People v. Gould, Docket No. 11130--1

• Decision Date: 25 May 1972
• Docket Number: Docket No. 11130--1,No. 2,2
• Citation: 40 Mich.App. 689,199 N.W.2d 573
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John GOULD, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 573

199 N.W.2d 573

40 Mich.App. 689

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John GOULD, Defendant-Appellant.

Docket No. 11130--1.

Court of Appeals of Michigan, Division No. 2.

May 25, 1972.

Rehearing Denied June 23, 1972.

Released for Publication Aug. 11, 1972.

Leave to Appeal Denied Aug. 24, 1972.

Leonard B. Shulman, Leitson, Dean, Dean, Segar & Hart, Flint, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and T. M. BURNS and VanVALKENBURG, ^* JJ.

T. M. BURNS, Judge.

Defendant was convicted on November 10, 1967, by a jury of the offenses of unlawful sale and possession of narcotics. M.C.L.A. § 335.152; M.S.A. § 18.1122 and M.C.L.A. § 335.153; M.S.A. § 18.1123. On August 3, 1970, a motion was made by defendant, through appointed counsel, for a new trial. The motion was denied by the trial court on January 22, 1971. On March 1, 1971, an order of this Court was entered granting defendant's application for leave to appeal. A claim of appeal was filed on September 7, 1971. We will discuss the issues in the order presented.

1. DID THE PROSECUTION INTRODUCE SUFFICIENT EVIDENCE OF NONLICENSE TO POSSESS NARCOTICS?

Our Supreme Court, in People v. Rios, 386 Mich. 172, 191 N.W.2d 297 (1971), held that the lack of a license is an element of the crime of unlawful sale of narcotics. It is defendant's position that the Rios decision is equally applicable to unlawful possession of narcotics since both statutes have similar language in regard to nonlicense.

We agree. However, in the instant case, the people did introduce a properly sealed affidavit by the executive secretary of the Michigan Board of Pharmacy which complies with the Supreme Court's opinion in Rios with regard to M.C.L.A. § 335.54a; M.S.A. § 18.1074(1) which provides:

'At the trial of any civil or criminal cause, or at the hearing of any matter by an administrative tribunal or a hearing officer thereof, in this state, a certificate stating that any person named therein is or is not licensed pursuant to the provisions of sections 3 and 4 of this act for the period, or at the time stated therein and certified and signed by the director of drugs and drug stores and bearing the seal of the state board of pharmacy, shall be received in evidence if material to the determination of the cause, and it shall be deemed to be prima facie proof of the facts stated therein.'

We hold that the affidavit by the executive secretary of the board, which was notarized and had the board's seal affixed thereto, is sufficient to satisfy the requirements of the statute and formed an adequate basis upon which the jury could have found that defendant did not have the necessary license.

2. DID THE PROSECUTION INTRODUCE SUFFICIENT EVIDENCE TO PROVE POSSESSION AND SALE OF HEROIN?

The transcript of proceedings reveals that on July 29, 1966, witness Leo Horton, employed by the police as an informer, met with members of the Flint Police Department. He testified that, at the time, he was searched by officers before starting on the mission in question and was given money by the officers with which to make a contemplated purchase of narcotics. Officer William Boudreau, in charge of this case, testified that he gave the witness $11 in bills, the serial numbers of which had been recorded. Witness Horton testified that he was driven to an address in the City of Flint where he was admitted into a house by defendant Gould. He stated that he went into the kitchen of the upstairs apartment, where he subsequently made a 'purchase' of heroin. Defendant purportedly told the witness, in response to his request for heroin, that he would have to wait. Witness Horton testified that he had laid the money, which had been given to him by the officers, on the table in the kitchen. No conversation appears to have been had between witness Horton and the defendant regarding such things as price or quantity of heroin to be purchased. While the witness was waiting to be served by defendant, the officers, some of whom were stationed under each window outside the building, pushed in the door to the upstairs apartment and entered the premises. After the officers knocked and before they entered the premises, defendant Gould was positioned near a window. The witness testified that defendant raised the window and that he saw defendant throw something out of the window. Witness Horton did not on that occasion, or at any time, obtain anything that purported to be heroin. At the time the witness was present with defendant Gould, defendant was busy with another person helping that person 'get a fix' as the witness testified.

William Boudreau, detective-sergeant on the Flint Police Force and investigating officer in charge of this case, testified that when Leo Horton went up to defendant Gould's apartment, a uniformed officer was stationed outside under each window; that 10 to 12 minutes thereafter Officer Boudreau announced his presence at defendant's door; that he heard someone running away from the door; and that upon entry, the occupants were put against the wall. Boudreau testified that he observed another detective take the money, which had been given to Horton, from defendant Gould's shirt pocket at the time of his arrest; and the money was immediately checked against his serial number list. Officer Boudreau testified that upon searching the subject, he asked witness Horton 'Where is the stuff?' to which Horton responded that defendant 'threw it out the window.' Officer William Mendenhall, stationed outside one of the windows indicated to Officer Boudreau that he observed something come out of the window above. Officer Boudreau then observed a clear plastic vial with a plastic top lying in the driveway nearby containing gelatin capsules, with a beer can sitting beside so as to mark the spot. The officer also testified that he saw several hypodermic needles lying nearby. Officer Charles Gilmore testified that he searched John Gould in the apartment on the date in question and found some folded bills in his pocket, in amount to the money given Horton earlier by Officer Boudreau.

Charles Quick, a toxicologist, testified that the substance found on the driveway outside of defendant's premises had been found to contain heroin. He testified that heoin has no medicinal use and is illegal for anyone to buy, possess, or sell.

James Trudell, present in defendant's apartment on July 29, 1966, when Leo Horton appeared thereat to make a purchase of heroin, testified that on that date he had gone to defendant's address to get some heroin; that he had heroin with him at that time; that he did not throw anything from the window, nor did he see any of the others present at that time throw anything therefrom. Trudell also testified that, during the period that Horton was present, he saw no negotiations of any kind between Horton and defendant; stated that he was in their presence at all times; and to his knowledge, no conversation was had about the sale of heroin to Horton.

We will first deal with the question of whether or not the evidence presented was sufficient to establish defendant's possession of the heroin beyond a reasonable doubt. In People v. Thomas, 26 Mich.App. 160, 164, 182 N.W.2d 100, 102 (1970), this Court stated:

'Defendant contends that insufficient evidence was introduced to convict him of the offense of unlawful possession of narcotics. As the Court in People v. Harper (1962), 365 Mich. 494, 507, 113 N.W.2d 808, 814, said:

"(T)he possession of narcotics forbidden by the Michigan act is broad enough to include narcotics knowingly placed in the trunk of one's automobile as well as narcotics held in one's hands. The control of narcotics forbidden by the act without qualifying language, is broad enough to include any right to direct disposition of...