People v. Bates, Docket No. 77-3317

• Decision Date: 06 August 1979
• Docket Number: Docket No. 77-3317
• Citation: 283 N.W.2d 785,91 Mich.App. 506
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James BATES, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 785

283 N.W.2d 785

91 Mich.App. 506

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James BATES, Defendant-Appellant.

Docket No. 77-3317.

Court of Appeals of Michigan.

Aug. 6, 1979.

Released for Publication Oct. 10, 1979.

James R. Neuhard, State Appellate Defender by P. E. Bennett, Asst. State App. Defender, Detroit, for defendant-appellant.

Frank J. Kelly, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter E. Deegan, Pros. Atty., Peter R. George, Asst. Pros. Atty., for plaintiff-appellee.

Before KAUFMAN, P. J., and RILEY and THEILER, ^* JJ.

RILEY, Judge.

Defendant was jury convicted of delivery of heroin, M.C.L. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a), and sentenced to a term of 71/2 to 20 years imprisonment.

The essential facts of the alleged crime are not in dispute. State Police Trooper Phillip Maddox testified that, at the time of defendant's arrest, he was working undercover in the City of Port Huron. On December 15, 1975, at approximately 5 p. m., he met defendant in the Red Shingle Bar, and tried to arrange for the purchase of heroin. Defendant told the officer that he would meet him at room 9 of the nearby Serenade Motel. At that time, defendant received $50 from Maddox and instructed him to return to the bar. Shortly thereafter, Bates returned, led Maddox outside, and directed him to go to a post located in front of the bar. While defendant stood by Maddox picked up a brown paper bag which contained five metal foil packets, later determined to contain heroin.

Following the officer's testimony concerning the events of December 15, 1975, he further indicated, in response to questioning by the prosecutor, that he had a similar dealing with defendant on or about January 21, 1976. Over objection by defense counsel, the trial court ruled that evidence of the subsequent sale was admissible under the similar acts statute, M.C.L. § 768.27; M.S.A. § 28.1050, to show scheme, design or intent, and further cautioned the jury as to its limited admissibility.

Defendant testified in his own behalf, and denied any delivery of heroin. He admitted taking the $50 from Maddox at the Serenade Motel as a favor, but stated that a man named Allan Brown had actually been the supplier of the narcotics.

On appeal, defendant raises three issues which we consider in turn.

First, he contends that the trial judge erred in admitting evidence of the January 21, 1976, transaction.

Generally, evidence tending to show that a defendant has committed crimes or bad acts other than those charged is inadmissible because its probative value is outweighed by the likelihood of impermissible prejudice. People v. Wilkins, 82 Mich.App. 260, 265, 266 N.W.2d 781 (1978), People v. Gibson, 66 Mich.App. 531, 536, 239 N.W.2d 414 (1976). However, M.C.L. § 768.27; M.S.A. § 28.1050 provides a statutory exception to the rule:

"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."

Similar acts may not be introduced unless the matter they tend to prove is disputed. People v. Duncan, 402 Mich. 1, 260 N.W.2d 58 (1977), Wilkins, supra, 82 Mich.App. at 268, 266 N.W.2d 781. Such matters are deemed disputed by a defendant, where, for example, he places them in issue by opening argument, cross-examination, or the presentation of affirmative evidence. Wilkins, supra, at 268-269, 266 N.W.2d 781. In the case at bar, defendant, by opening argument, ¹ and testimony that he took no part in the actual delivery, clearly put in issue the question of his intent to deliver.

However, Wilkins, supra, at 267-268, 266 N.W.2d at 784-785, went on to catalogue an additional three-step analysis regarding the admission of similar acts:

"First, there must be substantial evidence that the defendant actually perpetrated the bad act sought to be introduced. People v. Davis, 343 Mich. 348, 72 N.W.2d 269 (1955); McCormick, Evidence (2d ed), § 190.

"Second, there must be some special circumstances of the prior bad act which tend to prove one of the statutory items. People v. Lundberg, supra (364 Mich. 596, 111 N.W.2d 809 (1961)); People v. Padgett, 306 Mich. 545, 11 N.W.2d 235 (1943). For example, if a defendant were charged with robbery, another robbery committed by the defendant would not be admissible to prove intent merely because it also involved specific intent to rob. The law requires an additional showing that the facts or circumstances of the other bad acts are probative of the defendant's motive, intent, absence of mistake or accident, scheme, plan or system In committing the charged offense. See, People v. Locke, 275 Mich. 333, 266 N.W. 370 (1936); Slough and Knightly, Other Vices, Other Crimes, 41 Iowa L.Rev. 325 (1956). In the absence of such a connection, the evidence would be inadmissible.

"The third requirement is that the defendant's motive, intent, absence of mistake or accident, scheme, plan or system must be material to the determination of the defendant's guilt of the charged offense. People v. Oliphant, supra, (399 Mich. 472, 250 N.W.2d 443 (1976)), People v. Riddle, 322 Mich. 199, 33 N.W.2d 759 (1948); People v. Stander, 73 Mich.App. 617, 251 N.W.2d 258 (1977)." (Emphasis in original. Footnotes omitted.)

Applying the Wilkins criteria to the present case, the parties concede that there was substantial evidence that defendant actually delivered heroin to Officer Maddox on January 21, 1976.

With regard to the second element, the record offers striking similarities between the two heroin transactions in issue. Both incidents involved the illegal delivery of heroin in which both defendant and Officer Maddox were participants. Both involved the same motel and room number, and in each the delivery and subsequent pickup occurred at the Red Shingle Bar. The factual setting in each transaction was the same. Defendant's acts were not spurious and unrelated, but differed only in time and quantity of heroin delivered.

Inasmuch as defendant admitted his participation in the actual delivery of January 21, 1976, the circumstances of that transaction are particularly probative of defendant's scheme, plan, and system in committing the presently charged offense as they relate to the intent to deliver. Because intent to deliver is a statutory element of the instant crime, its materiality to a determination of defendant's guilt is patent. Thus, Wilkins' third requirement is also met.

Despite the satisfaction of these standards, it remains necessary to finally consider whether the probative value of the evidence outweighs the prejudicial effect. People v. Oliphant, supra, 399 Mich. at 489-490, 250 N.W.2d 443. Admission at trial depends upon, Inter alia, the availability of other, less harmful sources of proof, the tendency of the evidence to inflame the jury, the potential for confusion of the issues, and the need for the proffered evidence to prove an element of the case. Oliphant, supra, People v. Spillman, 399 Mich. 313, 319-320, 249 N.W.2d 73 (1976), People v. Wilkins, supra, 82 Mich.App. at 270-271, 266 N.W.2d 781, People v. Fisher, 77 Mich.App. 6, 11, 257 N.W.2d 250 (1977).

Looking to the present facts, we note in the record a paucity of other evidence from which to show defendant's intent to commit the offense. Nor can we conclude that the evidence of the second transaction was unduly inflammatory, or that it was likely to confuse the issues in the trial. Intent was a clearly defined issue in the case, and the trial judge's cautionary instruction meticulously limited the jury's reflection of the challenged evidence to that question. We hold, therefore, on these facts, that the lower court did not abuse its discretion by admitting into evidence testimony regarding the second sale of heroin. See People v. Jones, 83 Mich.App. 559, 567, 269 N.W.2d 224 (1978), People v. McNeill, 81 Mich.App. 368, 378, 265 N.W.2d 334 (1978).

Defendant's next allegation bears upon two provisions of the Controlled Substances Act, M.C.L. § 335.301 Et seq.; M.S.A. § 18.1070(1) Et seq.

Section 41(1) provides in pertinent part:

"Except as authorized by this act, it is unlawful for any person to manufacture, deliver or possess with intent to manufacture or deliver, a controlled substance." M.C.L. § 335.341(1); M.S.A. § 18.1070(41)(1).

Section 56(1) and (2) states that:

"(1) It is not necessary for the state to negate any exemption or exception in this act in any complaint, information, indictment or other pleading or in any trial, hearing or other proceeding under this act. The burden of proof of any exemption or exception is upon the person claiming it.

"(2) In the absence of proof that a person is the duly authorized holder of an appropriate registration or order form issued under this act, he is presumed not to be the holder of the registration or form. The burden of proof is upon him to rebut the presumption." M.C.L. § 335.356(1) and (2); M.S.A. § 18.1070(56)(1) and (2).

Specifically, defendant asserts that, pursuant to § 41(1), lack of authorization to deliver is an element of the crime which must be proven by the people; and that, under § 56(1) and (2), the burden of proof is, in violation of 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, 253 N.W.2d 344 (1977), Lv....