People v. Nixten

• Decision Date: 08 July 1987
• Docket Number: Docket No. 86016
• Citation: 160 Mich.App. 203,408 N.W.2d 77
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry NIXTEN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 77

408 N.W.2d 77

160 Mich.App. 203

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry NIXTEN, Defendant-Appellant.

Docket No. 86016.

Court of Appeals of Michigan.

Submitted Aug. 4, 1986.

Decided March 25, 1987.

Released for Publication July 8, 1987.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., James R. Samuels, Pros. Atty., and J. Ronald Kaplansky, Asst. Atty. Gen., for the People.

State Appellate Defender Office by Stuart B. Lev, Detroit, for defendant-appellant on appeal.

Before HOOD, P.J., and HOLBROOK and PETERSON ^*, JJ.

PER CURIAM.

Defendant, charged and convicted of delivery of more than 50 and less than 225 grams of a mixture containing cocaine, M.C.L. Sec. 333.7401(1) and (2)(a)(iii); M.S.A. Sec. 14.15(7401)(1) and (2)(a)(iii), was sentenced to a prison term of from 13- 1/3 years to 20 years, and appeals as of right.

Defendant first came to the attention of the police when Elva Rushton, arrested for possession of cocaine, said that the cocaine had been obtained from defendant. She told the police that she had bought cocaine from him on various occasions and that his brother, Don, was also involved.

Rushton had met defendant in Flint late in 1977. The evidence does not indicate much about the acquaintance that continued thereafter, but, according to Rushton, it included occasional purchases from defendant of one-ounce quantities of cocaine. After a period of residence in Nevada, Rushton returned to Michigan late in 1983, taking residence in Barryton. She renewed her acquaintance with defendant early in 1984 and soon thereafter bought from him the cocaine for the possession of which she was arrested.

Rushton entered into an agreement to assist the police in the investigation of defendant and his brother in return for the dismissal of the charges against her. The plan called for Rushton to introduce an undercover agent to defendant and she eventually did so. First, however, she called defendant several times; she told him of her arrest and said that she needed money to cover some checks, including one to her lawyer, and that she wanted cocaine for resale which her boyfriend would finance. The truth of her story to the police was established when defendant responded by selling an ounce of cocaine to Rushton on July 27, 1984, in a monitored transaction.

Defendant's version of events up to this point was not substantially different from that of Rushton and the police except that he denied ever having sold any cocaine to Rushton. He said that Rushton first asked him for a loan to pay her attorney and then called repeatedly to ask him for cocaine. He acknowledged that he never asked her to stop calling, but said he told her that he did not know where she could get any cocaine. He acknowledged that he was present when Rushton made the monitored cocaine purchase on July 27, but he claimed that he had nothing to do with the transaction.

Following the July 27 transaction, Rushton introduced the police undercover agent, Deputy Gary Taylor, to defendant, representing that he was her boyfriend. Rushton and Taylor both talked to defendant by telephone about another purchase, this time of two ounces of cocaine, and arrangements were made for the sale to take place on September 15, 1984. The evidence indicates that the calls and the time lapse of seven weeks were occasioned because defendant was out of cocaine and not because of any reluctance on his part to make the sale.

On September 15, defendant, his brother Donald, Donald's wife, Debbie, and defendant's girlfriend, Lynn Young, drove to Rushton's home. Rushton and Taylor were there, along with another undercover officer who was pretending to be asleep on a couch. Defendant went to Rushton's door and asked if everything was okay. When Rushton said it was, defendant went back to the car and then returned to the house where he took a package of two ounces of cocaine from his shirt and gave it to Taylor in exchange for $4,600. Defendant counted the money twice and left.

Defendant's testimony at an entrapment hearing and at trial differs from that of Rushton and Taylor only as to defendant's role in the transaction. He said he had helped Rushton and Taylor get the cocaine from his brother, that any deal by Rushton and Taylor was with his brother, that on September 15 he went to Rushton's house with his brother, that his brother asked him to take the package into the house and told him how much money to get, and that he suspected that the package contained cocaine. At the entrapment hearing, he testified that he helped set up the purchase from his brother because of friendship for, and fear of, Rushton. The fear, he said, was because Rushton had had her husband killed for his insurance. ¹ He acknowledged that she had never threatened him and that he was not really personally afraid of her, but that he knew what she was capable of doing and was afraid of what she would do if he did not help her get some cocaine.

Defendant's first claim is that the trial judge erred in failing to find that entrapment occurred justifying dismissal of the charge. The claim that the police, knowing that defendant was not a drug dealer, maneuvered him into participating in a sale, as in People v. LaBate, 122 Mich.App. 644, 332 N.W.2d 555 (1983), and People v. Killian, 117 Mich.App. 220, 323 N.W.2d 660 (1982), lv. den. 414 Mich. 944 (1982), is contrary to the facts. Here the police did not know that defendant was not a dealer; to the contrary, although Rushton told them that she did not know personally whether defendant sold cocaine to others, ² they knew that he had sold to her on a number of occasions and verified her story by monitoring another sale to her by defendant. Neither do these facts disclose pressure, overreaching, illegal acts or reprehensible deceit on the part of the police. As stated in People v. Alford, 405 Mich. 570, 590, 275 N.W.2d 484 (1979): "The adoption of the objective standard [of entrapment] does not automatically preclude the use of undercover agents, but only conduct so reprehensible that it cannot be condoned by the judicial system." We find no abuse of discretion in the finding of the trial judge that there was no entrapment.

After defendant and his brother had testified at trial, defendant's attorney requested that Debbie Nixten and Lynn Young be produced as res gestae witnesses. Although they had accompanied defendant and his brother in driving to the Rushton residence when the cocaine was delivered, neither had been endorsed as witnesses on the information. The trial judge ruled that the women were not res gestae witnesses since they had remained in the car while the sale took place within the Rushton home. This seems to be an unduly restrictive view of the continuum of the offense, People v. Austin, 95 Mich.App. 662, 291 N.W.2d 160 (1980), but his ruling was correct for a different reason.

Where one has knowledge of the existence of a res gestae witness and fails to move for endorsement of that witness until after the completion of the prosecution's case, he waives his right to the endorsement and production of the witness. People v. Leggions, 149 Mich.App. 612, 386 N.W.2d 614 (1986), lv. den. 426 Mich. 862 (1986). That is the case here where the defense was playing games with the issue. Defendant's own testimony establishes the presence of the women at the time and place of the offense and his knowledge of their identity. Debbie Nixten was his sister-in-law; Lynn Young was his girlfriend. Rather than moving for their endorsement, defense counsel wrote a letter to the prosecutor asking that Lynn Young be produced at trial; he also included her name in a listing of defense witnesses pursuant to a pretrial conference; ³ and she was, in fact, present in the courtroom during the trial. With that knowledge and course of conduct he waived his right to compliance with the res gestae statute, M.C.L. Sec. 767.40; M.S.A. Sec. 28.980.

In the course of the argument as to whether the women were res gestae witnesses, the prosecutor went on to object that not only did he not have to call them but that the defense should not be allowed to call Lynn Young as a witness, because she had been present in the courtroom throughout the trial. The court excluded her testimony, a ruling which was error.

It is true that the trial courts have discretion to order sequestration of witnesses ⁴ and discretion in instances of violation of such an order to exclude ⁵ or to allow ⁶ the testimony of the offending witness. ⁷ 7] The prosecutor's claim that the trial judge was enforcing an order for the sequestration of all defense witnesses, however, is untrue and a misstatement both of his own objection at trial and the trial judge's ruling. Neither party made a written or oral motion for the sequestration of witnesses, nor did the court make a sequestration order in writing or from the bench. ⁸ Rather, the prosecutor's objection seems to have been that defendant, by not mentioning Lynn Young as a defense witness in his opening statements, had "misrepresented" who the defense witnesses would be, and that it would therefore be "unfair" to allow the defendant to call his girlfriend who had heard all the testimony. The trial judge upheld the prosecutor's objection, saying that defendant had "abandoned" calling Ms. Young as a witness.

The prosecutor does not attempt to justify such a novel exclusionary theory here, and we can find no rational basis for upholding a nonexistent sequestration order which the judge might have made had the prosecuting attorney thought to ask for it.

Having founded its appellate argument on the claim that there was a sequestration order, the prosecution has not addressed the question of whether the court's refusal to allow Lynn Young to testify for the defense is error requiring reversal. ⁹

In People v. Robinson, 386 Mich. 551, 563, 194 N.W.2d 709, 713 (1972), the Court adopted the following statement from ...