People v. Bailey
Decision Date | 19 September 1978 |
Docket Number | Docket No. 77-3214 |
Citation | 272 N.W.2d 147,85 Mich.App. 594 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene BAILEY, Defendant-Appellant. |
Court | Court of Appeal of Michigan — District of US |
James R. Neuhard, State App. Defender, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Edward J. Grant, Pros. Atty., John L. Wildeboer, Asst. Pros. Atty., for plaintiff-appellee.
Before ALLEN, P. J., and CYNAR and FREEMAN, * JJ.
Defendant, Eugene Bailey, was convicted by a jury on January 23, 1976, of delivery of a controlled substance, M.C.L. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a). He was sentenced to 10-20 years in prison and appeals as of right. We affirm.
Defendant raises several issues, only one of which merits discussion. He asserts that the Controlled Substances Act, M.C.L. § 335.301 Et seq.; M.S.A. § 18.1070(1) Et seq., shifts to defendant the burden of proof as to an element of the crime thereby denying him due process of law. 1
§ 41(1)(a) of the Controlled Substances Act, the provision under which defendant was convicted, provides:
§ 56(2) of the Controlled Substances Act, M.C.L. § 335.356(2); M.S.A. § 18.1070(56)(2), provides:
Specifically, defendant argues that, pursuant to § 41(1)(a), lack of authorization to deliver a controlled substance is an element of the crime; and that, pursuant to § 56(2), the burden of proof on this issue is unconstitutionally shifted from the people to the defendant.
Lack of authorization is not an element of the crime of delivery of a controlled substance under the present statute. Defendant's reliance on People v. Rios, 386 Mich. 172, 191 N.W.2d 297 (1971), and People v. Stewart (On Rehearing), 400 Mich. 540, 256 N.W.2d 31 (1977), is misplaced. Although Rios held that lack of a license was an element of the crime of sale of narcotics and that the people, therefore, had to prove beyond a reasonable doubt that the defendant did not have a license, that case involved a conviction under M.C.L. § 335.151 Et seq.; M.S.A. § 18.1121 Et seq. The same is true of Stewart. That statute was repealed by the Controlled Substances Act. The former statute did not contain a provision such as § 56(2) of the Controlled Substances Act. 2 § 56(2) makes it clear that, under the present statute, the people need not prove lack of authorization, People v. Lyons, 70 Mich.App. 615, 618-619, 247 N.W.2d 314 (1976), and we conclude that lack of authorization is not an element of the crime of delivery under the Controlled Substances Act. 3
Further, § 56(2) does not impermissibly shift the burden of proof on the issue of lack of authorization. In People v. Henderson, 391 Mich. 612, 218 N.W.2d 2 (1974), the Supreme Court construed M.C.L. § 750.227; M.S.A. § 28.424 which prohibits the carrying of a concealed weapon in a vehicle, without a license; and M.C.L. § 776.20; M.S.A. § 28.1274(1) which places the burden on the defendant of establishing any exemption contained in the act. The Court held at 616-617, 218 N.W.2d at 4:
See, also, People v. Dempster, 396 Mich. 700, 242 N.W.2d 381 (1976), People v. Beatty, 78 Mich.App. 510, 259 N.W.2d 892 (1977), People v. Dean, 74 Mich.App. 19, 253 N.W.2d 344 (1977), Lv. den. in part 401 Mich. 841 (1977). We believe that the same reasoning is applicable to the provisions under consideration here, and so hold.
In conclusion, we note that the Supreme Court has stated:
"(I)t is 'normally within the power of the State to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion,' and its decision in this regard is not subject to proscription under the Due Process Clause unless 'it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.' " (Citations omitted.) Patterson v. New York, 432 U.S. 197, 201-202, 97 S.Ct. 2319, 2322, 53 L.Ed.2d 281 (1977).
The statutory provisions construed in the case at bar do not vitiate the presumption of innocence it is presumed that the defendant did not deliver a controlled substance. They do not shift the burden of proof as to any element of the crime the people must prove beyond a reasonable doubt that the defendant did deliver a controlled substance. And, if the defendant adduces any evidence of authorization, the people must also prove beyond a reasonable doubt that he had no such authorization. Concrete evidence on this latter point is readily available to either party through official documents. ...
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People v. Pegenau
...simply disprove an element of the crime. Applying this test, we agree with the analysis of the Court of Appeals in People v. Bailey, 85 Mich.App. 594, 272 N.W.2d 147 (1978). Bailey also involved the Controlled Substances Act and allocation of the burden of proof regarding authorization to t......
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People v. Robar
...[2] because the lack of authorization to deliver a controlled substance is not an element of a delivery charge); People v. Bailey , 85 Mich.App. 594, 596, 272 N.W.2d 147 (1978) (same); People v. Beatty , 78 Mich.App. 510, 513–515, 259 N.W.2d 892 (1977) (the CSA creates a general prohibition......
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People v. Bates, Docket No. 77-3317
...due process, 2 unconstitutionally shifted to him. Defendant's first premise has been rejected by this Court in People v. Bailey, 85 Mich.App. 594, 596-597, 272 N.W.2d 147 (1978), and People v. Lyons, 70 Mich.App. 615, 618-619, 247 N.W.2d 314 (1976). See also People v. Dean, 74 Mich.App. 19,......
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People v. Hartuniewicz
...because the lack of authorization to deliver a controlled substance is not an element of a delivery charge); People v. Bailey, 85 Mich.App. 594, 596, 272 N.W.2d 147 (1978) (same); People v. Beatty, 78 Mich.App. 510, 513–515, 259 N.W.2d 892 (1977) (the CSA creates a general prohibition on th......