People v. Johnson

• Decision Date: 23 April 1973
• Docket Number: No. 2,Docket No. 10598,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Marcus JOHNSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 914

207 N.W.2d 914

46 Mich.App. 212

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Marcus JOHNSON, Defendant-Appellant.

Docket No. 10598.

Court of Appeals of Michigan, Division No. 2.

April 23, 1973.

Released for Publication June 15, 1973.

Carl H. Leiter, Nelson & Leiter, Flint, for defendant-appellant.

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

Before McGREGOR, P.J., and BRONSON and TARGONSKI ^*, JJ.

BRONSON, Judge.

Defendant was convicted by jury verdict for illegally selling a narcotic drug and sentenced to serve a prison term of 20 to 25 years. M.C.L.A. § 335.152; M.S.A. § 18.1122. From this conviction defendant appeals, raising eight allegations of error which we consider seriatim.

At trial, the chief prosecution witness, Alberta Leone, testified that she worked regularly as a police informer 'making cases' during March, 1970. On the evening of March 5, 1970, she met police detective Herbert Taylor and was taken to the police station where a routine preliminary search for the possession of narcotics was conducted. Alberta Leone was then given two $20 bills by Detective Taylor and taken to the area of defendant's apartment to consummate a controlled buy. She was admitted to defendant's apartment and in the early morning hours of March 6 allegedly purchased a half-quarter (six spoons) of heroin from defendant for $35, receiving $5 change. The controlled buy was completed by Alberta Leone giving the purchased drug, subsequently identified as heroin, to Detective Taylor.

Based upon these events and the informer's affidavit, the police secured a warrant to search defendant's premises. During the execution of the warrant at approximately 1 a.m. on March 7, 1970, police officers discovered seven sterilized containers of hypodermic needles and a syringe, a box of envelopes measuring 1 1/2 inches to 3 inches, guns, heroin, and other narcotic paraphernalia. The paraphernalia included measuring spoons, containing a residue of heroin, a can of lactose, a filler used to cut the heroin, and an overnight case. The overnight case contained several bottles, cans, a sifter, small manila envelope, cards, packets, some pills, and other miscellaneous items. The testifying officers stated that these items were similar to the ones generally used to sift, cut, apportion, and package heroin for sale. During the search police officers discovered a black key case between the mattress of a folding bed in the living room. This key case, allegedly owned by defendant, revealed four small manila packages of heroin.

Defendant offered several witnesses to establish his defense that he was 'set up' for the charged offense. These witnesses testified that Alberta Leone was a jealous ex-lover of defendant who prefabricated her story and 'planted' the quantity of heroin on defendant's premises which was subsequently given to the police as the fruits of the alleged sale. Several witnesses further testified that Alberta Leone had told them that she was lying about her purchase with defendant 'to get even with him'. Defendant offered his testimony in which he (1) denied ever selling heroin, (2) reaffirmed his defense, and (3) denied possession of the black key case. Defendant admitted ownership of the keys in his capacity as apartment manager but claimed that possession of the key case was given to one of the several persons sharing the occupancy of his apartment. At the conclusion of trial, the jury found defendant guilty of selling heroin.

I. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY CONSIDERING DEFENDANT'S JUVENILE RECORD FOR THE PURPOSE OF SENTENCING?

Defendant alleges that the trial court committed reversible error by considering his juvenile record for sentencing purposes. In People v. McFarlin, 41 Mich.App. 116, 199 N.W.2d 684 (1972), leave granted, 388 Mich. 761 (1972), this Court held the practice of using juvenile records for sentencing purposes invalid. Accord, People v. Bukoski, 41 Mich.App. 498, 200 N.W.2d 373 (1972); People v. Anderson, 42 Mich.App. 10, 201 N.W.2d 299 (1972). Contra, People v. Pence, 42 Mich.App. 215, 201 N.W.2d 275 (1972).

Defendant has failed to present an adequate record evidencing such use. Defendant offers no evidence that the trial judge actually used his juvenile record but bases an assumption of use upon customary practice by the Genesee County Probation Department. Similarly, defendant has neither offered affidavits nor evidence verifying this alleged general practice. This speculative record cannot support an application of People v. McFarlin, Supra.

II. DOES THE SUPREME COURT ORDER OF PEOPLE V. MARTIN REQUIRE A VACATION OF DEFENDANT'S SENTENCE OF 20 TO 25 YEARS FOR SALE OF HEROIN AND RESENTENCING PURSUANT TO THE CONTROLLED SUBSTANCE ACT OF 1971?

In the Supreme Court order of People v. Martin, 387 Mich. 766, 195 N.W.2d 766 (1972), a 20- to 25-year sentence for the sale of heroin was remanded for resentencing 'in the light of 1971 PA 196'. For the reasons set forth in People v. Osteen, 46 Mich.App. 409, 208 N.W.2d 198 (1973), this order has been limited to the named defendant. Since the order has not been afforded precedential effect, defendant's request for resentencing is denied.

III. WAS DEFENDANT DENIED A FAIR TRIAL BY THE CONDUCT OF A POLICE DETECTIVE DURING THE CROSS-EXAMINATION OF A DEFENSE WITNESS?

Defendant alleges that a detective's silent laughter during the cross-examination of a defense witness denied him a fair trial. The trial judge heard defendant's objection and the parties agreed that Detective Taylor was 'sitting there soundlessly laughing'. The trial judge found no prejudice resulting from this conduct and denied defendant's motion for mistrial. On appeal, defendant offers the occurrence of the event without any showing of prejudice. Upon the facts and our review of the record, the error, if any, must be considered harmless as not causing a miscarriage of justice. M.C.L.A. § 769.26; M.S.A. § 28.1096; GCR 1963, 529.1; People v. Wilkie, 36 Mich.App. 607, 194 N.W.2d 154 (1971).

IV. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR BY INSTRUCTING THE JURY THAT DEFENDANT DID NOT HAVE A LICENSE TO SELL NARCOTICS AND DID THE PROSECUTOR FAIL TO PROVE LACK OF LICENSE, A REQUISITE ELEMENT OF THE OFFENSE CHARGED?

These issues are summarily disposed of since they are devoid of merit. The challenged jury instruction merely involved the trial judge's reference to the information and recitation of the elements of the charged offense, including defendant's lack of license to sell narcotics. At no time did the trial judge affirmatively instruct the jury that this defendant did not possess the necessary license. The prosecutor offered proof of this element in accordance with People v. Gould, 40 Mich.App. 689, 199 N.W.2d 573 (1972).

V. DID THE PROSECUTOR DENY DEFENDANT A FAIR TRIAL BY PREJUDICIAL STATEMENTS IN HIS CLOSING ARGUMENT?

Defendant bases his allegation that the prosecutor's closing argument was prejudicial in part upon the prosecutor's statement that 'The evidence in this case proves beyond a reasonable doubt that Marcus Johnson, or William Marcus Johnson, is guilty as charged.' Since this remark did not express the prosecutor's personal belief in defendant's guilt, it was a permissible commentary upon the evidence. People v. Rodriguez, 35 Mich.App. 342, 192 N.W.2d 563 (1971); People v. Evans, 36 Mich.App. 238, 193 N.W.2d 387 (1971). Contrast, People v. Humphreys, 24 Mich.App. 411, 180 N.W.2d 328 (1970).

Defendant argues that the other portions of the prosecutor's closing argument were prejudicial. The entire argument discloses only the following remark which we deem improper:

'* * * (I)t is obvious to me, and I hope it is to you, that they weren't telling the truth; that they were trying to cover up for the defendant, and to put the blame really on Alberta Leone.'

Although improper, this single adverse reference to the credibility of defendant's witnesses did not reach prejudicial proportions. Contrast People v. Montevecchio, 32 Mich.App. 163, 188 N.W.2d 186 (1971). The remaining challenged comments encompassed permissible commentary upon the evidence or inferences therefrom. People v. Russell, 27 Mich.App. 654, 183 N.W.2d 845 (1970); People v. Joshua, 32 Mich.App. 581, 189 N.W.2d 105 (1971). After considering the challenged remarks in the context of the entire summation, we do not find them prejudicial. People v. Lyle Brown, 37 Mich.App. 25, 194 N.W.2d 450 (1971).

VI. DID THE PROSECUTOR COMMIT REVERSIBLE ERROR BY CROSS-EXAMINING A DEFENSE WITNESS WITH REGARD TO AN ARREST NOT CULMINATING IN A CONVICTION?

This Court in People v. Brocato, 17 Mich.App. 277, 169 N.W.2d 483 (1969), and its progeny held that Arrests cannot be used for impeachment purposes. But cf. People v. Eddington, 387 Mich. 551, 198 N.W.2d 297 (1972).

Witnesses were accorded the protection of the Brocato rule in People v. James, 36 Mich.App. 550, 194 N.W.2d 57 (1971). Although defendant's witnesses possessed this protection, the allegation of error must fail. The initial impermissible reference to the witness' arrest was solicited by defense counsel on direct examination. In People v. Bearden, 29 Mich.App. 416, 185 N.W.2d 438 (1971), this Court denied defendant the benefit of Brocato when his prior arrest was elicited by defense counsel on direct examination. This rule is no less applicable to witnesses. Since the jury received knowledge of the defense witness' prior arrest through defense counsel's direct efforts, the onus for any prejudice produced cannot be placed upon the prosecutor. Defendant must accept the burden of his own trial tactics.

VII. DID THE TRIAL JUDGE COMMIT REVERSIBLE ERROR BY PERMITTING THE PROSECUTOR TO CROSS-EXAMINE DEFENDANT WITH REGARD TO PRIOR FELONY CONVICTIONS WITHOUT EXERCISING HIS DISCRETION TO CONTROL THE ADMISSION OF DEFENDANT'S...