People v. McCarver

• Decision Date: 31 August 1978
• Docket Number: No. 59185,59185
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Alvin L. McCARVER, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 186

269 N.W.2d 186

403 Mich. 376

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

No. 59185.

Supreme Court of Michigan.

Aug. 31, 1978.

John A. Smietanka, Berrien County Prosecutor, St. Joseph, for plaintiff-appellant.

Jack M. Struwin, St. Joseph, for defendant-appellee.

PER CURIAM.

The defendant was convicted by a jury of the charge of possession of a controlled substance, namely amphetamines, contrary to M.C.L.A. § 335.341(4) (b); M.S.A. § 18.1070(41)(4)(b). He was sentenced to a term of 16 to 24 months in prison. The Court of Appeals reversed the defendant's conviction and remanded for a new trial because the majority of that Court was convinced that evidence of other criminal activity which had been admitted at defendant's trial deprived him of a fair trial. 72 Mich.App. 311, 249 N.W.2d 403 (1976).

On November 26, 1974, Federal and Berrien County authorities, acting pursuant to a search warrant, seized, Inter alia, a quantity of pills and some marijuana from the defendant's residence. The instant prosecution for possession of amphetamines resulted. At trial defendant admitted possessing the pills in question, but he maintained that at the time he possessed them he believed they were diet pills. Guilty knowledge is unquestionably an element of the offense charged. ¹

In an attempt to prove that the defendant was not mistaken as to the nature of these pills, the prosecutor offered evidence at trial that marijuana, another controlled substance, was also seized during the search of defendant's residence. The evidence was offered pursuant to M.C.L.A. § 768.27; M.S.A. § 28.1050, ² based upon the prosecutor's contention that defendant's contemporaneous possession of marijuana was a "like act". Defense counsel initially objected to the introduction of this evidence, then withdrew the objection after the trial court gave the jury an instruction on the limited purpose for which the evidence was introduced.

The majority of the Court of Appeals, while acknowledging that Scienter is an element of the crime, was unconvinced that proof of contemporaneous possession of marijuana was a "like act" so as to justify demonstration at trial. The majority reasoned:

"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)(4)(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 jury that possession of marijuana was an offense punishable to the same extent as possession of amphetamines." 72 Mich.App. 318-319, 249 N.W.2d at 405.

In dissent, Judge Holbrook observed:

"Defendant was in possession of two illegal drugs at the same time and place. Defendant denied knowledge of the illegal nature of the amphetamines, possession of which is a felony. Defendant was not charged with the misdemeanor offense, possession of marijuana. Nevertheless, where defendant possessed both drugs at the same time and denied knowledge of the illegal character of the drugs, possession of the marijuana is highly relevant to prove defendant's knowledge of the amphetamines' illegality." 72 Mich.App. 324, 249 N.W.2d 408.

In People v. Duncan, 402 Mich. 1, 260 N.W.2d 58 (1977), in construing M.C.L.A. § 768.27; M.S.A. § 28.1050, we noted:

"The statute requires 'like acts', not identical acts." 402 Mich. 12, 260 N.W.2d 60.

We believe that evidence concerning the simultaneous possession of marijuana by the defendant was admissible pursuant to this statute. That evidence tends to show the absence of mistake on the part of defendant with regard to his possession of amphetamines. Both marijuana and amphetamines are presently controlled substances, possession of which is illegal. Proof that the defendant possessed, at the same time, a controlled substance other than the one for possession of which he is being prosecuted is a sufficiently similar act to warrant admission pursuant to the statute to show absence of mistake.

Furthermore, we note that the trial court gave a cautionary instruction to the jury in this case which informed them of the limited purpose for which evidence concerning the defendant's contemporaneous possession of marijuana was introduced. The jury was thus adequately advised in this regard and indeed, defense counsel, who had initially objected to such evidence, was so satisfied by the limiting instruction that he indicated on the record that he was withdrawing his objection to this evidence.

In People v. Duncan, Supra, we said:

"It is well settled that the determination of whether the probative value of similar acts testimony is substantially outweighed by its unfairly prejudicial effect is within the sound discretion of the trial judge. See People v. DerMartzex, 390 Mich. 410; 213 N.W.2d 97 (1973), and authority cited therein." 402 Mich. 14, 260 N.W.2d 61.

The Court of Appeals majority felt that even if the evidence concerning possession of marijuana was considered to be a "like act" its probative value was clearly outweighed by the prejudice to the defendant. We disagree. To the extent that the introduction of evidence of this type tends to further prove the prosecutor's case, it will always be of some prejudice to the defendant. However, we are unconvinced that in this particular case the introduction of the "like act" evidence was of such an inflammatory nature as to cause the members of the jury to render a finding of guilt which they might otherwise not have been disposed to do. Whatever "prejudice" might have emanated from the introduction of this evidence was certainly tempered by the cautionary instruction given by the trial court to the jury. Indeed, as noted Supra, this cautionary instruction prompted defense counsel to withdraw his previously proffered objection to this evidence. Accordingly, we believe the Court of Appeals conclusion that this evidence should have been excluded to be error.

In reversing, the Court of Appeals also concluded that the defendant had been prejudiced at trial because a Federal agent who was testifying for the prosecution indicated that the defendant was a convicted felon. The majority was also troubled by an answer given on cross-examination by a state police detective as to whether he had tried to get someone to entrap the defendant. The witness answered:

"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."

The prosecutor pursued this point during redirect examination of this witness:

"Q. You said the name Al McCarver came up in various conversions 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?"

Finally, at this point defense counsel interposed an objection claiming that this line of inquiry was irrelevant and that it involved hearsay. The trial judge indicated that in his opinion these matters were irrelevant to the case at bar and sustained the objection.

The Court of Appeals concluded that the testimony of the Federal agent and the testimony of the state police detective when combined with the evidence concerning defendant's simultaneous possession of marijuana united to deprive the defendant of a fair trial. Since we have concluded that the evidence concerning defendant's possession of marijuana was properly admitted by the trial judge, we remand the case to the Court of Appeals for consideration of the question of whether the testimony of the Federal agent and the state police detective, standing alone, or when combined with other issues raised by the defendant in the Court of Appeals but not discussed by that Court, served to deny the defendant a fair trial.

Accordingly, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals and remand the case to that Court for further proceedings consistent with this opinion.

MOODY, COLEMAN, WILLIAMS, FITZGERALD and RYAN, JJ., concur.

LEVIN, Justice (dissenting).

Leave to appeal should be denied.

The issue is whether the Court of Appeals erred in reversing McCarver's conviction for possession of amphetamines on the ground that marijuana seized with the amphetamines should not have been admitted in evidence.

The marijuana was offered to show that McCarver knew that the pills were amphetamines. The Court of Appeals said that possession of marijuana and possession of amphetamines "are not sufficiently alike to permit evidence of one to be admissible under the statute in a prosecution for the other." ¹ This Court, in reversing the Court of Appeals, states that the marijuana

"tends to show the absence of mistake on the part of defendant with regard to his possession of amphetamines. Both marijuana and amphetamines are presently controlled substances, possession of which is illegal. Proof that the defendant possessed, at the same time, a controlled substance other than the one for possession of which he is being prosecuted is a sufficiently similar act to warrant admission pursuant to the statute to...