People v. Gould, Docket No. 18920

• Decision Date: 09 June 1975
• Docket Number: Docket No. 18920,No. 1,1
• Citation: 61 Mich.App. 614,233 N.W.2d 109
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Perry Hilton GOULD, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 109

233 N.W.2d 109

61 Mich.App. 614

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

Docket No. 18920.

Court of Appeals of Michigan, Division No. 1.

June 9, 1975.

Released for Publication Sept. 30, 1975.

Zemke & Lustig, by Norman L. Zemke, Southfield, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Robert A. Reuther, Asst. Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and KELLY and O'HARA, ^* JJ.

O'HARA, Judge.

The defendant was charged with possession of marijuana with intent to deliver, M.C.L.A. § 335.341(1)(c); M.S.A. § 18.1070(41)(1)(c), and possession of cocaine, M.C.L.A. § 335.341(4)(b); M.S.A. § 18.1070(41)(4)(b). A jury trial was had and defendant was found guilty of possession of cocaine. Defendant was found not guilty of possession of marijuana with intent to deliver. The trial court sentenced defendant to two years probation with the first six months of that probation to be spent in the Detroit House of Correction.

The first assignment of error we discuss pertains to a claim that the affidavit upon which the search warrant in the instant case was based was deficient under the Fourth Amendment to the United States Constitution. To begin with, defendant notes, the affidavit fails to set forth any facts indicating the reliability of the informant from whom the affiant received his information concerning defendant's alleged possession of drugs. Such facts, it is claimed, are essential to issuance of a valid search warrant when the allegations in the affidavit are not within the personal knowledge of the affiant. The defendant asserts also that most of the information contained in the search warrant was so stale or remote that it would not support probable cause to believe that the pertinent events were still happening.

Now it is true that the affiant, a state police officer, fails to state explicitly in the affidavit that the informant had previously provided trustworthy information although it may be inferred from the prior successful dealings, cited in the affidavit, ¹ the affiant had with the informant that he found the informant reliable enough to continue dealing with him and, finally, to affirmatively act upon the information to the extent of obtaining a search warrant. Even were we to concede Arguendo that certain portions of the affidavit could possibly raise questions vis-a-vis such United States Supreme Court cases as Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), the unvarnished fact remains that other sections of the affidavit furnish the requisite probable cause for issuance of the search warrant. There are sufficient facts personally observed by the affiant concerning the June 29, 1973, transaction which were related in the affidavit so as to adequately inform the magistrate of the underlying circumstances upon which he could predicate a finding of probable cause. We have read the affidavit in the 'common-sense manner' which our Supreme Court has stated to be the proper approach to construing such affidavits. See People v. Iaconis, 29 Mich.App. 443, 185 N.W.2d 609 (1971), Aff'd People v. Bercheny, 387 Mich. 431, 196 N.W.2d 767 (1972), in which this Court's opinion in Iaconis, supra, was adopted as the Supreme Court's opinion.

The same information is obviously not open to a charge of staleness, since the search warrant in the instant case was obtained and executed within hours after the pertinent events described in certain portions of the affidavit. Under the circumstances, we need not decide whether or not events mentioned in other paragraphs of the affidavit were too remote in time to support a finding of probable cause.

The defendant next claims that the prosecution introduced no evidence at the preliminary examination on which there could be probable cause to believe that he unlawfully possessed cocaine and marijuana. From the admitted fact that several other persons resided in and were in fact present in the house when defendant was arrested, the defendant goes on to assert that the prosecution did not introduce evidence adequately connecting him Personally with the drugs confiscated, as contrasted with the other household members who equally might have had knowledge of or been in possession of the involved narcotics. Because of this alleged deficiency in proof at the preliminary hearing it is asserted that the trial judge erred when he denied defendant's motion to quash the information in the instant case.

The applicable law is well established in this jurisdiction. In People v. Sparks, 53 Mich.App. 452, 456, 220 N.W.2d 153, 155 (1974), Lv. den., 393 Mich. 135 (1974), this Court, citing applicable Supreme Court authority, stated:

'The question of probable cause is primarily one for the consideration and determination of the examining magistrate. Neither the trial court nor the Court of Appeals should substitute its judgment for that of the magistrate, except when a clear abuse of discretion is apparent. People v. Medley, 339 Mich. 486, 64 N.W.2d 708 (1954).'

We also recently described the elements necessary to establish illegal possession under the Controlled Substances Act of 1971 as follows:

'In our view, following Harrington ², * * * illegal possession requires proof that defendant exercised control or had the right to exercise control over the controlled substance; that he knew the proscribed substance was present, and knew the substance was proscribed, and that the substance, according to all the facts and circumstances in the case, could be reasonably inferred to be a remnant of a usable amount. Cf. CALJIC 12.00, 12.06, People v. Harrington, supra.' People v. Stewart, 52 Mich.App. 477, 488, 217 N.W.2d 894, 899 (1974).

A detailed review of the evidence adduced at the preliminary examination need not be gone into. In our opinion there was no clear abuse of discretion in the magistrate's finding of probable cause.

The third issue raised by defendant relates to a claim that the trial court erred in finding at a Walker ³ hearing that certain statements of defendant were voluntary and hence properly admissible at trial.

The sole question raised and litigated by defendant at the Walker hearing in the lower court was whether he had been given his Miranda ⁴ warnings before or after he made the statements at issue. Defendant now claims, for the first time on appeal, that his statements were involuntary even if he was given the Miranda warnings before he made them because his statements were made in response to police questioning which occurred subsequent to his clear indication that he wished to exercise his right to remain silent.

In the instant case, there was a direct conflict of testimony as to when defendant was first given his Miranda warnings. One officer testified that he had given defendant the Miranda warnings immediately after placing defendant under arrest at defendant's home. Defendant testified that he was given the Miranda rights for the first time at the police station while he was being booked. Defendant's mother and girlfriend testified, in essence, that they did not remember defendant being given his Miranda warnings although they were present at the time the officer testified this occurred.

The trial court had the opportunity to observe these witnesses. All of them had some interest in the outcome. We are not left, after examining the entire relevant record, with 'a definite and firm conviction that a mistake was committed by the trial judge in his ruling', People v. McGillen #1, 392 Mich. 251, 257, 220 N.W.2d 677, 679 (1974), and we thus affirm the ruling of the trial judge.

Since there was no record developed below with respect to alleged police questioning after defendant invoked his right to remain silent and since no objection on this basis was made at trial, it is evident that defendant should be barred from raising the issue now. This sort of failure to preserve a voluntariness issue was discussed in People v. Drielick, 56 Mich.App. 664, 224 N.W.2d 712 (1974). Additionally, the statements in question were admissions, not a confession. Drielick, supra.

The fourth claim of error is that the prosecutor elicited testimony which was irrelevant to the offenses for which defendant was being tried, I.e., possession of narcotics, with the obvious motive of prejudicing defendant before the jury by purportedly showing defendant to be a person who dealt in drugs for a profit. Further complaint is made with respect to the prosecutor's reference in his opening statement to a second bag of a substance found in a dresser in defendant's bedroom which appeared to be the same kind of substance as was found upon analysis of the contents of the first bag to contain cocaine.

In his brief on appeal defendant specifically objects to one officer's testimony concerning the street value of cocaine and marijuana and another police officer's testimony describing a jar which was labeled 'lactose' and a jar which was labeled 'dextrose' he had observed in defendant's bedroom. Defense counsel objected at trial to the first officer's testimony as irrelevant and the other officer's testimony as inadmissible because the jars were not going to be introduced into evidence.

This Court has indicated that the trial bench has considerable discretion insofar as relevancy and materiality of evidence and that we will reverse a lower court only if there was an abuse of discretion in admitting or excluding such evidence at trial. People v. Harrell, 54 Mich.App. 554, 221 N.W.2d 411 (1974).

In People v. Koehler, 54 Mich.App. 624, 633--634, 221 N.W.2d 398, 403 (1974). Judge McGregor speaking for the Court stated:

'Officer Huston testified that he purchased four purple tablets from defend...