People v. Alexander

Decision Date06 November 1974
Docket NumberNo. 3,Docket No. 17751,3
Citation223 N.W.2d 750,56 Mich.App. 400
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harvey ALEXANDER, Defendant-Appellant
CourtCourt of Appeal of Michigan — District of US

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Ronald J. Taylor, Pros. Atty., for plaintiff-appellee.

Before ALLEN, P.J., and J. H. GILLIS and McGREGOR, JJ.

J. H. GILLIS, Judge.

Defendant was convicted by a jury of unlawful delivery of marijuana in violation of M.C.L.A. § 335.341(1)(c); M.S.A. § 18.1070(41)(1)(c). He was sentenced to 2 1/2 to 4 years in prison, and appeals as of right.

At the trial, Dr. Hare, the State's expert witness, stated that he had performed the 'Duquenois-Lavine' test and various microscopic tests on the substance in question, and had conclusively determined it to be marijuana. The defendant stipulated to Dr. Hare's qualifications to identify marijuana, and did not object to his use of the Duquenois-Lavine test. Nonetheless, defendant now asks us to take judicial notice of the fact that the Duquenois-lavine test is unreliable. We decline to do so. When defendant, at the trial stage, specifically stipulates to an expert's qualifications, and voices no objection to that expert's methods, he is foreclosed from later attacking those methods on appeal. People v. Musser, 53 Mich.App. 683, 690, 219 N.W.2d 781 (1974).

Defendant further argues that the Michigan laws which prohibit the possession, use and sale of marijuana violate his right to privacy, equal protection and due process. These same arguments have been raised in many other jurisdictions, 1 and have met with little success. We also find them to be without merit.

In United States v. Kiffer, 477 F.2d 349 (CA 2, 1973), the second circuit of the United States Court of Appeals faced the same issues as are raised here. In that case defendant was charged with possession of marijuana with intent to distribute and with conspiracy. The Court held that Congress could constitutionally regulate the sale and distribution of marijuana. We find the second circuit's rationale convincing, and we adopt it. In Kiffer, supra, 352--355, the Court began by noting the policy considerations present in this type of case:

'Any court asked to undertake review of the multifarious political, economic and social considerations that usually underlie legislative prohibitory policy should do so with caution and restraint. In this case, the challenged legislation incorporates conclusions or assumptions concerning an array of medical, psychological and moral issues of considerable controversy in contemporary America. Indeed, as a recent perceptive study suggests, 'Marijuana, in fact, has become the symbol of a host of major conflicts in our society, each of which exacerbates any attempt at a rational solution to the problem.' J. Kaplan, Marijuana--The New Prohibition (World Publishing Co. ed. 1970, p. 3). This should serve as a reminder that in most instances the resolution of such sensitive issues is best left to the other branches of government.

'Reflecting this judgment, courts usually review challenged legislative acts with the understanding that they are presumed valid and will be so found unless it is shown that the statute in question bears no rational relationship to a legitimate legislative purpose. E.g., Williamson v. Lee Optical, Inc., 348 U.S. 483, 485--488, 75 S.Ct. 461, 99 L.Ed. 563 (1955); United States v. Carolene Products Co., 304 U.S. 144, 152--154, 58 S.Ct. 778, 82 L.Ed. 1234 (1938). The only cases that require a stricter standard of review are those that involve an infringement of a right explicitly enunciated in the Constitution or otherwise recognized as fundamental. E.g., Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965); Aptheker v. Secretary of State, 378 U.S. 500, 505--514, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964). See United States v. Carolene Products Co., Supra, 304 U.S. at 152--153 n. 4, 58 S.Ct. 778, 82 L.Ed. 1234.

'To invoke this stricker scrutiny in this case, appellants assert the existence of a fundamental 'right of the individual to control of his own body and to indulge in private in what may be condemned in public or deemed immoral or unacceptable to society at large.' In support of this proposition they cite the Supreme Court decisions in Griswold v. Connecticut, Supra, and Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), respectively invalidating convictions for use of contraceptives and for private possession of obscene materials. These cases are of little assistance of appellants. Whatever may be the merits of a claim to a protected right by one who is prosecuted for the private possession or use of marijuana, appellants are not in that position. * * * (Their conviction dealt with selling and not the mere use of marijuana.) Thus, analogies to the holdings of Griswold and Stanley are inappropriate. Far more comparable are those decisions holding that, notwithstanding Stanley's protection of the ultimate consumer of obscene material, the Government may prohibit the commercial importation or mail distribution of pornography. See United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S.Ct. 1400, 28 L.Ed.2d 822 (1971); United States v. Reidel, 402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d 813 (1971).

'Since there is no colorable claim of a fundamental constitutional right to sell marijuana--even partisans of the old economic due process analysis might blush at that notion--appellants must establish that prohibition of commercial distribution of marijuana lacks any reasoned justification. They have not succeeded in doing so.

'* * * (R)ecent discussions of this issue suggest that the present state of knowledge of the effects of marijuana is still incomplete and marked by much disagreement and controversy. Compare, E.g., Bartimo, Marijuana, 30 Fed.B.J. 343 (1971), with Trachtenberg & Paper, Marijuana: A Further View, 31 Fed.B.J. 258 (1972). Thus, although it is apparently generally accepted that most users do not suffer any significant ongoing harm, at least some--perhaps predisposed to such episodes--are reported to suffer severe temporary trauma, as Dr. Tennant reported in this case. ...

To continue reading

Request your trial
12 cases
  • State v. Smith
    • United States
    • Washington Supreme Court
    • April 24, 1980
    ...laws which prohibit the possession, use and sale of marijuana do not violate the constitutional right to privacy. People v. Alexander, 56 Mich.App. 400, 223 N.W.2d 750 (1974). The right to smoke marijuana is not fundamental to the American scheme of justice, it is not necessary to ordered l......
  • Seeley v. State
    • United States
    • Washington Supreme Court
    • July 24, 1997
    ...v. Anonymous, 32 Conn.Supp. 324, 355 A.2d 729 (1976); Commonwealth v. Leis, 355 Mass. 189, 243 N.E.2d 898 (1969); People v. Alexander, 56 Mich.App. 400, 223 N.W.2d 750 (1974); Kreisher v. State, 319 A.2d 31 However, Respondent contends the right infringed is not a general right to smoke mar......
  • People v. Schmidt
    • United States
    • Court of Appeal of Michigan — District of US
    • October 18, 1978
    ...was unconstitutional. The trial court denied the motion, after a hearing, on the basis of this Court's decision in People v. Alexander, 56 Mich.App. 400, 223 N.W.2d 750 (1974). Defendant then entered bargained pleas of guilty to two counts of possession of marijuana, M.C.L. § 335.341(4)(d);......
  • People v. Riddle, Docket No. 20007
    • United States
    • Court of Appeal of Michigan — District of US
    • November 12, 1975
    ...thus has not been preserved for appellate review. People v. Smith, 58 Mich.App. 76, 227 N.W.2d 233 (1975), People v. Alexander, 56 Mich.App. 400, 223 N.W.2d 750 (1974). Defendant's final contentions that the statute prohibiting possession, use and delivery of marihuana violates equal protec......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT