People v. Porterfield, Docket No. 58834

• Decision Date: 19 October 1983
• Docket Number: Docket No. 58834
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Amos PORTERFIELD, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 683

339 N.W.2d 683

128 Mich.App. 35

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Amos PORTERFIELD, Defendant-Appellant.

Docket No. 58834.

Court of Appeals of Michigan.

Submitted June 20, 1983.

Decided Aug. 16, 1983.

Released for Publication Oct. 19, 1983.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate, Asst. Pros. Atty., and A. George Best II, Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by Rolf E. Berg, Deputy State Appellate

Defender, for defendant-appellant on appeal.

Before V.J. BRENNAN, P.J., and WAHLS and DODGE, ^* JJ.

V.J. BRENNAN, Presiding Judge.

After a jury trial, the defendant was convicted of conspiracy to deliver over 50 grams of a controlled substance, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1) and M.C.L. Sec. 333.7401(2)(a)(iii); M.S.A. Sec. 14.15(7401)(2)(a)(iii). Defendant was sentenced to 10 to 20 years in prison. Thereafter, the trial court denied the defendant's motion for a new trial.

We first reject the defendant's claims: (1) that he was denied equal protection of the law because the statutory scheme punishes weight and not purity of the controlled substance mixture, and (2) that the controlled substances act violates the title-object clause of the Michigan Constitution. Defendant's arguments have been addressed by this Court on numerous occasions and rejected. See People v. Puertas, 122 Mich.App. 626, 332 N.W.2d 399 (1983); People v. Campbell, 115 Mich.App. 369, 320 N.W.2d 381 (1982); People v. Prediger, 110 Mich.App. 757, 313 N.W.2d 103 (1981); People v. Lemble, 103 Mich.App. 220, 303 N.W.2d 191 (1981), lv. den. 412 Mich. 888 (1981). Also, see People v. Berry, 123 Mich.App. 237, 333 N.W.2d 234 (1983); People v. Key, 121 Mich.App. 168, 328 N.W.2d 609 (1982); People v. Swindlehurst, 120 Mich.App. 606, 328 N.W.2d 92 (1982); People v. Trupiano, 97 Mich.App. 416, 296 N.W.2d 49 (1980), lv. den. 409 Mich. 895 (1980).

Next, the defendant claims that the prosecutor made civic duty arguments and references to the evils of heroin in closing argument which constituted reversible error because the defendant objected and his request for a curative instruction was denied.

We have reviewed the defendant's claim and find it to be without merit. When reading the prosecutor's comments as a whole and in the context in which they were made, it does not appear that the complained of conduct amounted to an impermissible "civic duty" argument. Furthermore, the prosecutor did not play upon the jurors' fears of illegal heroin traffic and did not stress that the jurors had to convict the defendant in order to alleviate the effects of narcotics. This conclusion is borne out by the fact that the jury acquitted a codefendant of the same charges. In addition, we find no error in the trial court's refusal to give a curative instruction. The court's instructions at trial essentially covered what was requested by defense counsel.

Defendant's final claim is that there was insufficient evidence presented to establish one conspiracy to deliver over 50 grams of heroin rather than a series of lesser conspiracies to deliver smaller amounts of heroin. Defendant maintains that the evidence merely showed day-to-day operations in which there were no outstanding agreements between the parties beyond the consignment sale of 10 to 20 coin envelopes which held a mixture containing heroin to the two runners whose testimony at trial provided the primary evidence against the defendant.

In determining whether there was sufficient evidence to support the defendant's conviction, the reviewing court views the evidence in a light most favorable to the prosecution and determines whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v. Gregory Johnson, 112 Mich.App. 483, 489, 316 N.W.2d 247 (1982).

The issue to be determined is whether there was sufficient evidence to prove that the defendant had the intent to deliver over 50 grams of a mixture containing heroin and also whether he had the intent to combine with others to deliver over 50 grams of a mixture containing heroin. Furthermore, it must be shown that the coconspirators each had the intent to deliver over 50 grams of a mixture containing heroin and the intent to combine for the purpose of delivering over 50 grams of a mixture containing heroin. Defendant claims that there was no such predetermined concert of action between the parties alleged to be members of the conspiracy. The defendant maintains that the accumulation of the alleged multiple transactions into one general conspiracy did not demonstrate a meeting of the minds.

We find that there was sufficient evidence that the defendant had the intent to deliver over 50 grams of a mixture containing heroin. Testimony established that the heroin delivery operation occurred almost daily. Heroin in one-quarter-ounce quantities was frequently cut and mixed by the defendant with the object of selling the mixture on the street soon thereafter. When the quarter ounce was sold (the aim was 90 bags per quarter ounce), the defendant cut and mixed more for sale. When the heroin supply dwindled or dried up, there were ways in which more could be obtained in order for sales to be made either that day or the next. Michael Williams, who was a runner for the defendant, testified that he sold approximately 90 bags per day for the defendant and Tommy Facen, another...