PEOPLE v WARD
Docket No. 60310
Michigan Court of Appeals
Submitted December 8, 1983. Decided March 7, 1984.
Leave to appeal applied for.
133 MICH APP 344
- Defendant‘s claims in the present case are the same as the issues raised and decided in the appeal of the Ingham County conspiracy charge. Collateral estoppel bars relitigation of issues
previously decided where the parties to the second litigation are the same as those in the prior litigation. The prosecutors of Ingham County and Washtenaw County being creatures of a common sovereign, the State of Michigan, there was identity of parties, as well as identity of factual and legal issues, and collaterаl estoppel is applicable. The determination of this Court in the appeal from the Ingham County case is binding and controlling in the present case. - The police may properly seize evidence which is not listed in a search warrant where such evidence is inadvertently observed at the place which is the subject of the search warrant and where, at the time of the observation, it is immediately apparent to the police that the evidence is incriminating. Most of the items seized in the search of the Ann Arbor motel room pursuant to a search warrant which were not listed in that warrant were of an incriminating nature which was immediately apparent to the police. The trial court, accordingly, properly admitted those items into evidence.
- Allegations of error with respect to the admission of evidence will not be heard on appeal where defense counsel attempts at trial to use that evidence to the defendant‘s advantage.
- The trial court did not abuse its discretion with respect to the admission of evidence of defendant‘s prior convictions.
- The trial court properly admitted testimony concerning the street value of the cocaine.
- The classification of cocaine with narcotic drugs for penalty purposes does not violate the due process or equal protection rights оf those charged under the controlled substances provisions of the Public Health Code.
- The mandatory life sentence for one convicted of possessing with intent to deliver 650 or more grams of cocaine does not constitute cruel and unusual punishment.
Affirmed.
M. J. KELLY, P.J., concurred. While he still believes that the mandatory life sentence for delivery of 650 or more grams of cocaine constitutes cruel and unusual punishment, he concurred in the result in view of the fact thаt his point of view has little support.
1. ACTIONS — COLLATERAL ESTOPPEL — CRIMINAL LAW.
The doctrine of collateral estoppel bars relitigation of issues previously decided where the parties to the second litigation are the same as those in the prior litigation; the doctrine of collateral estoppel applies to criminal as well as civil matters;
2. SEARCHES AND SEIZURES — SEARCH WARRANTS.
The police may properly seize items other than those described on a search warrant which are found on the premises to which the search warrant is directed where it becomes immediately apparent to the police that the items which are inadvertently found are evidence of an incriminating nature (
3. CRIMINAL LAW — APPEAL — TRIAL TACTICS.
The Court of Aрpeals will not allow a defendant to use as grounds for reversal a possible error which the defendant attempted to use at trial to his tactical advantage.
4. EVIDENCE — CRIMINAL LAW — PRIOR CONVICTIONS — IMPEACHMENT.
The similarity between a prior conviction and a charged crime does not, per se, bar the use of evidence of the prior conviction for impeachment purposes (
5. CONTROLLED SUBSTANCES — STREET VALUE — EVIDENCE.
It is not an abuse of discretion for a trial court to admit in a trial for possession with intent to deliver a controlled substance testimony as to the street value of the controlled substance, since such testimony is relevant to the question of the intent to deliver the controlled substance (
6. CONTROLLED SUBSTANCES — COCAINE — CLASSIFICATION OF CONTROLLED SUBSTANCES.
The classification of cocaine with narcotic drugs for penalty purposes does not violate an individual‘s right to due process or equal protection.
7. CONTROLLED SUBSTANCES — COCAINE — CRUEL AND UNUSUAL PUNISHMENT.
The mandatory life sentence for possession with intent to deliver 650 or more grams of cocaine does not constitute cruel and unusual punishment.
REFERENCES FOR POINTS IN HEADNOTES
[1] 21 Am Jur 2d, Criminal Law §§ 321, 331.
46 Am Jur 2d, Judgments §§ 518, 531.
[2] 68 Am Jur 2d, Searches and Seizures §§ 85, 88.
[3] 21A Am Jur 2d, Criminal Law § 825.
[4] 29 Am Jur 2d, Evidence § 327.
81 Am Jur 2d, Witnesses § 569 et seq.
[5] 25 Am Jur 2d, Drugs, Narcotics, and Poisons § 45.
[6] 25 Am Jur 2d, Drugs, Narcotics, and Poisons § 17.
29 Am Jur 2d, Evidence §§ 363, 387.
Validity and construction of statute creating presumption of inference of intent to sell from possession of specified quantity of illegal drugs. 60 ALR3d 1128.
[7] 21 Am Jur 2d, Criminal Law §§ 539, 627 et seq.
25 Am Jur 2d, Drugs, Narcotics, and Poisons § 48.
Validity of state statute imposing mandatory sentence or prohibiting granting of probation or suspension of sentence for narcotics offenses. 81 ALR3d 1192.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William F. Delhey, Pros-
State Appellate Defender (by Terrence R. Flanagan), for defendant on appeal.
Before: M. J. KELLY, P.J., and CYNAR and J. C. KINGSLEY,* JJ.
PER CURIAM. On April 7, 1981, defendant Michael Ward, also known as Kenneth Dean Watson, was found guilty by a Washtenaw County jury of possession of a controlled substance with intent to deliver 650 or more grams, contrary to
The facts set forth below resulted in two criminal рrosecutions: the one which comprises the instant case, and an Ingham County prosecution for conspiracy to deliver cocaine. A lower court order dismissing the Ingham County charge was reversed by this Court, People v Ward, 107 Mich App 38; 308 NW2d 664 (1981), lv den 417 Mich 938 (1983).
In March, 1979, the Tri-County Metro Narcotic Squad was investigating cocaine trafficking in the Michigan State University campus area. Information had been received that one Randall Seaver was a large-scale cocaine dealer in the Lansing area. The house that Seaver lived in on West Lake Lansing Road in Ingham County was placed under periodic surveillance beginning in late 1978 or early 1979. Tri-County Metro Officer Rick Boyd testified that on two separate occasions informa-
On the afternoon of March 20, 1979, defendant was observed for the first time by the Tri-County Metro surveillance team. He arrived at Seaver‘s house on West Lake Lansing Road, driving a white 1979 Pontiac Bonneville. He removed a briefcase from the trunk of his car and carried it into Seaver‘s house. A short time later, defendant was observed leaving the house carrying the briefcase. He placed the briefcase in the trunk of the car and drove away. Defendant reappeared at the Seaver residence, stayed for a short period of time, and left again. The police officer on surveillance followed him south on US 127, east on I-96 to US 23 and then north to the M-59 exit. At this time, the surveillance officers saw a Michigan state police patrol car. Officer Stanley Granger spoke to the state trooper and requested that he stop defendant in order to ascertain his identity. As a result of the contact between defendant and the state trooper, it was learned that defendant had a Floridа driver‘s license in the name of Kenneth Dean Watson with an address in Plantation, Florida. The state trooper informed the narcotics officers that he stopped defendant for an illegal turn, but no traffic citation was issued.
Within 15 minutes of defendant‘s arrest, other officers from the surveillance team made an entry without a warrant into Seaver‘s home. They detained Seaver and a female friend for several hours while awaiting the arrival of a search warrant. During this time, Seaver was “high” and fell asleep for a couple of hours, having previously ingested cocaine and Quaaludes. Before the issuance of the search warrant, the officers found Quaaludes, cocaine, and psilocybin mushrooms in Seaver‘s home. Officer Boyd arrived with the search warrant for the Seaver residence. Mr. Seaver approached Boyd and requested a private conversation. The two men went into a bedroom. Seaver asked Boyd if it would be helpful to his case if he had information to give to the policе. Boyd informed Seaver that the Ingham County Prosecutor would have to approve any deals. Officer Boyd informed Seaver that defendant had already been arrested. Seaver told Boyd that
The telephone number found in defendant‘s car proved to be that of the Wolverine Inn. Through his telephone conversation with the clerk at the Wolverine Inn, Boyd discovered that the Inn was located in Ann Arbor and that a person named Kenneth Watson was registered in room 147. The front desk put Boyd through to room 147 but no one answered the room‘s telephone.
Boyd and two other officers traveled to Ann Arbor to obtain a warrant to search the hotel room. After securing the warrant, officer Boyd utilized the room key seized from defendant at arrest to open the door to room 147. Defendant‘s suitcase and clothing bag were searched first, and no cocaine was found in either one. The officers then looked under the bed and searched the drawers in the bathroom. One of the uniformed Ann Arbor officers unscrewed the plumbing access panel in the bedroom. He informed the other officers that there were two grocery bags inside the panel. Officer Granger removed both bags, which were sealed with silver duct tape. Both bags were opened. The first bag contained $55,900 cash. The money was wrapped in several stacks and consisted of 10-, 20-, 50-, and 100-dollar bills. The second bag contained 21 clear plastic heat-sealed bags containing a white powdеry substance. The two grocery bags and their contents were taken by
Defendant was charged by the Washtenaw County prosecutor with possession with intent to deliver 650 or more grams of cocaine and possession of 650 or more grams of cocaine. (In Ingham County, defendant was charged with conspiracy to deliver cocaine.) Before his preliminary examination, defendant filed a motion to suppress evidence. This motion was denied. Defendant was bound over tо circuit court. An evidentiary hearing was held on defendant‘s motion to quash the search warrant and to suppress evidence before Washtenaw County Circuit Court Judge Edward D. Deake, who denied defendant‘s motion in an opinion issued on May 14, 1980. A similar hearing was also held before Ingham County Circuit Court Judge James R. Giddings, who granted the motion and dismissed the charge against defendant pending in that county. This case, however, went to trial and defendant was found guilty as charged.
The first four issues rаised by defendant concern the propriety of various searches and seizures undertaken during the investigation of this case. These issues were previously decided, adversely to defendant, by this Court when the Ingham County Prosecutor appealed Judge Giddings’ dismissal of the conspiracy case. People v Ward, 107 Mich App 38; 308 NW2d 664 (1981), lv den 417 Mich 938
The doctrine of collateral estoppel, or issue preclusion, bars the relitigation of issues previously decided where the parties to a second litigation are the same as those in the prior litigation. Rinaldi v Rinaldi, 122 Mich App 391; 333 NW2d 61 (1983); Topps-Toeller, Inc v Lansing, 47 Mich App 720; 209 NW2d 843 (1973), lv den 390 Mich 788 (1973). The doctrine applies to criminal cases as well as civil matters. Ashe v Swenson, 397 US 436; 90 S Ct 1189; 25 L Ed 2d 469 (1970); People v Gray, 393 Mich 1; 222 NW2d 515 (1974).
The necessary elements for application of the doctrine are present. The legal and factual issues are the same. There is an identity of parties, as the Ingham and Washtenaw County prosecutors are creatures оf a common sovereign, the State of Michigan. People v Grainger, 117 Mich App 740, 753-754; 324 NW2d 762 (1982). Also, because leave was denied by the Supreme Court in the Ingham County conspiracy case, the decision of the Court of Appeals has become the final adjudication.
Defendant next maintains that the trial court erred in allowing admission of items seized from the room at the Wolverine Inn which were not listed on the search warrant. In considering the propriety of seizing property not identified in a search warrant, we apply the standard used by the Supreme Court in People v Secrest, 413 Mich 521; 321 NW2d 368 (1982), reh den 414 Mich 1102 (1982). In that case the police had a warrant authorizing them to search for guns, ammunition,
We have different facts before us in this matter. At the time the officers entered room 147 at the Wolverine Inn, they knew defendant was in custody in Ingham County and that his real name was Michael Ward, but that he used the alias Kenneth Dean Watson. Any evidence that would connect defendant with the hotel room wаs incriminating.
Defense counsel, in his brief, has questioned the admissibility only of people‘s exhibits 17-20 and 23, so those are the ones that will be addressed. People‘s exhibit 20 was an Avis car rental receipt made out to Kenneth D. Watson and 23 was a receipt from the Ann Arbor Holiday Inn, dated March 20, 1979, made out to K. Watson. The incriminating value of both these items was immediately apparent, as they served to link defendant to his alias and also to control of the hotel room.
People‘s exhibit 19 was a shaving kit. Because it contained nothing bearing defendant‘s name or alias, and was not otherwise incriminating, its admission was erroneous. At trial, however, defense counsel elicited the fact that certain items found in the shaving kit contained surfaces which were conducive to fingerprints, but that no attempt was made to lift prints from these items. Defense counsel also mentioned this in his closing argument, claiming it raised a reasonable doubt. Thus, any error was negated by defense counsel‘s attempts to use the evidence to defendant‘s advantage. See People v Baines, 68 Mich App 385; 242 NW2d 784 (1976). For the foregoing reasons we find no reversible error under the Secrest standard.
Defendant‘s next claim of еrror relates to his motion to suppress his prior conviction record for impeachment purposes.
Defendant next claims that the court erred in admitting testimony concerning the street value of the cocaine, arguing that the prejudicial potential of such testimony overshadowed its probative value.
Defendant also argues that error was committed because officer Granger was under the impression that the average street cocaine is 15 percent pure, while the chemist testified that it is 25 percent pure, a factor which could have affected Granger‘s calculatiоns. Defense counsel‘s own arithmetic, using an average purity of 25 percent, still puts the street value of the cocaine at over $1,000,000. In addition, this Court has taken notice that 1,000 grams of cocaine has a street value of over $1,000,000. People v McCarty, 113 Mich App 464; 317 NW2d 659 (1982), lv den 414 Mich 958 (1982). Using that formula, the cocaine seized in the instant case would have a street value of $2.5 million dollars, much higher than the figure to which defendant objects.
Defendant‘s remaining arguments have previously been made to this Court without sucсess. We have determined that the classification of cocaine on the same level with narcotic drugs for penalty purposes does not violate the rights of due process
Defendant‘s conviction and sentence are affirmed.
M. J. KELLY, P.J. (concurring). In People v Harman, 124 Mich App 93, 101; 333 NW2d 591 (1983), lv den 417 Mich 1100.45 (1983), I expressed the opinion that the mandatory life sentence provided for conviction of possession of 650 grams or more of a mixture containing cocaine constitutes cruel and/or unusual punishment in violation of the United States and Michigan Constitutions (
Although the Supreme Court is not completely clear on the effect of its denial of an application to appeal a Court of Appeals decision, cf. Tebo v Havlik, 418 Mich 350; 343 NW2d 181 (1984). I conclude there is little sentiment for my view.
I therefore concur in the result.