People v. Acosta

• Decision Date: 10 December 1986
• Docket Number: Docket No. 81509
• Citation: 153 Mich.App. 504,396 N.W.2d 463
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roberto ACOSTA, Defendant-Appellant. 153 Mich.App. 504, 396 N.W.2d 463
• Court: Court of Appeal of Michigan — District of US

Page 463

396 N.W.2d 463

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Roberto ACOSTA, Defendant-Appellant.

Docket No. 81509.

153 Mich.App. 504, 396 N.W.2d 463

Court of Appeals of Michigan.

Submitted June 10, 1986.

Decided July 22, 1986.

Released for Publication Dec. 10, 1986.

[153 MICHAPP 506] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Paul L. Maloney, Pros. Atty., and Brian S. Berger, Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by Rolf E. Berg, Detroit, for defendant-appellant.

Before R.B. BURNS, P.J., and GRIBBS and COOPER ^*, JJ.

PER CURIAM.

Defendant was convicted, by a jury, of possession with intent to deliver cocaine in any mixture of 225 grams or more, but less than 650 grams. M.C.L. Sec. 333.7401(1) and (2)(a)(ii); M.S.A. Sec. 14.15(7401)(1) and (2)(a)(ii). Defendant was sentenced to imprisonment for not less than 20 years nor more than 30 years, as mandated by statute.

On September 18, 1983, defendant, along with his stepfather, Benito Alvarez, a codefendant who was tried separately, and his mother, arrived in [153 MICHAPP 507] the Benton Harbor-St. Joseph area from out of town and met up with friends of defendant. They then searched for a motel room and, as Alvarez could not speak English, defendant conducted the inquiries. The party eventually registered at the Red Roof Inn for the period of September 18 through 21. After checking in, defendant left with his friends to play racquetball and then went out on a date.

On September 19, 1983, the Berrien County Sheriff's Department obtained a search warrant for the motel room based upon information from a confidential police informant (CPI) who claimed to have been in the room and observed bags of cocaine which were offered for sale.

Sergeant Stephen Marschke, along with several other officers, executed the warrant on that same day. After knocking and announcing their presence, they entered the room and found defendant lying on one bed and Alvarez on another. From the dresser, they seized a "Chicken McNuggets" box containing two sandwich bags of a white powder, a wallet belonging to Alvarez, a cracker tin, and a box of baggies. A triple beam scale was found on the bathroom counter and a second wallet, which belonged to defendant, was found on a nightstand between the two beds. Underneath the bed on which defendant had been lying, the police found a sack with two larger "zip lock" bags of white powder.

The white powder in one baggie was chemically tested and indicated a positive presence of cocaine. The wallet of Alvarez was positioned on top of $134 but no other money was found in the room. In defendant's wallet there was a piece of paper listing dollar amounts and quantities, which was described by Marschke as a drug price list. The trial court had accepted Marschke as an expert in [153 MICHAPP 508] the field of packaging, sale and distribution of cocaine. No weapons were found in the room.

The combined weight of the controlled substance which was seized totalled 341.7 grams and consisted of approximately 75% cocaine and 25% diluent. There was testimony showing that the mixture could have been diluted further before sale in order to increase profits.

Of all the evidence seized, only the baggies of cocaine were tested for fingerprints. A latent print belonging to Alvarez was found on the largest bag. No other prints were found.

On appeal, defendant raises four issues, none of which require reversal.

Defendant first argues that the trial court erred in failing to order the production of the confidential police informant. We begin by noting that defendant does not raise this issue in the context of the failure to produce a res gestae witness. Rather, defendant relies on People v. Stander, 73 Mich.App. 617, 251 N.W.2d 258 (1977). In Stander, this Court formulated the appropriate procedure for handling cases where the prosecution refuses a defendant's request to disclose an informant's identity:

"[W]here the government invokes the privilege in the face of a defense request for disclosure, and where the accused is able to demonstrate a possible need for the informant's testimony, the trial judge should require production of the informant and conduct a hearing in chambers, and out of the presence of the defendant. At this hearing the court will have an opportunity to examine the informant in order to determine whether he could offer any testimony helpful to the defense. A record should be made of the in camera session and its contents sealed so that only an appellate court will have access thereto." Id., 622-623, 251 N.W.2d 258.

[153 MICHAPP 509] During the in camera hearing, the trial court must balance the government's interest in nondisclosure against the defendant's right to develop testimony of every witness who may be able to furnish information useful to a defense. The circumstances of each case will determine whether a proper balance favors disclosure or nondisclosure. Roviaro v. United States, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); Stander, supra.

Because Stander directs the trial court to make a factual finding as to whether the informant should be produced, we will review the trial court's decision to produce or not produce to determine if it is clearly erroneous. MCR 2.613(C).

However, we need not even closely review the transcript of the in camera hearing as subsequent trial testimony rendered the issue moot. At trial, Christopher McCrosky testified as follows:

"Q Where did Roberto say he had come to the Benton Harbor area from?

"A He was in Detroit. I don't know how he got to Detroit, but he came to Detroit from Florida, and then Mark [defendant's friend] and another friend of Mark's [apparently the CPI] went to Detroit, picked him up and came back and then the following day we played the racquetball, and that's when I met him."

This is consistent with a written statement filed by the prosecutor prior to the in camera hearing. That statement indicated that the informant had accompanied defendant from Detroit to Benton Harbor. Moreover, in his brief on appeal, defendant admits that the "identity of the informant is all but stated" in the prosecutor's written statement and that McCrosky's testimony "makes it clear that the identified CPI was well known to a close friend of Defendant."

[153 MICHAPP 510] Thus, we can see no reason why defendant could not simply have subpoenaed the informant. Simply put, defendant cannot be prejudiced by the failure to disclose the identity of a witness whose identify is already known to him. As for the question of the witness being produced by the plaintiff rather than by defendant, as noted above, defendant does not raise a res gestae issue. Therefore, we conclude that, even if the trial court should have ordered the disclosure and production of the informant, any error in the refusal to do so is harmless under the circumstances of this case. In any event, we have reviewed the sealed record of the in camera hearing and conclude that the trial court did not clearly err in its decision.

Defendant next argues that there was insufficient evidence to support both of the prosecution's alternate theories of guilt. We disagree.

The jury was instructed that defendant could be found guilty of possession with intent to deliver cocaine if he either directly committed the crime or aided and abetted in its commission. The jury did in fact return a verdict of guilty, but did not specify on which of the two theories its decision was based. In People v. Gilbert, 55 Mich.App. 168, 174, 222 N.W.2d 305 (1974), lv. den. 393 Mich. 774 (1974), this Court stated:

"When the defendant stands convicted on one of two theories, one of which is permissible and one of which is not, the inability to say for sure on which the conviction rests demands reversal."

Defendant challenges both theories in this case on grounds of insufficiency of evidence. The proper standard of appellate review in cases where a defendant appeals the sufficiency of evidence was set forth in People v. Hollis, 140 Mich.App. 589, 592, 366 N.W.2d 29 (1985):

[153 MICHAPP 511] "In reviewing a sufficiency claim, this Court must determine whether, considering the evidence in the light most favorable to the prosecutor, a rational trier of fact could find the necessary elements of the crime proven beyond a reasonable doubt or if the court clearly erred."

The concept of sufficiency focuses upon whether the evidence, taken as a whole, justifies submission of the case to the trier of fact or requires judgment as a matter of law. Circumstantial evidence and reasonable inferences arising from the evidence may constitute satisfactory proof of the elements of the offense. The prosecution, in order for a jury to find a defendant guilty on the strength of circumstantial evidence, need only prove its own theory of the case beyond a reasonable doubt; every reasonable theory consistent with innocence need not be negated. People v. Frank Johnson, 146 Mich.App. 429, 381 N.W.2d 740 (1985).

To support a finding that defendant directly committed the crime of possession of cocaine with intent to deliver in any mixture of 225 grams or more, but less than 650 grams, four elements must be shown....