People v. Head
| Decision Date | 23 May 1995 |
| Docket Number | Docket No. 147052 |
| Citation | 535 N.W.2d 563,211 Mich.App. 205 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Schuley Duane HEAD, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Richard Thompson, Pros. Atty., and Kathryn G. Barnes, Asst. Pros. Atty., for the People.
Arthur James Rubiner, Bingham Farms, for defendant on appeal.
Before NEFF, P.J., and MARILYN J. KELLY and JOSLYN, * JJ.
Defendant appeals as of right from his jury convictions of possession with intent to deliver between 225 and 650 grams of cocaine and possession with intent to deliver marijuana. M.C.L. § 333.7401(2)(a)(ii); M.S.A. § 14.15(7401)(2)(a)(ii), M.C.L. § 333.7401(2)(c); M.S.A. § 14.15(7401)(2)(c). He pled guilty to being a third habitual felony offender. M.C.L. § 769.11; M.S.A. § 28.1083. The judge sentenced him to ten to sixty years' imprisonment.
On appeal, defendant contends that the trial judge erred in permitting the introduction of evidence obtained under a defective warrant. He raises a sufficiency of the evidence claim. He challenges the adequacy of the jury instructions.
We find that defendant's conviction for possession with intent to deliver marijuana violated defendant's right not to be subjected to double jeopardy and remand for further proceedings consistent with this opinion.
This case has a long procedural history. In 1989, defendant was convicted for possession with intent to deliver between 225 and 650 grams of cocaine and for possession of marijuana. Our Court reversed the convictions and remanded for a new trial, because a confession made in violation of defendant's Miranda 1 rights had been improperly admitted at trial. People v. Head, unpublished opinion per curiam of the Court of Appeals, decided May 10, 1991 (Docket No. 123039).
Before defendant's first trial, he sought to suppress the evidence obtained pursuant to a search warrant which he claimed was defective. The trial judge denied his motion. In his first appeal, our Court refused to consider the issue of a defective warrant, because defendant failed to furnish the court with a copy of it or the underlying affidavit. Defendant renewed his motion to suppress the evidence before his second trial. The judge again denied the motion, relying primarily on the ruling of the judge in the first trial.
On appeal, defendant reasserts that the search warrant was defective and that evidence seized during its execution was inadmissible at trial. We disagree.
A search warrant should be upheld if a substantial basis exists to conclude that there is a fair probability that the items sought will be found in the stated place. People v. Russo, 439 Mich. 584, 604, 487 N.W.2d 698 (1992). The reviewing court should ask whether a reasonably cautious person could have concluded that there was a substantial basis for the finding of probable cause. Id., pp. 603-604, 487 N.W.2d 698. We read the underlying affidavit in a common sense and realistic manner. Id. Finally, we review the trial court's findings of fact in deciding a motion to suppress evidence for clear error. People v. Stumpf, 196 Mich.App. 218, 220, n. 1, 492 N.W.2d 795 (1992).
Here, the affiant, an experienced police officer assigned to the Narcotics Enforcement Team, alleged that a house had been under investigation as a drug sales location for approximately three months. He swore that an unnamed cooperating person made two controlled buys at the house within the two weeks before issuance of the warrant. The second purchase had been within the previous forty-eight hours. The substance purchased was cocaine. Finally, in vouching for the reliability of the informant, the affiant asserted that the informant had made statements regarding drug involvement which were against the party's penal interests.
The controlled purchase of cocaine were sufficient to establish probable cause to permit the magistrate to issue the warrant. See People v. Wares, 129 Mich.App. 136, 141-142, 341 N.W.2d 256 (1983); People v. Williams, 139 Mich.App. 104, 107-108, 360 N.W.2d 585 (1984). Furthermore, the reliability of the informant's statements was shown by the success of the two controlled buys. Wares, p. 141, 341 N.W.2d 256. The information in the affidavit was not stale. Russo, pp. 605-606, 487 N.W.2d 698. Consequently, the judge did not err at trial in admitting evidence obtained pursuant to the warrant.
Defendant also asserts that the evidence was insufficient to support his conviction, because it did not establish that the drugs found in the bedroom were in his possession.
We review sufficiency of the evidence claims by considering the evidence in the light most favorable to the prosecution. We determine whether a rational trier of fact could have found that the essential elements of the charged crime were proven beyond a reasonable doubt. People v. Daniels, 192 Mich.App. 658, 665, 482 N.W.2d 176 (1991).
A person may be convicted of possession of a controlled substance if he has either actual or constructive possession of it. People v. Wolfe, 440 Mich. 508, 519, 489 N.W.2d 748 (1992), amended 441 Mich. 1201 (1992). Here, the evidence established that defendant had constructive possession of the drugs. Defendant admitted that he lived at the house. When the police entered, defendant was lying on a bed in the same bedroom where the drugs lay in plain view. The bedroom also contained men's clothing. Defendant's wallet was near the drugs.
Viewed in the light most favorable to the prosecution, the evidence was sufficient to establish that defendant had at least constructive possession of them. Furthermore, based on the evidence discussed above, defendant cannot sustain his assertion that his conviction is against the great weight of the evidence.
Defendant also challenges the trial court's refusal to instruct the jury on joint control of the house. We review jury instructions as a whole to determine whether manifest injustice occurred. People v. Caulley, 197 Mich.App. 177, 184, 494 N.W.2d 853 (1992). Even if the instructions are somewhat imperfect, there is no error if they fairly present to the jury the issues to be tried and sufficiently protect the rights of the defendant. Id.
Defendant requested the instruction on mere presence. CJI2d 8.5. The instruction was consistent with his defense that the drugs belonged to another, and he was merely in the same room with them when the police entered. He also requested an instruction that joint control of a house was insufficient to convict for possession of an illicit drug without further evidence connecting the defendant to the drug.
The judge ruled that the instructions were redundant. We agree. The instruction on mere presence adequately covered the issue of whether defendant could be convicted of possession merely because he had joint control of a house where drugs were found. The instructions given adequately presented the issues and protected defendant's rights. Id.
Defendant also asserts that the instruction on aiding and abetting was improper. An aiding and abetting instruction is proper where there is evidence that (1) more than one person was involved in the commission of a crime, and (2) the defendant's role in the crime may have been less than direct participation in the wrongdoing. People v. DeLeon, 110 Mich.App. 320, 325, 313 N.W.2d 110 (1981), rev'd on other grounds 414 Mich. 851, 322 N.W.2d 173 (1982).
Defendant's theory of the case was that the drugs belonged to his girlfriend or another party. The prosecutor requested an instruction on the theory that, even if the drugs and paraphernalia belonged to someone else, defendant assisted that person by providing a storage place for them. We find no error in the judge's decision to instruct the jury on this issue. The evidence presented at trial required the judge to give the aiding and abetting instruction.
Defendant does not raise a double jeopardy claim. However, we consider the issue sua sponte. At his first trial, defendant was convicted of possession with intent to deliver cocaine and possession of marijuana. At his second trial, he was charged with and convicted of possession with intent to deliver cocaine and possession with intent to deliver marijuana. It is settled that conviction of a lesser charge is...
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