People v. Johnson

• Decision Date: 17 May 1976
• Docket Number: Docket Nos. 22204,22205
• Citation: 68 Mich.App. 697,243 N.W.2d 715
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry R. JOHNSON, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dawn Marie JOHNSON, Defendant-Appellant. 68 Mich.App. 697, 243 N.W.2d 715
• Court: Court of Appeal of Michigan — District of US

Page 715

243 N.W.2d 715

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry R. JOHNSON, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dawn Marie JOHNSON, Defendant-Appellant.

Docket Nos. 22204, 22205.

68 Mich.App. 697, 243 N.W.2d 715

Court of Appeals of Michigan.

May 17, 1976.

Released for Publication July 19, 1976.

[68 MICHAPP 699] Wickett, Erickson & Beach, P.C. by Charles C. Wickett, Kalamazoo, for defendant-appellant.

[68 MICHAPP 698] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., David A. Dimmers, Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and D. E. HOLBROOK and ALLEN, JJ.

D. E. HOLBROOK, Judge.

Defendants, husband and wife, were convicted of possession of marijuana with intent to deliver. M.C.L.A. § 335.341(1)(c); M.S.A. § 18.1070(41)(1)(c). Defendant Jerry Johnson was sentenced to a prison term of 18 months to 4 years, while defendant Dawn Marie Johnson was sentenced to a term of 13 months to 4 years. Defendants appeal as of right.

Sometime on the evening of January 21, 1974, the police arrived at the house trailer residence of defendants. The police were armed with a search warrant which was based on an affidavit which reads in part:

'1) That the following property constitutes evidence of criminal conduct:

'Large quantity of marijuana controlled and possessed by Jerry R. Johnson in the living room and bedroom of the residence of Jerry R. Johnson.'

When the police entered the house trailer, they did find nearly a pound of marijuana. Several other people, guests of the defendants, were also present in the trailer. However, none of the people in the trailer was exercising apparent control over the marijuana seized. Defendant Jerry R. Johnson was arrested. Defendant Dawn Marie Johnson was not arrested until the next day when she went to visit her husband in jail. At trial, the arresting [68 MICHAPP 700] officer was asked the reason for placing Dawn Johnson in custody:

'Q. (defense attorney): Would it not be correct to say that you arrested Dawn Marie Johnson or at least she was arrested because of your belief that whatever was in that home was the joint property of the two of them, the husband and wife, and not from any acts on the part of Dawn Marie Johnson?

'A. That would be true.'

The sum total of the evidence against defendant Dawn Marie Johnson was that she lived with her husband, Jerry Johnson. We should first point out that joint ownership of the house trailer was never proved by the prosecution. But assuming without deciding that defendants were joint owners of the house trailer it is possible that such joint ownership could lead to an inference of joint possession of the contents of the house trailer. However, it would not be a 'fair inference' to assume, from joint ownership of the house trailer, a specific intent to 'deliver' any of the contents of the trailer. This is in fact the inference which the jury must have drawn in this case with regard to Dawn Marie Johnson, since she was convicted of possession of marijuna with intent to deliver. Since there was absolutely no evidence, other than possible joint ownership of the trailer, introduced against Dawn Marie Johnson, we hold that the jury based her conviction upon an unfair inference of intent to deliver. People v. Atley, 392 Mich. 298, 220 N.W.2d 465 (1974). If it is argued that joint possession of the marijuana is a reasonable inference to be drawn from joint ownership of the house trailer, and that intent to deliver is a reasonable inference to be drawn from the before-inferred possession, then this would be an impermissible [68 MICHAPP 701] inference built upon another inference, both based upon the same circumstantial evidence. Atley, supra; People v. Gordon, 60 Mich.App. 412, 231 N.W.2d 409 (1975).

During the search which led to the arrest of defendant Jerry Johnson, the police discovered that one of the parties present in the house trailer had, in his automobile, a plastic bag with a brownish-green substance in it. This person, Douglas Magnum, was not arrested, and neither was anyone else other than defendant Jerry Johnson.

At trial, the prosecution called as witnesses all of the persons, other than defendants, who had been present in the trailer on the night of the search with the exception of witness Magnum. The defendants insisted that witness Magnum be produced, arguing that his testimony would not merely be cumulative because, unlike the other res gestae witnesses, he had had in his car a plastic bag with a small amount of a 'brownish-green substance' in it. Defendants indicated that their cross-examination of witness Magnum might shed some light on the manner in which the marijuana came to be in their house trailer. Further, since witness Magnum had been in the trailer on the previous evening, defendants contended that there was a good likelihood that he might have been the secret police informant. Defendants had earlier indicated a possible desire to put forth an entrapment defense if they were allowed to interview the police informant. We agree with defendants that it does not appear that witness Magnum would have given testimony which was merely cumulative had he been produced by the prosecution. Therefore, in the absence of a diligent effort to produce the witness at trial, his nonproduction would be reversible error.

[68 MICHAPP 702] The trial court specifically held that the nonproduction of the witness was not, in this case, excused by due diligence. The trial court concluded that the absent witness's testimony would have been merely cumulative, however, and that the situation could be remedied by a jury instruction to the effect that the jury could assume that the absent witness would have given testimony favorable to the defendants had he been called. The people argue that such an instruction on the part of the trial judge was sufficient to overcome any prejudice to defendants, citing People v. Gordon, supra, and People v. Barker, 18 Mich.App. 544, 171 N.W.2d 574 (1969). The cases cited by the prosecution are distinguishable. In Barker, the court below had actually found due diligence on the part of the prosecution. In the case before us the court below found that the prosecution failed to exercise due diligence in attempting to produce the witness. In Gordon, the defense made no request or demand at trial that...