People v. Koehler

Decision Date12 August 1974
Docket NumberDocket No. 16756,No. 3,3
Citation54 Mich.App. 624,221 N.W.2d 398
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael David KOEHLER, Defendant-Appellant
CourtCourt of Appeal of Michigan — District of US

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Ronald J. Taylor, Pros. Atty., for plaintiff-appellee.

Before McGREGOR, P.J., and R. B. BURNS and O'HARA,* JJ.

McGREGOR, Presiding Judge.

Defendant appeals as of right his jury conviction, on October 26, 1972, of delivery of heroin, contrary to M.C.L.A. § 335.341(1)(a); M.S.A. § 18.1070(41) (1)(a), and delivery of LSD, contrary to M.C.L.A. § 335.341(1)(b); M.S.A. § 18.1070(41)(1)(b).

On July 20, 1972, a complaint and warrant were issued charging defendant with the two crimes; subsequent to his preliminary examination on August 1, 1972, defendant was bound over to circuit court for trial; and on August 21, 1972, an information was filed, charging defendant in Count I with delivery of heroin, and in Count II with delivery of LSD. Defendant was convicted by a jury of each count and, on December 4, 1972, was sentenced to 3 to 20 years imprisonment on Count I, and 3 to 7 years imprisonment on Count II.

At trial, the people's case opened with the testimony of Michigan State Police Officer Huston, who stated that, on May 24, 1972, he and a police informant, Janice Stevens, drove to defendant's residence in Berrien County, Michigan, where the witness spoke with defendant and stated he would like to purchase some heroin. According to Officer Huston, he and the defendant walked to the rear of an old car on defendant's premises and defendant opened the trunk, removed a small box therefrom, and exhibited to the witness four small paper packets, a quantity of small brown tablets, and a quantity of purple tablets. In response to Huston's query, defendant identified the purple tablets as LSD, described the brown tablets as PCP (Phencyclidine), and sold to the witness two paper packets allegedly containing heroin for $20 and four purple tablets allegedly composed of LSD for $4. The witness averred that there was no haggling between the parties concerning the price, that defendant identified the material in the paper packets as heroin and the purple tablets as LSD, and, as Officer Huston prepared to leave, asked him if he (Huston) had a 'works'.

During cross-examination, Huston stated that he met with Janice Stevens at approximately 10:30 a.m. on May 24, 1972, because she had previously told him that she could introduce him to a person who was allegedly dealing in heroin. The witness denied that he had told Mrs. Stevens anything which would have led her to believe that he needed heroin. Huston and Mrs. Stevens stopped their vehicle at one point while Mrs. Stevens talked with a friend, Larry Johnson, and although the witness did not hear the conversation between Mrs. Stevens and Johnson, he related that it was his understanding that Mrs. Stevens had told Johnson that Huston had a brother who was a 'junkie'. This impression was based on the fact that Mrs. Stevens had earlier told Huston that, in order to ingratiate himself with the drug dealer, Huston would 'have to have something to make them think you are cool', whereupon Huston told Mrs. Stevens, 'Why don't you tell him I have got a brother that's a junkie?', although he did not tell her to tell Johnson that Huston's 'brother' was with him in the area. The witness denied that he acted as though he were under the influence of drugs when talking with defendant preparatory to purchasing the narcotics. Huston stated that his automobile followed a vehicle which he was told was driven by Mr. Johnson, and which led the way to defendant's residence on the day in question. The witness described three purple tablets introduced into evidence at trial as identical in appearance with those he had purchased from defendant and which defendant had stated contained LSD.

Donald Collins, an employee of the Michigan Department of State Police Scientific Laboratory Unit, testified that the total weight of white powder in the two packets turned over to him for analysis amounted to approximately 0.1 gram, and averred that his laboratory analyses confirmed that each packet contained heroin.

Ralph Sochocki, an employee of the Michigan Department of Public Health Division of Crime Detection, testified that he had analyzed one of the four purple tablets which were turned over to him for inspection, and had conclusively established the presence of LSD in the tablet analyzed. Sochocki related that, although he had not analyzed the three other tablets, the one tablet which he had analyzed appeared to be physically identical to the remaining three tablets. On cross-examination the following colloquy transpired:

'Q. Do you have any opinion as to the quality of that one packet, the one pill that you examined?

'A. I am going to base this on a chemical reactivity and my instrumental analysis, it reacted very well in the instrumental analysis indicating that it was above the average.'

The defense initiated its case, based on the defense of entrapment, with the testimony of Larry Johnson, who stated that on the day in question he was working at a gasoline service station in St. Joseph, Michigan, when Officer Huston and Mrs. Stevens drove into the station, inquired where the defendant lived, and asked Johnson to show them defendant's residence because Mrs. Stevens wanted to get some 'acid' from him. According to the witness, he then drove his vehicle to defendant's home while Huston and Mrs. Stevens followed in their own car, but returned to the service station upon finding that defendant was not then at home. The witness related that, before leaving the station, Mrs. Stevens had told him that Huston's brother was 'strung out' and 'needed some stuff', and averred that he cooperated with Huston and Mrs. Stevens because the latter was a close friend whom he trusted. According to the witness, Huston and Mrs. Stevens returned to the gas station at approximately noon on May 24, and again asked him to take them to defendant's residence, whereupon he led the way in a car driven by Douglas Fast, while Huston and Mrs. Stevens followed in their own vehicle. This time defendant was at home and the witness told him that Mrs. Stevens wanted to 'buy some stuff', whereupon Huston walked up and said he wanted to talk to defendant, at which point this witness turned around and walked away.

On cross-examination, Mr. Johnson testified that Mrs. Stevens had told him that Huston's brother was 'all strung up' and stated that it was his understanding that Huston's brother was a 'junkie'.

Douglas Fast testified that at approximately noon on May 24, he drove Larry Johnson from the gas station to defendant's house while Huston and Mrs. Stevens followed in their own vehicle. Although the witness did not hear any conversation between defendant and Johnson or Huston, he stated that on the way to defendant's residence, Johnson had told him that they were driving there because Huston had a brother who 'was in pretty bad shape and needed some stuff'. On cross-examination, Fast reiterated his testimony regarding Johnson's conversation with him concerning Huston's brother.

Testifying in his own behalf, defendant related that on the day in question, Mrs. Stevens, Johnson, and Huston came to his house and, after conversation, Huston stated that he needed to buy some acid and that defendant agreed to sell him drugs because 'I trusted him because I trusted the people who he was with.' Defendant candidly admitted that he then escorted Huston to an automobile parked on defendant's premises, opened the trunk, showed Huston some drugs, told him which pills were LSD, and sold Huston four LSD tablets and two packets of heroin.

On cross-examination, defendant agreed that he remembered having had heroin and LSD in the trunk of his automobile and that he had sold some of these drugs to Huston on the day in question. The defendant acknowledged that he 'probably' would have sold drugs to Mrs. Stevens and to Larry Johnson if they had wanted to buy them, whereupon the following colloquy ensued:

'Q. So the only people that you would sell to are the ones that you know well enough that you are pretty sure they wouldn't be a 'narc', wouldn't turn you in, is that right?

'A. Yes.

'Q. You were ready, willing and able to sell to anybody that you knew were (sic) safe, right?

'A. A person I trusted, yes.'

Later, during cross-examination the following exchange occurred:

'Q. Now, you heard your two friends, Larry Johnson and Douglas Fast talk about Bill's brother being strung out. I didn't hear you testify about that.

'A. I never heard about that.

'Q. You didn't hear about that?

'A. No, sir.

'Q. That wasn't the reason you sold them drugs because his brother was strung out then?

'A. No, Janice told me that he was from Chicago and that he needed it bad, is what she told me.

'Q. So you sold heroin and LSD to Bill because you thought it was safe to do so, right?

'A. Yah, I said that before.'

Plaintiff presented as a rebuttal witness Detective-Sergeant Paul Whitford, of the Michigan State Police, who testified that he had 'trailed' Officer Huston in another automobile from 9:00 a.m. to 2:00 p.m. on May 24, 1972, and that, during his continuous surveillance of the officer during that period of time, Huston had never stopped at any gasoline station in the Benton Harbor or St. Joseph area, as claimed by Larry Johnson and Douglas Fast, in their earlier testimony.

During defense counsel's cross-examination of Detective Whitford, the following colloquy transpired:

'Q. Do you know where Janice Stevens is today?

'A. No, I do not.

'Q. You were in pretty close contact with her, weren't you?

'A. No, sir, I never was in that close of contact.

'Q. But you met with...

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