People v. Austin

• Decision Date: 04 March 1980
• Docket Number: Docket No. 78-3119
• Citation: 291 N.W.2d 160,95 Mich.App. 662
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sam AUSTIN, Defendant-Appellant. 95 Mich.App. 662, 291 N.W.2d 160
• Court: Court of Appeal of Michigan — District of US

Page 160

291 N.W.2d 160

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sam AUSTIN, Defendant-Appellant.

Docket No. 78-3119.

95 Mich.App. 662, 291 N.W.2d 160

Court of Appeals of Michigan.

March 4, 1980.

Released for Publication April 30, 1980.

[95 MICHAPP 664] H. Rhett Pinsky, Grand Rapids, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., David H. Sawyer, Pros. Atty., Carol S. Irons, Asst. Pros. Atty., for plaintiff-appellee.

Before BRONSON, P. J., and ALLEN and MAHER, JJ.

[95 MICHAPP 665] MAHER, Judge.

On March 2, 1978, defendant was convicted by a jury of delivery of heroin and conspiracy to deliver heroin, contrary to M.C.L. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a) (now repealed by 1978 P.A. 368, effective September 30, 1978, now M.C.L. § 333.7401; M.S.A. § 14.15(7401), M.C.L. § 750.157a; M.S.A. § 28.354(1), respectively). On June 27, 1978, defendant pled guilty to a second felony offender charge, contrary to M.C.L. § 769.10; M.S.A. § 28.1082; M.C.L. § 769.13; M.S.A. § 28.1085. After a previous sentence was vacated, he was resentenced on July 11, 1978, to serve a prison term of 10 to 30 years. Defendant appeals as of right and we reverse.

At trial, Doug King testified that he had been working as an informant for the Grand Rapids Police Department since January, 1977. He agreed to assist the police in making "controlled buys" which meant that, after being appropriately searched by police, he was given money to purchase drugs, was observed as far as possible by police in making drug purchases, and was searched subsequent to each purchase. He testified that sometimes while making a "controlled buy" it was necessary to use heroin because the seller did not want the purchaser to leave the premises with unused drugs. King made 63 "controlled buys" and in approximately one-third of these situations he had to use the heroin.

King testified that on August 26, 1977, at approximately 8:30 a. m. he went to 546 Dolbee Street, S.E., Grand Rapids, to see one Sharon McCoy. At that time he saw defendant, whom he had known for approximately three or four years. King asked defendant if he had any drugs. Defendant replied that he could obtain three bags for him at $50 each.

After that King telephoned Officer Hoatlin of [95 MICHAPP 666] the Grand Rapids Police Department and arranged to meet him to set up the "controlled buy". Such meeting took place with several police officers at which time King and his 1969 Cadillac were searched, and he was given $150. King then drove to the Dolbee address and went to the upstairs apartment where he was let in by defendant. After King inquired regarding the drugs defendant indicated he had to " * * * pick up something * * * ". He then left with Sharon McCoy's daughter, Nicki. Defendant came back approximately ten minutes later and said that Officer Hoatlin was outside. Sharon McCoy and several other persons were present but King did not know their names. He did indicate, however, that they were "shooting heroin" while he was there.

After defendant's statement concerning Hoatlin, King testified that defendant told Sharon McCoy " * * * don't let nobody walk with any dope * * * ". He then handed an aluminum foil packet a couple of inches long and perhaps an inch and a half wide to Sharon McCoy and left.

King approached Sharon McCoy and asked her " * * * to fix me up a nice package for $150 * * * ". She went into the bathroom and after coming out she placed a brown paper package in his shirt. King left and drove to meet Officer Hoatlin to whom he gave the brown package after marking it.

King, in response to a question from the prosecutor, indicated that he had on two previous occasions bought heroin from defendant. Defendant objected. The Court overruled defendant's objection with respect to the admissibility of such testimony but instructed the jury that it was to be considered solely for the purpose of " * * * looking to defendant's motive, intent, plan, scheme, mistake, or [95 MICHAPP 667] accident and is not to be taken * * * as substantive evidence of the facts in this case * * * ".

King testified that the earlier purchases by him from the defendant took place at defendant's house on Benjamin in early 1976. He further testified that he sold heroin to defendant a number of times preceding the alleged purchase of August 26, 1977. He stated that he never saw Sharon McCoy while she was in the bathroom and that it was not until the defendant left the premises that he asked for the packet. While he saw defendant transfer to Sharon McCoy a packet of aluminum foil, he never saw what was in it.

Terrance Hoatlin testified that he had been employed as a Grand Rapids police officer for 15 years and was assigned to the vice squad in August of 1977. He stated that King contacted him at approximately 9 a. m. on August 26, 1977, and as a result Hoatlin and Officer Nicholson searched him and his vehicle and then followed him to McCoy's residence in their vehicles at approximately 9:26 a. m. The surveillance consisted of Officers Hoatlin, Nicholson, and Elenbaas. Three vehicles were used and were parked near the Dolbee address. Hoatlin testified that from the time King first called him until the time he turned over the package to him 58 minutes elapsed. To make the purchase, the police gave King $150 in cash. King was observed entering the Dolbee apartment at 9:36 a. m. Defendant was observed leaving the apartment at 9:51 a. m. Defendant, after he initially left the premises was observed returning at 9:43 a. m. At the time that defendant returned he had a young black female with him. They exited from the vehicle and went to the apartment. After King left the apartment, he drove away and met the officers who then searched him. At that point the brown paper [95 MICHAPP 668] bag was turned over to police with King's number marked on it. Hoatlin testified that defendant was not arrested immediately because King was still making "controlled buys" for them and to have done so would have "blown his cover". No fingerprints were ever obtained from the bag.

The other two officers who accompanied Hoatlin generally corroborated his testimony and a police chemist testified that the material delivered by King to Officer Hoatlin was heroin.

Charles Nagle testified that he made "controlled buys" for the Grand Rapids Police Department during 1976 and that on May 24, 1976, he purchased heroin from defendant at 511 Benjamin, S.E., Grand Rapids, Michigan. In making his purchase he followed the normal search procedure established by police. Mr. Nagle described the transaction. Defense counsel objected to this testimony but the trial judge again ruled that the testimony was admissible under the similar acts statute and so instructed the jury.

Charles Wright Brown, Jr., testified that he was 28 years old, employed by General Motors, and knew the defendant. He testified that he was at the Dolbee address on August 26, 1977, sometime between 9:15 a. m. and 9:45 a. m. for the purpose of collecting some money from Sharon McCoy. He testified that he was there but a few minutes when he heard defendant say " * * * the police is outside, you all be cool * * * ". The door was then closed and defendant left. Brown then left. He did not see Sharon McCoy receive any packages from defendant.

On cross-examination Brown testified that he saw two other persons there whom he had never seen before and that they were not doing anything in particular. He further testified that he did not [95 MICHAPP 669] receive the money that was owed to him. He testified that he never saw King.

Prior to defendant's taking the stand defense counsel moved to exclude, for impeachment purposes, evidence of the defendant's conviction in 1976 for attempted delivery of heroin. This conviction arose out of the sale by defendant to Charles Nagle on May 24, 1976. The trial court denied the motion because the prior conviction was similar to the charged offense.

On appeal, defendant first claims that the trial court committed reversible error in admitting into evidence under M.C.L. § 768.27; M.S.A. § 28.1050, the similar acts statute, evidence of defendant's prior acts of selling and purchasing heroin with respect to witness King and defendant's prior act of selling heroin to witness Nagle. We agree.

Generally, evidence of a criminal defendant's prior bad acts is inadmissible because its probative value is outweighed by the prejudice to the defendant. People v. Wilkins, 82 Mich.App. 260, 266 N.W.2d 781 (1978). The Supreme Court of Michigan, however, has adopted MRE 404(b) as an exception to this general rule, which provides: ¹

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crime, wrongs, or acts are [95 MICHAPP 670] contemporaneous with, or prior or subsequent to the crime charged."

In People v. Rustin, 406 Mich. 527, 280 N.W.2d 448 (1979), the Supreme Court held that a trial court committed reversible error when, under the authority of the similar acts statute, it admitted evidence of prior sales of controlled substances by defendant Rustin as bearing on his intent and scheme in perpetrating another controlled substance sale five days later for which he was on trial. The same undercover agent was involved in both of the narcotics transactions. Rustin denied any participation in the sale for which he was on trial. The Supreme Court found that the mere fact that the two sales of heroin were close in time did not, by itself, make the prior sale admissible to show a "scheme or plan" under the statute. It was also found that defendant's general denial...