People v. Castillo

• Decision Date: 10 March 1978
• Docket Number: Docket No. 77-2584
• Citation: 82 Mich.App. 476,266 N.W.2d 460
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Modesto CASTILLO, Defendant-Appellant. 82 Mich.App. 476, 266 N.W.2d 460
• Court: Court of Appeal of Michigan — District of US

Page 460

266 N.W.2d 460

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Modesto CASTILLO, Defendant-Appellant.

Docket No. 77-2584.

82 Mich.App. 476, 266 N.W.2d 460

Court of Appeals of Michigan.

March 10, 1978.

Released for Publication June 14, 1978.

[82 MICHAPP 478] Robert E. Slameka, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, App. Chief Asst. Pros. Atty., Stephen B. Foley, Asst. Pros. Atty., for plaintiff-appellee.

Before BASHARA, P. J., and BEASLEY and D. E. HOLBROOK, Jr., JJ.

PER CURIAM.

Defendant was convicted of knowingly or intentionally possessing heroin, contrary to M.C.L.A. § 335.341(4)(a); M.S.A. § 18.1070(41)(4)(a). He was sentenced to 30 to 48 months imprisonment and appeals as of right.

The evidence showed that on October 24, 1972, the police came to the house where the defendant was located pursuant to information that two suspects, neither of whom was the defendant, could be found there. While positioned outside the premises, one officer observed the defendant throw a gun and green garbage bag from a second story window of the house. The officer opened the garbage bag, observed what appeared to him to be suspected narcotics and alerted the other officers that a man upstairs had just thrown a gun and suspected narcotics from the window. The officer then confiscated the gun and garbage bag.

Another officer, after entering the premises, proceeded to the second floor where he encountered the defendant in a bedroom with a broken window, a pushed out screen and powder on the defendant's clothing. At that time, the officer observed the defendant drop a bottle to the floor. The officer [82 MICHAPP 479] scraped some of the powder from the floor and placed it along with the plastic bottle into evidence.

On appeal, defendant first claims that the gun was erroneously admitted into evidence over defendant's trial objection that the evidence was irrelevant, immaterial and prejudicial.

The general rule is that evidence tending to show the commission of other criminal offenses by the defendant is inadmissible on the issue of his guilt or innocence of the offense charged, because whatever probative value such evidence has is outweighed by the disadvantage of diverting the trier of fact from the objective appraisal of the defendant's guilt or innocence. People v. DerMartzex, 390 Mich. 410, 413, 213 N.W.2d 97 (1973). However, such evidence is admissible under the common law exception to the general rule barring proof of other crimes. In People v. Savage, 225 Mich. 84, 86, 195 N.W. 669 (1923), the Court stated:

"It is elementary that the acts, conduct and demeanor of a person charged with crime at the time of, or shortly before or after the offense is claimed to have been committed, may be shown as a part of the res gestae. Proof of such acts is not rendered inadmissible by the fact that they may tend to show the commission of another crime." (Emphasis supplied.)

Accord, People v. Scott, 61 Mich.App. 91, 95, 232 N.W.2d 315 (1975).

With respect to what is part of the res gestae, in People v. Kayne, 268 Mich. 186, 191-192, 255 N.W. 758, 760 (1934), the Michigan Supreme Court stated:

" 'Res gestae are the circumstances, facts and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character.'

[82 MICHAPP 480] " 'No inflexible rule has ever been and probably never can be adopted as to what is a part of the res gestae. It must be determined largely in each case by the peculiar facts and circumstances incident thereto; but it may be stated as a fixed rule that, included in the res gestae are the facts which so illustrate and characterize the principal fact as to constitute the whole one transaction, and render the latter necessary to exhibit the former in its proper effect.' " (Citations omitted.) (Emphasis supplied.)

Accord, People v. Eisenberg, 72 Mich.App. 106, 118, 249 N.W.2d 313 (1976).

Here the defendant simultaneously threw the gun and the heroin from the window. Defendant's actions invoked the police entry into the apartment and the defendant's arrest. Defendant's throwing of the gun was part of the police discovery that he was in possession of heroin, and served to illustrate the latter. Accordingly, the throwing of the gun and heroin constituted one transaction and, therefore, the trial court did not err in allowing evidence of the gun on the basis that it was part of the res gestae. People v. Gould, 61 Mich.App. 614, 233 N.W.2d 109 (1975).

Next, the defendant claims that the trial court reversibly erred by refusing to allow defense counsel to inquire during cross-examination into the officer's prior testimony concerning the police entry into the premises and whether the apartment door had been forced open.

While the manner of the police entry was probative of the pretrial issue of the propriety of the defendant's arrest, it had no relevancy to the issue at trial, namely the defendant's possession of heroin. Thus it was a collateral matter. It is established law in Michigan that the discretion of the trial judge controls the nature and extent of the introduction of collateral matters upon cross-examination[82 MICHAPP 481] and will not be reviewed except in cases of clear abuse. People v. MacCullough, 281 Mich. 15, 24-25, 274 N.W. 693 (1937), People v. Joseph Barbara, Jr., 23 Mich.App. 540, 548, 179 N.W.2d 105 (1970), People v. Eisenberg, supra, 72 Mich.App. at 119, 249 N.W.2d 313. We find no abuse of discretion in the trial court's ruling and no improper restriction of defense counsel's scope of cross-examination. People v. Lindsey, 56 Mich.App. 458, 461, 224 N.W.2d 273 (1974).

At trial, the forensic chemist was permitted to testify over defendant's objection as to the chemical make-up of the substance confiscated by the police and the percentage of heroin contained therein. The witness testified that the substance contained a higher percent of heroin than normally found in "street type" heroin. The prejudicial potential of such testimony was that it raised by implication the possibility that the defendant distributed and/or delivered heroin, a criminal offense different from the one with which he was charged. Cf. People v. Mumford, 60 Mich.App. 279, 230 N.W.2d 395 (1975), People v. Gould, supra.

In People v. Morris, 69 Mich.App. 545, 550, 245 N.W.2d 126, 129 (1976), the Court said:

"Evidence of other crimes is usually excluded because it is irrelevant to the issue of the defendant's guilt but increases the chances of conviction because it tends to depict the defendant as an habitual criminal. But if the evidence is legally relevant to a material issue, it is admissible if its proper probative value outweighs its improper prejudicial effect."

The expert testimony explaining the percentage of diluents usually present in street type heroin, the fact that a much lesser percentage of diluents was found in the substance seized from the defendant's possession, and that such substance would [82 MICHAPP 482] have to be further "cut" to render it street type heroin provided the jury with a lay person's context for understanding the quantity of heroin the defendant was charged with knowingly possessing. Thus, such testimony was helpful in throwing light upon a material point in issue and was therefore probative and logically relevant. The determination of whether or not the probative value of logically relevant evidence is substantially outweighed by its unfairly prejudicial effect rests within the discretion of the trial judge, and will not be disturbed on appeal absent a clear abuse of discretion. People v. Rimson, 63 Mich.App. 1, 4, 233 N.W.2d 867 (1975), People v. Becker, 300 Mich. 562, 565, 2 N.W.2d 503 (1942). Reviewing the record, we cannot conclude that the probative value of the expert testimony was so minimal and the prejudicial effect so great that the trial court clearly abused its discretion by allowing the testimony.

Finally, the defendant argues that the trial court erred in permitting the prosecutor to impeach the defendant by use of defendant's prior conviction for attempted possession of marijuana. Use of a defendant's prior felony conviction for impeachment purposes is within the discretion of the trial court. People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974). The trial court must positively indicate its exercise of discretion. People v. Cherry, 393 Mich. 261, 224 N.W.2d 286 (1974). This Court has held that in order to meet the Jackson-Cherry requirements a trial judge need not expressly state...