People v. Pegenau

• Decision Date: 31 August 1994
• Docket Number: Docket No. 96696,No. 6,6
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Robert Paul PEGENAU, Jr., Defendant-Appellee. Calendar
• Court: Michigan Supreme Court

Page 325

523 N.W.2d 325

447 Mich. 278

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Robert Paul PEGENAU, Jr., Defendant-Appellee.

Docket No. 96696.

Calendar No. 6.

Supreme Court of Michigan.

Argued April 6, 1994.

Decided Aug. 31, 1994.

[447 Mich. 281] Gary L. Walker, Marquette County Pros. Atty. by Terrence E. Dean, Marquette, for plaintiff-appellant.

Mark Peter Stevens, Marquette, for defendant/appellee.

OPINION

MALLETT, Justice.

In this criminal matter, the Court of Appeals reversed defendant Robert Paul Pegenau, Jr.'s, jury conviction for unlawful possession of Valium and Xanax. ¹ We granted the prosecutor's application for leave to appeal ² to determine: (1) the constitutionality of M.C.L. § 333.7403; M.S.A. § 14.15(7403) and M.C.L. § 333.7531; M.S.A. § 14.15(7531), that define the offense of possession of a controlled substance and place the burden of proving a prescription on defendant, and (2) whether the trial court erred in denying defendant's motions for a directed verdict and for a new trial. Because we find that §§ 7403 and 7531 do not create an unconstitutional criminal presumption and that the trial court did not err in denying defendant's motions, we reverse the decision of the Court of Appeals and reinstate defendant's conviction.

I

On February 1, 1988, defendant was arrested for drunk driving. Pursuant to a custodial search, an officer discovered a bottle of pills in his jacket pocket. Some of these pills were later identified as Valium and Xanax. ³ Defendant was charged with violation of M.C.L. § 333.7403(2)(b); M.S.A. § 14.15(7403)(2)(b), for unlawful possession of Valium and Xanax. A jury convicted defendant as charged. The trial court sentenced him to sixty days in jail and twenty-four months probation.

At trial, the sole issue was whether defendant possessed the drugs pursuant to a doctor's prescription. ⁴ Section 7531 places the burden of proving existence of a prescription on the defendant:

(1) It is not necessary for this state to negate any exemption or exception in this article in a complaint, information, indictment, or other pleading or in a trial, hearing, or other proceeding under this article. The burden of proof of an exemption or exception is upon the person claiming it.

(2) In the absence of proof that a person is the authorized holder of an appropriate license or order form issued under this article, the person is presumed not to be the holder of the license or order form. The burden of proof is upon the person to rebut the presumption. [M.C.L. § 333.7531; M.S.A. § 14.15(7531).]

At the beginning of trial, outside the presence of the jury, defense counsel posed the issue how the burden of proof pursuant to § 7531 should be handled. Defense counsel took the position that lack of a prescription is an element of the offense, and that the burden of persuasion would shift back to the prosecution once testimony was elicited recounting defendant's assertions that he possessed the substances pursuant to a doctor's prescription.

The trial court indicated that it would study the issue, but, rather than keep the jury waiting, the attorneys should proceed with opening arguments without referring to the burden of proof issue. However, the assistant prosecutor stated in opening argument:

If there is some evidence in this case that there was a prescription or some type of evidence that there might have been a prescription in this case, then it will be my job to prove to you that there was, in fact, no valid prescription for these drugs. Now, what I want you to consider in this case on that point is, is there a prescription presented to you? Do you have a piece of paper that indicates that a doctor wrote it out and gave him a prescription? Is there a doctor--going to be a doctor in Court testifying? Yes, I gave him a prescription for these drugs on this--on such and such a date.

Defense counsel objected on the ground that the argument improperly shifted the burden of proof to the defendant. The trial court overruled the objection, stating that the prosecutor could outline what he thought the proofs would show.

The prosecution presented its case through testimony of the arresting officer and the officer who booked defendant. The arresting officer testified that at the time of the arrest, he asked defendant if he was taking any medication, if he was under a doctor's care, and if he was suffering from any physical disabilities. Defendant answered "no" to each of these questions. Later, while booking the defendant, an officer discovered an unlabeled white bottle in defendant's jacket pocket containing an assortment of pills, including Xanax and Valium. ⁵ At this point, defendant told officers that he had obtained these pills pursuant to a doctor's prescription for treatment of back pain. At the close of the prosecution's case, defendant moved for a directed verdict of acquittal. The motion was denied.

Defendant testified that he has had a longstanding and recurrent back problem dating back to the 1970s. He explained that it frequently flared up while he was working at out-of-town locations in the air conditioning and refrigeration business. He testified that he had been treated in as many as twelve cities for such work-related injuries by various doctors who would prescribe tranquilizers, such as Valium, and pain killers, such as Darvocet or Tylenol with codeine. Defendant testified that because he did not have medical insurance, he paid for the prescribed medications in cash. He would empty the remnants of his various prescriptions into a single plastic container and carry this with him for convenience. He conceded that he was unable to remember the names of any of his treating physicians or to produce a written prescription or other written documentation for the drugs.

Defendant's dentist testified that dental records showed he had prescribed Tylenol with codeine and Darvocet for defendant in 1987. ⁶ Defendant also produced a 1985 drug store receipt for two unidentified prescriptions. A physician specializing in clinical pathology, Dr. Ronald Sanders, testified that after examining defendant and reviewing his medical records, the defendant did in fact suffer from a chronic back condition and that such a condition would be treated with drugs such as Xanax, a muscle relaxant, and Valium, a sedative tranquilizer. Dr. Sanders further testified that the unlabeled bottle containing the drugs found in defendant's jacket pocket was a pill specimen bottle of the type given out by physicians dispensing from their offices, as was common practice five to ten years ago. The defense also elicited testimony that the drugs were not a "bootleg" version, inferring that defendant did not gain possession through unlawful channels.

In closing argument, the prosecutor outlined the elements of the offense. He stated:

The only possible question is then, the Judge is going to tell you, that there is a fourth element. Once some evidence of a prescription has been introduced in this trial--and there is some evidence of that, then it's the prosecution's burden to prove beyond a reasonable doubt, that there was no prescription. And that's what this case comes down to. Was there a prescription or not?

As you are making that decision on the fourth element--the first three have been proven to you beyond a reasonable doubt, by the defendant's own admission--as you're making your decision on the fourth element, you are to consider credibility.

Later in the argument, the prosecutor commented on defendant's inability to produce documentary proof of a prescription and his inability to remember any of his treating physicians. ⁷ Defendant objected to these comments and now argues that through such argument, the prosecutor impermissibly shifted the burden of proof to the defendant.

The trial court instructed the jury that the defendant was not required to prove his innocence or to introduce any evidence at all. The court further instructed that the prosecution was required to prove beyond a reasonable doubt that the controlled substances were not obtained as a result of a valid prescription. The jury was not instructed regarding defendant's burden pursuant to § 7531. ⁸

After conviction and sentencing, defendant moved for new trial. He argued error in the denial of his motion for directed verdict, that the verdict was against the great weight of the evidence, and that the prosecution had engaged in an improper burden-shifting argument. The trial court denied the motion, commenting that defendant could not have satisfied his statutory burden merely through introduction of his own self-serving statements. The court opined that if such statements were all that was required, the prosecution would face the impossible burden of proving a negative, that defendant did not have a prescription. The court ruled that defendant did not meet his burden of coming forward with some evidence beyond his own statement. When pressed by defense counsel, the court indicated that paper documentation of a prescription was not required in every case, but that here the evidence was insufficient to meet the burden. ⁹

The Court of Appeals reversed, holding that the trial court erred in not granting defendant's motion for new trial. The Court indicated that because defendant had met his initial burden by coming forward with some evidence of a prescription, the prosecution should have been required to prove absence of a prescription beyond a reasonable doubt. The Court also suggested that defendant was denied a fair trial because of the prosecutor's impermissible burden-shifting argument and the prosecutor's remarks to the jury that defendant had to produce documentary proof to rebut the statutory presumption of illegal possession. 199 Mich.App. 161, 163, 501 N.W.2d 211 (1993).

We granted the prosecutor leave to appeal and hold that the Court of Appeals erred in reversing defendant's conviction and remanding...