People v. Gaffney, Docket No. 14454
| Decision Date | 01 March 1974 |
| Docket Number | No. 3,Docket No. 14454,3 |
| Citation | 51 Mich.App. 526,215 N.W.2d 587 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Garnell GAFFNEY, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Eugene C. Penzien, Pros. Atty., for plaintiff-appellee.
Before DANHOF, P.J., and BRONSON and O'HARA,* JJ.
This is an appeal of right from a jury conviction of the charged offense of the sale of heroin. We omit the citation because the statute has since been repealed and replaced.
Five errors are assigned: First, the impermissible excuse by the trial judge of the production of a res gestae witness because the prosecution failed to demonstrate due diligence in an effort to obtain his presence. Second, the failure of the trial court to submit to the jury the 'usable amount' test.
Third, erroneous instruction by reason of the trial court's reference to the unlawful Use of heroin. Fourth, violation of defendant's Fifth Amendment rights by improper reference to his option not to take the witness stand. Fifth, prosecutorial misconduct in the closing argument to the jury.
We address ourselves to them in inverse order. We find no reversible error under assignment five. Discussion would needlessly extend the opinion and add nothing of precedential value to settle case law.
Assignment four was not preserved for review, and is not of that degree of gravity to move this Court to consider it.
Assignment three is disposed of on the same ground as assignment four.
Assignment number two concerns what has come to be known in our criminal case law as the 'usable amount' doctrine.
The phrase was used by this Court in People v. Harrington, 33 Mich.App. 548, 550, 190 N.W.2d 343, 344 (1971). Harrington was a case of first impression. The opinion authored by Judge Quinn very carefully pointed out that '(w)ithout local precedent, this Court is free to adopt the minority or majority view or to reject both.'
The Harrington court characterized the 'minority view' as the holding by California and Texas that illegal possession of a proscribed narcotic required proof a '(a) quantity to be sufficient for the drug's common use.' 33 Mich.App. at 549, 190 N.W.2d at 344. The Court rejected the requirement as a restriction on efficient law enforcement.
The 'majority view' so-called that the quantity of the illegally possessed drug was immaterial also was rejected as so broad as to encourage infringement upon individual rights.
The Court then set up its mid-ground test, that if the quantity in Whatever amount could be reasonably inferred to have been a remnant of a larger usable amount, illegal possession was established.
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 explicity distinguished Harrington on the facts. Additionally, it incorporated a requirement which might generally be characterized as a guilty knowledge and an intent factor. No such question is presented in the instant case. Six packets of some substance were purchased in this case, four of which contained heroin in some amount.
We think we do a disservice to the efforts to enforce drug control legislation by legislating judicially into statutes a requirement of qualitative and quantitative analysis of the proscribed substance.
We find no reversible error in assignment number two.
Thus we address ourselves to assignment one as also presenting a meritorious issue requiring decisional discussion.
The question is the degree of diligence required of the prosecution to produce, or alternatively to be relieved of producing a res gestae witness who is without the state. It is a murky area. This is so because of the infinity of factual variations under which the issue can arise. Decisions abound dealing with it on a single case basis. Others discuss it on a precedential principle basis. Nothing is to be gained by a review of fine line delineation. Hence, we refine the issue here to deal with the question of whether it is the burden of the people in all cases involving the production of an indorsed res gestae witness who is in another state to utilize the uniform act to secure the attendance of a witness who is without this state. M.C.L.A. § 767.91 et seq; M.S.A. § 28.1023(191) et seq.
It would be idle and even detrimental to the administration of justice to answer with an unequivocal 'yes' or 'no.' Manifestly various fact settings mandate the allowance of the exercise of a degree of sound judicial discretion by trial judges. A requirement that a bare showing that an indorsed res gestae witness is without the state and no more obligates the state to set in motion the machinery of the statute would result in a pointless and futile expenditure of time, effort and money.
As the intermediate appellate court of this state, we are devoid of rule- making power to deal with the problem. Thus, that route is closed to us. Additionally, since we function in panels of three judges, and no one panel can bind another we cannot, as can the Supreme Court, compel uniform compliance by trial courts in cases where panels take inconsistent positions.
So what we say here, as we understand it, will bind trial courts unless the Supreme Court stays the effect of the ruling and subsequently overrules it, or unless another panel of this Court takes a decisional position Contra, thus giving the trial bench an alternative.
We here hold that where an indorsed res gestae witness is without this state and the prosecution knows what court of record, if any, in the involved state has jurisdiction to compel attendance, it is the obligation of the prosecution to present to a judge of that court process comporting in form and in substance with the requirements of the uniform statute.
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