People v. Palacios
Decision Date | 02 May 1977 |
Docket Number | Docket No. 25449 |
Citation | 254 N.W.2d 873,75 Mich.App. 284 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jacinto PALACIOS, Defendant-Appellant. |
Court | Court of Appeal of Michigan — District of US |
Thomas J. Demetriou, Saginaw, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., E. Brady Denton, Jr., Prosecutor, Saginaw, for plaintiff-appellee.
Before BEASLEY, P. J., and R. B. BURNS and J. H. GILLIS, JJ.
A jury trial resulted in defendant's conviction on two counts of delivery of a controlled substance, cocaine, 1 and one count of conspiracy to deliver cocaine. 2 His sentence on each count was a concurrent prison term of not less than four nor more than seven years. Defendant now appeals of right.
Two issues are presented on appeal. First, defendant asserts that he was denied a fair and just trial because he was charged in one trial with two separate sales of cocaine. Second, defendant asserts that the prosecutor's closing remarks were so inflammatory that defendant's right to a fair trial was prejudiced. For the reasons stated below, we affirm.
The critical facts began on or about May 16, 1974, when two narcotics officers arranged to purchase a pound of cocaine from defendant and his associate. 3 On May 17, 1974, the four met as agreed, but only one ounce was delivered. Defendant again agreed to sell a pound of cocaine with delivery on the following May 20th. On that date, the four persons again met, but, once again, the defendant and his associate delivered only one ounce of cocaine. A further promise of defendant to deliver the pound in a few days was followed by defendant's arrest.
Defendant's acts led to the filing of two separate informations, each charging him with one count of conspiracy to deliver a controlled substance 4 and one count of delivery of a controlled substance. 5 After preliminary examinations had been held on the informations, the prosecutor moved to consolidate the matters for trial. Over defense objection, the trial judge granted the motion, and an amended information was filed which charged defendant with one conspiracy count and two delivery counts.
Defendant now argues that the two sales on the 17th and 20th were separate and distinct transactions which should have been the subject of two separate trials. 6
Severance of counts is subject to the discretion of the trial court. People v. Smyers, 47 Mich.App. 61, 209 N.W.2d 281 (1973), aff'd on other grounds, 398 Mich. 635, 248 N.W.2d 156 (1976). See also, M.C.L.A. § 767.75; M.S.A. § 28.1015. Recent opinions of this court have reached differing results when exercises of this discretionary power have been reviewed; those opinions are now awaiting the decision of the Michigan Supreme Court. 7 However, the unique facts of this case come within the principles announced long ago by Justice Christiancy in People v. McKinney, 8 a case often cited in this area. In McKinney, an embezzlement case, the Court said:
The "general rule" mentioned in McKinney is exactly what the defendant is asserting here. However, the facts of this case fall within the balance of the Court's statement. Over a five-day period, defendant had a series of dealings with the same two narcotics officers. Those dealings had a single, unifying purpose: the sale of a pound of cocaine. That purpose was exemplified by the conspiracy count at trial and proof of that conspiracy count would naturally involve evidence concerning the two sales. 10 Therefore, we hold that the counts of the amended information sprang from the same connected series of facts and that the joinder of those counts did not prejudice defendant's defense. People v. McKinney, supra. 11
Defendant also asserts error based upon the closing remarks of the prosecutor. Among other things, defendant asserts that the prosecutor improperly vouched for the credibility of his witnesses and injected extraneous social issues. Extended elaboration of these remarks is unnecessary because, although we do not condone everything that was said by the prosecutor, we hold that defendant's assertions are answered by People v. Hall, 396 Mich. 650, 655, 242 N.W.2d 377 (1976).
AFFIRMED.
Defendant was charged with two counts of delivery of a controlled substance and one count of conspiracy to deliver a controlled substance, contrary to M.C.L.A. § 335.341(1)(b); M.S.A. § 18.1070(41)(1)(b), and M.C.L.A. § 750.157a(a); M.S.A. § 28.354(1)(a), respectively, arising from events transpiring on May 16 and 20, 1974.
The prosecution moved to consolidate the trials and the motion was granted. The defendant was found guilty on all three charges and appeals.
Defendant claims that the trial court erred by consolidating the two counts of delivery for trial as they were two separate offenses.
In People v. Barnett, 66 Mich.App. 99, 238 N.W.2d 208 (1975), this Court held that where two counts were separate offenses committed at different times and demonstrable by different evidence the defendant was entitled to have separate trials on the two counts.
In this case the trial court erred by consolidating the two counts for delivery and by holding one trial.
I would reverse and remand for a new trial.
3 Defendant's associate was a co-defendant at trial. His conviction was affirmed by this Court in an unpublished memorandum opinion. People v. Brotzman, Docket # 24816, released 8/2/76.
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