People v. Oliver

• Decision Date: 21 May 1979
• Docket Number: Docket No. 77-1558
• Citation: 282 N.W.2d 262,90 Mich.App. 144
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel OLIVER, Defendant-Appellant. 90 Mich.App. 144, 282 N.W.2d 262
• Court: Court of Appeal of Michigan — District of US

Page 262

282 N.W.2d 262

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel OLIVER, Defendant-Appellant.

Docket No. 77-1558.

90 Mich.App. 144, 282 N.W.2d 262

Court of Appeals of Michigan.

May 21, 1979.

Released for Publication Aug. 22, 1979.

[90 MICHAPP 145] James R. Neuhard, State App. Defender by Kim Robert Fawcett, Asst. State App. Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James D. Norlander, [90 MICHAPP 146] Pros. Atty., Roger L. Caswell, Asst. Pros. Atty., for plaintiff-appellee.

Before D. E. HOLBROOK, Jr., P. J., and R. B. BURNS and KELLY, JJ.

R. B. BURNS, Judge.

Defendant was convicted by a jury of delivery of phencyclidine, M.C.L. § 335.341(1)(b); M.S.A. § 18.1070(41)(1)(b), and delivery of marijuana, M.C.L. § 335.341(1)(c); M.S.A. § 18.1070(41)(1)(c), and appeals.

Evidence presented at trial established that police officer Johnston went to a residence in Battle Creek in the company of an informant and purchased phencyclidine and marijuana from defendant. Defendant was not arrested until approximately three months later. Defendant argues that the delay deprived him of due process. However, it is prejudice resulting from delay, not the delay itself, which may result in a violation of due process. People v. Hernandez, 15 Mich.App. 141, 146, 170 N.W.2d 851, 854 (1968). Although defendant speculates that prejudice may have occurred, defendant has demonstrated no actual prejudice. Thus, the argument is without merit.

Officer Johnston testified that he took the drugs purchased from defendant to the building from which his drug enforcement unit operated and placed them in a locker to which only he had keys. He transported the drugs to the crime lab 11 days later. Because the officer declined to testify as to the location of the building where the drugs were kept, defendant argues that there was a break in the chain of evidence. However, defendant's argument goes to weight, not admissibility, of the [90 MICHAPP 147] evidence. See, E. g., People v. Kremko, 52 Mich.App. 565, 573, 218 N.W.2d 112, 116 (1974). There was no error in admitting the exhibits.

Defendant raises three alleged instructional errors as issues for review. However, only one was preserved for review through objection. See, E. g., People v. Murry, 59 Mich.App. 555, 559, 229 N.W.2d 845, 847 (1975). Defendant argues that the trial court erred by failing to instruct the jury that phencyclidine is a substance "having a potential for abuse associated with a depressant effect on the central nervous system". See M.C.L. § 335.318(1)(b); M.S.A. § 18.1070(18)(1)(b). Defendant argued to the jury that he did not know what the substance was, and argues to this Court that a definition of the substance was necessary in order for the jury to assess his argument. However, the quotation is not a definition of phencyclidine, but a description of a class of substances, and thus had no relevance to any issue in defendant's trial.

Defendant moved to suppress reference to his 1974 conviction of delivery of marijuana as impeachment evidence. See People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974). One of the factors the trial court weighed in favor of admissibility was the similarity of the prior offense to the instant offenses. ¹ In so doing, it appears that the trial judge was conscientiously attempting to exercise his discretion in the manner indicated by People v. Osteen, 46 Mich.App. 409, 208 N.W.2d 198 [90 MICHAPP 148] (1973), Dismissed as moot, 390 Mich. 760 (1973), despite a personal belief that the rule indicated in Osteen did not make any sense. ² The trial court ruled the evidence admissible, and, as a result, defendant elected not to testify.

This Court has recognized that the opinion in Osteen contained a mistake which, if followed, results in an upside down exercise of discretion. People v. Cash, 80 Mich.App. 623, 264 N.W.2d 78 (1978), see People v. Green, 86 Mich.App. 142, 272 N.W.2d 216 (1978), People v. Denny, 86 Mich.App. 40, 272 N.W.2d 332 (1978). The proper analysis is that set forth in Gordon v. United States, 127 U.S.App.D.C. 343, 383 F.2d 936 (1967), Cert. den., 390 U.S. 1029, 88 S.Ct. 1421, 20 L.Ed.2d 287 (1968).

The issue of whether reference to prior convictions should be suppressed is one addressed to the Trial court's discretion. Gordon v. United States, supra, does not per se bar every impeachment by similar convictions. People v. Cash, supra, 80 Mich.App. at 627, 264 N.W.2d at 80, see People v. Townsend, 60 Mich.App. 204, 206, 230 N.W.2d 378, 379 (1975). Consequently, we decline to second guess the trial court by concluding that the evidence should have been suppressed, and remanding for a new trial. Compare People v. Green, supra, People v. Denny, supra. Rather, we remand to the trial judge for determination of whether he would have suppressed reference to the prior conviction had he applied the correct analysis. If he would have, a [90 MICHAPP 149] new trial shall be ordered. If he would not have, the conviction shall be affirmed.

Because the conviction may be affirmed, there is one other issue which we must reach. At sentencing, defense counsel objected to the trial judge conferring with a probation officer concerning defendant's sentence outside the presence of the defense counsel. It is apparently the practice of the trial judge to confer alone with probation officers prior to sentencing, a practice followed in the instant case. Defendant argues on appeal, Inter alia, ³ that the procedure deprived him of his right to counsel. We agree. Defendants are entitled to the assistance of counsel at those stages of criminal proceedings at which substantial rights may be affected. Sentencing is one such proceeding. Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). Counsel is needed to present to the court extenuating facts, explain conduct, correct errors in reports of defendants' past conduct, and appeal to the equity of the court. People v. Dye, 6 Mich.App. 217, 219, 148 N.W.2d 501, 502 (1967). Our Supreme Court has commented on the critical need for accurate facts as a basis for sentencing, and the consequent need for a procedure to allow defendants to rebut inaccurate information. People v. Malkowski, 385 Mich. 244, 249, 188 N.W.2d 559, 562 (1971)....