223 N.W.2d 28 (Mich.App. 1974), 17390--1, People v. Serra

Docket Nº:Docket No. 17390--1.
Citation:223 N.W.2d 28, 55 Mich.App. 514
Opinion Judge:BRONSON, Judge.
Party Name:PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Jacob SERRA and Helen Serra, Defendants-Appellees.
Attorney:[55 Mich.App. 515] Stephen M. Losh, Warren, for Jacob Serra. Bruce A. Karash, Detroit, for Helen Serra. Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George N. Parris, Pros. Atty., Thaddeus F. Hamera, Chief Appellate Lawyer, Donald C. Roberge, Asst. Pros. Atty., for plaintiff-appe...
Judge Panel:[55 Mich.App. 516] Before BASHARA, P.J., and BRONSON and CARLAND[*], JJ.
Case Date:September 17, 1974
Court:Court of Appeals of Michigan

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223 N.W.2d 28 (Mich.App. 1974)

55 Mich.App. 514

PEOPLE of the State of Michigan, Plaintiff-Appellant,


Jacob SERRA and Helen Serra, Defendants-Appellees.

Docket No. 17390--1.

Court of Appeals of Michigan, Division No. 2.

September 17, 1974

Released for Publication Nov. 8, 1974.

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[55 Mich.App. 515] Stephen M. Losh, Warren, for Jacob Serra.

Bruce A. Karash, Detroit, for Helen Serra.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George N. Parris, Pros. Atty., Thaddeus F. Hamera, Chief Appellate Lawyer, Donald C. Roberge, Asst. Pros. Atty., for plaintiff-appellant.

[55 Mich.App. 516] Before BASHARA, P.J., and BRONSON and CARLAND*, JJ.


We are called upon to determine the constitutionality of a provision of the recently enacted 'Controlled Substances Act of 1971'. 1 The challenged section provides, in pertinent part:

'(2) Possession of more than 2 ounces of marihuana is prima facie evidence of possession with intent to deliver.' M.C.L.A. § 335.341(2); M.S.A. § 18.1070(41)(2).

There are other appeals pending before this Court which present the same issues

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raised here. Not all trial judges are in agreement concerning the provision in question.

Michigan's Controlled Substances Act of 1971 is principally a reenactment of the Uniform Controlled Substances Act approved by the National Commissioners on Uniform State Laws in 1970. 2 The commissioners, in a prefatory note to the Uniform Act, relate the following objectives and purposes, Inter alia:

'A main objective of this Uniform Act is to create a coordinated and codified system of drug control, similar to that utilized at the Federal level, which classifies all narcotics, marihuana, and dangerous drugs subject to control into five schedules, with each schedule having its own criteria for drug placement. This classification system will enable the agency charged with implementing it to add, delete, or reschedule substances based upon new scientific findings and the abuse potential of the substance.

[55 Mich.App. 517] 'The Act sets out the prohibited activities in detail, but does not prescribe specific fines or sentences, this being left to the discretion of the individual States. It further provides innovative law enforcement tools to improve investigative efforts and provides for interim education and training programs relating to the drug abuse problem.' 9 U.L.A., Supra, pp. 146--147.

The commissioners and drafters of the Uniform Act intended that the act be an effective law enforcement tool, as written, with the states free to prescribe the specific fines and penalties for the delineated statutory offenses.

The presumption presently under constitutional attack is not found in the Uniform Act. The Michigan Legislature added it when the Uniform Act was adopted in 1971. The origin of this added presumption is unclear. It has no direct antecedent in prior Michigan laws promulgated to control abuse and trafficking in illegal narcotics. 3

The Uniform Act creates the substantive statutory offense of 'possession with intent' in section 401(a), using the following language:

'(a) Except as authorized by this act, it is unlawful for any person to manufacture, deliver, or Possess with intent to manufacture or deliver, a controlled substance.' § 401(a), Uniform Controlled Substances Act, 9 U.L.A., p. 266.

The Michigan analogue (M.C.L.A. § 335.341(1); M.S.A. § 18.1070(41)(1)) is identical.

In 1973 the Commissioners on Uniform Laws recommended the decriminalization of possession [55 Mich.App. 518] and distribution of small quantities of marijuana. 4 The newly recommended

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section 409, 5 after withdrawing completely the criminal sanction from certain marijuana-related activities, sets forth a [55 Mich.App. 519] new rule of evidence. This new evidentiary rule creates a presumption which is the converse of the presumption we are presently considering. The section now reads:

'(b) Possession by an individual of not more than one ounce of marihuana is presumed to be for personal use under subsection (a).' (See footnote 5.) 9 U.L.A., § 409, p. 28 of supplement.

While Michigan has adopted the substantive offense of possession with intent to deliver (which could be charged and established independently of the presumption of M.C.L.A. § 335.341(1)(c)), the Legislature apparently felt it necessary to deviate from the Uniform Act by adding the presumption in question.

With the origin and context of the presumption in proper perspective, we now direct our attention to the facts and contentions of the defendants-appellees in the instant case.

Pursuant to warrant, a search was conducted during July, 1972 of the residence of defendants Jacob and Helen Serra. As a consequence, marijuana plants in the yard and various containers of marijuana in the house were seized. It was the conclusion of the police officers conducting the search that the quantity of marijuana seized was in excess of two ounces.

Each of the defendants was charged with possession of a controlled substance (marijuana) with intent to deliver. M.C.L.A. § 335.341(1)(c); M.S.A. § 18.1070(41)(1)(c). The charged offense is a four-year felony providing in addition a maximum fine of $2,000.

Probable cause for the charged crime was based solely on M.C.L.A. § 335.341(2); M.S.A. § 18.1070(41)(2)--[55 Mich.App. 520] the two-ounce presumption section.6

After arraignment in the Macomb County Circuit Court defendants filed motions to declare the two-ounce presumption unconstitutional and to quash the complaints and warrants and additionally to release defendants from custody.

Defendants there asserted that M.C.L.A. § 335.341(2); M.S.A. § 18.1070(41)(2), Supra, violates both the Fifth and Fourteenth Amendments to the United States Constitution 7

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and article 1, section 17 of the Michigan Constitution. 8

On March 28, 1973, the Honorable Howard R. Carroll, Circuit Judge, held the presumption in question unconstitutional as a violation of the defendants' privilege against self-incrimination. We agree.

Both the Michigan and United States Constitutions provide that a 'person shall not be compelled in a criminal case to be a witness against himself'.

Statutory presumptions are merely aids to expedite prosecution. Possession of large amounts of a controlled substance will give rise, without the artificial boost of a presumption, to an inference that the person possessing it intended to deliver it. A presumption is created when the Legislature decides that a given amount (here two ounces) should, in its judgment, give rise to the inference. The presumption gives force of law to an otherwise ordinary inference. In enacting such a statute, the Legislature seeks to convince the jury that it should make such an inference when presented [55 Mich.App. 521] with the appropriate facts. If the jury is forced to draw the inference, the presumption is deemed conclusive. The presumption in this case is rebuttable; I.e., defendants can avoid its force by introducing evidence that they did not possess the marijuana with intent to deliver. The jury is not compelled to draw the inference but is merely encouraged to do so.

But the presumption in this case is unique in that the actual state of mind of the accused is involved.

Most presumptions which have been considered by courts have involved inferences from one fact about a certain object or relation to another, more remote, fact About that same object or relation. For example, in People v. Kayne, 286 Mich. 571, 282 N.W. 248 (1938), the Supreme Court sustained a presumption written into a local ordinance. It provided that display of a registration plate on a motor vehicle parked illegally constituted prima facie evidence that the owner of the vehicle parked it. The Court held that such a presumption did not violate the defendant's privilege against self-incrimination. The presumption in Kayne involved an inference from one fact about the car (that it had a certain registration number) to another fact about the car (that its owner parked it illegally). Significantly, the presumption in Kayne did Not involve an inference from a fact about the car to a fact about the owner's Intent (e.g., that he intended to park it illegally).

It is this feature of the presumption in question which requires us to give it different treatment. It involves an inference from the fact of possession to the fact of the possessors' Intent, rather than some fact which can be shown independent of the defendants' [55 Mich.App. 522] state of mind. 9 The only evidence which can effectively rebut such an inference, supported and enhanced by the presumption, is the defendants' own testimony as to their intent. Any other evidence, even expert testimony, is mere speculation about that intent. Probabilities established by an expert are only suggestions.

We are not persuaded by the argument that the defendants can choose not to take

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the stand to testify. The choice offered defendants is an empty one. It has been nullified by the heavy hand of a Legislature which imposes a penalty, in the form of a statutory presumption, on these who decide to exercise their constitutional right to remain silent.

Nor is it an answer to say that the presumption is not conclusive and that defendants can still get to the jury and avoid a directed verdict by arguing that the inference, even though sanctioned by the Legislature, is not compelling. While it is true that the presumption in question is not technically a conclusive presumption, since the jury might disregard the trial judge's authoritative instruction and the Legislature's stern advice, labels alone cannot alter the real and intended impact of the presumption. It seems to us that the jury's choice is as illusory as defendants'. A jury cannot realistically be expected to ignore the presumption. The inference that defendants intended to deliver...

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