People v. Matthews

• Decision Date: 15 August 1985
• Docket Number: Docket No. 73715
• Citation: 371 N.W.2d 887,143 Mich.App. 45
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Horace MATTHEWS, Jr., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 887

371 N.W.2d 887

143 Mich.App. 45

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Horace MATTHEWS, Jr., Defendant-Appellant.

Docket No. 73715.

Court of Appeals of Michigan.

Submitted Feb. 6, 1985.

Decided May 20, 1985.

Released for Publication Aug. 15, 1985.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., and Richard H. Browne, Asst. Pros. Atty., for the people.

Warren H. Siegel, Southfield, for defendant on appeal.

Before DANHOF, C.J., and T.M. BURNS and BEASLEY, JJ.

DANHOF, Chief Judge.

Defendant was convicted on April 5, 1983, of delivery of between 225 and 650 grams of a mixture containing cocaine, in violation of MCL 333.7214(a)(iv) and 333.7401(1), (2)(a)(ii); MSA 14.15(7214)(a)(iv) and 14.15(7401)(1), (2)(a)(ii). On June 9, 1983, defendant was sentenced to prison for a mandatory term of 20 to 30 years. Defendant appeals as of right.

We note preliminarily that on June 4, 1984, this Court remanded the case on its own motion "for an explanation of the [trial] court's reasons in imposing this sentence". Oakland County Circuit Court Judge Robert L. Templin returned a letter explaining the sentence on September 25, 1984.

Three defendants were involved in this case: Horace Matthews, Jr. (defendant), Andres O. Perez and Namir Zaiber.

FACTS

The prosecutor's principal witness was Michigan State Police Trooper Terry Michael Saldana who was an undercover officer Eventually, Saldana told Zaiber he needed larger quantities, and Zaiber informed him of a large cocaine shipment arriving on November 3, 1982. Saldana asked Zaiber to contact him then, but Zaiber preferred that Saldana call him. Saldana did so and asked for 10 ounces of cocaine. Zaiber made further calls and reported that 10 ounces would cost $2,500 per ounce, and anything over 10 ounces would be $2,400 per ounce. However, Zaiber also told Saldana that his partner did not want to proceed with the deal because he was worried that Saldana was a police officer, but that he (Zaiber) would attempt to take care of Saldana anyway.

for the narcotics unit of the criminal investigation section. On August 11, 1982, he was introduced to Zaiber by Officer Ron Thomas of the Dearborn Police Department. The meeting occurred at Sinbad's Party Store, which was owned by Zaiber's uncle. The Dearborn police had arranged to purchase a quarter ounce of cocaine from Zaiber prior to this meeting. The cocaine was eventually purchased from Zaiber's girlfriend. Zaiber indicated that he had access to large quantities. What followed was a series of small purchases by Saldana from Zaiber. Saldana testified that he did not arrest Zaiber because he was hoping to determine Zaiber's source.

Saldana called Zaiber the next day, November 4, 1982, at Zaiber's request, and told Zaiber that he had another source for cocaine in an attempt to put some pressure on Zaiber. Zaiber informed Saldana that he could obtain better quality cocaine. Zaiber called back at about 3:00 p.m. and told Saldana that Zaiber's partner wanted to speak to him. Saldana told the partner that he was going to check out some cocaine elsewhere and that the partner should call back at 4:30. When Saldana did not receive the call at 4:30, he called Zaiber back at 4:35. Zaiber indicated that he would contact his partner. Five minutes later, Saldana received a phone call from a person who identified himself as "Jake". Saldana recognized the voice as belonging to the same person he had talked to earlier, Zaiber's partner. Jake requested a meeting later that evening at a Wendy's Restaurant on Greenfield Road near Eight-Mile Road.

Saldana arrived early. He drove into the Wendy's parking lot, waited a few minutes, then went inside. Seeing no one there, he drove around to the other side. A Dodge Charger pulled in and Zaiber called to him from the backseat. Defendant and Perez were in the front seat. Saldana got out of his car and sat in the backseat of the Charger, which belonged to Perez. Zaiber introduced Saldana to defendant and Perez. Perez asked Saldana how much cocaine he wanted, indicating that he had kilogram quantities. Saldana said he wanted 11 ounces at most, for $26,000, which Perez said was okay since this was Saldana's first transaction. Defendant indicated that Zaiber had come along so Saldana would feel more comfortable and less frightened. Defendant told Saldana that he arranged the meetings and had talked to Saldana before. Saldana testified that he recognized defendant's voice as that of "Jake". Defendant did not like the Wendy's location and wanted another for the actual transaction, since they had not brought the cocaine with them. It was agreed that Zaiber would ride with Saldana and follow defendant and Perez to another location. They went four blocks west to a Long John Silver's Restaurant. Zaiber got back in the Charger and Perez told Saldana to be back at 8:00 p.m. Saldana then went to obtain money for the transaction.

When Saldana returned to the Long John Silver's parking lot, he saw the Dodge Charger. Saldana started to pull into a handicapped parking spot and Perez motioned him away. He and Perez then went into Long John Silver's Restaurant to join Zaiber and defendant. They ordered food and Perez told Saldana to come inside. Saldana sat in the Charger on the passenger side of the front seat. Perez moved the car After extensive testimony from members of the surveillance team, the prosecution rested and Perez took the stand. Perez stated that he had known defendant for eight years and was his friend, living four blocks away. He knew Zaiber by sight from purchasing lottery tickets and other items at the party store, but did not have the same relationship with Zaiber as he had with defendant. On November 4, 1982, the date of the transaction involved herein, he went with defendant to a junkyard to buy a windshield for his stationwagon. Afterwards, they returned to Perez's home at about 7:00 p.m. He gave defendant a ride home and stopped at Zaiber's Party Store so Perez could buy lottery tickets. Zaiber sold him the tickets. According to Perez he saw a bunch of zip-lock plastic bags on the floor and picked them up, placing them on the counter. As they left, defendant asked Perez if they could give Zaiber a ride to Greenfield, and Perez agreed. Zaiber told Perez to go to a Wendy's because he was meeting someone. On the way, Perez and defendant resolved that they would later get some fish at Long John Silver's. At Wendy's, Zaiber instructed Perez to park next to Saldana's Corvette. Zaiber got out and got into the car with Saldana. Defendant and Perez then went to Long John Silver's to get dinner. According to Perez, Saldana never entered Perez's car and they never discussed cocaine at Wendy's.

next to Saldana's undercover vehicle and told Saldana the cocaine was under the front seat. Saldana reached under it and pulled out a brown shopping bag containing two plastic bags with a white powder inside, later determined to be cocaine. Saldana asked about the possibility of taking some cocaine on credit and selling it for Perez. Saldana asked Perez in Spanish how much he wanted for a kilogram of cocaine. Saldana took the package to his car to get the money. Then he gave the "buy" signal to his surveillance team. Perez was arrested, as were defendant and Zaiber who were still inside the restaurant.

Perez further testified that while he and defendant were at Long John Silver's Saldana pulled in. Zaiber asked Perez to take him back to the party store in return for dinner and $5.00 for gas. Perez agreed and they returned to the party store. Perez and defendant got gas nearby and picked Zaiber up but did not go into the store. Zaiber got into the back seat carrying a big brown bag that he said contained beer. Perez stated that the bag was still in the car when he got it back from the police, although it was not referred to in any of the police testimony. When they got to Long John Silver's, he parked over a handicapped parking spot. They went inside to order. Zaiber told him to go out and look for Saldana. When Perez did, he saw the Corvette and directed Saldana away from the handicapped spot. Saldana and Perez then went inside. Perez came out again to move his car, since he was parked illegally. He started the car and Saldana got in, asking for some beer. Perez backed the car up and parked next to Saldana's car, whereupon Saldana got out and pulled a revolver. Perez was arrested. He saw that Saldana was carrying a small brown bag at the time. Perez stated he did not know Zaiber was negotiating a drug transaction with Saldana, nor did he know how any drugs could have gotten into his car.

Defendant testified that he had worked at Chrysler for 10 years and knew Perez through his employment. He had known Zaiber for about a year and a half, since the party store was directly behind his house. Defendant testified that he had spent the day with Perez looking for a windshield. They went to get one at 5:30 p.m., returned to Perez's house for about a half an hour, and then Perez proceeded to take defendant home, stopping along the way at the party store to buy lottery tickets. Defendant testified that at the store Zaiber asked him for a ride, but because his license had been suspended, defendant told Zaiber that he would ask Perez, who agreed to give Zaiber a ride.

Zaiber wanted to go to Wendy's. According to defendant, Saldana never got

into Perez's car. Defendant and Perez then went to Long John Silver's where Saldana pulled up and Zaiber requested a ride back to the party store in exchange for gas money and the meal. He took Zaiber to the party store and bought gas. Thereafter, they picked Zaiber up and returned to Long John Silver's, all three going in to get fish. Saldana came in, but defendant was not aware of his leaving. Defendant stated that the next thing he knew he was being arrested at the counter by several police officers with...