PEOPLE v PLUNKETT
Docket No. 284943
Court of Appeals of Michigan
December 16, 2008
281 Mich App 721
Submitted November 4, 2008, at Lansing. Decided December 16, 2008, at 9:05 a.m. Leave to appeal sought.
The Court of Appeals held:
The defendant did not constructively deliver the heroin, nor did he aid and abet its delivery.
1. A person constructively delivers a controlled substance when he or she directs another person to convey the controlled substance under his or her direct or indirect control to a third person or entity. Here, the heroin was not under the defendant‘s control, nor did the defendant direct the drug dealer to transfer the heroin to Corson.
2. The phrase “aids and abets” describes any assistance given to the perpetrator of the crime by words or deeds that are intended to encourage, support, or incite the commission of that crime. The statutes under which the defendant was charged,
Affirmed.
1. CONTROLLED SUBSTANCES — CONSTRUCTIVE DELIVERY OF CONTROLLED SUBSTANCES.
A defendant constructively delivers a controlled substance by directing another person to convey the controlled substance under the defendant‘s direct or indirect control to a third person or entity.
2. CRIMINAL LAW — AIDING AND ABETTING CRIMES.
To aid and abet the commission of a crime is to give any assistance to the perpetrator of the crime that encourages, supports, or incites the commission of the crime.
Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Brian L. Mackie, Prosecuting Attorney, and David A. King, Senior Assistant Prosecuting Attorney, for the people.
John A. Shea and Kevin S. Gentry for the defendant.
Before: FITZGERALD, P.J., and BANDSTRA and SCHUETTE, JJ.
FITZGERALD, P.J. The prosecution appeals by delayed leave granted the circuit court‘s order granting defendant‘s motion to quash the district court‘s bindover for trial on charges of delivery of a controlled substance (heroin), thereby causing death,
The following relevant facts were established at the preliminary examination. Tracy Corson was a prostitute who first met defendant through a drug dealer, Darryl Shavers, who informed her that defendant wanted the company of a female who would “be provided drugs to go and get high at his house.” Shavers drove Corson to defendant‘s apartment in February 2006 and provided crack cocaine to defendant before leaving the apartment. Corson and defendant used crack cocaine and watched pornography throughout the evening. Defendant gave Corson $380 when she left.
Corson again contacted defendant on May 20, 2006, and met with him on that day “to get high and to get money from him.” Corson moved in with defendant during the Memorial Day weekend of 2006. Corson stopped working as a prostitute after moving in with defendant and was not employed. According to Corson, she and defendant drove to Detroit daily to purchase drugs from a drug dealer, Harold Spencer, with whom Corson was acquainted before meeting defendant. She indicated that “on average we would buy around a [sic] eight ball of crack and a bundle, if not more, of heroin.” According to Corson, she used crack cocaine and heroin, but defendant used only crack cocaine. Corson used the entire amount of heroin in one day, while the crack cocaine lasted “a few hours” for Corson and defendant.
In early June 2006, Corson contacted Tiffany Gregory, a childhood friend and the victim of the alleged homicide. The two met at Gregory‘s apartment twice in June. During the first meeting, Corson introduced Gregory to heroin and taught her how to prepare the drug. During the second meeting, Gregory loaned Corson $100 and drove Corson to Detroit to purchase
On June 15, 2006, defendant and Corson traveled to Detroit in defendant‘s vehicle to purchase drugs from Spencer. Defendant gave Corson $200 to purchase crack cocaine and heroin. Corson left defendant‘s vehicle and entered Spencer‘s vehicle to make the purchase. After handing Spencer the money and receiving the heroin and crack cocaine, Corson returned to defendant‘s vehicle. On the drive home from Detroit, defendant and Corson smoked crack cocaine, and Corson injected three packets of heroin.
That same night, Gregory went to a bar with Andrew Voltattorni. Gregory consumed alcohol throughout the evening and left the bar when it closed at 2:00 a.m. Later, Gregory, her roommate Ashley, and Voltattorni went to a pizza restaurant. Gregory received several telephone calls while at the restaurant, including one from Corson. After talking to Corson on the phone, Gregory spoke to Voltattorni about using heroin. Gregory told Voltattorni that Corson owed her $20 and she wanted to be paid back with $20 worth of heroin.
Gregory called Corson at approximately 3:00 a.m. on June 16, 2006, asking for drugs and reminding Corson that she owed Gregory $20. Corson invited Gregory to defendant‘s apartment. Gregory arrived at 3:30 a.m., and she was intoxicated but able to walk and talk. Corson, Gregory, defendant, and his friend Veronica smoked crack cocaine in the living room. Afterward, Gregory and Corson went into a bedroom and injected themselves with heroin.2 Gregory thereafter slumped over and Corson called for help. While Veronica administered cardiopulmonary resuscitation (CPR) to Gre-
Dr. Yung Chung performed an autopsy on Gregory and concluded that the death was accidental and caused by “multiple drug intoxication.” She testified that Gregory‘s body had a high morphine content of 269 nanograms, cocaine metabolites, and a high alcohol content. She indicated that heroin changes into morphine once it enters the body and that Gregory had three times the normal recreational-use level of that drug in her body. Dr. Chung opined that Gregory died from a heroin overdose that was exacerbated by the alcohol she had consumed.
Following the presentation of the proofs, defendant argued against a bindover on the charges of delivery of heroin causing death and delivery of less than 50 grams of heroin on the ground that there was no evidence that defendant ever possessed the heroin or transferred the heroin to anyone. He maintained that, at most, the prosecutor had shown that defendant funded Corson‘s heroin purchase. He also maintained that a purchaser of heroin could not be convicted of aiding and abetting the delivery of heroin. The prosecutor argued that even though defendant had not possessed the heroin, he provided the transportation to Detroit and the money used to purchase the heroin. The district court concluded that defendant drove Corson to buy drugs on a regular basis, that he gave her money to purchase the drugs, and that the heroin purchased on June 15 caused Gregory‘s death. On that basis, the court found sufficient probable cause to bind defendant over on all four counts.
II. THE ELEMENT OF DELIVERY
The prosecution argues that probable cause existed to bind defendant over on the charges of delivery of heroin causing death,
A person who delivers a schedule 1 or 2 controlled substance, other than marihuana, to another person in violation of section 7401 of the public health code . . . that is consumed by that person or any other person and that causes the death of that person or other person is guilty of a felony punishable by imprisonment for life or any term of years.4
The critical question presented by the prosecution in this case with regard to both statutes is whether the prosecution presented sufficient evidence to establish the element of delivery; that is, that defendant delivered the heroin to Corson. The prosecution maintains that defendant could be found guilty of delivering heroin to Corson on two theories: that defendant constructively delivered the heroin to Corson or that defendant aided and abetted the delivery of the heroin to Corson.
A. CONSTRUCTIVE DELIVERY
The prosecution asserts that defendant could be found guilty of constructively delivering heroin to Corson on the basis of evidence that he provided the transportation and the money used to procure the heroin.
The primary goal of statutory interpretation is to give effect to the intent of the Legislature. People v Williams, 475 Mich 245, 250; 716 NW2d 208 (2006). “We begin by examining the plain language of the statute; where that language is unambiguous, we presume that the Legislature intended the meaning clearly expressed — no further judicial construction is required or permitted, and the statute must be enforced as written.” People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999).
“Deliver” or “delivery” means the actual, constructive, or attempted transfer from 1 person to another of a controlled substance, whether or not there is an agency relationship. [
MCL 333.7105(1) .]
The record does not support the finding of either an actual or attempted transfer of heroin from defendant to Corson. The prosecution argues that defendant constructively delivered the heroin to Corson by providing the transportation to meet the drug dealer and by giving Corson the money used to purchase the heroin. The prosecution reasons that but for defendant‘s participation, Corson would not have possessed the heroin and thus could not have provided it to Gregory.
The term “constructive delivery” is not defined in either
Here, the heroin purchased by Corson was not under defendant‘s control, nor did defendant direct the drug dealer to transfer the drugs to Corson. No evidence was presented that defendant had any discussions with the drug dealer regarding the delivery of the heroin to Corson on June 15, 2006. Corson‘s testimony established that defendant never had any control over the actual transfer between the drug dealer and Corson, nor did he ever have any control over the heroin that was sold to Corson for her use. Even assuming that the delivery from the drug dealer to Corson might not have occurred had defendant not transported Corson to Detroit and provided her with money, there was no evidence the defendant had any control over the heroin or that the drug dealer acted under defendant‘s direction. The evidence does not support a finding that defendant constructively delivered the heroin from the drug dealer to Corson.
B. AIDING AND ABETTING
The prosecution argues in the alternative that defendant could be convicted of delivering the heroin from the drug dealer to Corson under an aiding and abetting theory. The prosecution contends that defendant aided and abetted the delivery of the heroin from the drug dealer to Corson by providing Corson with transportation and the money used to purchase the heroin.
A defendant “who aids or abets the commission of a crime may be convicted and punished as if he directly committed the offense.” People v Izarraras-Placante, 246 Mich App 490, 495; 633 NW2d 18 (2001);
Both
III. CONCLUSION
The evidence presented failed to establish a prima facie case for the element of delivery of heroin. There-
Affirmed.
BANDSTRA, J., concurred.
PEOPLE v PLUNKETT
Docket No. 284943
Court of Appeals of Michigan
December 16, 2008
281 Mich App 721
SCHUETTE, J. (dissenting). I respectfully dissent from the opinion of my distinguished colleagues in the majority, Judges FITZGERALD and BANDSTRA. I believe that there was sufficient evidence to support a conclusion that defendant aided and abetted the delivery of the heroin to Corson. Therefore, I would reverse and remand for further proceedings.
As noted by the majority, a defendant “who aids or abets the commission of a crime may be convicted and punished as if he directly committed the offense.” People v Izarraras-Placante, 246 Mich App 490, 495; 633 NW2d 18 (2001).
To support a finding that a defendant aided and abetted a crime, the prosecutor must show that
“(1) the crime charged was committed by the defendant or some other person; (2) the defendant performed acts or gave encouragement that assisted the commission of the crime; and (3) the defendant intended the commission of the crime or had knowledge that the principal intended its
commission at the time that [the defendant] gave aid and encouragement.” [People v Robinson, 475 Mich 1, 6; 715 NW2d 44 (2006) (citations omitted).]
“‘An aider and abettor‘s state of mind may be inferred from all the facts and circumstances.‘” People v Carines, 460 Mich 750, 757; 597 NW2d 130 (1999), quoting People v Turner, 213 Mich App 558, 568; 540 NW2d 728 (1995). Here, there was evidence that Harold Spencer delivered the heroin to Tracy Corson, i.e., that the crime was committed by “some other person.” Defendant drove Corson to buy the heroin and gave her the money to do so. Thus, there is evidence that defendant “performed acts . . . that assisted the commission of the crime,” i.e., he provided the buyer and the money. That same evidence shows that defendant intended the commission of the crime or knew that Spencer intended the crime at the time defendant gave aid. Thus, I believe that the trial court was incorrect in concluding that the bindover on the counts involving delivery of heroin was not proper under an aiding and abetting theory.