People v. Alexander

• Decision Date: 19 March 1991
• Docket Number: Docket No. 117349
• Citation: 188 Mich.App. 96,469 N.W.2d 10
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arthur Lee ALEXANDER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 10

469 N.W.2d 10

188 Mich.App. 96

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Arthur Lee ALEXANDER, Defendant-Appellant.

Docket No. 117349.

Court of Appeals of Michigan.

Submitted Feb. 12, 1991, at Grand Rapids.

Decided March 19, 1991, at 9:20 a.m.

Released for Publication May 17, 1991.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training and Appeals, and Janice M. Joyce Bartee, for the People.

Elizabeth L. Jacobs and Steven F. Fishman, Detroit, for defendant-appellant on appeal.

Before MARK J. CAVANAGH, P.J., and MAHER and FITZGERALD, JJ.

PER CURIAM.

Defendant was convicted, following a jury trial, of delivery of a controlled substance (cocaine) in an amount more than 650 grams, M.C.L. Sec. 333.7401(2)(a)(i); M.S.A. Sec. 14.15(7401)(2)(a)(i). He was sentenced to the mandatory term of life imprisonment. We affirm in part and remand for an evidentiary hearing regarding defendant's receipt of Miranda ¹ warnings.

The testimony in this case established that on July 12, 1988, defendant met with an undercover narcotics officer of the Detroit Police Department and arranged to sell the officer one "kilo" of cocaine for $26,000. The following night, defendant and the officer met in the parking lot of a fast food restaurant on the east side of Detroit where the transaction was to take place. After the officer showed defendant the money, the two waited for defendant's girl friend to arrive in another car with the cocaine. Approximately fifteen minutes later, a car with two individuals arrived. The officer and defendant approached the vehicle, and a female passenger picked up a grocery bag and pulled out a "plastic wrapped brick." She handed the brick to the officer and said, "Check it out." The officer then poked a hole in the bag and noticed a white powdery substance which was later determined to be cocaine. Next, as defendant and the officer were walking back to the officer's vehicle for the money, a backup crew arrived, and defendant was arrested along with the two individuals in the other vehicle. ²

At trial, defendant testified in his own behalf. Although he admitted offering to sell the officer a kilo of cocaine for $26,000, he claimed that he never intended to sell the officer real cocaine. Instead, defendant claimed he "was going to run a scam" by selling the officer fake cocaine. Defendant said he contacted a friend, J.B., whom he asked to make up a package of fake cocaine and that J.B. agreed. Defendant said that on the evening of the transaction he had his girl friend drop him off at the arranged meeting spot, and then sent her to J.B.'s to get the "package." He explained that after she arrived the transaction took place as planned; however, the next thing he knew the place was full of police officers and he was being arrested. The jury found defendant guilty of delivery of cocaine in an amount over 650 grams.

Defendant now appeals his conviction and sentence as of right. Specifically, defendant claims he is entitled to a new trial because the jury was improperly instructed and because he was improperly questioned by the prosecutor, contrary to the rule announced in People v. Bobo, 390 Mich. 355, 359, 212 N.W.2d 190 (1973). Defendant also claims that his mandatory life sentence is invalid because it constitutes cruel and unusual punishment.

I

First, we find that the trial court did not err when it read CJI 12.2.03 (definition of delivery and attempted delivery) in response to a jury note asking, "Is it considered a delivery if the defendant did not hand it to the U.C. personally?" Although defendant argues it was improper to define delivery as including an attempted delivery, the definition of delivery under the controlled substances act includes either an actual or attempted transfer. M.C.L. Sec. 333.7105(1); M.S.A. Sec. 14.15(7105)(1). Thus, an attempt is subsumed under the crime of delivery itself, and there is no separate offense of attempted delivery of cocaine. Wayne Co. Prosecutor v. Recorder's Court Judge, 177 Mich.App. 762, 764, 442 N.W.2d 771 (1989). Moreover, defense counsel's contention that his argument to the jury would have been different had he known an "attempt" instruction was going to be used is meritless because defense counsel did not focus on the issue of delivery in his closing argument, but rather on defendant's claim that he intended to "run a scam." There was no instructional error.

II

Next, defendant argues that his Fifth Amendment right to remain silent was impermissibly infringed when the prosecutor questioned him concerning his silence at the time of arrest and then further commented upon such silence during closing argument.

The prosecutor's cross-examination of the defendant concluded with the following exchange:

Q. Something else that I'm little confused about.

A. Yes, sir.

Q. The man turns the hat and the police [come] from all over, some in uniform, most of them, and you know--you know it's the man, right?

A. Yes, sir.

Q. And you figure that you are there, and what you got here in this package is flour?

A. Yes, sir.

Q. Or something like that?

A. Yes, sir.

Q. And I assume first thing as they are putting the hands behind your back and putting the cuffs on you, you are saying to the police, hey, man, that's nothing but flour. Isn't that what you said?

A. No, sir.

Q. Why not?

A. Why not? Well, sir, first of all, I was upset because I was being arrested.

Following this exchange, defendant was excused, and no objection to the line of questioning was raised. The parties then rested. During his rebuttal closing argument, the prosecutor made further reference to defendant's failure to inform the police of his belief that the package did not contain cocaine:

When you do the evaluating, figure out how you would have been reacting if you were trying to pull a rip, and I am not suggesting that any of you would be incline [sic] to do that, and the police are coming down on you and you know, man, I'm in trouble. What's the first thing you will say when the police are coming down and your hands are behind your back in the fancy bracelets? You are saying, what's going on? That's not even dope. That's Gold Medal flour. I ain't got no dope. Isn't that the first thing you will say, and you are going to say it.

Again, defense counsel raised no objection to this argument.

Although a failure to object at trial normally precludes review on appeal, review is nevertheless appropriate where a significant constitutional question is involved. People v. Gilbert, 183 Mich.App. 741, 746-747, 455 N.W.2d 731 (1990); People v. Davis, 181 Mich.App. 354, 355, 448 N.W.2d 842 (1989).

Recently, our Supreme Court released a series of decisions clarifying the rule announced in Bobo, supra, 390 Mich. at 359-361, 212 N.W.2d 190, regarding reference during trial to a defendant's silence. People v. Sutton (After Remand), 436 Mich. 575, 464 N.W.2d 276 (1990); People v. McReavy, 436 Mich. 197, 462 N.W.2d 1 (1990); People v. Cetlinski, 435 Mich. 742, 460 N.W.2d 534 (1990). In each of these cases, the Supreme Court held that Bobo is to be construed as being coextensive with federal precedent. Sutton, 436 Mich. [188 Mich.App. 102] at 599, 464 N.W.2d 276; McReavy, 436 Mich. at 201, 462 N.W.2d 1; Cetlinski, 435 Mich. at 759, 460 N.W.2d 534. Consistent with federal precedent, the Supreme Court then stated in Sutton, 436 Mich. at 592, 599, 464 N.W.2d 276:

United States Supreme Court cases decided subsequent to our holding in Bobo establish that when a defendant takes the stand and testifies the privilege against self-incrimination is waived and the defendant may be impeached with both prearrest silence and postarrest pre-Miranda silence without violating the Fifth Amendment. Jenkins v Anderson, 447 US 231; 100 S Ct 2124; 65 L Ed 2d 86 (1980); Fletcher v Weir, 455 US 603; 102 S Ct 1309; 71 L Ed 2d 490 (1982) (per curiam).

* * * * * *

Construing People v Bobo as coextensive with federal precedent, we hold that impeachment of exculpatory testimony with pre- or postarrest pre-Miranda silence is permissible under the Michigan Constitution. Likewise, a defendant's right to remain silent is protected by the Fourteenth Amendment which precludes the use of a defendant's silence following Miranda warnings to impeach an exculpatory story. [Emphasis added.]

In Fletcher v. Weir, a case similar to this one, the prosecutor impeached a defendant's exculpatory trial testimony by cross-examining him regarding his failure to advance his exculpatory explanation when he was arrested. Although the record was unclear regarding whether Miranda warnings had immediately been given, the United States Supreme Court made clear that the use of a defendant's postarrest pre-Miranda silence for impeachment purposes was constitutionally permissible. The Supreme Court explained its rationale as follows:

In Jenkins, as in other post-Doyle [v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) ] cases, we have consistently explained Doyle as a case where the government had induced silence by implicitly assuring the defendant that his silence would not be used against him.... Finally, in Anderson v. Charles, 447 U.S. 404, 407-408, 100 S.Ct. 2180 [2181-2182] (1980), we explained that use of silence for impeachment was fundamentally unfair in Doyle because "Miranda warnings inform a person of his right to remain silent and assure him, at least implicitly, that his silence will not be used against him.... Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances."

In the absence of the sort of affirmative assurances embodied in the Miranda warnings, we do not believe that it violates due process of law for a State to permit cross-examination as to postarrest silence when a defendant chooses to take the stand. [455 U.S. at 606-607, 102 S.Ct. at 1311-1312.]

In Cetlins...