People v. McCarver

• Citation: 249 N.W.2d 403,72 Mich.App. 311
• Decision Date: 22 November 1976
• Docket Number: Docket No. 24499
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alvin McCARVER, Defendant-Appellant. 72 Mich.App. 311, 249 N.W.2d 403
• Court: Court of Appeal of Michigan (US)

Page 403

249 N.W.2d 403

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alvin McCARVER, Defendant-Appellant.

Docket No. 24499.

72 Mich.App. 311, 249 N.W.2d 403

Court of Appeals of Michigan.

Nov. 22, 1976.

Released for Publication Jan. 27, 1977.

[72 MICHAPP 313] Taylor, Yampolsky, Struwin & Hass by Jack M. Struwin, St. Joseph, for defendant-appellant.

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

Before R. B. BURNS, P.J., and D. E. HOLBROOK and T. M. BURNS, JJ.

T. M. BURNS, Judge.

On March 26, 1975, defendant was convicted after a jury trial of possession of a controlled substance (amphetamines), M.C.L.A. § 335.341(4)(b); M.S.A. § 18.1070(41)(4)(b). on June 2, [72 MICHAPP 314] 1975, defendant was sentenced to 16 to 24 months in prison.

At the request of a U.S. Treasury agent and an officer of the Berrien County Sheriff's Department, a Federal search warrant was issued on November 25, 1974, authorizing the search of defendant's residence for firearms and narcotics. Execution of the warrant on November 26, 1974, resulted in the seizure of two shotguns, a quantity of pills, a vial containing a small amount of suspected marijuana, and a pipe containing suspected marijuana. Defendant was arrested and placed in custody.

Testimony given at the trial indicated that the pills found in defendant's home contained amphetamine and caffeine and that the vial contained marijuana. The amphetamines were introduced into evidence without objection, but defendant challenged the introduction of the vial of marijuana.

After some discussion, the marijuana was admitted into evidence.

Three defense witnesses testified that they had gone to defendant's house on November 24, 1974, to look at a motorcycle. Defendant told the three that he was gaining weight and wanted to get some diet pills. After defendant stated that his doctor would not give him diet pills because of high blood pressure, a fourth person, Dave Hawks, informed defendant that he could get some diet pills for him.

Defendant took the witness stand and corroborated the testimony of the three witnesses. He stated that Hawks sold the pills to him two days later. Shortly thereafter the search warrant was executed.

Hawks was called as a witness by defendant. He testified that he did not remember being with [72 MICHAPP 315] defendant on November 24 and denied tnat he bought any diet pills or delivered any to defendant.

Defendant argues on appeal that he was unduly prejudiced by evidence presented at trial and testimony elicited by the prosecutor which indicated that defendant had engaged in criminal activity other than the offense with which he was charged. Prior to trial, the trial court granted a defense motion to exclude from the trial any evidence of defendant's prior convictions.

In testifying for the prosecution, the Federal agent who obtained the search warrant stated that defendant was a convicted felon. While cross-examining another prosecution witness, a State Police detective, defense counsel asked the witness if he had tried to get someone to help entrap defendant. The witness responded:

'I recall talking to several different persons, and they advised me that, yes, they were aware of people who were in criminal activities; they were interested in assisting me, and the name Al McCarver was brought into the picture.'

On redirect examination the prosecutor pursued this point:

'Q. You said the name Al McCarver came up in various conversations that you had with various people in the year you have been here; is that correct?

'A. That's correct.

'Q. Did you bring up his name?

'A. No, ma'am.

'Q. Was his name brought up to you?

'A. Yes, it was.

'Q. Was it brought up in connection with alleged criminal activity?'

[72 MICHAPP 316] At this point defense counsel objected to the line of questioning as being irrelevant and involving hearsay. In sustaining the objection the trial court commented as follows:

'(W)e are going to get into more and more irrelevancies and we are going to forget what we are trying to do here is determine what, if anything, Mr. McCarver has to do with what's charged against him here on the 26th of November that he possessed amphetamines.'

The judge suggested that the inquiry cease before 'we forget what case we are trying'.

After the testimony of the witnesses for the prosecution had been taken, the prosecutor sought admission of the vial of marijuana and pipe into evidence. Defense counsel objected to the admission. After sustaining the objection to admission of the pipe, the trial court addressed the jury and informed them that the vial before him contained marijuana. He told the jury that defendant was not charged with possession of marijuana but that defendant's possession of the substance could be used by them in deciding whether defendant knew that the pills he possessed were amphetamines and whether he knew that it was illegal to possess them. The judge carefully advised the jury of the limited purpose for which the marijuana was being admitted.

It is clear from these facts that the jury was faced, on more than one occasion during the trial, with evidence that defendant had engaged in other illegal conduct before and at the time of the charged offense. The legal proposition applicable to this appeal was recently restated in People v. Spillman, 63 Mich.App. 256, 258--259, 234 N.W.2d 475, 476 (1975):

[72 MICHAPP 317] 'Evidence tending to show that the defendant committed crimes other than those charged is generally inadmissible 'because it has been decided that whatever probative value such evidence has is outweighed by the disadvantage of diverting the trier of fact from an objective appraisal of the defendant's guilt or innocence'. People v. DerMartzex, 390 Mich. 410, 413, 213 N.W.2d 97, 99 (1973). In other words:

"This rule of law guards against convicting an accused person because he is a bar man. Barring such evidence prevents the trier of fact from inferring that the accused person is guilty of the charged offense because he has committed other similar acts or crimes.' People v. Matthews, 17 Mich.App. 48, 52, 169 N.W.2d 138, 140 (1969).'

The primary issue is whether the fact that defendant was in possession of marijuana when the amphetamines were discovered was properly admitted into evidence. The prosecutor points to the statutory exception to the general rule of inadmissibility as authorizing the admission of the marijuana to show that defendant knew he had possession of a controlled substance:

'In any criminal case where the defendant's motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant's scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.' M.C.L.A. § 768.27; M.S.A. § 28.1050.

This statute has been interpreted as permitting the introduction of evidence of a pending narcotics [72 MICHAPP 318] charge against a defendant who, charged with possession of heroin with intent to deliver, testified that he was not familiar with narcotics and didn't know the contents of the package he delivered. People v. Belen Johnson, 62 Mich.App. 63, 73, 233 N.W.2d 188 (1975). For evidence to be properly admissible under the statute, however, three criteria must be met:

1. Defendant's motive, intent, knowledge, etc. must be material to the case;

2. The evidence offered must be of a 'like act';

3. The probative value of the evidence must outweigh the attendant prejudice to the defendant.

See People v. Spillman, supra, 63 Mich.App. 259--260, 234 N.W.2d 475.

In this case the first standard is met; knowledge of the proscribed nature of the controlled substance is certainly material to the case. People v. Gould, 61 Mich.App. 614, 620, 233 N.W.2d 109 (1975). The proffered evidence in this case, however, does not meet the remaining two criteria. Defendant was charged with the felony of possession of amphetamines. The proffered evidence indicated that defendant may have been guilty of the misdemeanor of possession of marijuana. A long discourse at this point on the difference in the degree of evil society associates with the possession of marijuana as opposed to the possession of amphetamines is not necessary. The law treats the two crimes in significantly different ways. M.C.L.A. § 335.341(4)(b); M.S.A. § 18.1070(41) (b), M.C.L.A. § 335.341(4)(d); M.S.A. § 18.1070(41)(4)(d). Obviously, both offenses consist of possession of a controlled substance, but they are not sufficiently alike to permit evidence of one to be admissible under the statute in a prosecution for the other. Significantly accentuating the error in this case is the fact that the trial judge twice erroneously instructed the [72 MICHAPP 319] jury that possession of marijuana was an offense punishable to the same extent as possession of amphetamines.

The third criterion for admitting evidence of other similar offenses under the statute was also not met.

'(E)ven if the evidence meets the statutory requirements for admissibility, it still may be unacceptable, if it is unduly prejudicial, insufficiently probative, or unnecessary in light of the other evidence.' People v. Spillman, supra, 63 Mich.App. 260, 234 N.W.2d 477.

The proposition that the fact that one has possessed marijuana tends to prove that he knew that the possession of amphetamines was proscribed or that he knew that what he possessed Was amphetamines is tentative at best. Cf. People v. Belen Johnson, supra. But even assuming that the other offense tended to prove an element of the charged...