People v. Pearson

• Decision Date: 27 April 1987
• Docket Number: Docket No. 89428
• Citation: 157 Mich.App. 68,403 N.W.2d 498
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel James PEARSON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 498

403 N.W.2d 498

157 Mich.App. 68

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

Docket No. 89428.

Court of Appeals of Michigan.

Submitted Dec. 3, 1986.

Decided Jan. 5, 1987.

Released for Publication April 16, 1987.

Leave to Appeal Denied April 27, 1987.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., James P. Hoy, Pros. Atty., and Raymond O. Howd, Asst. Atty. Gen., for people.

(James R. Neuhard, State Appellate Defender Officer by P.E. Bennett), Lansing, for defendant-appellant.

Before WALSH, P.J., and HOOD and TAYLOR, ^* JJ.

Defendant Daniel James Pearson was convicted, following a jury trial, of manufacturing a controlled substance (marihuana). M.C.L. Sec. 333.7401(1); M.S.A. Sec. 14.15(7401)(1). He was sentenced on October 21, 1985, to a three-year term of probation. M.C.L. Sec. 333.7401(2)(c); M.S.A. Sec. 14.15(7401)(2)(c).

Defendant was arrested at the site of a fifty-foot-square, fenced plot located in a remote area on state-owned land. When first confronted by the police, defendant said: "Oh no, I'm sorry. Can't we work something out? I only grow it for my own use. This is the first time I've done anything like this." The police harvested approximately 4,479 marihuana plants from the plot.

On appeal defendant renews his lower court argument that the growing of marihuana for one's own use is not prohibited. Defendant's proposed personal use defense was rejected by the trial court.

Defendant was convicted of manufacturing marihuana. M.C.L. Sec. 333.7401(1); M.S.A. Sec. 14.15(7401)(1). The Public Health Code defines "manufacture" as follows:

" 'Manufacture' means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis. It includes the packaging or repackaging of the substance or labeling or relabeling of its container, except that it does not include:

"(a) The preparation or compounding of a controlled substance by an individual for his or her own use.

"(b) The preparation, compounding packaging, or labeling of a controlled substance:

"(i) By a practitioner as an incident to the practitioner's administering or dispensing of a controlled substance in the course of his or her professional practice.

"(ii) By a practitioner, or by the practitioner's authorized agent under his or her supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale." M.C.L. Sec. 333.7106(2); M.S.A. Sec. 14.15(7106)(2) (Emphasis added.)

"Production" is defined as the "manufacture, planting, cultivation, growing, or harvesting of a controlled substance." M.C.L. Sec. 333.7109(4); M.S.A. Sec. 14.15(7109)(4).

These provisions are taken from the Uniform Controlled Substances Act and have been discussed at length by courts of other jurisdictions. Uniform Controlled Substances Act, 9 ULA, Sec. 101(m) and (u), pp. 197-200.

Personal use defenses to charges of growing marihuana have consistently been rejected. In State v. Childers, 41 N.C.App. 729, 255 S.E.2d 654 (1979), discretionary review 298 N.C. 302, 259 S.E.2d 916 (1979), the court found that the plain intent of the statutory personal use exception is to avoid imposing felony liability on individuals who, already in possession of a controlled substance, make it ready for their own use or combine it with other ingredients for use. Id. The production, propagation, conversion and processing of a controlled substance "contemplate a significantly higher degree of activity involving the controlled substance ... and thus are more appropriately made felonies with regard to ... whether the controlled substance so 'manufactured' was for personal use or for distribution." Id. ¹

In State v. Boothe, 285 N.W.2d 760, 762 (Iowa App, 1979), aff'd 284 N.W.2d 206 (Iowa, 1979), the personal use defense was similarly rejected:

"If it had been the intention of the legislature that all acts within the statutory definition [of 'manufacture'] were to be excluded if done by an individual for his own use, it could easily have so provided by applying the proviso directly to the term 'manufacturing' rather than to some but not all acts of manufacturing.

"We find that the language which was employed suggests an intent to limit the application of the personal use proviso to acts of preparation or compounding of a controlled substance. This conclusion is strengthened by the fact that another proviso contained in the same definition pertaining to medical doctors and other persons or institutions licensed to distribute, dispense or conduct research relating to controlled substances is also applicable to some but not all acts of manufacturing." ²

We are persuaded that these analyses reflect the only reasonable interpretation of the statutory language. We hold that the production, including the growing, of a controlled substance for one's own use is prohibited under M.C.L. Sec. 333.7401(1); M.S.A. Sec. 14.15(7401)(1). The personal use exception applies only to the preparation and compounding of a controlled substance already in existence.

Next, defendant argues that the constitutional rights to privacy and due process of law encompass the right to manufacture marihuana for personal use. We are not so persuaded. This Court has declined to recognize a constitutional right of privacy which encompasses the right to possess and use marihuana. People v. Williams, 135 Mich.App. 537, 355 N.W.2d 268 (1984), lv. den. 422 Mich. 877 (1985). A fortiori, there is no constitutional right to manufacture marihuana. See State v. Kelly, 106 Idaho 268, 678 P.2d 60 (1984), cert. den. 469 U.S. 918, 105 S.Ct. 296, 83 L.Ed.2d 231 (1984), where the court found no constitutional infirmity in the proscription of the cultivation of marihuana, even if it is being grown for personal consumption in the privacy of one's home. ³

Defendant challenges the denial of his motion to suppress evidence of the statement he made to the police at the time of his arrest. He argued in the lower court that the police should have interrupted defendant and advised him of his Miranda rights. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The court found that the statement was not elicited by police interrogation but was defendant's spontaneous reaction to being confronted by the police. The court thus properly ruled that the statement was not inadmissible. People v. Bell, 131 Mich.App. 586, 345 N.W.2d 652 (1983), lv. den. 419 Mich. 902 (1984).

On appeal, defendant argues for the first time that evidence of his statement to the police was admitted in violation of MRE 410, which provides that evidence of an offer to plead guilty or of statements made in connection with an offer to plead guilty is not admissible. Because this claim was not made in the lower court, it is not properly before this Court. In any event, the purpose of the court rule--to encourage negotiation and dialogue--was not thwarted by admission of this evidence. People v. Oliver, 111 Mich.App. 734, 758, 314 N.W.2d 740 (1981), lv. den. 414 Mich. 970 (1982). There was no discussion between defendant and the police, only defendant's unsolicited and unanswered statement. If defendant expected to negotiate a plea, that expectation was clearly not reasonable at the time of his statement....