People v. Doss

Decision Date06 May 1983
Docket NumberDocket No. 53226
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward DOSS, Defendant-Appellant. 122 Mich.App. 571, 332 N.W.2d 541
CourtCourt of Appeal of Michigan — District of US

[122 MICHAPP 574] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Deputy Chief Appellate Asst. Pros. Atty., Civil and Appeals and A. George Best, Asst. Pros. Atty., for the People.

State Appellate Defender Office (by Chari Grove, Detroit), for defendant-appellant on appeal.

Before DANHOF, C.J., and KAUFMAN and RILEY, JJ.


Following a jury trial in Detroit Recorder's Court, the defendant, Edward Doss, was convicted of delivery of heroin, M.C.L. Sec. 333.7401; M.S.A. Sec. 14.15(7401). On April 21, 1980, he was sentenced to 10 to 20 years imprisonment. The defendant appeals as of right, raising several issues for our consideration.


First, we reject the defendant's claim that, because his conviction was based largely upon circumstantial evidence, the prosecution was bound to disprove all theories consistent with innocence. People v. Edgar, 75 Mich.App. 467, 255 N.W.2d 648 (1977). In People v. Davenport, 39 Mich.App. 252, 256, 197 N.W.2d 521 (1972), the Court stated that:

"[W]here the People's case is based on circumstantial [122 MICHAPP 575] evidence the prosecution has the burden of proving that there is no innocent theory which will, without violation of reason, accord with the facts."

This oft-cited rule does not require the prosecutor to specifically disprove all innocent theories, rather:

"It should be sufficient if the prosecution proves its own theory beyond a reasonable doubt in the face of whatever contradictory evidence the defense may produce." Edgar, supra, 75 Mich.App. p. 474, 255 N.W.2d 648.


Second, the defendant contends that the trial court committed reversible error by informing the jury that a defense witness had failed to appear at trial. At trial, during the presentation of the defendant's case, defense counsel informed the court that her client was ill and would not be able to proceed with the trial. The court then inquired of counsel as to whether she intended to call any more witnesses. Upon learning that defendant's next witness had not yet appeared, the court adjourned for the day, informing the jury:

"THE COURT: Members of the jury there is another witness that the defense notified to appear here today to testify. However, the witness has not appeared. I have waited, we are waiting for the witness to appear and that witness has not appeared. I have consented to give the defense until tomorrow morning to locate the witness and bring the witness down here. This matter will be adjourned until tomorrow morning at 9 o'clock. Come back tomorrow at 9 and we should be able to finish. Don't forget, don't talk about the case. The matter is adjourned until tomorrow morning at 9 a.m."

[122 MICHAPP 576] The defendant contends, for the first time on appeal, that these comments had the effect of discrediting this witness as they insinuated she failed to act as a good citizen. The defendant's failure to object to the comments bars appellate review unless it appears that the comments " 'were of such a nature as to unduly influence the jury and, thereby, deprive the appellant of his right to a fair and impartial trial' ". People v. Rogers, 60 Mich.App. 652, 657, 233 N.W.2d 8 (1975), citing People v. Wilson, 21 Mich.App. 36, 37, 174 N.W.2d 914 (1969). It does not appear to this Court that the trial court's comments impugned the credibility of the witness, People v. Wichman, 15 Mich.App. 110, 166 N.W.2d 298 (1968), or displayed partiality which would have influenced the jury to the detriment of the defendant's case. Further, it does not seem that the trial court was doing anything other than explaining to the jury the reason for the adjournment of the trial. It is the opinion of this Court that the defendant was not denied his right to a fair trial by the trial judge's statement, and, therefore, the defendant's claim on this issue is rejected.


Next, the defendant claims, for the first time on appeal, that the sentencing court improperly considered inaccurate information in the presentence report that the defendant had been charged with prison escape.

This Court will not review an alleged error in a presentence report unless a record thereof is made before the sentencing judge. People v. Herndon, 98 Mich.App. 668, 674, 296 N.W.2d 333 (1980). In the [122 MICHAPP 577] case at bar, although the defendant was given an opportunity, pursuant to GCR 1963, 785.12, to inspect the presentence report and explain or controvert its contents, he offered no objection to its contents. This Court has held that:

"[R]eference to other criminal activity, for which no conviction resulted, may be included in the presentence report and considered by the court, provided the defendant does have the opportunity for refutation provided by GCR 1963, 785.12. This is consistent with the Federal standards of due process set forth in Williams v. New York [337 US 241; 69 S Ct 1079; 93 L Ed 1337 (1948) ] and the decisions from other states." People v. McIntosh, 62 Mich.App. 422, 446, 234 N.W.2d 157 (1975), rev'd on other grounds, 400 Mich. 1, 252 N.W.2d 779 (1977).

See also People v. Brooks, 95 Mich.App. 500, 291 N.W.2d 94 (1980). In the case at bar, the defendant had an opportunity to refute the contents of the presentence report, and, therefore, we cannot conclude that the trial court erred in considering this information. Moreover, an examination of the record reveals that the defendant's alleged escape from prison was not a factor in the court's determination of sentence. Rather, this information was considered only with regard to whether the defendant's sentence would run concurrently with, or consecutively to, his previous sentence for armed robbery.


The defendant next argues that the trial court's instructions on aiding and abetting mandates reversal. We note first that the defendant did not object to the instruction at trial, when any errors [122 MICHAPP 578] could have been easily resolved. 1 In fact, defense counsel expressly approved the instruction. "Counsel cannot sit back and harbor error to be used as an appellate parachute in the event of jury failure." People v. Brocato, 17 Mich.App. 277, 305, 169 N.W.2d 483 (1969). Thus, under the general rule, appellate review is precluded.

Despite counsel's failure to object, appellate review is possible if the error alleged would result in a miscarriage of justice. People v. Trammell, 70 Mich.App. 351, 247 N.W.2d 311 (1976). An erroneous "intent" instruction would result in a miscarriage of justice. See People v. Townes, 391 Mich. 578, 593-594, 218 N.W.2d 136 (1974). A careful review of the trial court's instructions, however, reveals no error. The court did not read the standard criminal jury instructions on this issue. 2 Still, use of the standard instructions is not mandated, 3 and failure to use them is not per se reversible error. People v. Turner, 99 Mich.App. 733, 739, 298 N.W.2d 848 (1980), rev'd on other grounds 411 Mich. 897, 1037 (1981). An instruction will be upheld if it accurately states the law. The court's instructions must be read together and not in misleading bits and pieces. People v. McFadden, 73 Mich.App. 232, 237, 251 N.W.2d 297 (1977). A reading of the trial [122 MICHAPP 579] court's instructions shows no error. The court instructed the jury of the intent required to deliver heroin:

"This information charges the Defendant as, I said, with delivery. It does not make any difference whether the Defendant delivered the heroin to Mr. Grimmett. If you believe that he, in fact, believe beyond a reasonable doubt that he did deliver the heroin to Mr. Grimmett, if you find from the evidence you believe beyond a reasonable doubt that the Defendant Doss delivered the heroin to Mr. Grimmett that is a violation of this statute. On the other hand, if you believe from the evidence, it shows you beyond a reasonable doubt that the Defendant, that Mr. Grimmett delivered the heroin to Mr. Thompson and Mr. Doss was an active participant in the delivery of that heroin you are satified [sic ] beyond a reasonable doubt that he was an active participant then he would be guilty of this offense. If you were not satisfied that, that is from the proofs, he neither delivered the heroin to Mr. Grimmett and did not take an active part of the delivery by Mr. Grimmett to the officer Thompson he would not be guilty. Delivery means that the Defendant transferred heroin to another person knowing that the heroin was--knowing that the substance was heroin and intended to so deliver it to that person.

* * *

"Alright, possible verdict is as follows: If you find from the evidence that the People have prove [sic ] to you beyond a reasonable doubt that the Defendant, Edward Doss, did deliver heroin, that is he delivered it to Mr. Grimmett or participated in delivering it to Mr. Curlie Thompson, if you find the evidence satisfies you beyond a reasonable doubt that he did that then he is guilty of the charge. If on the other hand you feel the people failed to prove to you beyond a reasonable doubt that Mr. Doss did deliver heroin to Mr. Grimmett, nor did he participate in the delivery by Mr. Grimmett to Mr. Thompson your verdict should be not guilty." (Emphasis added.)

[122 MICHAPP 580] The defendant argues that this instruction permitted a guilty verdict on the basis of mere presence during the delivery. It is obvious, however, that the instruction required "active participation" and not just presence. The instruction clearly required the jury to find that the defendant had the specific intent to deliver heroin. If the trial court must be faulted, it is for omitting language which would allow a conviction for "suppo...

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