People v. Catanzarite

• Decision Date: 23 June 1995
• Docket Number: 168610,Docket Nos. 165709
• Citation: 536 N.W.2d 570,211 Mich.App. 573
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank Raymond CATANZARITE, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Frank Raymond CATANZARITE, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 570

536 N.W.2d 570

211 Mich.App. 573

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank Raymond CATANZARITE, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Frank Raymond CATANZARITE, Defendant-Appellee.

Docket Nos. 165709, 168610.

Court of Appeals of Michigan.

Submitted Oct. 20, 1994, at Detroit.

Decided June 23, 1995, at 9:15 a.m.

Released For Publication Aug. 30, 1995.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Brian Marzec, Asst. Pros. Atty., for the People.

Kenneth R. Sasse, Detroit, for cross appellant in 165709 and the cross appellee in 168610.

Before WAHLS, P.J., and JANSEN and NOECKER, ^* JJ.

WAHLS, Presiding Judge.

Following a bench trial in 1986, defendant was convicted of possession with intent to deliver 225 grams or more, but less than 650 grams, of cocaine, M.C.L. § 333.7401(2)(a)(ii); M.S.A. § 14.15(7401)(2)(a)(ii), and was sentenced to twenty to thirty years' imprisonment. The trial court granted a bond pending defendant's filing a motion for a new trial. Five years later, the prosecution filed a motion to revoke the bond upon realizing that no final disposition had been rendered. The court granted the motion and ordered defendant to begin serving his sentence. Defendant filed a motion for a new trial and a motion for resentencing. The court denied the motion for a new trial, but granted resentencing and reduced defendant's sentence to time served, which was six months. In Docket No. 165709, defendant appeals as of right. Regarding Docket No. 168610, this Court granted the prosecutor's application for leave to appeal defendant's sentence. We now affirm defendant's conviction, but remand for resentencing.

On June 24, 1986, defendant was driving a GMC Jimmy, which was towing a trailer, with Paul Spikes as a passenger. The Jimmy had been recently purchased in the name of C & S Auto, a business of which defendant and Spikes were partners. A Michigan state motor carrier officer noticed that the Jimmy was driving partially in the center lane and that the trailer did not have a license plate. The officer activated his emergency lights and defendant pulled over.

After running defendant's name through a Law Enforcement Information Network check, the officer learned that there was an outstanding arrest warrant for disorderly conduct. A Michigan state trooper arrived and requested confirmation that the arrest warrant was valid. He then spoke to defendant, who was standing outside the car and holding a small leather bag. The trooper forcibly took the bag from defendant after defendant refused to hand it over, and the trooper placed the bag in his patrol car. Upon receiving confirmation of the warrant, the trooper handcuffed the defendant and placed him under arrest. The trooper opened the bag and discovered two cellophane packets containing 36.3 grams of cocaine. The trooper searched the Jimmy and discovered on the floor behind the front seat a garment bag containing $16,319 in cash and 470.98 grams of cocaine. Paul Spikes then was placed under arrest, and the Jimmy was impounded.

Docket No. 165709

A

First, defendant contends that the evidence was insufficient to support his conviction of possession with intent to deliver between 225 and 650 grams of cocaine. We disagree.

In determining whether sufficient evidence was presented to sustain a conviction, an appellate court is required to view the evidence in a light most favorable to the prosecution and to determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v. Jaffray, 445 Mich. 287, 296, 519 N.W.2d 108 (1994); People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979). To sustain a conviction for this offense, the prosecution is required to show (1) that the recovered substance was cocaine, (2) that the cocaine was in a mixture weighing between 225 and 650 grams, (3) that the accused was not authorized to possess the cocaine, and (4) that the accused knowingly possessed the cocaine with the intent to deliver it. People v. Wolfe, 440 Mich. 508, 517, 489 N.W.2d 748 (1992). Possession may be either actual or constructive. Constructive possession is established where the accused had the right to exercise control of the cocaine and knew that it was present. Id. at 520, 489 N.W.2d 748.

Viewed in a light most favorable to the prosecution, the evidence was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant knowingly possessed the cocaine with intent to deliver. Defendant was driving the Jimmy at the time it was stopped by the officer and subsequently was holding a leather bag that contained 36.3 grams of cocaine. We believe that an inference reasonably may be made from this evidence that defendant knew that more cocaine was in the garment bag and that defendant had the right to exercise control over it. Moreover, given the amount of the cocaine involved, a reasonable inference can also be drawn that defendant intended to sell the cocaine. People v. Ray, 191 Mich.App. 706, 708, 479 N.W.2d 1 (1991). Therefore, the evidence was sufficient to support his conviction.

B

Next, defendant claims that the trial court erred in failing to admit evidence that showed that Paul Spikes had been convicted of conspiracy to possess with intent to distribute marijuana in 1983. We disagree.

MRE 404(b), at the time of trial, provided:

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 contemporaneous with, or prior or subsequent to the crime charged. [Emphasis added.]

Evidence of another crime may be admitted if (1) it is relevant to an issue other than character or propensity, (2) it is relevant to an issue or fact of consequence at trial, and (3) its probative value is not substantially outweighed by the danger of unfair prejudice. People v. VanderVliet, 444 Mich. 52, 74-75, 508 N.W.2d 114 (1993). The admissibility of other bad-acts evidence is a matter within the trial court's discretion. People v. Miller, 198 Mich.App. 494, 495, 499 N.W.2d 373 (1993).

This Court has previously held that MRE 404(b), now 404(b)(1), applies to the admissibility of evidence of other acts of any person, such as a defendant, a victim, or a witness. People v. Rockwell, 188 Mich.App. 405, 409-410, 470 N.W.2d 673 (1991). Paul Spikes, however, was neither a codefendant nor a witness. Although there are no Michigan cases on point, the Ninth Circuit Court of Appeals has held that FRE 404(b) permits an accused to introduce "other crimes, wrongs, or acts" of a third party, United States v. McCourt, 925 F.2d 1229, 1231-1232 (CA9, 1991), noting that the rule on its face applies to "a person," and is not limited to the defendant. Id. at 1231. See also State v. Gardner, 1 Neb.App. 450, 456-458, 498 N.W.2d 605 (1993). MRE 404(b)(1), which is virtually identical to FRE 404(b), also on its face applies to "a person." Therefore, we are persuaded by these decisions that a defendant may introduce prior bad acts of a third party.

Nonetheless, a defendant remains bound by the requirement that the evidence is not offered to prove conformity with character. At trial, defendant argued that evidence of Spikes' prior conviction was admissible in order to prove that Spikes had knowledge that the cocaine was in the garment bag. However, whether Spikes knew there was cocaine in the bag was not relevant to whether defendant knowingly possessed the cocaine with intent to deliver. Furthermore, we disagree with defendant that the prior conviction establishes Spikes' knowledge of the cocaine. Rather, the evidence only establishes that Spikes may have acted in conformity with his prior drug trafficking on this occasion, a purpose that is prohibited under MRE 404(b)(1). Accordingly, we find that the court did not abuse its discretion in disallowing the evidence.

C

Next, defendant argues that the government should have been compelled to grant Paul Spikes immunity from prosecution because then Spikes would have testified on defendant's behalf and admitted that he, rather than defendant, possessed the cocaine. We disagree. A prosecutor has no duty to grant a witness immunity so that the witness can testify for a defendant, and a defendant cannot compel a grant of immunity. People v. Lawton, 196 Mich.App. 341, 346, 492 N.W.2d 810 (1992). Therefore, the court did not err in denying defendant's request for immunity for Paul Spikes.

D

Lastly, defendant contends that the search without a warrant of his leather bag was unconstitutional. We disagree.

The Fourth Amendment of the United States Constitution and its counterpart in the Michigan Constitution guarantee the right of persons to be secure against unreasonable searches and seizures. U.S. Const., Am. IV; Const. 1963, art. 1, § 11. A search incident to an arrest is a reasonable search and, therefore, permitted by the Fourth Amendment, even though the police do not have a search warrant. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); People v. Arterberry, 431 Mich. 381, 384, 429 N.W.2d 574 (1988); People v. Chapman, 425 Mich. 245, 250, 387 N.W.2d 835 (1986). Within the warrant exception for searches incident to an arrest, the police may search the arrestee and the area within his immediate control, Chimel, supra at 763, 89 S.Ct. at 2040, as well as any containers seized from the arrestee. United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). ...