People v. Anderson

• Decision Date: 23 September 1968
• Docket Number: Docket No. 3082,No. 1,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald ANDERSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 793

163 N.W.2d 793

13 Mich.App. 247

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald ANDERSON, Defendant-Appellant.

Docket No. 3082.

Court of Appeals of Michigan, Division No. 1.

Sept. 23, 1968.

Released for Publication Jan. 28, 1969.

Edward P. Echlin, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Thomas P. Smith, Asst. Pros. Atty., Wayne County, Detroit, for plaintiff-appellee.

Before KAVANAGH, P.J., and HOLBROOK and BEER, ^* JJ.

PER CURIAM.

Defendant was found guilty by a jury of illegal sale of narcotics ¹ in Recorder's Court of the city of Detroit on February 21, 1961, and sentenced to a prison term of 20 to 30 years.

The issues raised by defendant in appealing his conviction to this Court are restated and dealt with as follows:

1. Did the trial court commit reversible error in admitting into evidence, over objection, testimony of an earlier narcotics sale and in failing to give an instruction thereon?

The prosecution's case against defendant was based primarily on the testimony of a police informer who testified that she purchased heroin from defendant on November 25, 1960. She also testified that about 2 or 3 months before defendant sold her the heroin, defendant introduced her and her brother-in-law to another narcotics seller at defendant's apartment building and at that time defendant had handed her brother-in-law's money to the narcotics seller who then gave narcotics to her brother-in-law. According to the police informer the sale of November 25, 1960, took place in the same apartment building. This testimony was received over repeated objections of defense counsel.

C.L.1948, § 768.27 (Stat.Ann.1954 Rev. § 28.1050) states:

'In any criminal case where the defendant's motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.'

We find that the objected to testimony of the police informer constitutes evidence of the existence of a scheme, plan or system of defendant to engage in the business of selling narcotics illegally. It is a reasonable inference from her testimony that the defendant participated in a prior illegal sale; he used his apartment building in carrying out a transaction involving an illegal sale of narcotics, and in that instance he received the money from the purchaser and gave it to the seller of narcotics in the presence of the witness. This testimony had a direct bearing upon the motive and intent of the defendant concerning the act charged as well as a plan or system used. People v. Nawrocki (1967), 6 Mich.App. 46, 150 N.W.2d 516. See 93 A.L.R.2d 1097.

Defendant asserts as error the trial court's failure to give an instruction limiting the jury's consideration of the police informer's testimony of the alleged prior offense. Defendant did not request such an instruction nor was any objection made pursuant to GCR 1963, 516.2. In the absence of a request or proper objection, the trial court was not required to give the limiting instruction now sought. People v. Nawrocki (1965), 376 Mich. 252, 136 N.W.2d 922.

2. Did the trial court commit error in failing to instruct specifically on the credibility of the police informer's testimony?

No instruction was requested by defense counsel concerning the credibility of the police informer and therefore this is not a ground for setting aside defendant's conviction. C.L.1948, § 768.29 (Stat.Ann.1954 Rev. § 28.1052). Further, a trial judge is not required to comment in his instructions concerning a witness's interest. People v. Sawicki (1966), 4 Mich.App. 467, 145 N.W.2d 236.

3. Did the trial court commit error in sentencing defendant in the absence of his counsel?

Defendant's counsel did not appear on March 8, 1961, when defendant was sentenced. The sentencing transcript contains no waiver of the presence of counsel, nor any mention of defense counsel by the court or defendant. No plea in mitigation was made by defendant, who resolutely maintained his innocence at sentencing.

In People v. Dye (1967, 6 Mich.App. 217, 221, 148 N.W.2d 501, 503, this Court held that 'sentencing is a critical stage of criminal proceeding and, absent waiver, counsel's presence is required.' Defendant's contention that his right to counsel at time of sentencing was violated is correct.

4. Was defendant's conviction unconstitutionally obtained?

Defendant contends the illegal sale of narcotics act to be unconstitutional because C.L.1948, § 768.27 (Stat.Ann.1954 Rev. § 28.1050), set forth Supra, provides for the admission of testimony which would compel a defendant to take the...