. As explained earlier, this cannot be sufficient
While the trial court erred initially in finding that defendant met his burden and in failing to instruct the jury regarding defendant‘s burden pursuant to
The prosecution‘s evidence of lack of a prescription consisted of the officers’ testimony that defendant stated he was not under a doctor‘s care and did not have any medical problems at the time of his arrest, and testimony regarding the nature of the unmarked, unlabeled white bottle containing the pills when found in defendant‘s pocket. While the prosecution‘s evidence is certainly not substantial, it is typical of the kind of evidence discoverable in these types of cases.
We also reject defendant‘s argument that comments made by the prosecutor during opening and closing argument resulted in improperly relating to the jury the nature and allocation of the rela
The prosecution is permitted to comment on and draw inferences from the testimony of a witness, including a criminal defendant, and may argue that the witness is not worthy of belief. People v Buckey, 424 Mich 1, 15; 378 NW2d 432 (1985), citing People v Wirth, 108 Mich 307; 66 NW 41 (1896); People v Couch, 49 Mich App 69; 211 NW2d 250 (1973). Mr. Pegenau testified that he could not find his prescription papers and could not remember the names or locations of the physicians who allegedly prescribed the drugs at issue. The prosecutor commented on these aspects of defendant‘s testimony in his closing argument. He suggested that defendant‘s inability to produce such evidence undermined the credibility of his assertion that he had a prescription. The prosecutor was within his right to make such comments. Indeed, because of the near impossibility of attaining evidence to prove lack of a prescription, commenting on the weakness of defendant‘s case was his only recourse.
Furthermore, the jury was instructed that such comment was not evidence. It was also instructed on the presumption of innocence and that the burden of proof regarding the elements of the crime was on the prosecution. As noted earlier, the jury was even instructed that the prosecution bore the burden of proving lack of a prescription. These instructions were sufficient to remove any possibility that the jury would be misled into thinking that defendant was required to produce actual
IV
Wе have concluded that defendant did not produce evidence sufficient to meet his burden under
Nevertheless, we are compelled to refute Justice BOYLE‘S assertion that our decision today “ignores the plain meaning of the statute.” Post at 309. Contrary to Justice BOYLE‘S assertion,
The phrase “burden of proof” is capable of two alternate definitions. Black‘s Law Dictionary states:
Burden of proof is a term which describes two different concepts; first, the “burden of persuasion,” which under traditional view never shifts from one party to the other at any stage of the proceeding, and second, the “burden of going forward with the evidence,” which may shift back and forth between the parties as the trial progresses. [Black‘s Law Dictionary (5th ed), p 178.]
Far from being plain, the Legislature‘s use of
This Court has interpreted similar statutory provisions as shifting the burden of production, rather than the burden of persuasion. In People v Dempster, 396 Mich 700; 242 NW2d 381 (1976), the following language in the Uniform Securities Act that was then in effect was interpreted as shifting only the burden of production to dеfendant: “In any proceeding under this act, the burden of proving an exemption or an exception is upon the person claiming it.” Id. at 711, quoting the Uniform Securities Act then in effect.
Recently, in People v Henderson, 391 Mich 612, 616; 218 NW2d 2, 4 (1974), we considered whether, in a prosecution for carrying a concealed weapon, by placing the burden of proving a license on the defendant the statute absolved the state of its burden of proving its entire case beyond a reasonable doubt. We stated that once the prosecution establishes a prima facie case of violation of the statute, “the defendant has the burden of injecting the issue of license by offering some proof...that he has been so licensed. The people thereupon are obliged to establish the contrary beyond a reasonable doubt.” We interpreted the statute in that manner “not as absolving the state from proving one element of the crime, for to do so would vitiate the presumption of innocence.” Id. We are cognizant of the fact that the concealed weapons statute speaks of the “burden of establishing” the license, and states that this does not shift the “burden of proof for the violation.” While that language might be preferable to that of the instant statute,
We recognize that these cases, with the exception of People v Wooster, supra, were decided before the Supreme Court‘s pronouncement in Patterson. However, we decline to reinterpret the statute in the guise of “plain meaning” so that it lines up with the United States Supreme Court‘s pronouncement, especially without the benefit of argument and briefing by the parties.
Just as there is no “plain meaning” in the phrase “burden of proof,” neither is there a “plain meaning” in the first sentence of
Justice BOYLE‘s assumption that the phrase is only consistent with the first interpretation is refuted by an examination of the federal Controlled Substances Act,
It shall not be necessary for the United States to negative any exemption or exception set forth in this title in any complaint, information, indictment, or other pleading or in any trial, hearing, or other proceeding under this title, and the burden of going forward with the evidence with respect to any such exemption or exception shall be upon the person claiming its benefit. [Emphasis added.]
Far from contravening the statute‘s “plain meaning,” we have merely assessed the evidence offered by this defendant and have found that it is insufficient to meet his burden under
V
In summary, we find that
LEVIN and BRICKLEY, JJ., concurred with MALLETT, J.
CAVANAGH, C.J. (concurring in part and dissenting in part). While I concur in the holding of the lead opinion, reinstating the defendant‘s convictions, I dissent from its characterization of “some competent evidence.”
I
The only issue before this Court1 is whether nondocumentary evidence can be sufficient to rebut a prima facie case of a statutory violation of
We have reviewed the general question in cases involving prosecutions for carrying a concealed weapon3 and selling unregistered securities in violation of the Uniform Securities Act.4 In People v Henderson, 391 Mich 612; 218 NW2d 2 (1974), the defendant, who was convicted of carrying a concealed weapon in a motor vehicle, argued that the state failed to prove an essential element of the crime, specifically the absence of a gun permit. The prosecutor asserted that a statutory presumption existed, absolving the state of proving nonlicensure.5 This Court agreed:
[W]e hold that upon a showing that a defendant has carried a pistol in a vehicle operated or occupied by him, prima facie case of violation of the statute has been made out. Upon the establishment of such a prima facie case, the defendant has the burden of injecting the issue of license by offering some proof—not necessarily by official record—that he has been so licensed. The people
thereupon are obliged to establish the contrary beyond a reasonable doubt. [Id. at 616. Emphasis added.]
While we concluded that the statute imposed the burden of production on the defendant, we explicitly noted that something less than documentary evidence could fulfill this burden.
In People v Dempster, 396 Mich 700, 711; 242 NW2d 381 (1976), we held that
In any proceeding under this act, the burden of proving an exemption or an exception is upon the person claiming it. [
MCL 451.802(c) ;MSA 19.776(402)(c) .]
When rejecting the defendant‘s constitutional challenge, the Court reflected on the proof needed to rebut the statutory presumption.
The Uniform Securities Act provision, read in light of People v Henderson, supra, must be interpreted to mean that once the state establishes a prima facie case of statutory violation, the burden of going forward, i.e., of injecting some competent evidence of the exempt status of the securities, shifts to the defendant. However, once the defendant properly injects the issue, the state is obliged to establish the contrary beyond a reasonable doubt. [Id. at 713-714.]
While the Court acknowledged that the concealed weapons statute and the Uniform Securities Act used different language, it concluded that both compelled analogous results—once the defendant
We are cognizant of the fact that the concealed weapons statute speaks of the “burden of establishing” the license, and states that this does not shift the “burden of proof for the violation.” While the language might be preferable to that of the instant statute, the principle is not different. [Dempster at 712.]
The instant statute, read in light of Henderson and Dempster, establishes a prima facie case of statutory violation. However, the defendant may show an exception to or exemption from the statutory mandate by offering some competent evidence of a prescription during trial. At that point, the prosecution is required to establish the contrary beyond a reasonable doubt.6
Obviously, the amount of proof the prosecutor must present will be determined by the strength of the defendant‘s proofs. In this respect, the procedure used in insanity cases is instructive.
A defendant in a criminal proceeding is presumed sane. Once any evidence оf insanity is introduced, however, the prosecution bears the burden of establishing defendant‘s sanity beyond a reasonable doubt. . . .
The nature and quantum of rebuttal evidence of sanity sufficient to present an issue for a jury is to
some extent determined by the strength of the case for insanity. Necessarily, the sufficiency of evidence needed to put the question of sanity before a jury will vary from case to case. Merely some evidence of sanity may be sufficient to meet some evidence of insanity and yet wholly insufficient to meet substantial evidence of insanity. [People v Murphy, 416 Mich 453, 463-464; 331 NW2d 152 (1982). Citations omitted.]
II
Although the lead opinion agrees that the defendant must present “some competent evidence” of a prescription, it holds that
to satisfy this standard in the context of the possession statute, defendant must come forward with more than his own mere assertion that he had a prescription. [Ante, p 295.]
While the defendant‘s “own mere assertion” may not compel a jury to accept that the defendant possessed the controlled substances pursuant to a valid prescription, it is nevertheless “some competent evidence.”
Furthermore, the lead opinion claims that its standard does not “always require” paper documentation, however, the examples it offers as sufficient are either paper documentation or its equivalent.
The lead opinion demands more than “some competent evidence.” It heightens the burden the defendant is forced to meet, contrary to existing case law. It is with this heightened standard that I voice my disagreement.
III
The defendant presented “some competent evi
In light of the evidence, I agree with the Court of Appeals that the nondocumentary evidence presented by the defendant was sufficient to rebut the prima facie case of a statutory violation. However, I disagree with its holding that the defendant is entitled to a new trial. The trial judge properly instructed the jury that the prosecution bore the burden of proving the absence of a prescription as an element of the charged offenses. It was in the province of the jury to determine whether the prosecution fulfilled its burden. There is no reason to upset the jury‘s conclusion that the prosecution proved the absence of a prescription beyond a reasonable doubt. Accordingly, I would reinstate the defendant‘s convictions.
LEVIN, J., concurred with CAVANAGH, C.J.
BOYLE, J. I concur in the majority‘s result, which reverses the Court of Appeals decision and reinstates the defendant‘s conviction. I also agree with the lead opinion‘s rejection of the defendant‘s constitutional argument. I write separately because the lead opinion‘s interpretation of
This opinion is divided into three sections. In the first, I address the lead opinion‘s failure to justify its adoption of an interpretation of
I
Section 7531 squarely places the burden of proving the existence of a prescription on the defendant:
(1) It is not necessary for this state to negate
any exemption or exception in this article in a complaint, information, indictment, or other pleading or in any trial, hearing, or other proceeding under this article. The burden of proof of an exemption or exception is upon the person claiming it. (2) In the absence of proof that a person is the authorized holder of an appropriate license or order form issued under this article, the person is presumed not to be the holder of the license or order form. The burden of proof is upon the person to rebut the presumption. [
MCL 333.7531 ;MSA 14.15(7531) . Emphasis added.]
In other words, it is incumbent on a defendant charged with an offense regarding a substance that may be lawfully possessed pursuant to a license or order form to prove that such possession is authorized by the existence of such permission. This language on its face applies only to those substances that the state has not chosen to regulate by criminalizing all possession. Thus, possession of prescription drugs, unlike other controlled substances such as heroin, is subject to criminal penalty only when it is not authorized by a prescription. In obvious recognition of “the insurmountable task of producing evidence to prove lack of a prescription,” ante at 295, the Legislature has placed both the burden of production and the burden of proving the exemption on the person claiming it.
The lead opinion does not persuasively contest this reading of
The lead opinion states that because “the trial court and the parties have interpreted
The lead opinion would achieve the right result at the cost of weighing this defendant‘s direct testimony against that of a more credible defendant‘s assertion. Such balancing is usually inappropriate when a defendant presents direct evidence in support of an affirmative defense. Professor McCormick notes that while the amount of
[g]enerally no difficulty occurs where the evidence is direct. Except in rare cases, it is sufficient, though given by one witness only, however negligible a human being she may be. [2 McCormick, Evidence (4th ed), § 338, p 434.]
The defendant in the present case testified in his own behalf. That testimony certainly should have been enough to shift the burden to the prosecutor if this statute placed only the burden of production on the defendant.
The lead opinion‘s creation of an evidentiary threshold for the defendant implicitly acknowledges the problem of requiring the prosecutor to “rebut the claim . . . [by contacting] the thousands of practicing physicians to prove the negative, that each had not prescribed the drugs to the defendant.” Ante at 295. However, the remedy for that quandary is not to create an evidentiary threshold based on an appellate court‘s evaluation of the sufficiency of a given defendant‘s testimony. Such an approach invades the factfinder‘s province, invites abuse by trial courts, and leaves the prosecution‘s predicament intact. The appropriate remedy is the one selected by the Legislature, which in the plain language of the statute has placed the burden of proof and production on the defendant.
In this context, I cannot agree with the decision to defer to the interpretation of
II
The lead opinion does not explain how it is unconstitutional to place the burden of persuasion on the defendant. In fact, the rejection by the lead opinion of the defendant‘s constitutional argument is so broad that it would seem to allow the application of the statute as written:
The language concerning a prescription or other authorization refers to an exemption rather than an element of the crime. Because
§ 7531 requires defendant to bear the burden of proof regarding presence of a prescription, and that fact is not determinative of an essential element of the crime of possession of Valium and Xanax,§ 7531 is not violative of due process. [Ante at 292-293.]
As the lead opinion recognizes, the controlling United States Supreme Court decision, Patterson v New York, 432 US 197; 97 S Ct 2319; 53 L Ed 2d 281 (1977),4 requires no more of a statute. Other authority from the federal courts bears this out.
It shall not be necessary for the state to negate any exemption or exception set forth in this part in any complaint, information, indictment or other pleading or in any trial, hearing, or other proceeding under this part, and the burden of proof of any such exemption or exception shall be upon the person claiming its benefit. [
La Rev Stat 40:990A .]
The defendant, convicted of possession of a controlled substance, phenmetrazine, argued that the state statute impermissibly shifts the burden of proof of an element of the crime onto the defendant in violation of the Due Process Clause of the United States Constitution.
Balancing the interests of the state in the effective and efficient administration of justice with a defendant‘s right that the state prove the existence beyond a reasonable doubt of each element of a crime before conviction, the Supreme Court has concluded that, a state may permissibly place (1) the burden of going forward with evidence and (2) the burden of persuasion by a preponderance of the evidence as to an affirmative defense on the accused. Martin v Ohio, 480 US 228; 107 S Ct 1098; 94 L Ed 2d 267 (1987); see also Simopoulos v Virginia, 462 US 506; 103 S Ct 2532; 76 L Ed 2d 755 (1983); Patterson v New York [supra]. [Woods at 1165.]
The court continued by explaining some of the common-sense reasons for the burden shift:
An individual accused of possession of a controlled dangerous substance who claims to have a valid prescription authorizing the possession of the drugs is in the best position to possess knowledge of the facts necessary to prove the defense—the prescribing doctor, the reason for the prescription, and the location from which the controlled substance was obtained. Further, it cannot be disputed that Louisiana may constitutionally criminalize and punish the act of possessing a controlled dangerous substance. [Id. at 1166.]
Finally, the court also recognized the constitutionality of the legislature‘s shift of the burden of persuasion, not just of production, as in the comparable federal statute:
In comparing the provisions of the federal Controlled Substances Act with the similar provisions in the LCDSL [Louisiana Controlled Dangerous Substance Act], we are mindful that while Louisiana
places the burden of persuasion of an exception on the defendant, the federal statute requires only that the defendant come forward with evidence of the exception. In this regard, the government retains the ultimate burden of persuasion on the exception under the federal act. However, because the Supreme Court has concluded that a state may properly place not only the burden of going forward with evidence of a defense on the accused, but also the burden of persuasion of that defense on the accused, the fact that the Louisiana act requires more of the defendant than the federal act does not render the LCDSL constitutionally infirm. [Id. at 1167.]
Woods is instructive not only because it declares that the shift of the burden of persuasion is constitutional, but also because it recognizes that not all legislative schemes dealing with the burden of proof are alike, nor need they be. As Patterson made clear,5 as long as the statute does not violate the constitution by placing on the defendant the burden of persuasion to negate an element of the crime, the states are free to define crimes, exemptions, and defenses as they will.
The lead opinion states that “[t]he statute here is analogous to the concealed weapon statute interpreted by this Court in People v Henderson, 391 Mich 612; 218 NW2d 2 (1974).” Ante at 290. However, as comparisons of the statute indicate, the analogy is not convincing.
In any prosecution for the violation of any acts of the state relative to use, licensing and possession of pistols or firearms, the burden of establishing any exception, excuse, proviso or exemption contained in any such act shall be upon the defendant but does not shift the burden of proof for the violation.
Unlike the language in
Moreover, the significance of the comparison is questionable. As the lead opinion notes, Henderson was a pre-Patterson case, ante at 292, n 13, a fact that may have colored the Henderson Court‘s view of its ability to interpret the statute to place the burden of persuasion on the defendant. In any event, Henderson‘s interpretation of a differently wоrded statute does not justify a construction of
III
The approach of the lead opinion may reflect an unarticulated concern for the consequences of creating affirmative defenses that shift the burdens of production and persuasion. To the extent that it can be assumed that this is the concern, it should be clearly understood that the section in question only creates an exemption to a regulatory measure, and as such does not implicate the concerns
McCormick observes that “[t]he term affirmative defense is traditionally used to describe the allocation of a burden, either of production or persuasion, or both, to the defendant in a criminal case.” Evidence, supra, § 347, p 480. The same may be said of an “exemption.” The difference is not in where the burden of persuasion lies,7 but in the regulatory character of the exemption. By contrast with more traditional crimes where an affirmative defense in effect concedes the facial criminality of the conduct and presents a claim of justification or excuse, an exemption to a regulatory scheme asserts that the defendant‘s conduct was outside the reach of the particular regulation.
With a conventional affirmative defense, for example, some fact if proved, will completely or partially excuse the conduct of the accused. Thus, self-defense will completely excuse the crime of murder. Two things can be drawn from the murder example. First, the conduct of the accused is inherently wrongful, and thus socially condemned unless it occurs under circumstances indicating
Regulatory schemes, on the other hand, often involve conduct that is not on its face wrongful. The controlled substances statute,
The situation is far different further down the regulatory ladder. In cases such as the present one, the conduct is not obviously wrongful. It is regulated because the state has determined that it must be for the health and welfare of Michigan‘s citizens. But regulation in the case of schedule four substances,
The Legislature understood how difficult it would be for a prosecutor to rebut a defendant‘s simple assertion in a case such as the present one. It also understood how difficult it would be to regulate the activity employing such an approach. That presumably is why the Legislature placed the burdens of production and persuasion on the defendant. It will be a rare individual legally in possession of a controlled substance who will not be able to show a prescription, remember the name of a doctor, or remember the name of a pharmacist.
While cases such as Patterson leave no doubt that the Due Process Clause of the federal constitution permits the state to allocate the burdens as it has done in this case, it must be clearly understood that for the uncertain period between In re Winship, 397 US 358; 90 S Ct 1068; 25 L Ed 2d 368 (1970), and Patterson, the traditional affirmative defense, which involved mitigation or justification of concededly criminal conduct, shifted only the burden of production to the defense. The traditional exemption, by contrast, involves activity that is unlawful only when engaged in without compliance with regulatory restraints, such as licensure, reporting, or other governmental authorization.
Self-defense is a true affirmative defense because at common law all homicide was murder. The possession of weapons, the receipt of money, the possession of prescription drugs, and a host of other activity is criminally proscribed only when it is engaged in without the authorization the government deems necessary for its control. Such statutes are directed to compliance with regulations deemed necessary to control otherwise lawful
Thus properly understood, applying the exemption or exception provision of
CONCLUSION
Section 7531 is an obvious and constitutional statute. The lead opinion does not forcefully argue otherwise. Rather, when all is said and done, the only justification by the lead opinion for its decision to ignore the language of this obvious and constitutional piece of legislation is a misunderstanding of the statute. Because I believe that the Court‘s analysis is dictated by the plain language of a constitutional statute, I would hold
RILEY and GRIFFIN, JJ., concurred with BOYLE, J.
Notes
Ante at 282-283.Did the trial court exercise its sound discretion by requiring defendant to produce proof, beyond his own statement that he had a prescription, to rebut the presumption that his possession of drugs was unlawful?
A person shall not knowingly or intentionally possess a controlled substance . . . unless the controlled substance . . . was obtained directly from, or pursuant to, a valid prescription . . . [
(1) It is not necessary for this state to negate any exemption or exception in this article in a complaint, information, indict-
ment, or other pleading or in a trial, hearing, or other proceeding under this article. The burden of proof of an exemption or exception is upon the person claiming it.(2) In the absence of proof that a person is the authorized holder of an appropriate license or order form issued under this article, the person is presumed not to be the holder of the license or order form. The burden of proof is upon the person to rebut the presumption. [
[In Patterson] [w]e emphasized the preeminent role of the States in preventing and dealing with crime and the reluctance of the Court to disturb a State‘s decision with respect to the definition of criminal conduct and the procedures
by which the criminal laws are to be enforced in the courts, including the burden of producing evidence and allocating the burden of persuasion.
*
It would be quite different if the jury had been instructed that self-defense evidence could not be considered in determining whether there was a reasonable doubt about the State‘s case, i.e., that self-defense evidence must be put aside for all purposes unless it satisfied the preponderance standard. Such an instruction would relieve the State of its burden and plainly run afoul of Winship‘s mandate. 397 US 364; 90 S Ct 1068; 25 L Ed 2d 368 (1970). The instructions in this case could be clearer in this respect, but when read as a whole, we think they are adequate to convey to the jury that all of the evidence, including the evidence going to self-defense, must be considered in deciding whether there was a reasonable doubt about the sufficiency of the State‘s proof of the elements of the crime.
The United States Supreme Court has continued to cite Patterson and Martin with approval. Walton v Arizona, 497 US 639, 650; 110 S Ct 3047; 111 L Ed 2d 511 (1990); Schad v Arizona, 501 US 624, 639-640; 111 S Ct 2491; 115 L Ed 2d 555 (1991); Gilmore v Taylor, 508 US 333, 341; 113 S Ct 2112, 2117; 124 L Ed 2d 306 (1993).
McCormick, commenting on Patterson, observed:In any prosecution for the violation of any acts of the state relative to use, licensing and possession of pistols or firearms, the burden of establishing any exception, excuse, proviso or exemption contained in any such act shall be upon the defendant but this does not shift the burden of proof for the violation. [
MCL 776.20 ;MSA 28.1274(1) .]
The court in Patterson decided the constitutionality of the allocation of the burden of proof by a formalistic analysis of state law: due process was not violated because the defendant did not have the burden of proof on any fact that state law had identified as an element of the offense. [Evidence (4th ed), § 347, p 483.]
The judge is also going to instruct you that you are to consider how reasonable the person‘s testimony is, in light of all of the other evidence in this case. And I would suggest to you that the defendant‘s claim that he has a prescription, is not
backed up by any other evidence. The only evidence that you have that there‘s a prescription in this case is, that the defendant claims he had one.So let‘s talk about that. Was there a prescription or was there not a prescription. That‘s basically what it boils down to. And what evidence is there that there was a prescription? Again, the only evidence in this case that you have seen, even from the defense‘s expert witness in this case is, the defendant said he had a prescription for Diazepam and for Alprazolаm, for Valium and Xanax.
Was there a prescription form? None. Was [sic] there any prescription bottles? None. Was there any receipt from a doctor, saying I have received this amount of cash for this doctor‘s visit and I prescribed this amount of medicine. No.
* * *
Now, he‘s gotten on the stand and said, hey, it ain‘t yesterday, and testified to something that happened two and a half years ago. He can remember his statements to the police officers, he can remember many many other things. All we are asking is, could you remember the doctor three months before you were arrested. Can you provide us with some evidence that there was a prescription . . . .
* * *
The evidence in this case is quite clear, ladies and gentlemen, there was no prescription. The only evidence that you have, is the defendant‘s claim. And that claim, in light of all of the other evidence in this case, is not plausible and not believable. If it‘s not plausible and not believable, there is no evidence that he has a prescription, and the prosecution has carried its burden of proof.
But see People v Smith, 71 Ill 2d 95, 105; 374 NE2d 472 (1978). The Supreme Court of Illinois, interpreting the criminal code of Illinois, defined an affirmative defense to shift only the burden of production onto the defendant, while an exemption placed both the burdens of production and persuasion onto the person claiming it. The court explained:The legislature has added to the unlawful use of weapons statute a long litany of exemptions. Ten separately enumerated exempt categories apply . . . For the State to be saddled with negating each defendant‘s place . . . would place impossible burdens upon the effective prosecution of this type of case. The legislature has avoided this problem by requiring the prosecution to prove each and every element of the offense beyond a reasonable doubt and by requiring the defendant to prove his entitlement to the exemption.
(2) A person shall not carry a pistol concealed on or about his or her person, or, whether concealed or otherwise, in a vehicle operated or occupied by the person, except in his or her dwelling house, place of business, or on other land possessed by the person, without a license to carry the pistol as provided by law . . . .
(3) A person who violates this section is guilty of a felony, punishable by imprisonment for not more than 5 years, or by a fine of not more than $2,500.00. [
MCL 750.227 ;MSA 28.424 .]
In any prosecution for the violation of any acts of the state relative to use, licensing and possession of pistols or firearms, the burden of establishing any exception, excuse, proviso or exemption contained in any such act shall be upon the defendant but does not shift the burden of proof for the violation. [
The relevant factors to consider include: (1) whether the burden being placed on the defendant is one of production or persuasion; (2) whether the state could constitutionally punish the defendant on the basis of proof of only those elements on which the prosecution retains the burden of proof; and (3) other considerations, such as the nature of the burden the state has historically had regarding the element in question and which party has ready access to the facts necessary to establish it. See McCormick, supra, § 348, p 999.
As applied in this case, the burden placed on defendant was a burden of рroduction, not a burden of persuasion. The record reveals that the trial court did not instruct the jury regarding
Regarding the second factor, the Legislature can make even seemingly innocent acts unlawful if these acts have a tendency to affect or endanger the public in connection with health, safety, morals or general welfare. See Detroit v Bowden, 6 Mich App 514, 520; 149 NW2d 771 (1967); Detroit v Wedlow, 17 Mich App 134; 169 NW2d 145 (1969). The state has a substantial interest in regulating these addictive controlled substances.
Other considerations also validate allocation of the burden of proof to defendant. The present statute has been in effect since 1978. The offense is of statutory origin; not one having traditional common-law elements. This is not an instance of the Legislature reformulating deeply rooted elements of a common-law offense in order to reallocate the burden of proof. Finally, the facts underlying the exemption in this instance are uniquely within defendant‘s control. Fairness supports placing at least the burden of production, as occurred in this case, on defendant.