People v. Cummings

• Decision Date: 01 February 1985
• Docket Number: Docket No. 67843
• Citation: 139 Mich.App. 286,362 N.W.2d 252
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald CUMMINGS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 252

362 N.W.2d 252

139 Mich.App. 286

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald CUMMINGS, Defendant-Appellant.

Docket No. 67843.

Court of Appeals of Michigan.

Submitted April 3, 1984.

Decided Dec. 3, 1984.

Released for Publication Feb. 1, 1985.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Edward Reilly Wilson, Deputy Chief Appellate Asst. Pros. Atty., Civil and Appeals, and Larry L. Roberts, Asst. Pros. Atty., for the People.

Linda D. Ashford, Detroit, for defendant-appellant.

Before ALLEN, P.J., and V.J. BRENNAN and DANIELS, ^* JJ.

PER CURIAM.

On June 30, 1981, following a jury trial, Ronald Cummings (hereinafter defendant) was convicted of delivery or aiding and abetting in the delivery of a controlled substance, cocaine, M.C.L. Sec. 333.7401(2)(b); M.S.A. Sec. 14.15(7401)(2)(b), and conspiracy to deliver the same, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1). On September 8, 1982, defendant was sentenced to three years probation, the first year to be spent in the Detroit House of Correction. Defendant appeals as of right.

Defendant was tried jointly with James Hill, Jessie Lee Bryant and Philip Neal Sims in a trial beginning on June 22, 1981. Although all four defendants were tried in one proceeding, only defendant Cummings elected to be tried by a jury, whereas the other defendants elected a trial to the bench. Although the date of the offense was listed on the information as August 30, 1979, testimony at trial began with events occurring on August 23, 1979.

Melvin Turner testified that on August 23, he was employed as a sergeant for the Wayne County Sheriff's Department. He also owned a store in Detroit and on August 23, he was approached by defendant Hill who informed Turner that he had access to cocaine and asked if Turner knew anyone who wanted to buy some. After relaying that information to Turner, Hill left a phone number where he could be reached. After Turner received authorization to pursue the case, Sergeant Turner outlined the details of his conversation with Hill with Officer Arelia Pendergrass and gave her the number supplied by Hill.

Pendergrass testified that on August 30, 1979, she called the number given to Sergeant Turner and asked for "Jamo", which is apparently an alias used by James Hill. She stated that she wanted to buy a quarter ounce of cocaine. She was instructed to call a second number. When she called that phone number, she was told to meet that individual, Ron, at defendant Hill's house. Pendergrass then called defendant Hill and was given his address. After speaking with Sergeant Turner and after arrangements for surveillance were made, Pendergrass proceeded to defendant Hill's residence. There she was met by defendant Cummings who informed her that they would have to go to another location to obtain the cocaine. They left in Pendergrass's vehicle and defendant Cummings directed her to a house on Mendota Street.

Pendergrass gave defendant Cummings $450 of prerecorded Secret Service funds and remained in the car while defendant entered the residence. Defendant returned a short while later and informed Pendergrass that they would have to come back later because the package had not yet arrived. After driving away, Pendergrass asked defendant about the $450 and told him that she would have to have the money back until the cocaine was delivered. They returned to the Mendota address and both individuals were admitted by defendant Bryant. After speaking with Bryant, Pendergrass and defendant Cummings left the house and, pursuant to a pre-arranged signal given by Officer Pendergrass, the surveillance officers arrested defendant Cummings.

Pendergrass then returned to the Mendota Street address with Officer Curlie Thompson, whom she introduced to Bryant as her boyfriend. They were told by Bryant that they could wait at the house after Thompson indicated that he wanted either the money or the cocaine. At some point, prior to the arrival of the drugs, Pendergrass left the residence. Shortly thereafter, defendant Bryant stated "He's here now" or "The package is here now" and defendant Sims was admitted into the residence. Sims and Bryant walked into the kitchen, Thompson followed them approximately two to three minutes later. Defendant Sims was no longer present in the kitchen; Thompson had not seen him leave. Defendant Bryant then displayed an open tinfoil packet containing a white powdery substance to Thompson.

At the close of the prosecution's proofs, each defendant moved for a directed verdict. The trial court denied each motion as it pertained to the conspiracy counts. No evidence was presented on behalf of the defendants. Following closing arguments and instructions to the jury, the jury returned a verdict of guilty of both counts against defendant Cummings. The trial court, acting as fact finder, then announced its findings and verdicts as to the remaining three defendants. The trial court found that the prosecutor had failed to prove beyond a reasonable doubt that defendants Hill, Sims or Bryant were guilty of conspiracy to deliver cocaine but found that the prosecutor had sustained its burden of proving defendant Bryant guilty of delivery of cocaine. Thus, of the four defendants, only defendant Cummings was convicted of conspiracy.

Defendant argues, based on the "no one-man conspiracy" rule, that because all of the alleged co-conspirators but himself were acquitted, his conviction must be reversed. Although we are aware of no conspiracy case involving procedural facts similar to those of the present case, a joint trial of the alleged co-conspirators with separate fact finders, we find the recent case of People v. Anderson, 418 Mich. 31, 340 N.W.2d 634 (1983), to be instructive. The question raised is of first impression.

The Michigan conspiracy statute, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1), requires proof of an agreement between two or more persons and requires proof of the specific intent to combine with others to do what is unlawful. Anderson, supra; People v. Atley, 392 Mich. 298, 220 N.W.2d 465 (1974). Thus, the common-law rule of "no one-man conspiracy" in a joint trial of all conspirators is of continued vitality in this state. However, the application of the rule in the context of separate trials and, we believe, in the case of a joint trial with separate fact finders presents a different situation.

In Anderson, Justice RYAN, writing for the majority, found the common-law rule to be inapplicable where the alleged co-conspirators are tried separately "because there is no inherent defect when the separate juries return different verdicts in the separate trials". Id., 418 Mich. p. 38, 340 N.W.2d 634. In determining the applicability of the "no one-man conspiracy" rule, there is no difference between a dismissal based upon a directed verdict for insufficient evidence or a jury verdict of acquittal; each amounts to a determination that no conspiracy existed. Although the conspiracy charge was dismissed upon a motion for directed verdict in the trial of the first co-conspirator, the majority determined that Anderson's later conviction of conspiracy could properly stand inasmuch as the conspirators were tried separately and the earlier dismissal had no bearing on the quality of proof introduced in Anderson's subsequent trial.

Justice LEVIN, concurring in reversal, wrote separately to distinguish between inconsistent legal and inconsistent factual determinations of the existence of a conspiracy. Although the question of sufficiency of the evidence concerns the factual support for the charge, it is a legal question capable of but one correct determination. On the other hand, if the evidence of a conspiracy is sufficient to warrant submission to the fact finders, the fact finders have the power to return inconsistent and asymmetrical verdicts. Id., p. 44, 340 N.W.2d 634.

In the present case, there was a joint trial of four alleged co-conspirators; without more, it appears that the common-law rule would apply. However, given the unusual situation that although only one trial was conducted separate fact finders were involved, we believe that the common-law rule does not apply and that defendant Cummings is not entitled to reversal of his conspiracy conviction. Under the minority approach espoused in Anderson by Justice LEVIN, once the legal determination was made that sufficient evidence had been presented by the prosecutor to withstand motions for directed verdict and to submit the cases to the respective fact finders, the jury and the judge were free to reach inconsistent verdicts. It is not for this Court to determine which of the two results is correct or to attempt to reconcile the verdicts to bring some unanimity into play. The fact finder, be it jury or judge, is the sole judge of the facts as they pertain to the defendant whose guilt or innocence it is to decide. It is beyond peradventure that the fact finder may choose to believe or disbelieve any witness or any evidence presented in reaching a verdict. See, e.g., People v. Lewis, 415 Mich. 443, 330 N.W.2d 16 (1982); People v. Chamblis, 395 Mich. 408, 236 N.W.2d 473 (1975). Applying the Levin approach, the inconsistent findings by the separate fact finders do not violate the common-law "no one-man conspiracy" rule.

Analysis of the present facts under the majority opinion in Anderson similarly convinces us that reversal of defendant Cummings' conspiracy conviction is not warranted. Although the majority opinion indicates that the "inapplicability of the 'no one-man conspiracy' rule arises from the fact of separate trials", Anderson, supra, 418 Mich. p. 38, 340 N.W.2d 634, the opinion also refers to the fact that in separate trials the evidence...