People v. Dyson

• Decision Date: 08 October 1974
• Docket Number: Docket No. 18046,No. 3,3
• Citation: 56 Mich.App. 59,223 N.W.2d 364
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alvin DYSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 364

223 N.W.2d 364

56 Mich.App. 59

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alvin DYSON, Defendant-Appellant.

Docket No. 18046.

Court of Appeals of Michigan, Division No. 3.

Oct. 8, 1974.

Released for Publication Nov. 21, 1974.

James R. Neuhard, State App. Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Ronald J. Taylor, Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and T. M. BURNS and SMITH,* JJ.

HOLBROOK, Presiding Judge.

Defendant appeals as of right from his jury conviction of delivery of heroin contrary to M.C.L.A. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a).

At trial, a police informant testified that, working in concert with narcotics officers, he purchased from defendant two bags of heroin in front of a pool room in Benton Township, Michigan. Expert testimony revealed that chemical analysis had shown that the material in packets was heroin. The witness related that the total amount of material in one packet was .049 gram and the weight of the material in the other packet was .o85 gram. The witness further testified that no qualitative analysis had been performed, that the substance was not pure heroin, but rather a combination of heroin and other non-narcotic substances, and that he estimated that the concentration of heroin was perhaps 4%. Based upon this testimony and assumption, the total gross weight of the drug allegedly sold by defendant was approximately 5 milligrams. Defendant here asserts that his conviction for delivery of heroin cannot stand in light of the small amount of heroin involved that the trial judge committed reversible error in refusing to give the defendant's requested instruction that to establish delivery of heroin the jury would have to determine that it could be reasonably inferred that the quantity of heroin actually delivered was but a remnant of a larger, usable amount. Defendant cited as authority therefor the cases of People v. Harrington, 33 Mich.App. 548, 190 N.W.2d 343 (1971), and People v. Harris, 43 Mich.App. 531, 204 N.W.2d 549 (1972). The trial court denied the request on the basis that there was evidence from which the jury could infer reasonably that the amount of heroin was sufficient 'in street terms' as to be prohibited by the statute, that both the Harris and Harrington cases were decided under the statutes existing prior to the Controlled Substances Act, M.C.L.A. § 335.301 et seq; M.S.A. § 18.1070(1) et seq. The Court stated it did not propose to give the instruction found to be in error in the Harris and Harrington cases which stated that any amount of narcotics, no matter how insignificant, was a violation of the statute. Further, the court distinguished the cases, stating that they involved unlawful possession of heroin, whereas the present case involved delivery. The court pointed out, moreover, that it was unable to understand how the giving of the requested instruction could do other than confuse the jury rather than clarify the matter.

Harrington, supra, was an appeal from a conviction for unlawful possession, M.C.L.A. § 335.153; M.S.A. § 18.1123. The Court there found that a reasonable compromise would be struck between the minority and majority views ¹ by accepting the view that the amount sufficient to substantiate a conviction for possession would be that which could be reasonably inferred as a remnant of a larger, usable amount. In Harris, defendant was also convicted of possession of narcotics. On appeal he asserted, among other things, that the trial judge committed error by instructing the jury that any quantity of narcotics was sufficient to support a conviction. The Court applied the test of Harrington and found that the amount involved (24 grains of bulk heroin) was sufficient to satisfy the Harrington standard in that it was clearly a usable amount.

The defendant relies upon the case of People v. Jones, 38 Mich.App. 512, 516--517, 196 N.W.2d 817, 819 (1972), as implicitly applying the Harrington test to a case for sale of narcotics, M.C.L.A. § 335.152; M.S.A. § 18.1122. There, the Court wrote:

'The defendant contends that a reversal is required because of a remark by the prosecutor, in his opening statement, that possession of any amount of heroin was a violation of the law. The defendant relies on People v. Harrington, 33 Mich.App. 548, 190 N.W.2d 343 (1971) where we held that when a defendant has been found in possession of minute quantities of heroin it must be determined, on all of the facts and circumstances of the case, that the quantity of narcotics actually discovered is a remnant of a larger unable amount.

'This case is distinguishable from Harrington. In Harrington the defendant was in possession of an amount of heroin that was clearly less than a usable amount. In this case the record clearly shows that a usable amount of heroin was involved. Furthermore, in this case the trial court instructed the jury that in order to be guilty the defendant must have had knowledge that he was dealing with heroin and the intent to deal with heroin.'

Recently, in two cases, a panel of this Court has ruled upon whether the standard of Harrington applies in cases of unlawful sale of heroin. People v. Gaffney, 51 Mich.App. 526, 215 N.W.2d 587 (1974), and People v. McCullough, 51 Mich.App. 534, 215 N.W.2d 774 (1974). In Gaffney, 51 Mich.App. p. 529, 215 N.W.2d 589, the Court wrote:

'Harrington's rule, formulated in a possession case, should be limited in its application to cases of close fact similarity and to charges of possession. It is inapplicable to the case at bar which is a prosecution for sale.

'We reject the contention that the Harrington rule was extended to sale cases by People v. Jones, 38 Mich.App. 512, 196 N.W.2d 817 (1972).

'We do so first because the Jones panel explicitly distinguished Harrington on the facts. Additionally, it incorporated a requirement which might generally be characterized as a guilty knowledge and an intent factor.'

The panel in McCullough, 51 Mich.App. p. 536, 215 N.W.2d 775--776 said:

'Charges and cases involving sale of heroin are clearly distinguishable from those involving possession. The...