People v. Ferguson

• Decision Date: 05 December 1979
• Docket Number: Docket Nos. 78-2663,78-5170
• Citation: 288 N.W.2d 587,94 Mich.App. 137
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Elmer FERGUSON, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie Vernon PRATT, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 587

288 N.W.2d 587

94 Mich.App. 137

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Elmer FERGUSON, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie Vernon PRATT, Defendant-Appellant.

Docket Nos. 78-2663, 78-5170.

Court of Appeals of Michigan.

Dec. 5, 1979.

Released for Publication Feb. 28, 1980.

William W. Allsopp, Saginaw, for defendant-appellant in No. 78-2663.

Joseph S. Scorsone, Saginaw, for defendant-appellant in No. 78-5170.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert L. Kaczmarek, Pros. Atty., Linda Berns Wright, William D. White, Asst. Pros. Attys., for plaintiff-appellee.

Before CYNAR, P. J., and MacKENZIE and CORKIN, ^* JJ.

CYNAR, Presiding Judge.

Defendant Ferguson was convicted by a jury of possession of a controlled substance with intent to deliver, M.C.L. § 335.341(1)(a); M.S.A. § 18.1070(41) (1)(a), ¹ and was sentenced to 8 to 20 years imprisonment. He appeals as of right.

Defendant Pratt was also convicted by a jury of possession of a controlled substance with intent to deliver, M.C.L. § 335.341(1)(a); M.S.A. § 18.1070(41) (1)(a), and sentenced to 6 to 20 years imprisonment. He too appeals as of right.

The evidence adduced at the joint trial of the defendants established the following facts.

On March 26, 1977, under authority of a search warrant, the Saginaw Police Department conducted a raid upon an apartment within the city. Upon arriving the officers involved looked through a living room window and saw two individuals sitting on a couch. As they knocked and announced their identity and purpose, they saw a third person exit the living room quite rapidly. Receiving no response from within, and concerned that narcotics were going to be disposed of, they obtained entry by using a battering ram.

The officers noticed that the bathroom door, visible from the living room, was open. Approaching the bathroom, they saw defendants Ferguson and Pratt, as well as codefendant Eugene Johnson, near the toilet. Pratt was holding a small vial which Ferguson pushed out of his hand, sending heroin onto the floor as well as into the commode.

Pratt was also found to be in possession of packets of heroin, while Ferguson had on his person a syringe, a spoon, and some currency. Johnson had scattered about the bathroom floor some $80 as well as a substantial quantity of heroin.

In the kitchen, the officers found narcotics paraphernalia, including aluminum foil and spoons, and discovered more heroin on the kitchen floor.

On appeal, defendants raise a host of issues. Initially, defendant Ferguson contends that the trial court lacked jurisdiction to try his case, because of noncompliance with the so-called 180-day rule ² on the part of the prosecutor. Specifically, Ferguson charges that the prosecution failed to take any affirmative steps to timely bring the case to trial, and thereby did not meet its burden of engaging in good faith Action in this regard. In support of this assertion, he relies upon People v. Hill. ³

In this case, Ferguson was sentenced on a prior charge May 16, 1977, and detained pending incarceration thereon, which began the running of the 180-day period under the standard articulated in People v. Hill, supra, 280-281, 262 N.W.2d 641, ⁴ as defendant had already been charged in the instant prosecution. Trial did not begin until December 13, 1977, some 212 days later. This establishes a prima facie violation of the 180-day rule, requiring the prosecution to show some good faith action on its part to ready the case for trial within the 180-day period. People v. Hill, supra, 281, 262 N.W.2d 641; People v. Wright, 89 Mich.App. 244, 250, 280 N.W.2d 836 (1979).

Whether this standard is satisfied is basically an ad hoc determination, arrived at by a review of the unique circumstances of the case. We find sufficient good faith action on the part of the prosecutor to ready the case for trial within the statutory period so as to satisfy the mandate of People v. Hill.

Defendant Ferguson was arraigned on May 16, 1977, the same day he was sentenced on a prior charge. His trial counsel shortly thereafter filed two motions, to which the prosecutor responded promptly by brief and which were argued in May and June. On September 19, 1977, a trial notice was sent to him, with the trial date set for December 13, 1977. On November 18, 1977, Ferguson filed a motion to suppress evidence alleged to have been seized illegally, which motion was heard and denied November 28, 1977. Finally, on December 8, 1977, a writ of habeas corpus ad prosequendum was sought and issued, and trial commenced December 13.

We find these actions consonant with a good faith effort to commence the proceedings in a timely fashion. Each was directed at readying the case for trial, although some actions were taken in response to defense motions. As the bulk of these efforts took place within 180 days of the date the statutory period began to run, taken as a whole they are sufficient good faith action to meet the demands of People v. Hill. Cf., People v. Wright, supra, 252-253, 280 N.W.2d 836; People v. Farmer, 16 Mich.App. 148, 151, 167 N.W.2d 597 (1969).

Defendants next attack the search warrant used to gain entry into and to search the apartment in which they were arrested. Defendants claim that the warrant was defective in that the supporting affidavit failed to detail adequately the credibility of an unnamed police informant and the reliability of the information which served as the basis for issuing the disputed warrant. We find this claim to be without merit.

The affidavit ⁵ in this case is far more detailed than that found sufficient in either People v. Johnson, 68 Mich.App. 697, 243 N.W.2d 715 (1976), or People v. Thomas, 86 Mich.App. 752, 273 N.W.2d 548 (1978), and compares favorably with the affidavit found sufficient in People v. Davis, 72 Mich.App. 21, 248 N.W.2d 690 (1976). Therefore, the search warrant was properly issued.

We find no substance in defendants' contention that there was not sufficient evidence established at the preliminary examination to bind each of the defendants over for trial on a charge of possession of heroin with intent to deliver. People v. Wirth, 87 Mich.App. 41, 47, 273 N.W.2d 104 (1978). People v. Tolbert, 77 Mich.App. 162, 165, 258 N.W.2d 176 (1977).

Likewise unsubstantial is the claim that the trial court should have Sua sponte ordered separate trials of the two defendants. There has been no showing that the defenses presented by Ferguson and Pratt ⁶ were in fact antagonistic, nor has there been an affirmative showing of prejudice to substantial rights of either defendant. Thus a severance was not required. People v. Miller, 88 Mich.App. 210, 222, 276 N.W.2d 558 (1979), and the cases cited therein.

Nor do we find reversible error in the trial court's refusal to instruct on the lesser-included offense of use of heroin, M.C.L. § 335.341(5)(a); M.S.A. § 18.1070(41)(5)(a). Since the offense of use carries a maximum punishment of imprisonment for not more than one year, and the charged offense of possession with intent to deliver is punishable by incarceration for more than two years, the instruction on use could not be given under the rule expounded in People v. Chamblis, 395 Mich. 408, 429, 236 N.W.2d 473 (1975), even though the trial court had agreed to do so prior to closing arguments of counsel.

Following argument by counsel and before the jury was instructed, the prosecution brought the Chamblis rule to the court's attention. Defense counsel had already argued to the jury that the defendants were mere users, and that this was a lesser offense upon which the judge would later instruct. Upon being advised of the Chamblis proscription, the trial judge informed counsel that he would not instruct on use. In response to defense counsel's protestations, the court opined that omitting the requested instruction could only inure to defendants' benefit, since, if the jury concluded that defendants were mere users, they could not be convicted of any offense. We find that the trial judge's actions did not operate to deny defendants a fair trial and due process of law. But see the plurality opinion in People v. Patskan, 387 Mich. 701, 710, 199 N.W.2d 548 (1972).

Additionally, had the trial judge not followed Chamblis, he would have committed reversible error by instructing on use of heroin. People v. Chamblis, supra, 395 Mich. 429, 236 N.W.2d 473; People v. Choate, 88 Mich.App. 40, 48, 276 N.W.2d 862 (1979).

Defendants failed to object to the introduction of narcotics paraphernalia at trial; therefore, appellate review regarding alleged error is precluded absent manifest injustice. People v. Alexander, 72 Mich.App 91, 99, 249 N.W.2d 307 (1976). We find no manifest injustice here. The evidence was consonant with defendants' defense that they were merely users of heroin, and thus the failure to object can reasonably be attributed to trial strategy. For the same reason the admission of the evidence did not deny defendants a fair trial.

As both defendants admitted to being users of heroin, the brief questioning by the prosecution regarding defendant Ferguson's employment on the date of the offense was at least arguably relevant to material matters at issue. Cf., People v. Moore, 78 Mich.App. 150, 156, 259 N.W.2d 403 (1977), People v. Jones, 73 Mich.App. 107, 110, 251 N.W.2d 264 (1976). In addition, no objection was raised at trial, and under the circumstances manifest injustice is not presented. People v. Moore, supra, 78 Mich.App. 156, 259 N.W.2d 403. Therefore we decline to find reversible error.

Defendants failed to move for the endorsement and production of two individuals present in the apartment at the time they were arrested until after the prosecution rested its case. By failing to make a timely motion for the endorsement and production of the missing witnesses, even though aware of their identity...