People v. Harris, Docket No. 13191

CourtCourt of Appeal of Michigan (US)
Citation204 N.W.2d 549,43 Mich.App. 531
Docket NumberNo. 1,Docket No. 13191,1
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene HARRIS, Defendant-Appellant
Decision Date26 October 1972

Sidney Kraizman, Detroit, for defendant-appellant.

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

Before J. H. GILLIS, P.J., and McGREGOR and BRONSON, JJ.


Defendant was convicted by jury verdict of possession of narcotics and sentenced to serve a term of one and one-half to ten years in the state prison. M.C.L.A. § 335.153; M.S.A. § 18.1123. From this conviction defendant appeals, raising six allegations of error: (1) the prosecution failed to prove lack of license as a necessary element of the offense charged, (2) the prosecution failed to submit sufficient evidence of due diligence to justify the nonproduction of a Res gestae witness, (3) the trial judge refused to suppress a package of heroin as the fruits of an illegal arrest, (4) the trial judge failed to permit defendant's cross-examination upon the police officer's intent to arrest him, (5) the trial judge erroneously instructed the jury that reasonable doubt may not be based upon the lack of, or unsatisfactory nature of, the evidence, and (6) the trial judge erroneously instructed the jury that any quantity of narcotics was sufficient to support a conviction.

On March 5, 1971, the Detroit Police Department received an anonymous telephone call stating that Eugene Harris would be in possession of narcotics. The anonymous call provided the police with a description of Harris and the location from which he would be leaving. Several officers were dispatched to the described location and observed two men, one matching the given description, enter a red car parked near the curb. The officers pulled alongside the red car in an unmarked police vehicle, displayed identification, and announced that they were police officers who 'would like to talk to you'. While existing their vehicle, one of the officers observed defendant pick up a foil package from the front seat and throw it out the window. This officer retrieved the package approximately one foot in front of the car and examined its contents. Suspecting it to contain a quantity of narcotics, he arrested defendant. Defendant was subsequently tried for the unlicensed possession of narcotics and found guilty by jury verdict.

I. Did the prosecution's failure to prove lack of license as a necessary element of the offense charged require a reversal of defendant's conviction?

Recently the Michigan Supreme Court in People v. Rios, 386 Mich. 172, 191 N.W.2d 297 (1971), held that (1) lack of license was a necessary element of the crime of unlawfully selling narcotics and (2) the burden of proving lack of license fell upon the prosecution. This holding has been extended to cases involving the possession of narcotics. People v. Gould, 40 Mich.App. 689, 199 N.W.2d 573 (1972); People v. Maceri, 39 Mich.App. 38, 197 N.W.2d 89 (1972); People v. Edwards, 37 Mich.App. 490, 195 N.W.2d 35 (1972). 1 The prosecution's admitted failure to prove lack of license requires our reversal.

The remaining question to be answered is whether this error requires an outright reversal of defendant's conviction or a reversal accompanied by a remand for new trial. This Court's disposition of errors based upon Rios includes both approaches. The defendant's conviction was reversed without remand in People v. Gould, Supra. Conversely, the defendant's conviction in People v. Edwards, Supra, was reversed and remanded for a new trial. The Supreme Court's disposition evidences similar inconsistency. The defendant's conviction in People v. Rios, Supra, was reversed without direction for remand. However, in subsequent cases whose reversal is based upon Rios, the Michigan Supreme Court has specifically directed a remand to the court in which the case originated for a new trial. 2 After considering the various policy considerations involved in the type of error at issue, we follow the Supreme Court's most recent decisions and direct a remand to the Detroit Recorder's Court for a new trial. Finding several of defendant's remaining allegations of error to be meritorious, we offer the following discussion to prevent their repetition upon remand.

II. Did the prosecution submit sufficient evidence of due diligence to justify the nonproduction of a res gestae witness?

The question of the people's 'due diligence' was submitted by the trial judge to the jury for resolution. Although such questions are generally decided by the trial judge, such disposition by the jury is a proper alternative method. People v. Stephen, 31 Mich.App. 604, 188 N.W.2d 105 (1971); People v. Howard, 24 Mich.App. 328, 180 N.W.2d 203 (1970); People v. Kern, 6 Mich.App. 406, 149 N.W.2d 216 (1967). 3 But let us caution that this approach presupposes the existence of sufficient evidence upon the claim of 'due diligence' to justify sending the question to it. Defendant's challenge is predicated upon a total absence of such evidence.

Defendant challenged the prosecution's failure to produce the driver of the car who was arrested with defendant. The testimony offered by the prosecution to establish a diligent effort to produce this Res gestae witness at trial is conspicuously inadequate. Although the testifying officer thought that a subpoena was issued, he did not know if it was served and the absence of its return in the court file led him to assume that it had not been served. The efforts to secure the attendance of this witness were not begun until the day of trial. Officers were sent to the address of the witness provided at the time of arrest and found it vacant. Subsequently, the desk clerk at the Wayne County Jail was contacted to determine whether the witness was presently incarcerated. The people's efforts were concluded by a telephone call to the Detroit Police Department's identification bureau to determine whether the witness was previously or presently in custody.

A positive burden to produce all Res gestae witnesses is imposed upon the people to protect defendant from false accusations and preserve his presumption of innocence. People v. Kayne, 268 Mich. 186, 255 N.W. 758 (1934); People v. Russell, 27 Mich.App. 654, 183 N.W.2d 845 (1970); People v. Dickinson, 2 Mich.App. 646, 141 N.W.2d 360 (1966). Our close scrutiny of the people's reliance upon the concept of due diligence to excuse such production guarantees the integrity of our judicial system. In People v. O'Dell, 10 Mich.App. 87, 94--95, 158 N.W.2d 805, 809 (1968), the Court found that 'mere service of a subpoena does not constitute due diligence', stating:

'The prosecutor must not only issue subpoenas, but he must also use 'other means at hand' to produce indorsed witnesses.'

The present case fails to satisfy this language since the record neither provides evidence of the service of a subpoena or the Bona fide use of 'other means at hand'. More recent rulings of this Court relying upon Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), would measure the prosecution's efforts to produce a Res gestae witness by its 'good faith'. People v. Brown, 38 Mich.App. 69, 74, 195 N.W.2d 806 (1972); People v. Hairston, 37 Mich.App. 65, 74, 194 N.W.2d 504 (1971). The present inadequate and untimely effort by the prosecution to locate the witness at the day of trial cannot satisfy this 'good-faith' standard. 4 In this absence of Any evidence substantiating the people's diligent or good-faith effort to produce the only nonpoliceman eyewitness, the trial judge committed reversible error by submitting the question of 'due diligence' to the jury. 5

III. Did the trial judge err in refusing to suppress a package of heroin as the fruits of an illegal arrest?

This alleged error is based upon a claim that defendant was arrested in the absence of probable cause at the time he was confronted by the police officers. The concept of arrest pursued by the courts of this state flows from the following definition adopted from 4 Am.Jur., Arrest, § 2, p. 5:

"An arrest is the taking, seizing, or detaining of the person of another, either by touching or putting hands on him, or by any act which indicates an intention to take him into custody and subjects the person arrested to the actual control and will of the person making the arrest. The act relied upon as constituting an arrest must have been performed with the intent to effect an arrest and must have been so understood by the party arrested." People v. Gonzales, 356 Mich. 247, 253, 97 N.W.2d 16, 19 (1959). 6

The police officers in the present case pulled alongside the car in which defendant was a passenger stating we 'would like to talk to you'. The officers' conduct clearly restrained defendant's freedom of movement and may be deemed a seizure, which is a primary element of an arrest. However, the degree, type, and purpose of the restraint will determine whether the conduct at issue constituted an arrest requiring the existence of probable cause.

The Supreme Court in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), recognized that not every restraint of a citizen by a police officer constitutes an arrest. This principle was based upon the policy consideration that the police investigatory process is an indispensable function which necessarily outweighs minor intrusions into a person's right of privacy. It is this investigatory process which constitutes the 'stop' portion of the Terry Court's 'stop and frisk' rule and is distinguished from an arrest dependent upon the existence of probable cause. Case law interpreting this rule has further articulated its application to investigatory detentions. In Youngblood v. State, 47...

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    ...imposed upon the people to protect the defendant from false accusations and preserve his presumption of innocence. People v. Harris, 43 Mich.App. 531, 204 N.W.2d 549 (1972); People v. Kayne, 268 Mich. 186, 255 N.W. 758 (1934). In essence, the obligation of res gestae witness production is d......
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