People v. Davis

• Decision Date: 01 May 1974
• Docket Number: No. 3,Docket No. 16577,3
• Citation: 53 Mich.App. 94,218 N.W.2d 787
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marvin DAVIS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 787

218 N.W.2d 787

53 Mich.App. 94

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marvin DAVIS, Defendant-Appellant.

Docket No. 16577.

Court of Appeals of Michigan, Division No. 3.

May 1, 1974.

Released for Publication June 19, 1974.

James S. Brady, Roach, Twohey, Benson & Brady, Grand Rapids, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Donald A. Johnston, III, Chief Appellate Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and ALLEN and O'HARA,* JJ.

ALLEN, Judge.

Defendant was convicted of delivery of heroin, contrary to M.C.L.A. § 335.152; M.S.A. § 18.1122, currently M.C.L.A. § 335.341(1)(a); M.S.A. § 18.1070(41)(1) (a). He received a sentence of three and one half to twenty years in prison, and has raised six issues on appeal.

We find no merit in defendant's argument that reversible error was committed at trial when reference was made to defendant's taking a polygraph examination and when the trial court denied defendant's subsequent motion for a mistrial. The reference to the polygraph examination was made by defendant as a nonresponsive answer to a question posed by the prosecutor. The trial court immediately after defendant's answer was given, instructed the jury to disregard any mention of the polygraph and in its final instructions specifically instructed the jury to disregard 'any and all references made to the term 'polygraph' or 'polygraph administration". No grounds for mistrial were present, and we find no reversible error. People v. Tyrer, 19 Mich.App. 48, 51, 172 N.W.2d 53 (1969), appeal dismissed, 385 Mich. 484, 189 N.W.2d 226 (1971); People v. Paffhousen, 20 Mich.App. 346, 351, 174 N.W.2d 69 (1969), leave to appeal denied, 383 Mich. 825 (1970). Defense counsel contends that the jury instruction was insufficient since it should have included reference to the unreliability of polygraph tests. A proper jury instruction should include admonition to disregard a reference to a polygraph test because of its unreliability, but absent a request for such an instruction, the trial court's failure to so instruct is not reversible error. People v. Baker, 7 Mich.App. 471, 476, 152 N.W.2d 43 (1967), leave to appeal denied, 380 Mich. 766 (1968), cert. den. 393 U.S. 953, 89 S.Ct. 382, 21 L.Ed.2d 365 (1968).

Defendant argues that he was a procuring agent and therefore could not be found guilty as a seller of narcotics. While People v. Boone, 31 Mich.App. 193, 195, 187 N.W.2d 569 (1971), rejected this defense, People v. Turner, 38 Mich.App. 479, 487, 196 N.W.2d 799 (1972), reversed on other grounds, 390 Mich. 7, 210 N.W.2d 336 (1973), recognized the validity of the 'procuring agent' defense. One may not assert the defense of entrapment when the offense is denied. People v. Hogan, 48 Mich.App. 242, 246, 210 N.W.2d 376 (1973). See, also, People v. Bersine, 48 Mich.App. 295, 299, 210 N.W.2d 501 (1973), and cases cited therein. Defendant testified that the police officer did not give him any money and that defendant did not give the officer any drugs. Defendant testified that after a short discussion as to a possible narcotics transaction, said transaction was not consummated. Therefore, the procuring agent defense was not available to defendant.

Defendant argues that the trial court's instructions to the jury were confusing, that the elements of the offense were not properly defined, and that the trial court erroneously implied that defendant could be guilty of aiding and abetting the offense at issue despite the fact that the court had recognized the procuring agent defense. However, defense counsel expressed his satisfaction with the jury instructions. Absent a showing of a miscarriage of justice, appellate review of allegedly erroneous jury instructions is precluded. GCR 1963 516.2. People v. Jones, 48 Mich.App. 102, 104--105, 210 N.W.2d 145 (1973). Examining the jury instructions as a whole, rather than in excerpts, this Court has determined that defendant was not prejudiced by the court's instructions. People v. Peace, 48 Mich.App. 79, 85, 210 N.W.2d 116 (1973).

Relying upon People v. Hernandez, 15 Mich.App. 141, 170 N.W.2d 851 (1968), defendant argues that the 120-day delay between the date of the offense and defendant's arrest unduly prejudiced his ability to prepare an adequate defense. The record discloses that the delay was not purposeful, nor was defendant prejudiced thereby. People v. Johnson, 41 Mich.App. 34, 41--44, 199 N.W.2d 561 (1972).

Defendant argues that M.C.L.A. § 600.1306(1)(a); M.S.A. § 27A.1306(1)(a), which provides for the use of voter registration lists for the selection of jury panels, is illogical and does not serve any useful purpose. Defendant has not presented this Court with any evidence of discrimination, and the use of voter registration lists does not, on its face, deny a defendant '* * * a jury composed of a valid cross section of the community.' People v. Stockard, 48 Mich.App. 680, 685, 211 N.W.2d 62, 64 (1973).

Contrary to defendant's argument, People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827 (1972), did not render M.C.L.A. § 335.152; M.S.A. § 18.1122 unconstitutional. People v. Bersine, 48 Mich.App. 295, 303, 210 N.W.2d 501 (1973). Relying upon M.C.L.A. § 335.361(1); M.S.A. § 18.1070(61)(1), the sentencing court imposed a sentence of three and one half to twenty years in prison upon defendant. Having received the benefits of M.C.L.A. § 335.341(1) (a); M.S.A. § 18.1070(41)(1)(a), defendant cannot complain about the former twenty-year mandatory sentence provision of M.C.L.A. § 335.152; M.S.A. § 18.1122.

Affirmed.

O'HARA, Judge (concurring in result).

I concur in the result reached by Judge ALLEN in the instant case.

I must, however, register my vigorous disagreement with the statement that '(a) proper jury instruction should include (an) admonition to disregard a reference...