People v. Corbeil

• Decision Date: 23 August 1977
• Docket Number: Docket No. 27243
• Citation: 77 Mich.App. 691,259 N.W.2d 193
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth CORBEIL, Defendant-Appellant. 77 Mich.App. 691, 259 N.W.2d 193
• Court: Court of Appeal of Michigan — District of US

Page 193

259 N.W.2d 193

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth CORBEIL, Defendant-Appellant.

Docket No. 27243.

77 Mich.App. 691, 259 N.W.2d 193

Court of Appeals of Michigan.

Aug. 23, 1977.

Rehearing Denied Sept. 30, 1977.

Released for Publication Nov. 14, 1977.

[77 MICHAPP 693] Nino E. Green, Escanaba, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James B. Jenkins, Pros. Atty., Pros. Attys. App. Serv. by Thomas C. Nelson, Asst. Atty. Gen., for plaintiff-appellee.

Before MAHER, P. J., and CAVANAGH and WALSH, JJ.

[77 MICHAPP 694] PER CURIAM.

Defendant appeals as of right his October 25, 1975, jury convictions for delivery of amphetamines, M.C.L.A. § 335.341(1)(b); M.S.A. § 18.1070(41)(1)(b), and possession with intent to deliver marijuana, M.C.L.A. § 335.341(1)(c); M.S.A. § 18.1070(41)(1)(c). On November 25, 1975, defendant was sentenced to a prison term of 2 to 7 years on the first conviction, and to a term of 2 to 4 years on the second conviction, to be served concurrently.

The case arises out of the undercover activities of three women in Ontonagon County in January, 1975. Linda Robinson and Cathy Kolinsky had been working as undercover informants for law enforcement agencies since October, 1974. In January, they were directed by their supervisor, Detective Sergeant Aird of the State Police, to work in association with Barbara Mason, a local resident of Ontonagon, in searching out drug dealers and making undercover drug purchases. On January 30th, 1975, they met Kenneth Corbeil and two other men in a bar in Ontonagon. After some conversation regarding drugs, the parties agreed to meet later that day in another bar. At the second meeting, the defendant allegedly gave one capsule of amphetamine to each of the women, and they arranged to meet in a nearby motel for a party and, allegedly, for another drug transaction.

Linda Robinson had been wired with a body transmitter to transmit the group's conversations to Sergeant Aird, who had remained nearby in his automobile. The informants had also arranged a signal to indicate whether they had been successful in making a drug transaction in the second meeting. If drugs had been obtained, the women were to leave in the direction of the predetermined motel meeting place. If the informants had been unsuccessful, they were to drive in the opposite [77 MICHAPP 695] direction. When the informants left the second meeting, they indicated by their direction that they had been successful, and the police followed them to the motel "rendezvous".

According to the plan, the defendant and his companion were to purchase some beer and wine and then meet the women at the motel. Upon the defendant's arrival, he was arrested for delivery of a controlled substance. A subsequent search disclosed a quantity of amphetamines on defendant's person and 2/10 of a gram of hashish of which the defendant apparently had attempted to rid himself upon his arrest.

I

The defendant argues that the trial court should have suppressed the hashish and amphetamines found in the search as the fruits of an unreasonable, warrantless search. Defendant claims that the police warrantless participant monitoring could not be used to provide probable cause because of People v. Beavers, 393 Mich. 554, 227 N.W.2d 511 (1975), and that in the absence of information obtained from the illegal monitoring, the police lacked probable cause for his arrest.

The monitoring in this case preceded the Supreme Court's decision in Beavers, supra. The Supreme Court has recently held that the rule enunciated in Beavers may not be applied in such a case. People v. Drielick, 400 Mich. 559, 255 N.W.2d 619 (1977). That decision is fatal to defendant's position on this issue.

II

Early in the trial, the prosecutor sought to [77 MICHAPP 696] introduce evidence that these informants had obtained illegal drugs ("chemicals" and a marijuana cigarette) from the defendant during a meeting on January 21st, 1975. The defendant objected strenuously on the grounds that this testimony would refer to similar criminal activity of which the defendant, by the time of this trial, had already been acquitted. After some consideration the trial court decided that evidence of this prior activity was admissible under the "similar acts" statute, M.C.L.A. § 768.27; M.S.A. § 28.1050, as relevant to the defendant's intent during the January 30th incident.

All three informants testified concerning the alleged transactions of January 21st. The record reflects more than ten separate references to the events of that date. The trial court gave an instruction which limited the jury's consideration of that evidence to the issue of the defendant's "intent" on January 30th, and informed the jury that the defendant had been acquitted of the alleged January 21st offense.

We accept for the purpose of discussion the prosecution's premise that evidence tending to show the defendant's prior delivery of a controlled substance to these informants was material to a matter in issue, viz., the defendant's intent in possession of the hashish. See People v. Oliphant, 399 Mich. 472, 488-489, 250 N.W.2d 443, 449 (1976). However, even material evidence of similar acts must be excluded where its prejudicial impact substantially outweighs its probative value. People v. Oliphant, supra, at 489-490, 250 N.W.2d at 449; People v. Fisher, 77 Mich.App. 6, 257 N.W.2d 250 (1977).

In the instant case other evidence, particularly [77 MICHAPP 697] the informant's testimony concerning the January 30th meetings, was available to the prosecution to help meet its burden of proving that the defendant intended to deliver the drugs found in his possession upon his arrest. The defendant did not advance a version of the events which affirmatively raised the issue of intent. Rather, he claimed both that no delivery had taken place and that the hashish had been "planted" by the police. In sum, the prosecution lacked a strong need for this evidence; the primary issue was the credibility of the witnesses.

The evidence undeniably interjected the issue of the defendant's involvement in another drug transaction which had allegedly taken place on January 21st, little more than a week before the events of the date in question. Testimony as to the events of January 21st was elicited in detail. Moreover, the informants' testimony meandered to and fro between the events of the 21st and those of the 30th, blurring the depictions of each into a vague pattern of alleged misdeeds by the defendant. As a result, the possibility is great that the jury based its findings on a belief in the defendant's guilt of the earlier transaction, rather than on that of the January 30th occurrence.

Alternative and less prejudicial sources of proof, little need for the evidence, potential for confusing the issues, and tendency to inflame the passions of the jury are all present here, and we therefore find the trial court abused its discretion. People v. Oliphant, supra, 399 Mich. at 490, 250 N.W.2d at 449-450, People v. Fisher, supra, 77 Mich.App. at 11, 257 N.W.2d at 254 (1977). From a review of the record, we cannot say that it was harmless beyond a reasonable doubt.

III

Over a defense objection, as irrelevant, one of [77 MICHAPP 698] the informants was allowed to testify that defendant had offered to provide her and her companions with a house and drugs sufficient to keep them "buzzing for weeks on end as long as (they) had the money to purchase the drugs". She also testified that defendant had offered to help them earn the money necessary to buy the drugs by providing them with a clientele for prostitution. The court ruled that this testimony was admissible to show defendant's intent to commit the charged offense.

As to the offer to furnish drugs, the court's ruling was clearly correct.

Read in connection with the statement that the proceeds could be used to purchase drugs, the alleged offer to establish the informants as prostitutes was probative of defendant's intent to facilitate future sales. From this fact a reasonable juror might infer that defendant intended to deliver the drugs subsequently found on and near his person. The evidence was therefore logically relevant. The court was not asked to exclude the evidence on the ground that its prejudicial impact outweighed its probative value. See People v. DerMartzex, 390 Mich. 410, 415, 213 N.W.2d 97, 100 (1973).

IV

Again over the defendant's objection, two of the informants were asked on direct examination why they had volunteered to serve without compensation as undercover police agents. They proceeded to testify that they had watched drugs "destroy" a man, husband to one, brother-in-law to the other. They further testified to the disruption which this had caused his family, and of their resulting determination to combat the "drug problem". In his argument to the jury the prosecutor emphasized [77 MICHAPP 699] these facts and motives as supportive of the witnesses' credibility. ¹

On appeal the prosecution argues that the facts are "neutral" background data, as favorable to the defense (because of an inference of bias) as prejudicial.

We agree that the evidence is susceptible to contradictory inferences about the witnesses' credibility. The evidence gives rise to a reasonable inference that the witnesses had an "axe to grind", and thus reflects adversely on their credibility. However, if offered for this purpose, the testimony was inadmissible as an attempt by the prosecutor to impeach his own witnesses by showing their bias. ² The testimony could also be interpreted as supporting the witnesses' credibility, as the prosecutor's argument to the jury illustrates, by portraying them as people who had personally known and suffered the problem of drug abuse, and who were motivated only by an honest desire to combat that problem, and not to prevaricate. If offered for this purpose, the evidence was...