People v. Mumford

• Decision Date: 08 April 1975
• Docket Number: Docket No. 19573,No. 1,1
• Citation: 60 Mich.App. 279,230 N.W.2d 395
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Eugene MUMFORD, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 395

230 N.W.2d 395

60 Mich.App. 279

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Eugene MUMFORD, Defendant-Appellant.

Docket No. 19573.

Court of Appeals of Michigan, Division No. 1.

April 8, 1975.

Released for Publication June 26, 1975.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P.J., and HOLBROOK and KELLY, JJ.

KELLY, Judge.

Defendant was convicted of possessing a controlled substance, heroin, with intent to deliver. M.C.L.A. § 335.341(1); M.S.A. § 18.1070(41)(1). He appeals of right.

Police officers, attempting to execute a search warrant, arrived at a certain apartment. They went to the door in 'street' or 'hippy' clothes and requested that defendant open it. He refused. They entered and found defendant, clad only in undershorts, standing near a coffee table in the living room with gun in hand. He was the sole occupant of the apartment at that time. A strainer, tinfoil, a small measuring spoon, a piece of cardboard, and $50 to $60 cash were on the table. An undercover officer testified at trial that these items were commonly used to cut and package heroin for sale. There was also a vial on the coffee table. It contained 7.83 grams of a substance that consisted of 11 1/2% Pure heroin, lactose and mannitol.

In the bedroom of the apartment there were clothes which fit defendant, his wallet, mail addressed to him, and several prescription bottles with defendant's name on them. Also a wedding album containing defendant's marriage license and photographs of his wedding.

It is claimed that the trial judge erred in admitting into evidence defendant's admission, after having been given the Miranda ¹ warnings, that 'I don't use that stuff, I just sell it.' More precisely, defendant claims that this violated the rule that the corpus delicti of a crime must be proved by evidence independent of the accused's confession. People v. Lane, 49 Mich. 340, 13 N.W. 622 (1882), People v. Allen, 390 Mich. 383, 212 N.W.2d 21 (1973), adopting the dissenting opinion of Judge (now Justice) Levin in People v. Allen, 39 Mich.App. 483, 494, 197 N.W.2d 874, 880 (1972). Its application frames the issue before us.

The elements of the crime are set forth in the statute. In pertinent part, M.C.L.A. § 335.341(1); M.S.A. § 18.1070(41)(1), reads:

'* * * it is unlawful for any person to * * * possess with intent to * * * deliver, a controlled substance.'

The term 'possession' connotes dominion or the right of control over the drug with knowledge of its presence and character. People v. Germaine, 234 Mich. 623, 627, 208 N.W. 705, 706 (1926). The term 'possession' is to be construed in its commonly understood sense and may encompass both actual and constructive possession. People v. Harper, 365 Mich. 494, 506--507, 113 N.W.2d 808, 813--814 (1962), cert. den., 371 U.S. 930, 83 S.Ct. 302, 9 L.Ed.2d 237 (1962). Possession, like other elements of the corpus delicti, may be proved by circumstantial evidence and reasonable inferences therefrom. People v. Allen, 390 Mich. 383, 212 N.W.2d 21, Supra, Peterson v. Oceana Circuit Judge, 243 Mich. 215, 219 N.W. 934 (1928).

The circumstantial evidence bearing on possession in this case consists of defendant's exclusive presence in the apartment under circumstances indicating that he was an inhabitant, not a mere visitor. Additionally, defendant was near the coffee table on which, in plain view, were what appeared to be narcotics and narcotics paraphernalia. Finally, the jury could reasonably infer from the fact that defendant brandished a gun, that he was exercising control over the heroin with knowledge of its character.

According to the testimony, the setup on the table was for packaging the vial contents (7.83 grams of a mixture of 11 1/2% Heroin, lactose and mannitol) in foil packets. We cannot say that intent to deliver is not inferable from the contents and paraphernalia.

It is undisputed that the heroin mixture was a controlled substance within the ambit of M.C.L.A. § 335.341(1); M.S.A. § 18.1070(41)(1). Since there was evidence on each element of the crime independent of defendant's confession, that confession was properly admitted. We believe therefore that the motion for directed verdict was properly denied.

Defendant further claims that he was denied the right to a speedy trial guaranteed by U.S.Const. Am. VI and Const.1963, art. 1, § 20. We are required to analyze and weigh four factors: length of delay, the reason for the delay, defendant's assertion of his right, and prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 2192, 33 L.Ed.2d 101, 117 (1972), People v. Crimmett, 388 Mich. 590, 202 N.W.2d 278 (1972), people v. Collins, 388 Mich. 680, 202 N.W.2d 769 (1972), People v. Chism, 390 Mich. 104, 211 N.W.2d 193 (1973).

The delay between arrest and trial, about eighteen months, is almost identical to that condemned in People v. Den Uyl, 320 Mich. 477, 31 N.W.2d 699 (1948). However, no constitutional violation was found in instances where the delay was 15 months, ² 19 months, ³ 27 months, ⁴ and 5 years. ⁵ All in all, this factor would weigh for defendant if the delay were clearly attributable to appellee.

Part of the delay was attributable to pretrial proceedings undertaken at defendant's behest and to protect his rights. Time consumed in pursuing legal remedies is not to be considered improper delay. People v. Chism, Supra. Some of the delay is unexplained. It is the duty of the trial court to maintain a docketing system which sets forth the reasons for continuances. Without record indications of why the case did not proceed with greater expedition, our ability to assess speedy-trial claims is undermined. We are unable to weigh the circumstances of delay for which there is no record explanation where the defendant is on bond.

The fact that defendant did not complain of the delay before appeal is not determinative. People v. Grimmett, Supra at 607, 202 N.W.2d 278. It is an important consideration in following the balancing test set forth in Barker v. Wingo, Supra. In the instant case, the absence of an objection in the trial court may be viewed as indicative that defendant did not feel prejudiced by the delay and suggests the possibility that some of the unexplained delay was to accommodate defendant or his counsel.

Finally, defendant contends that the trial judge erred in granting the prosecutor's motion to strike the names of Mr. and Mrs. Norman Guilless from the list of endorsed witnesses. The position of the people is that: (1), the Guillesses were not res gestae witnesses; and (2), due diligence was exercised in attempting to locate and bring the witnesses to court.

A thorough hearing was conducted by the trial judge. There was confusion as to the existence of Mr. and Mrs. Norman Guilless let alone any indication as to what might be their testimony. One of the arresting officers, Richard Anderson, testified as follows:

'Question: To the best of your knowledge, does anyone by the name of Norman or Mr. and Mrs. Norman Guilless exist?

'Answer: I believe there was an error in--in, I assume it was Mr. and Mrs. Norman Kursey who is the female in the back of the room in the red that the officers were talking to, I am almost positive it was the same woman.'

The officer in charge of the case at the time of the arrest testified as follows:

'The Court: All right, and does the information, except for the name of Mr. and Mrs. Guilless, include every person that you found at that time that had any res gestae information about the case who was present in the position and did observe anything as far as you know?

'Sargeant Mattioli: Everybody is listed on the report and on the information that are pertinent, other than the Guillesses who I'm not familiar with.

'The Court: So you don't know of any Guillesses that had any connection with this case?

'Sargeant Mattioli: None, whatsoever.'

Testimony was had regarding the diligence of the police officers in attempting to locate the Guillesses in preparation for trial. The post office was checked. City directories and public records were examined, utilities canvassed, apartment residents interviewed. There was no lead as to these potential witnesses. The endorsed witnesses were Mr. and Mrs. Norman Guilless. The resident apartment managers for the five years preceding trial were Mr. and Mrs. Norman Kursey. They lived in apartment no. 5 and the appellant was apprehended next door in apartment no. 6. Officer Anderson recalled: 'After the arrest was made a car drove in occupied by a black female and a black male and they went into the apartment no. 5 which was next door.' One of the officers talked to these late arrivals and it was Officer Anderson's opinion that there was an error, that Mr. and Mrs. Norman Kursey were in fact the Mr. and Mrs. Norman Guilless who were named on the information.

Mrs. Kursey testified during the hearing that she was the resident manager and she lived in the apartment next door to where defendant was apprehended. She said she could have talked to the police officers but didn't think so and that her husband could have talked to them but 'after I guess it had all happened, but I don't know, tell--well, what he was saying to them or what'. It later developed that Mrs. Kursey had grown up with the defendant, knew his family and considered herself a friend. After the court ruled the Guillesses' names stricken from the information, defense counsel asked that the name of Mrs. Kursey be added to the information; the court granted the motion and required the prosecutor to endorse Mrs. Kursey as a res gestae witness. We believe that the court was correct in striking the names of Mr. and Mrs. Norman Guilless from the information. We believe that the court reasonably concluded that somehow the name...