People v. Key

• Citation: 121 Mich.App. 168,328 N.W.2d 609
• Decision Date: 24 January 1983
• Docket Number: 57516,Docket Nos. 57393
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Earl KEY, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Elmer KAIGLER, a/k/a Mantell Elmer Kaigler, a/k/a Chilli-Mack, Defendant- Appellant. 121 Mich.App. 168, 328 N.W.2d 609
• Court: Court of Appeal of Michigan (US)

Page 609

328 N.W.2d 609

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Earl KEY, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Elmer KAIGLER, a/k/a Mantell Elmer Kaigler, a/k/a

Chilli-Mack, Defendant- Appellant.

Docket Nos. 57393, 57516.

121 Mich.App. 168, 328 N.W.2d 609

Court of Appeals of Michigan.

Submitted March 17, 1982.

Decided Nov. 4, 1982.

Released for Publication Jan. 24, 1983.

[121 MICHAPP 170] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Chief Appellate Asst. Pros. Atty., Appeals, and A. George Best, II (in Key) and Frank J. Bernacki (in Kaigler), Asst. Pros. Attys., for the People.

[121 MICHAPP 171] Vesta Svenson, Detroit, for defendant-appellant Key on appeal.

McGinnis & Evelyn, P.C. (by Gerald K. Evelyn), Detroit, for defendant-appellant Kaigler on appeal.

Before J.H. GILLIS, P.J., and V.J. BRENNAN and LAMBROS, ^* JJ.

PER CURIAM.

Defendants were convicted by a jury at a joint trial held on February 2, 1981, of delivery of less than 50 grams of a substance containing cocaine, M.C.L. Sec. 333.7401(2)(a)(iv); M.S.A. Sec. 14.15(7401)(2)(a)(iv). Defendant Key was sentenced to 11 to 20 years in prison. Defendant Kaigler was sentenced to 4 to 20 years in prison. Their appeals have been consolidated by this Court.

Detroit Police Officer John Mangum was an undercover officer in the narcotics section. He testified that on July 29, 1980, he went to the dwelling located at 2422 and 2424 Elmhurst. He met Key on the porch and asked him for a $60 packet of cocaine. The officer gave Key $60 in recorded currency and Key then went upstairs and returned with Kaigler. After the three men discussed a future purchase, Kaigler gave the officer a manila coin envelope. It was later determined that the substance inside the envelope weighed .40 grams and contained cocaine. Defendants were arrested on August 8, 1980, in connection with this incident.

Defendant Kaigler, testifying on his own behalf, stated that on July 29, 1980, he resided at 2424 Elmhurst and Key resided across the hall at 2422 Elmhurst. Kaigler testified that he could not remember where he was or what he was doing at the time the crime allegedly occurred. He denied any involvement in the alleged crime and stated that [121 MICHAPP 172] the first time he ever saw Officer Mangum was on August 8, 1980, the day he was arrested.

Defendant Key also took the stand in his own behalf and denied any involvement in the charged offense. It was Key's theory of the case that the police framed him because they had been unable to arrest and charge him in connection with stolen automobile activity which they believed he was engaged in. Key and Dwayne Talley testified in support of this theory.

Defendants first claim that the statute under which they were convicted violates the constitutional bar against cruel and unusual punishment because it places cocaine in the same class as narcotic drugs.

Defendants are incorrect to the extent that they argue that cocaine is classified in the statute as a narcotic drug. Cocaine is classified in schedule 2 along with certain narcotic drugs. M.C.L. Sec. 333.7214; M.S.A. Sec. 14.15(7214). It is true that, under M.C.L. Sec. 333.7401; M.S.A. Sec. 14.15(7401), proscribed conduct involving cocaine is subject to the same penalty as proscribed conduct involving narcotic drugs classified in schedules 1 and 2. However, M.C.L. Sec. 333.7401(2)(a); M.S.A. Sec. 14.15(7401)(2)(a) recognizes that cocaine is something other than a narcotic drug. It states:

"(2) A person who violates this section as to:

"(a) A controlled substance classified in schedule 1 or 2 which is either a narcotic drug or described in section 7214(a)(iv) [i.e., cocaine and its derivatives and chemical equivalents] * * *."

The Legislature perceived the abuse of cocaine as a serious threat to public health and prescribed penalties for its possession, delivery, manufacture, etc., accordingly. The fact that cocaine is treated [121 MICHAPP 173] in the statute in the same manner as substances classified as narcotic drugs, does not, in and of itself, constitute cruel and unusual punishment.

Defendants' attempted analogy to People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827 (1972), is without merit. That case involved the since-repealed Narcotic Drug Act, 1937 P.A. 343, as amended, which penalized the unlicensed sale, dispensation or otherwise giving away of any quantity of marijuana with a mandatory prison sentence of 20 years. The statute applied equally regardless of the presence or absence of prior offenses and made no provision for different penalties when different quantities of drugs were involved. The Supreme Court found that the penalty was so excessive that it shocked the conscience.

In contrast, the present statute provides different penalties for different proscribed conduct. For example, simple possession is treated in a manner different than manufacturing, delivery or possession with intent to manufacture or deliver. In addition, different penalties are prescribed where different amounts of the drug are involved. See Secs. 7401 and 7403.

The dominant test governing cruel and unusual punishment is whether "the punishment is in excess of any that would be suitable to fit the crime". Lorentzen, supra, p. 176, 194 N.W.2d 827, People v. Stewart (On Rehearing), 400 Mich. 540, 554, 256 N.W.2d 31 (1977). We conclude that the treatment of cocaine in the Public Health Code does not violate that standard.

Defendants next claim that inclusion of cocaine in schedule 2 along with "hard" narcotic drugs such as heroin is an irrational classification resulting in a denial of equal protection.

Defendants rely on People v. Sinclair, 387 Mich. [121 MICHAPP 174] 91, 194 N.W.2d 878 (1972). In that case, the defendant was convicted of unlawful possession of two marijuana cigarettes, in violation of former M.C.L. Sec. 335.153; M.S.A. Sec. 18.1123, and was sentenced to 9 1/2 to 10 years imprisonment. Although a majority of the justices voted to set aside the conviction, only three of the six justices sitting in the case agreed that the classification of marijuana with "hard" narcotic drugs violated equal protection.

Justice Swainson, writing separately, framed the issue as "whether marijuana may be constitutionally classified as a narcotic drug if, in fact, it is not a narcotic". 387 Mich. 103, 194 N.W.2d 878. He analyzed the makeup and effects of marijuana in comparison with other drugs and concluded that there was no rational basis for classifying marijuana as a narcotic drug. Sinclair, supra, 114-115, 194 N.W.2d 878.

Justices Williams and Swainson took judicial notice of the existing scientific knowledge regarding marijuana. Justice Williams emphasized the following quote from testimony given by Stanley F. Yolles, M.D., before the congressional subcommittee on public health and welfare of the interstate and foreign commerce committee on September 17, 1969:

" 'There is total agreement among competent scientists and physicians that marihuana is not a narcotic drug like heroin or morphine but rather a mild hallucinogen. To equate its risks--either to the individual or to society--with the risks inherent in the use of hard narcotics is neither medically nor legally defensible.' " (Emphasis deleted.) 387 Mich. 127, 194 N.W.2d 878.

At the time Sinclair was decided, there was a general consensus in the scientific and medical communities that the consequences of marijuana use were much less harmful than the effects of [121 MICHAPP 175] narcotic drugs. The opinions of Justice Williams and Justice Swainson were based on this consensus. It is the absence of such widespread agreement concerning the effects of cocaine which distinguishes the present case from Sinclair. Defendants cite no authority which would lead this Court to conclude that cocaine is a harmless social intoxicant, or that the Legislature's classification of cocaine in the same schedule as narcotic drugs is irrational.

Defendants rely on the Illinois Appellate Court's decision in People v. McCarty, 93 Ill.App.3d 898, 49 Ill.Dec. 382, 418 N.E.2d 26 (1981). However, that decision was reversed by the Supreme Court of Illinois in People v. McCarty, 86 Ill.2d 247, 56 Ill.Dec. 67, 427 N.E.2d 147 (Ill., 1981). In McCarty, cocaine was included within the statutory definition of "narcotic drugs". The Illinois Appellate Court found that cocaine had none of the characteristics of narcotic drugs and concluded that the Legislature's classification violated the equal protection clauses of the United States and Illinois Constitutions.

The Illinois Supreme Court reversed. The Court began its analysis with a discussion of the nature and effects of cocaine. The Court stated:

"The 'consensus of medical opinion' is that cocaine is not a narcotic. The characteristics of narcotic drugs are that they (1) botanically, are related to the opium poppy; (2) pharmacologically, are psychoactive depressants; (3) physiologically, are addicting, that is, they produce tolerance and withdrawal. Tolerance means that with continued use the body will require a larger amount of the drug to produce the same effect. When the drug is withdrawn from the user a 'withdrawal syndrome' will occur with a variety of unpleasant symptoms.

"Cocaine is not related to the opium poppy but is a substance derived from coca leaves. Unlike the narcotics[121 MICHAPP 176] which are depressants, cocaine is a central nervous system stimulant. Its short-term physiological effects include increase in heart rate and blood pressure and eye pupil dilation. To the user it produces a euphoric state and reduces fatigue and hunger. It is not physically addictive in that it does not produce tolerance or withdrawal. Both experts were of the opinion that it does not cause hallucinations or psychosis but may cause a perceptual disorder in which a user experiences the sensation of...