People v. Miller
| Citation | 453 N.W.2d 269,182 Mich.App. 482 |
| Decision Date | 10 April 1990 |
| Docket Number | Docket No. 108997 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Henry MILLER, Defendant-Appellant. 182 Mich.App. 482, 453 N.W.2d 269 |
| Court | Court of Appeal of Michigan (US) |
[182 MICHAPP 483] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Gary L. Walker, Pros. Atty., and David A. Payant, Scott K. Hanson and Matthew J. Wiese, Asst. Pros. Attys., for the People.
Mark Peter Stevens, Marquette, for defendant-appellant.
[182 MICHAPP 484] Before GILLIS, P.J., and SULLIVAN and CAVANAGH, JJ.
On March 15, 1988, following a jury trial, defendant was convicted of delivery of less than 50 grams of cocaine, M.C.L. Sec. 333.7401(1) and (2)(a)(iv); M.S.A. Sec. 14.15(7401)(1) and (2)(a)(iv), and delivery of 50 or more, but less than 225 grams of cocaine, M.C.L. Sec. 333.7401(1) and (2)(a)(iii); M.S.A. Sec. 14.15(7401)(1) and (2)(a)(iii). On April 22, 1988, defendant was sentenced to one to twenty years imprisonment and life probation, respectively. Defendant appeals as of right and we reverse defendant's conviction for delivery of less than fifty grams of cocaine, affirm defendant's conviction for delivery of fifty or more grams of cocaine, and remand for resentencing.
Defendant claims that his right to be free from double jeopardy was violated when he was convicted and sentenced on both charges. Defendant argues that the police divided a single agreed-upon sale into two separate criminal transactions and the prosecution should not be allowed to charge for the sample drug sale and then charge him with another offense for the main drug sale that occurred later that same day. We agree and, therefore, reverse his conviction for delivery of less than fifty grams of cocaine.
In People v. Manning, 163 Mich.App. 641, 643-644, 415 N.W.2d 1 (1987), a panel of this Court, in addressing a double jeopardy issue, looked to whether the deliveries were separately bargained for, whether each delivery was separately paid for, and whether the second delivery was set at the time of the first delivery. Here, the facts show one agreed-upon transaction divided into two deliveries for the convenience of the police. We are convinced[182 MICHAPP 485] that, had the facts in this case been before the Manning panel, a double jeopardy violation would have been found. Consequently, we reverse defendant's conviction for delivery of less than fifty grams of cocaine.
Defendant further contends that he is entitled to be sentenced pursuant to 1987 P.A. 275, which became effective after the crimes were committed but before defendant was sentenced. We agree.
A fundamental rule of statutory construction requires that, in interpreting a legislative enactment, we give effect to legislative intent. Joy Management Co. v. Detroit, 176 Mich.App. 722, 730, 440 N.W.2d 654 (1989), lv. den. 433 Mich. 860 (1989). Statutes which can be interpreted as remedial or procedural in nature can be construed to operate retrospectively unless a contrary intent is manifested. Trinova Corp. v. Dep't of Treasury, 166 Mich.App. 656, 666, 421 N.W.2d 258 (1988).
We view 1987 P.A. 275 as amending legislation designed to adjust the punishment for controlled substance offenses more proportionately to the crime and the criminal and as a tacit admission that such was previously not the case. See People v. Schultz, 172 Mich.App. 674, 687, 432 N.W.2d 742 (1988), lv. gtd. 432 Mich. 892 (1989). The amendment is remedial in nature as one "designed to correct an existing law," Spencer v. Clark Twp., 142 Mich.App. 63, 68, 368 N.W.2d 897 (1985), citing Rookledge v. Garwood, 340 Mich. 444, 453, 65 N.W.2d 785 (1954), and therefore can be applied retrospectively. Act 275 contains no language to the contrary, such as a specific "savings clause."
We conclude that established rules regarding remedial legislation allow defendant to be sentenced in accordance with the mitigated penalties in force at the time of his sentencing. To hold otherwise, that the legislatively disapproved penalty[182 MICHAPP 486] should apply, serves no purpose other than a "desire for vindictive justice." Holsclaw v. Indiana, 270 Ind. 256, 261, 384 N.E.2d 1026 (1979). In those limited circumstances where sentencing is conducted after the effective date of amending legislation, we hold that the sentence in effect on that date may be imposed.
Defendant relies on People v. Tyson, 423 Mich. 357, 377 N.W.2d 738 (1985), to claim that misconduct requiring reversal occurred when the prosecutor was allowed to argue that his expert was an unbiased agent of the state, thereby suggesting that defendant's experts were biased. Specifically, the prosecutor stated that his expert witness "works for the State of Michigan and he is paid a salary, which ... is not dependent at all on what his opinions are in any particular case." We disagree.
The Tyson opinion reaffirmed the long-standing rule that a highly prejudicial attack of a defendant's expert witness without support on the record would require reversal. Tyson, supra, pp. 374-376, 377 N.W.2d 738, People v. Williams, 218 Mich. 697, 188 N.W. 413 (1922), and People v. Cowles, 246 Mich. 429, 224 N.W. 387 (1929). However, the Tyson Court was examining argument that was filled with innuendos, insults and ridicule. Tyson, 423 Mich. 375, 377 N.W.2d 738. No such language is present here and we agree with the trial court that Tyson is factually distinguishable.
We also reject defendant's next claim that he is entitled to a remand for a new competency evaluation and examination because the forensic examiner did not consult with defense counsel as required by M.C.L. Sec. 330.2028; M.S.A. Sec. 14.800(1028). This issue was not preserved for appeal. People v. Lucas, 393 Mich. 522, 528-529, 227 N.W.2d 763 (1975).
As to defendant's contention that the trial court abused its discretion when it admitted evidence of [182 MICHAPP 487] similar acts under MRE 404(b), we again disagree. Defendant raised the defense of irresistible impulse and the similar-acts evidence was clearly introduced on the issue of defendant's sanity. See People v. Simonds, 135 Mich.App. 214, 217-220, 353 N.W.2d 483 (1984), lv. den. 424 Mich. 895 (1986).
Defendant is also convinced that the trial court abused its discretion when it allowed photocopies of the controlled buy money to be introduced rather than the money itself. Under the circumstances presented in this case, we cannot say that there was no justification for the ruling made. See, e.g., Wilson v. State, 568 P.2d 1315, 1317-1318 (Okla.Crim.App.1977).
Defendant also argues that the trial court erred when it declined to instruct the jury as requested on CJI 4:2:02(6) and (7). The use of the Criminal Jury Instructions is not mandatory. If used, paragraph six is considered optional and the cautionary language of paragraph seven is only applicable when the circumstantial evidence against a defendant is weak. People v. DeWitt, 173 Mich.App. 261, 270, 433 N.W.2d 325 (1988). Such is...
To continue reading
Request your trial
-
People v. Collins
...bargained for and separately paid for and to whether the second delivery was at the same time as the first. See People v. Miller, 182 Mich.App. 482, 484, 453 N.W.2d 269 (1990). In this case, the evidence demonstrated that although the deliveries were close in time, defendant sold two separa......
-
People v. Howard
...highly prejudicial attack of a defendant's expert witness without support on the record would require reversal." People v. Miller, 182 Mich.App. 482, 486, 453 N.W.2d 269 (1990). Here, the prosecutor's remarks were based on evidence adduced at trial and do not rise to the egregious level of ......
-
Warren v. Curtin
...on the Michigan Criminal Jury Instructions is not mandatory. People v. Petrella, 380 N.W.2d 11, 13 (Mich. 1985); People v. Miller, 453 N.W.2d 269, 270 (Mich. App. 1990). The Michigan Court of Appeals "has defined the intent to do great bodily harm as 'an intent to do serious injury of an ag......
-
People v. Evans
...prejudicial attack [on] a defendant's expert witness without support on the record would require reversal." People v. Miller , 182 Mich. App. 482, 486, 453 N.W.2d 269 (1990). In that case, we observed, the record contained "argument that was filled with innuendos, insults and ridicule." Id.......