People v. Konrad

Citation449 Mich. 263,536 N.W.2d 517
Decision Date19 July 1995
Docket NumberNo. 96938,No. 17,96938,17
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark KONRAD, Defendant-Appellant. Calendar
CourtSupreme Court of Michigan

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief, Research, Training and Appeals, and Olga Agnello, Asst. Pros. Atty., Detroit, for people.

Carl Ziemba, Detroit, for defendant.


BOYLE, Justice.

The question presented is whether there was sufficient evidence from which to conclude that the defendant possessed cocaine. We hold that there was, and affirm the decision of the Court of Appeals.


The events leading to the arrest of the defendant took place on August 30, 1984, in a K mart parking lot in Livonia, where it appears that undercover officers of the Livonia Police Department gave $550 in marked funds to a woman named Laurie Clark for the purpose of purchasing cocaine. Sergeant Peter Kunst gave the money to Ms. Clark, who then drove her car across the parking lot to a fence that ran between the K mart parking lot and the neighboring McDonald's parking lot. According to surveillance officers, a man got into her car, and Ms. Clark drove the car several feet before stopping. The same man then left the car, jumped over the fence into the McDonald's parking lot, got on a motorcycle, and sped away.

The police arrested Laurie Clark and a man named Gordon Grimes for the cocaine delivery in the K mart parking lot. The police did not find any of the marked money in either Ms. Clark's or Mr. Grime's possession.

Backup surveillance officers followed the motorcycle for a short distance. Although they lost sight of it in traffic, they managed to record the license plate number. The motorcycle was registered to the defendant, Mark Konrad. 1

Shortly thereafter, a number of police officers arrived at Konrad's home. Parked in the driveway was the motorcycle that had been at the scene of the controlled purchase. Sergeant John Jandasek testified that a woman answered the door and let the officers into the house where he arrested the defendant. At that time, the defendant said, "What you are looking for is in a locked room in the basement. I have the keys." Sergeant Jandasek left the defendant in the custody of other police officers while he went to request a warrant to search the house.

Officer William Bryant testified that he searched the defendant incident to his arrest. In the defendant's pockets, he found a large roll of currency and a key. Officer Bryant testified that a scout car arrived to take the defendant to the police station. As he was being led away, the defendant said to his wife, "Call Joel and tell him not to come and look at my bike." The defendant then said to Officer Bryant, "This guy is supposed to come and look at my motorcycle. I think he wants to buy it." The defendant's wife asked him for a phone number, and the defendant gave it to her. Mrs. Konrad then began walking toward the kitchen where the phone was located when the defendant said to her, "Not now, do it later."

Sergeant Kunst testified that when he arrived at the defendant's home, still undercover, officers were already there awaiting a search warrant. As he waited, he turned away ten to twelve people who arrived at the house during a forty-five minute period. Just after 6:30 p.m., as he was waiting in the front yard, a young man approached carrying a box. On top of the box was an egg-shaped object wrapped with masking tape and partially covered with a pair of khaki shorts and a Detroit Tigers baseball cap. As the person came close to the house, he asked Sergeant Kunst whether the defendant was home. Sergeant Kunst told the man, later identified as Joel Hamp, that the defendant was not home but that his wife was inside. Sergeant Kunst asked, "Do you have something for him?" Hamp said that he did and walked up the walkway.

As Sergeant Kunst followed, Hamp entered the house. Inside, Sergeant Sitner identified himself as a police officer. Hamp turned, knocked Sergeant Kunst to the floor, and ran out of the house. Sergeant Kunst and another officer chased the defendant several blocks on foot, before apprehending and arresting him. The egg-shaped object, which Hamp had dropped on the lawn, contained 881.8 grams of cocaine.

Later, Sergeant Kunst used the key taken from the defendant to open a door in the basement. There he found two scales, boxes of baggies, over one hundred zip-lock baggies, and at least fifteen partially filled or empty bottles of cutting-agents. He also found two sifters, which are used to mix cocaine with diluting powders. Behind paneling in the corner, he found just under $10,000 in cash. From the bedroom, Sergeant Kunst seized a phone with special electronic equipment.

Sergeant Kunst testified that he returned to the police station about midnight, at which point he interviewed the defendant for about thirty minutes. Sergeant Kunst testified 2 that Konrad confessed that he had arranged to purchase cocaine from a man named Chris. He later gave $40,000 as payment for the kilogram of cocaine to a man named Todd who had come to his house. Konrad understood that Chris would be traveling either to Tennessee or Florida to obtain it. On the afternoon of August 30, 1984, Joel Hamp called Konrad and told him that "everything is together," meaning that Hamp had the cocaine and was ready to deliver it to Konrad. They arranged that Hamp would deliver it to Konrad's home at seven that evening. Konrad told Officer Kunst that this was to be the fourth such shipment from Chris and Joel. In each of the three previous transactions, Joel had delivered the cocaine to Konrad's home. Konrad confessed to having earned $80,000 in the last year by selling cocaine, and described how he had spent the profits. He also told Kunst that he had purchased a special phone that could detect wire taps.

Officer Perkins also interviewed the defendant. He testified that Konrad had admitted giving $40,000 to Joel as payment for the cocaine. Perkins also testified that Konrad told him that he knew Joel would be traveling either to Florida or Tennessee to pick up the cocaine. Konrad confessed that he had recently started selling cocaine and that Joel was obtaining the kilogram at a good price.

The defendant was charged with possession with intent to deliver over 650 grams of cocaine, M.C.L. § 333.7401; M.S.A. § 14.15(7401), and with conspiracy to possess the same amount, M.C.L. § 750.157a; M.S.A. § 28.354(1). He was tried in December, 1986, and convicted of both charges, but was granted a new trial on his own motion.

In November, 1988, defendant was tried a second time and convicted by a Recorder's Court jury. After initially reversing the defendant's conviction, 3 the Court of Appeals affirmed in an unpublished opinion per curiam. The defendant applied to this Court for leave to appeal. We granted leave "limited to whether there was sufficient evidence to satisfy the element of possession...." 447 Mich. 960, 526 N.W.2d 920 (1994).


The defendant claims that the trial court erred in denying his motion for a directed verdict of acquittal on the count of possession with intent to deliver because there was insufficient evidence that he possessed the cocaine. This claim rests on the defendant's argument that his statements to police should have been excluded under the corpus delicti rule: "the trial court erred in denying the motion for a directed verdict because the record is devoid of any evidence whatever--aside from the evidence contained in the two statements allegedly made by defendant to the police--to support the prosecution's theory that defendant either constructively possessed the cocaine or that he aided and abetted Hamp in Hamp's physical possession of the cocaine...." In light of our specific grant order, this argument, which concerns the admissibility of evidence rather than its sufficiency, is not well taken.

Moreover, the argument is fallacious. The corpus delicti rule is designed to prevent the use of a defendant's confession to convict him of a crime that did not occur. See People v. Williams, 422 Mich. 381, 391, 373 N.W.2d 567 (1985); People v. Hughey, 186 Mich.App. 585, 587-588, 464 N.W.2d 914 (1990). Specifically, the rule provides that a defendant's confession may not be admitted unless there is direct or circumstantial evidence independent of the confession establishing (1) the occurrence of the specific injury (for example, death in cases of homicide) and (2) some criminal agency as the source of the injury. People v. Cotton, 191 Mich.App. 377, 394, 478 N.W.2d 681 (1991).

The Legislature has established that no person may legally possess cocaine unless that person falls within a statutory exception, see M.C.L. § 333.7401; M.S.A. § 14.15(7401); M.C.L. § 333.7403; M.S.A. § 14.15(7403), and the burden of proving an exception falls on the person claiming it, see M.C.L. § 333.7531; M.S.A. § 14.15(7531). We have no common-law authority to redefine the body of this crime. Therefore, the corpus delicti was satisfied by evidence independent of defendant's confession that the cocaine existed and was possessed by someone. See, e.g., United States v. Di Orio, 150 F.2d 938, 939 (CA 3, 1945) (the corpus delicti for possession of an unregistered still was satisfied by independent evidence of the existence of an unlawful still). The defendant's contention that proof of the corpus delicti requires evidence that the cocaine was constructively possessed by the defendant is incorrect. "Proof of the identity of the perpetrator of the act or crime is not a part of the corpus delicti." Di Orio, 150 F.2d at 939. It is sufficient to show that the crime was committed by someone. See also LaFave & Scott, Criminal Law (2d ed), § 1.4(b), pp. 18-19. In the words of a noted authority, the position that the corpus delicti of a crime includes the identity...

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