People v. Auer

• Decision Date: 01 October 1974
• Docket Number: No. 1,1
• Citation: 393 Mich. 667,227 N.W.2d 528
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel AUER, Defendant-Appellant. ,
• Court: Michigan Supreme Court

Page 528

227 N.W.2d 528

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel AUER, Defendant-Appellant.

No. 1, Oct. Term, 1974.

393 Mich. 667, 227 N.W.2d 528

Supreme Court of Michigan.

April 7, 1975.

Eugene Penzien (P 18777), Pros. Atty., Bay County, Pros. Attys. App. Serv., Edward R. Wilson, Director by Howard C. Marderosian (P 17080), Sp. Asst. Atty. Gen., Dept. of Atty. Gen., Lansing, for People.

James J. Carras, Bay City, for defendant-appellant.

Before the Entire Bench.

FITZGERALD, Justice.

Defendant was charged with selling marijuana on January 19, 1971 to a police undercover agent, Pamela Dinsmore, in violation of M.C.L.A. § 335.152; M.S.A. § 18.1122. He was convicted by jury verdict. The Court of Appeals affirmed defendant's conviction in a brief per curiam opinion ¹ but remanded for resentencing under § 41 of the new Controlled Substances Act, M.C.L.A. § 335.341; M.S.A. § 18.1070(41) pursuant to People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827 (1972). We granted leave to appeal. Defendant raises 11 allegations of error. We affirm.

Facts

Prior to the commencement of trial defense counsel made a motion to amend the information before the trial court to have a count of possession of marijuana added in order that defendant might plead guilty to the added count. The prosecutor informed the court and defense counsel that the people would not be satisfied with a plea to possession and wanted to go to trial on the charge of sale of marijuana. The court at this point informed defendant and his counsel that if they tendered a plea of guilty to possession of marijuana the prosecutor would still retain the right to go to trial on the charge of sale of marijuana. Prior to the acceptance of his plea, defendant was again informed that a plea of guilty to possession of marijuana would not dispose of the principle charge of sale of marijuana and that trial on the charge would proceed. Defendant's plea of guilty to possession of marijuana was then accepted by the trial court.

At trial, Pamela Dinsmore, a police undercover agent, testified that she purchased two lids of marijuana from defendant on January 19, 1971, stating that she had made arrangements to purchase marijuana from him on the previous day. Prior to the transaction she had known defendant casually. She testified that defendant, on January 18, 1971, had indicated that he did not have any marijuana but stated that he would have some the next day. He told her to call him on the 19th regarding the purchase of marijuana. She called defendant and prearranged the purchase. Then, cooperating with the police, Dinsmore went to defendant's residence with the intention of purchasing one lid of marijuana. ² She spent approximately 45 minutes at defendant's residence, during which defendant persuaded her to purchase a second lid of marijuana and completed the sale of the marijuana.

Linda Taylor, a friend of defendant who was at defendant's residence at the time of the sale, testified that Mr. Dinsmore asked defendant if she could purchase marijuana and defendant said he could get her some. She indicated Mrs. Dinsmore initiated the purchase of a second lid of marijuana.

Defendant testified that in response to Mrs. Dinsmore's request for marijuana on January 18, 1971 he responded that he was not interested in selling marijuana to her. By his account he went out to purchase marijuana for his own use on the evening of the 18th and only sold to Mrs. Dinsmore on the 19th because she 'begged' him and he wanted to 'get her out of (his) hair'. Defendant stated that he charged Pamela Dinsmore the same price which he had paid for the marijuana.

I

Defendant first contends that the trial court erred when it refused to allow the testimony of an excused juror, Lois Vertako, to be presented to the jury. Juror Lois Vertako was excused when she recollected that she had had previous contact with key prosecution witness Pamela Dinsmore. Defendant contended at trial that the testimony of ex-juror Vertako should have been permitted into evidence for purposes of impeaching Pamela Dinsmore. In order to evaluate defendant's contention a separate record was made at trial. In this record witness Vertako testified that approximately a year earlier and for several years prior to that she had had occasional contact with witness Dinsmore on Saturday mornings at the Overpass Bar, a place where she had been employed. On one occasion certain members of the company witness Dinsmore kept created a disturbance and caused Lois Vertako difficulty. She further indicated that there was an unfavorable attitude toward witness Dinsmore by some of the patrons at the bar, although she acknowledged that Pamela Dinsmore stayed more or less with her own companions while at the bar.

Defense counsel asked witness Dinsmore during cross-examination whether she had been a party to creating a disturbance at the Overpass Bar some five years earlier. Mrs. Dinsmore denied that she had been a party to the creation of a disturbance. While she denied participation on this occasion, witness Dinsmore acknowledged that she had been to the Overpass Bar 'once or twice'. Defense counsel subsequently sought to place ex-juror Vertako on the witness stand to impeach witness Dinsmore in two respects:

(1) to contradict the testimony of witness Dinsmore that she had not been in the Overpass Bar on the occasion five years previously when the disturbance had been created; and

(2) to establish the witness's poor reputation in the community.

The trial court refused to permit the exjuror's testimony because the event which occurred some five years ago was not sufficiently relevant to witness Dinsmore's present credibility to gain admission. Inquiry with respect to reputation was refused when the court ascertained from witness Vertako that she merely overheard 'gossip and rumors' at the bar where she worked and was only generally aware of an 'unfavorable' attitude of some patrons of the bar toward witness Dinsmore. We cannot say that the trial court, aware of the collateral nature of defendant's inquiry, abused its discretion in refusing to permit the testimony of this witness.

II

Defendant's second contention is that the trial court erred in failing to grant a mistrial due to prejudicial answers given by key witness Pamela Dinsmore. Witness Dinsmore was an experienced witness who at certain times anticipated the reach of defense questioning, giving nonresponsive and no doubt unwanted answers. With respect to most such answers given by the witness, no objection was raised by defense counsel, although on one occasion with respect to an answer given, defense counsel did move for mistrial 'on that answer'. In this instance the trial judge denied the defense motion. The cross-examination of witness Dinsmore covers some sixty-five pages of the trial court record. Review of this cross-examination confirms the trial court determination that the nature of the witness's testimony did not unduly prejudice defendant and warrant declaration of mistrial.

III

Defendant next claims that certain statements made in final argument by the prosecuting attorney constituted reversible error. The statements complained of were not specifically objected to by defense counsel. Moreover, certain of the complained-of statements were invited by defendant's closing argument. The trial court meticulously instructed the jury that it was the court's role to instruct on the law and further indicated:

'Now, as I told you before, in making a decision you make it on the basis of the evidence in the case. Now, the evidence is the testimony as given by the witnesses. It is not the statements or arguments of the attorneys and that isn't evidence, but what the attorneys say and what they argue to you may be very helpful for your purposes in deciding what that evidence was, but their statements aren't evidence.'

We conclude that prosecutorial argument did not here given rise to a miscarriage of justice within the meaning of that phrase as defined in People v. Robinson, 386 Mich. 551, 194 N.W.2d 709 (1972). M.C.L.A. § 769.26; M.S.A. § 28.1096.

IV

Four allegations of error raised by defendant concern certain instructions given by the trial court. It is defendant's contention that these instructions require reversal. One of the allegations made by defendant pertains to the trial court's reading of the language of the sale of marijuana statute, M.C.L.A. § 335.152; M.S.A. § 18.1122. At trial the people alone objected to the reading of this statute on the ground that it incorrectly placed the issue of penalty before the jury. No objections were in other respects made by defendant. The other supposed instances of error for the most part strike us as picayune and certainly cannot be said to contaminate the instructions. It is apparent there was no miscarriage of justice. M.C.L.A. § 769.26; M.S.A. § 28.1096.

V

Defendant argues that the evidence in this case indicates the existence of entrapment as a matter of law, citing People v. Turner, 390 Mich. 7, 210 N.W.2d 336 (1973). The people counter that the test for entrapment set forth in Turner should be applied prospectively to police conduct arising after the date of the decision, thereby denying defendant the benefit, if any, from application of the 'objective' test for entrapment set forth in Turner.

The test for determining whether a rule is to be applied retrospectively or prospectively is set forth in People v. Hampton, 384 Mich. 669, 674, 187 N.W.2d 404, 405 (1971), as follows:

'The United States Supreme Court has discussed various factors to be used in determining whether a law should be applied retroactively or prospectively. There are three key factors which the Court has taken into account; (1) the purpose of the new rule; (2) the general reliance on the old rule; and (3) the effect on the administration of justice. See, E.g., Linkletter v. Walker (1965), 381 U.S. 618, 85 S.Ct. 1731, 14...