People v. Harman

• Decision Date: 17 May 1983
• Docket Number: Docket No. 59178
• Citation: 333 N.W.2d 591,124 Mich.App. 93
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Roy Andrew HARMAN, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 591

333 N.W.2d 591

124 Mich.App. 93

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Roy Andrew HARMAN, Defendant-Appellee.

Docket No. 59178.

Court of Appeals of Michigan.

Submitted Oct. 8, 1982.

Decided March 10, 1983.

Released for Publication May 17, 1983.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Frank R. Del Vero, Pros. Atty., and Thomas C. Nelson, Asst. Atty. Gen., for the People.

Michael L. Pritzker, Ltd. by Michael L. Pritzker, Mark F. Sullivan and Marcia L. Smith, Chicago, Ill., for defendant-appellee.

Before BEASLEY, P.J., and KELLY and WHITE, ^* JJ.

PER CURIAM.

On December 17, 1979, defendant, Roy Andrew Harman, was bound over for trial on the offense of possession of cocaine in excess of 650 grams, in violation of M.C.L. Sec. 333.7403(2)(a)(i); M.S.A. Sec. 14.15(7403)(2)(a)(i). On April 20, 1981, the trial judge issued a written opinion in which he granted defendant's motion to quash the information. From this holding, the prosecutor appeals as of right.

At an evidentiary hearing held on December 17, 1980, Dr. Lester Grinspoon, an expert on the subject of psychoactive drugs, testified on defendant's behalf. Among other things, Dr. Grinspoon testified that the classification of cocaine as a narcotic drug is unwarranted and that it has a less deleterious effect than alcohol or barbituates.

Based on the testimony of the expert witness and an Illinois Court of Appeals case, People v. McCarty, ¹ the trial judge, in quashing the information, made the following findings regarding the constitutionality of the statute: (1) the mandatory life sentence prescribed for possession of in excess of 650 grams of cocaine is a denial of due process and equal protection of the law, (2) since the life sentence shocks the judicial conscience, it constitutes cruel and unusual punishment, and (3) the classification of cocaine in the same classification as heroin and other "hard drugs" is without a rational basis and, therefore, is a denial of equal protection of the law.

In People v. McCarty, ² we held that a mandatory life sentence for conviction of possession of 650 grams or more of cocaine does not constitute cruel or unusual punishment under the United States ³ and Michigan Constitutions. ⁴ The bases for this holding, with which we agree, were that the mandatory life sentence for the offense served to prevent the offender from causing injuries to others by reason of involvement with large quantities of cocaine and society's need to deter individuals from engaging in the proscribed conduct.

In People v. Lemble, ⁵ we discussed the penalty provisions of the controlled substance act of 1978: ⁶

"The statutory scheme of the controlled substances portion of the health code punishes those found to be in possession of greater amounts of mixtures containing controlled substances with more severe penalties. We find that the legislative policies underlying criminal penalties--rehabilitation of the offender, society's need to deter the behavior in others, the prevention of the offender from causing injury to others--are achieved by this statute's graduated punishment. People v Lorentzen, 387 Mich 167; 194 NW2d 827 (1972). The penalties that may be imposed under this statute do not shock the judicial conscience in light of the gravity of the offenses.

"Nor was this defendant denied equal protection of the laws. It is reasonable for the Legislature to impose more severe punishment for those possessing greater amounts of a mixture containing a controlled substance due to the potential for wider dissemination with an increased potential harm to society. The wording of MCL 333.7403; MSA 14.15(7403) indicates to this Court that the Legislature intended to punish defendants more severely for possession of greater amounts of 'any mixture' containing a controlled substance with the recognition that purchasers of such mixtures often have little or no idea of what percentage of the mixture is filler and what percent is the 'pure' drug. The greater the quantity of the mixture, regardless of the degree of purity, the greater the potential harm to society. Therefore, the different treatment for persons in different situations under the code is proper because it is based on the object of the legislation, deterrence of the distribution of the drug. People v Chapman, 301 Mich 584; 4 NW2d 18 (1942)."

In People v. Kaigler, ⁷ this Court held that the classification of cocaine among the Schedule 2 ⁸ list of controlled substances for penalty provisions did not violate the equal protection clauses of the federal ⁹ and state ¹⁰ constitutions. However, the Kaigler Court noted that the defendant failed to adduce any scientific data in support of his claim that the Legislature acted arbitrarily in classifying cocaine as a Schedule 2 drug.

The Illinois Supreme Court, in People v. McCarty, ¹¹ overruled the Illinois Court of Appeals case which the trial court herein relied upon to quash the information. As summarized in Kaigler, supra, ¹² the McCarty court upheld the classification of cocaine as a narcotic for penalty purposes:

"The bases enumerated by the court were: (1) enormous profit from illegal cocaine traffic has led to a great deal of crime, including violent crime, as major importers and dealers compete with each other; (2) a strong correlation between the use of cocaine and the use of heroin and the opiates; (3) potential harm to a user inherent in the illegal use of cocaine including the danger inherent in the increase in the practice of smoking coca paste or freebase cocaine; and (4) the ongoing dispute in the scientific and medical community as to the potential harm inherent in the use of cocaine and the abundance of unresolved questions concerning the effect of cocaine on humans."

We adopt the reasoning delineated by the Illinois Supreme Court and hold that the statutory scheme that places cocaine in Schedule 2 for penalty purposes does not violate an individual's due process or equal protection rights under the federal and state constitutions.

Reversed and remanded for trial.

KELLY, Judge (concurring in part; dissenting in part).

I must dissent from the majority's holding that a mandatory life sentence for conviction of possession of 650 grams or more of a mixture containing cocaine does not constitute cruel and/or unusual punishment in violation of U.S. Const., Am. VIII or Const.1963, art. 1, Sec. 16.

I

Initially, the prosecution argues that, since defendant has not yet been sentenced, defendant's cruel-or-unusual-punishment claim "is purely hypothetical". The punishment to be imposed under M.C.L. Sec. 333.7403(2)(a)(i); M.S.A. Sec. 14.15(7403)(2)(a)(i), for possession of 650 grams or more of a mixture containing cocaine, is mandatory life imprisonment. As defendant was charged with possession of over 650 grams of a mixture containing cocaine, his potential sentence is not "purely hypothetical". When a statute provides for punishment thought to be cruel and/or unusual, the proper procedure is to attack the constitutionality of the statute itself rather than a sentence imposed within the limits of the statute. E.g., United States v. Dawson, 400 F.2d 194, 200 (CA 2, 1968), cert. den. 393 U.S. 1023, 89 S.Ct. 632, 21 L.Ed.2d 567 (1969), accord, People v. Lorentzen, 387 Mich. 167, 181, 194 N.W.2d 827 (1972) (holding the minimum penalty of a statute unconstitutional rather than the defendant's particular sentence), see Cummins v. People, 42 Mich. 142, 3 N.W. 305 (1879) ("when within the statute, this Court has no supervisory control over the punishment that shall be inflicted"); Lane v. Dep't of Corrections, Parole Board, 383 Mich. 50, 60, 173 N.W.2d 209 (1970). See also People v. Coles, 412 Mich. 917, 317 N.W.2d 189 (1982) (granting leave on the question of whether Cummins should be overruled). Since defendant has been charged under M.C.L. Sec. 333.7403; M.S.A. Sec. 14.15(7403), he has standing to challenge the constitutionality of the statute's applicable minimum sentence.

II

The power to define crimes and establish punishments rests, in the first instance, with the Legislature. The exercise of that power, however, is subject to judicial scrutiny to ensure that the punishment does not exceed constitutional limits. Furman v. Georgia, 408 U.S. 238, 269, 92 S.Ct. 2726, 2741-2742, 33 L.Ed.2d 346, 366 (1972) (Brennan, J., concurring), see Lorentzen, supra.

The Michigan Supreme Court has adopted three standards for determining whether a statute imposes a cruel and/or unusual punishment: the punishment must be proportionate to the offense, the punishment must be comparable to punishments imposed in other jurisdictions for the same offense, and the punishment must serve the modern policy factors of rehabilitation, deterrence, and protection of society. Lorentzen, supra, accord, People v. Hall, 396 Mich. 650, 657-658, 242 N.W.2d 377 (1976); Wayne County Prosecutor v. Recorder's Court Judge, 92 Mich.App. 433, 438-439, 285 N.W.2d 318 (1979), lv. den. 408 Mich. 905 (1980).

(a) Proportionality to the Crime

A punishment, otherwise appropriate, may be so disproportionate to the offense charged as to be cruel and/or unusual.

"To be sure, imprisonment for ninety days is not, in the abstract, a punishment which is either cruel or unusual. But the question cannot be considered in the abstract. Even one day in prison would be a cruel and unusual punishment for the 'crime' of having a common cold." Robinson v. California, 370 U.S. 660, 667, 82 S.Ct. 1417, 1421, 8 L.Ed.2d 758, 763 (1962).

An excessive sentence is cruel or unusual. Lorentzen, supra, 387 Mich. p. 176, 194 N.W.2d 827. The statute in the instant case imposes a mandatory life penalty for possession of 650 grams or more of a mixture containing cocaine. The statute is equally applicable to a first-time offender as it is to an habitual criminal. The quantity of cocaine actually possessed by the individual is ignored by the statute.

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