People v. Maliskey

• Decision Date: 22 August 1977
• Docket Number: Docket No. 27156
• Citation: 77 Mich.App. 444,258 N.W.2d 512
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregory Arnold MALISKEY, Defendant-Appellant. 77 Mich.App. 444, 258 N.W.2d 512
• Court: Court of Appeal of Michigan — District of US

Page 512

258 N.W.2d 512

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregory Arnold MALISKEY, Defendant-Appellant.

Docket No. 27156.

77 Mich.App. 444, 258 N.W.2d 512

Court of Appeals of Michigan.

Aug. 22, 1977.

Released for Publication Oct. 27, 1977.

[77 MICHAPP 446] Wlodkowski & Huson by Herbert C. Huson, St. Clair Shores, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George N. Parris, Pros. Atty., Henry Rosely, Asst. Pros. Atty., for plaintiff-appellee.

Before BEASLEY, P. J., and V. J. BRENNAN and McDONALD, ^* JJ.

V. J. BRENNAN, Judge.

On November 4, 1975, defendant Gregory Arnold Maliskey was convicted of possession of heroin, contrary to M.C.L.A. § 335.341(4)(a); M.S.A. § 18.1070(41)(4)(a). He was sentenced on December 3, 1975, to three years probation, the first six months of which were to be served in the Macomb County Jail. Defendant now appeals by rights from this conviction. GCR 1963, 806.1.

On November 19, 1973, the 42nd District Court of Macomb County issued a search warrant for the interior of 5590 Walpole Street in New Baltimore, which was located within St. Clair County. Three days before, police officers had observed a green leafy substance, which upon field testing proved to be marijuana. The search on November 19, 1973 revealed narcotics paraphernalia and suspected heroin and marijuana. These items were seized. At the time of the search, defendant and codefendant[77 MICHAPP 447] Mark Matuja appeared to be under the influence of narcotics. Defendant's speech was affected, and he had been awakened by the officers during the course of the search. He was able to respond to some but not all the questions posed to him after having been read his Miranda ¹ rights. Both defendants were transported to the Michigan State Police Post in New Baltimore, where the items seized were displayed on a table. Defendant spontaneously stated at this time "Joe (the police officer), all this stuff is mine".

At a pretrial hearing on the validity of the search warrant, the trial court denied defendant's motion and, further, admitted defendant's statement concerning his ownership of the seized items.

At trial, defense counsel objected to the court's lack of proper venue and did not stipulate to waive improper venue. A New Baltimore city clerk testified that the home at 5590 Walpole was located within one mile of the Macomb County line, and the court ruled that the offense was committed within one mile of the boundary line existing at the time. This issue was submitted to the jury as well.

Defense counsel motioned for a mistrial on the ground that three police officers had testified that they knew codefendant and defendant previously. This motion was denied. Defendant counsel rejected a curative instruction at this time.

When evidence of narcotics paraphernalia was introduced, defendant moved for a mistrial since such items could be construed by the jury as evidence of use or addiction to narcotics. This motion was denied.

In instructing the jury, the court stated that in [77 MICHAPP 448] order to convict, the heroin should be either a usable amount or a remnant of the usable amount. No objection was made by either defendant or codefendant to this instruction at the time.

On appeal, defendant raises several allegations of error. We will speak to each claim.

Defendant first argues that the prosecution failed to sufficiently establish proof of venue beyond reasonable doubt.

Defendant moved for directed verdict on the basis that the prosecution had failed to prove venue beyond a reasonable doubt. He argued that because the offense occurred in excess of one mile from the Macomb County line, the Macomb County District Court lacked jurisdiction under the statute permitting an offense committed within one mile of a dividing line between two counties to be prosecuted in either of them. M.C.L.A. § 762.3; M.S.A. § 28.846. However, the prosecution offered testimony by officer John T. Korzek and New Baltimore clerk Theresa Orczykowski to the effect that 5590 Walpole was located within one mile of the Macomb County line. The court concluded that sufficient evidence of venue had been presented, remarking on the "weight and credibility" of the New Baltimore clerk's determination. He was also careful to note that he was skeptical of Trooper Korzek's testimony about the distance due to the use of his speedometer, about which some question of accuracy had arisen. Consequently, the fact is very clear the trial court was exercising his discretion in this matter.

A directed verdict may only be granted where there is no evidence, either direct or circumstantial, on each material element of the offense. People v. King, 58 Mich.App. 390, 400, 228 N.W.2d 391 (1975); People v. Hodo, 51 Mich.App. 628, 639, 215 [77 MICHAPP 449] N.W.2d 733 (1974). Absent an abuse of discretion, the trial court's determination will not be disturbed. People v. Ranes, 58 Mich.App. 268, 274, 227 N.W.2d 312 (1975); People v. Kochan, 55 Mich.App. 326, 328, 222 N.W.2d 317 (1974). Given the evidence presented, we find no abuse of discretion here.

Further, the jury had the opportunity to hear and decide this issue as well. Given the adverse ruling to defendant, and the fact that we assign great deference to jury determinations, we find no cause to reverse at this point. People v. Fields, 66 Mich.App. 347, 350, 239 N.W.2d 372 (1976); People v. Miller, 49 Mich.App. 53, 58-59, 211 N.W.2d 242 (1973).

Defendant next alleges that the affidavit supporting the search warrant was insufficient to support a determination of probable cause.

Defendant claims that the warrant issued to search defendant's residence was based upon hearsay information and therefore inadequate to sustain the search. Consequently, defendant would have us hold that the court should have granted defendant's motion to suppress and quashed the indictment of the preliminary examination on October 22, 1974. Denial of a similar motion in Macomb County Circuit Court on April 21, 1975, defendant says, demands reversal on the present appeal.

We find that the warrant was properly obtained in this case. Though paragraph 3 of the affidavit submitted by Officer Korzek to the magistrate in support of the issuance of the search warrant did refer to the personal observations of another officer, Lt. Leo Parrott, paragraph 4 of the affidavit referred directly to the observations of affiant Korzek and Trooper John King. Consequently, we do not believe defendant's claim well taken here. [77 MICHAPP 450] We believe probable cause did exist for the issuance of the warrant in this case. People v. Coffey, 61 Mich.App. 110, 232 N.W.2d 320 (1975).

Defendant contends thirdly that the trial court's admission of his oral statement was an abuse of discretion, considering defendant's condition at the time made.

After being brought to the Michigan State Police Post in New Baltimore, defendant was shown the items seized and spontaneously stated: "Joe, (the police officer) all of this stuff is mine." At the hearing held pursuant to the motion to suppress this verbal admission, the court concluded that since the statement was volunteered and since the officers felt that his abilities were not so impaired as to affect his capacity to comprehend the statement no reason existed to deny admission.

Before we will reverse a trial court's determination of voluntariness, we must possess a "definite and firm conviction that a mistake was committed". People v. Scott, 44 Mich.App. 462, 463, 205 N.W.2d 291, 292 (1973); People v. Hubbard, 19 Mich.App. 407, 413, 172 N.W.2d 831 (1969). In this case, we do not. We find a similar situation in People v. Leffew, 58 Mich.App. 533, 228 N.W.2d 449 (1975). In Leffew, where defendant was taken into custody for unarmed robbery, and some rings were found in his possession, he spontaneously volunteered the statement, "those are not her rings". We held this statement to be a purely voluntary admission not within the Miranda rule. People v. Leffew, supra, 58 Mich.App. at 536, 228 N.W.2d 449.

We believe the same principle used to sustain the statement in Leffew applies here. We do recognize that in this case defendant was ostensibly under the influence of narcotics. However, we cannot ignore the fact that defendant had no [77 MICHAPP 451] difficulty relating his name, address, height, weight, place of birth, and social security number to officers at the time of his arrest. We also observe that he understood the Miranda warnings each time they were read to him by Officer Korzek. The officer also stated that defendant's train of thought appeared normal in response to questions put to him by police. Under these circumstances, we have no "definite and firm conviction that a mistake was committed". We decline to reverse.

Defendant next contends error appeared where evidence was not competent to enable a jury to conclude that a proper chain of custody had been maintained.

The argument is made that defendant was denied the opportunity to properly cross-examine police chief Edward Reims concerning the introduction of People's exhibits 1 through 9. We find that defendant did have the opportunity to cross-examine Chief Reims regarding the photographic evidence admitted. He may not now complain of his failure to pursue this line of cross-examination.

We find equally without merit defendant's contention that no proper chain of custody was established for this evidence. The transcript clearly reveals the whereabouts of the evidence at all times. Sergeant Koenig states that when he removed the items from defendant's residence he gave them to Trooper Korzek, and Trooper Korzek testified to tabulating each item and storing them in the police property room. He also testified that the items were in his custody throughout the course of the trial. On the record, we find no basis for defendant's claim. See People v. Hintz, 62 Mich.App. 196, 233 N.W.2d 228 (1975)...