People v. Crowell

• Decision Date: 09 November 1990
• Docket Number: Docket No. 108981
• Citation: 465 N.W.2d 10,186 Mich.App. 505
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Harold CROWELL, Defendant-Appellant. 186 Mich.App. 505, 465 N.W.2d 10
• Court: Court of Appeal of Michigan — District of US

Page 10

465 N.W.2d 10

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

Docket No. 108981.

186 Mich.App. 505, 465 N.W.2d 10

Court of Appeals of Michigan.

Submitted Feb. 6, 1990, at Grand Rapids.

Decided July 25, 1990.

Approved for Publication Nov. 9, 1990, at 9:04 a.m.

Released for Publication Feb. 11, 1991.

[186 MICHAPP 506] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Harold F. Closz, III, Pros. Atty., and Kevin A. Lynch, Asst. Pros. Atty., for the People.

Nicholas Smith, P.C. (by Nicholas Smith), Southfield, for defendant-appellant.

Before CAVANAGH, P.J., and McDONALD and MARILYN J. KELLY, JJ.

PER CURIAM.

Defendant was convicted by jury of possession with intent to deliver marihuana, possession with intent to deliver cocaine, less than fifty grams, and delivery of cocaine, less than fifty grams. M.C.L. Sec. 333.7401(2)(c); M.S.A. Sec. 14.15(7401)(2)(c); M.C.L. Sec. 333.7401(2)(a)(iv); M.S.A. Sec. 14.15(7401)(2)(a)(iv). He was sentenced to concurrent terms of two to four years for the marihuana conviction and ten to twenty years for each of the cocaine convictions. He appeals as of right. We affirm.

Defendant was arrested on May 14, 1987, as part [186 MICHAPP 507] of an undercover drug investigation. The drug enforcement team had set up surveillance of trafficking on the part of Leroy Rogers. An undercover agent met with Rogers and discussed purchasing a pound of cocaine. Rogers contacted William Evans. Together they went to defendant's residence and business, Lumbertown Classic Auto Sales. Defendant spoke with Evans about purchasing cocaine. Evans had previously bought cocaine from defendant for Rogers. At that time, defendant had told him never to bring anyone with him and that the price was $1,800 for an ounce. Defendant told Evans to come back later. Rogers and Evans left.

Rogers contacted the undercover agent. He told the agent he could get an ounce for $2,000. The agent gave him the money and Rogers and Evans drove to Lumbertown. Evans dropped off Rogers before reaching Lumbertown. He continued to Lumbertown where he purchased an ounce of cocaine from defendant for $1,800. He then picked up Rogers and dropped him at his house where he gave the cocaine to the agent. Evans and Rogers were arrested.

At approximately 6:10 p.m., the police arrested defendant at Lumbertown. They obtained a warrant to search the premises at about 10:00 p.m., and found $1,800 in marked bills, a pound of marihuana, an ounce of cocaine, and a "cocaine grinder."

Defendant argues on appeal, first, that the court erred in denying his motion to suppress the evidence. He claims the police began searching the premises before they obtained the warrant.

This Court will not disturb a trial court's ruling at a suppression hearing, unless it is clearly erroneous. We give deference to the trial court's resolution of factual issues, especially where, as here, it involves the credibility of witnesses whose testimony[186 MICHAPP 508] conflicts. People v. Burrell, 417 Mich. 439, 448-449, 339 N.W.2d 403 (1983). The police officers denied that any search began before the warrant was obtained. The judge found that the evidence supported the officers' testimony. After reviewing the record, we are not convinced that a mistake has been made.

Next, defendant claims that the court erred in allowing the admission of evidence of a prior cocaine sale between defendant and Evans. He contends that the evidence was an inadmissible prior bad act. MRE 404(b).

The prosecutor sought to introduce evidence that, about one month before the alleged sale, Evans bought an ounce of cocaine from defendant. He argued that the purchase was part of the res gestae of the charged offense, because the two sales were interrelated. The first sale explained the circumstances of the second. People v. Delgado, 404 Mich. 76, 83, 273 N.W.2d 395 (1978). The judge agreed, observing that it was not a Rule 404(b) issue. After reviewing the record, we agree that the evidence was properly admitted as part of the res gestae.

Defendant also contends that the judge abused his discretion in refusing the jurors' request for a typed transcript of certain testimony. He claims this constituted a blanket denial of a request to read back testimony. We disagree.

After only twenty-five minutes of deliberation, the jurors requested a typed transcript of some testimony. The judge instructed them to rely on their memories. He also explained that if, after more deliberation, they were still unable to recall the information, they could request the testimony be read back. This was an appropriate exercise of his discretion. People v. Howe, 392 Mich. 670, 675, 221 N.W.2d 350 (1974).

[186 MICHAPP 509] Defendant claims the court erred in denying his motion for a mistrial. The motion was based on the fact that the prosecutor named a witness during jury voir dire whom he subsequently did not call to testify. Defendant argues that he was obliged to exhaust his peremptory challenges during jury selection in anticipation of this witness....