People v. Rosen
| Decision Date | 09 November 1984 |
| Docket Number | Docket No. 71161 |
| Citation | 136 Mich.App. 745,358 N.W.2d 584 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Nikki ROSEN, Defendant-Appellant. 136 Mich.App. 745, 358 N.W.2d 584 |
| Court | Court of Appeal of Michigan — District of US |
[136 MICHAPP 747] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Nathan T. Fairchild, Pros. Atty., and Leonard J. Malinowski, Asst. Atty. Gen., for the People.
Neil H. Fink and Mark J. Kriger, Detroit, for defendant-appellant.
Before HOLBROOK, P.J., and CYNAR and GILLESPIE, * JJ.
[136 MICHAPP 748] PER CURIAM.
Defendant was convicted by a jury of delivery of a controlled substance in violation of M.C.L. Sec. 333.7401(1) and (2)(a)(iv); M.S.A. Sec. 14.15(7401)(1) and (2)(a)(iv). She was sentenced to from 3 to 20 years imprisonment, and appeals as of right.
Defendant's first trial ended abruptly after accomplice Denise Beach, in response to a question by the prosecutor, testified in violation of an order in limine regarding a prior cocaine transaction between herself and defendant.
Beach was the prosecutor's first witness at defendant's second trial. She testified that she met one Dorothy McAllen on April 12, 1982, in the parking lot of Bill Knapp's restaurant in Ann Arbor. Beach was not then aware that McAllen was an undercover police detective. McAllen arranged to purchase seven grams of cocaine from Beach the following day. To obtain the seven grams, Beach telephoned defendant and asked if defendant "could get me the same or large--as what I had gotten before". Beach arranged to have defendant deliver the cocaine to Beach's home at approximately 1:00 p.m. on April 13, 1982.
McAllen and Beach were upstairs in Beach's home when defendant arrived. McAllen was told to wait in the living room while Beach and defendant conducted their transaction in the kitchen. Defendant entered the kitchen and, after a short conversation, handed Beach the cocaine. Beach took the cocaine in the living room and gave it to McAllen, who gave Beach $625. Beach then returned to the kitchen and gave defendant the money. Beach estimated that the entire deal consumed only 10 to 15 minutes.
Beach testified that she was later arrested for selling cocaine, and that she pled guilty to a lesser charge of possession. She was then awaiting sentence. [136 MICHAPP 749] On cross-examination, Beach stated that she pled guilty to a lesser charge in exchange for her testimony at defendant's trial. Beach indicated that she was also facing a charge of delivery in another county.
When Beach testified on direct examination that she asked defendant, on April 12, 1982, if defendant "could get me the same * * * as what I had gotten before", defense counsel objected to the reference to a prior drug transaction. Instead of declaring another mistrial, however, the trial judge overruled the objection. He subsequently dissolved the order in limine, allowing the prosecutor to inquire more fully into the prior deal. Pursuant to this ruling, Beach was permitted to testify that she had obtained a gram of cocaine from defendant on April 12, 1982.
Detective Sergeant Dorothy McAllen of the Michigan State Police testified that she met Denise Beach approximately two weeks before April 13, 1982. She talked with Beach on April 12, 1982, to arrange the purchase of seven grams of cocaine for $625. She went to Beach's house at approximately 1:20 p.m., and waited for the delivery to be made. While Beach and McAllen were upstairs, a car drove up and she saw a white female exit from the driver's side of the car and walk to the porch. McAllen then went into the living room to wait. McAllen went into the dining room to get a look at the woman, and saw defendant for several seconds. Beach then came in with a packet, which McAllen identified as cocaine. She gave Beach $625, which Beach gave to the woman in the kitchen.
Officer Donald Michelin testified that on April 13, 1982, he was assigned as a surveillance officer. At approximately 1:45 p.m., he saw defendant's [136 MICHAPP 750] car drive toward Beach's house. He saw defendant's car arrive at Beach's house and leave shortly thereafter. He saw defendant driving the car after it left Beach's house. Upon stipulation that the package given to Officer McAllen was cocaine and that no fingerprints were obtained from the package, the prosecution rested its case.
Defendant interposed an alibi defense.
Eric Fraser testified that on April 13, 1982, he was working in the same building as defendant. Defendant had a small boutique in the front of the building, and Fraser worked in the store across the hall. Defendant would often loan out her car to Fraser and others. On the way to court, Fraser drove to where Officer Michelin was on surveillance, and from that place he could not see Beach's house or persons driving by the house. Based on Fraser's calendar and recollection April 13, 1982, was an ordinary day, from which he inferred that defendant spent the day working in her store. Following Fraser's testimony the jury, judge and counsel went with Officer Michelin to where he was stationed on surveillance. Police cars were driven by to give jurors an opportunity to view the scene.
Marjorie Nureyev testified that she owned the shop across from defendant's. On April 13, 1982, defendant was in her own shop and Nureyev's shop between the hours of noon and 3:00 p.m. Nureyev based her recollection on the fact that she had only one paying customer that day, and that defendant had engaged in conversation with the customer. Nureyev further stated that defendant had a reputation for being a truthful person and law-abiding citizen.
Defendant testified that she was working in her store on April 13, 1982, and that she did not [136 MICHAPP 751] deliver cocaine to Denise Beach. She did, however, frequently lend the use of her car to other persons.
Irving Shaw, an assistant prosecutor in Lenawee County, testified that he was originally the prosecutor in the Nikki Rosen case. When Denise Beach entered her plea of guilty, Shaw had asked her if defendant had delivered a gram of cocaine to her on April 12, 1982. Beach replied that defendant had not done so.
The people were allowed to present the testimony of Officer Robert Bittel in rebuttal. Bittel testified that he had interviewed Marjorie Nureyev, who had told Bittel that sales in her shop had been good on April 13, 1982. This effectively impeached Nureyev's in-court testimony that she had only one paying customer that day.
Defendant has raised eight assignments of error, the first of which compels reversal of defendant's conviction.
Defendant's second trial began on January 6, 1983. Defendant's motion in limine to prevent the introduction of "prior bad acts" testimony was granted. On direct examination, Denise Beach testified that she made arrangements to sell Officer McAllen seven grams of cocaine. Beach stated that, in order to obtain the cocaine, she called defendant and "asked her if I could, you know, if she could get me the same or large--as what I'd gotten before". Beach then testified that defendant said "yes". Defendant objected, arguing that Beach's testimony violated the court's order in [136 MICHAPP 752] limine. The court, however, overruled defendant's objection, and held that the testimony was admissible under MRE 801(d)(2)(B) as a party-opponent admission.
After the prosecutor concluded his direct examination, the court dissolved its order in limine, stating:
Denise Beach then testified that she received one gram of cocaine from defendant on April 12, 1982, the day before that of the charged delivery.
We agree with defendant that evidence of the antecedent delivery could not appropriately have [136 MICHAPP 753] been admitted under the so-called "similar acts" rule, MRE 404(b). Before evidence of a prior bad act may be admitted to show one of the factors enumerated in the court rule, in this case knowledge, that factor must be material to the determination of defendant's guilt of the charged offense. People v. Golochowicz, 413 Mich. 298, 319 N.W.2d 518 (1982). Further, the materiality requirement is only satisfied if the enumerated factor is the subject of a genuine controversy. Golochowicz, supra. See also People v. Major, 407 Mich. 394, 285 N.W.2d 660 (1979).
In our case there was never a disputed issue concerning whether defendant knew the substance delivered to be cocaine; defendant claimed...
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