People v. Rustin, Docket No. 58171
| Decision Date | 12 July 1979 |
| Docket Number | Docket No. 58171 |
| Citation | 406 Mich. 527,280 N.W.2d 448 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert RUSTIN, Defendant-Appellant. 406 Mich. 527, 280 N.W.2d 448 |
| Court | Michigan Supreme Court |
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief, App. Division, Asst. Pros. Atty., Flint, for plaintiff-appellee.
Goldstein & Raznick, P. C. by Lawrence S. Katz, Warren, for defendant-appellant.
The question for decision in this case is whether, in a prosecution for delivery of a controlled substance, the admission of testimony that five days before the delivery in question took place, the defendant made another delivery of a controlled substance to the same undercover agent was reversible error.
The charge against the defendant alleged that on August 3, 1974, he delivered a tinfoil pack containing a controlled substance, phencyclidine, to an undercover police agent, contrary to M.C.L. § 335.341(1)(b); M.S.A. § 18.1070(41)(1)(b). The defendant was found guilty as charged after a jury trial. The Court of Appeals, in an unpublished per curiam opinion, affirmed.
The primary witness against the defendant was the police undercover agent, Alfonso Martinez. Martinez testified that on the morning of August 3, 1974, he visited the defendant in his apartment. The defendant asked him to follow him into the kitchen. Martinez did so and upon arrival in the kitchen the defendant asked Martinez if he could sell a gram of "Crystal T" (phencyclidine) for him. Martinez professed an initial reluctance but when pressed by the defendant to do a favor for him, Martinez agreed to sell the "Crystal T" for the defendant for $35. The packet containing the phencyclidine was turned over to the authorities and the instant prosecution resulted.
After the prosecutor had established the foregoing facts during the direct examination of Martinez, it became evident during the course of further direct examination that the prosecutor was going to inquire into the prior relationship between Martinez and the defendant. Defense counsel objected and a separate record was made; the prosecutor contended that the "prior acts" of the defendant with Martinez would be admissible under M.C.L. § 768.27; M.S.A. § 28.1050. 1 Specifically, the prosecutor argued that testimony as to a prior delivery of a controlled substance by the defendant to Martinez would be admissible under the statute "(t)o show by lack of intent, mistake, scheme and design, and the intent of the defendant to deliver a controlled substance". The trial court said that it would allow the testimony.
Thereafter, on direct examination of Martinez by the prosecutor, the following colloquy took place:
We hold that under the circumstances of this case it was reversible error to admit the testimony of undercover agent Martinez with regard to the prior sale of a controlled substance to him by the defendant. There was no showing that the defendant had engaged in a particular scheme, plan or system with regard to the sale of controlled substances which would warrant introduction of evidence with regard to prior deliveries of controlled substances. Thus the situation is completely unlike that in People v. Oliphant, 399 Mich. 472, 250 N.W.2d 443 (1976), where we found no reversible error in permitting the introduction of evidence tending to show prior rapes on the part of the defendant.
Here, the trial court concluded that proof of a controlled substance sale by the defendant to the undercover agent five days before the transaction with which he was charged at trial was admissible because it tended to establish the defendant's intent on the occasion in question. In People v. Duncan, 402 Mich. 1, 260 N.W.2d 58 (1977), we upheld the admission of "similar acts" testimony because we concluded:
"The evidence of a repeated course of conduct tended to show the intent of defendants in doing the acts alleged and was therefore material and admissible under the statute." 402 Mich. 1, 13, 260 N.W.2d 58, 60.
In Duncan, however, the defendants were charged with conspiracy to do a legal act in an illegal manner, M.C.L. § 750.157a; M.S.A. § 28.354(1), and solicitation of a bribe, M.C.L. § 750.505; M.S.A. § 28.773. The defense proffered in Duncan was that the defendants were responding to a scheme initiated by other individuals and that the defendants only went along with it so as to catch one of those individuals in a crime. Thus, the defendants' intent in engaging in a certain course of conduct was clearly an issue.
By way of contrast, the defense in this case was that the defendant did not perform the act in question at all. The defendant denied selling undercover agent Martinez the phencyclidine, contending that an individual named "Randy" had done so. Thus, there can be no claim that the testimony concerning a prior controlled substance transaction was introduced to negate a claim on the part of the defendant that he did not know that the substance which he delivered was controlled nor did the defendant claim that the delivery of the controlled substance, although performed by him, was somehow done unintentionally. The defendant quite simply contended that he did not deliver the controlled substance. Thus we conclude that the reason for the admission of this evidence, namely, to establish the defendant's intent on the occasion in question, was insufficient to warrant the introduction of this evidence at trial.
Finally, in People v. Delgado, 404 Mich. 76, 273 N.W.2d 395 (1978), we found no error in a case in which an undercover officer was permitted to testify that the defendant delivered heroin to him on two occasions, January 17 and 22, 1974. Defendant Delgado was specifically charged with delivery of heroin on January 22. The other delivery charge formed the basis of a separate prosecution. At Delgado's trial for the January 22 delivery, the undercover agent testified as to the January 17 delivery. We found no error because the evidence established that the January 17 purchase of heroin was a condition precedent to the subsequent purchase of a greater quantity of heroin on January 22. We concluded:
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People v. Betancourt
...[delivered a controlled substance on October 10], he must have done it on the occasion for which he was charged." People v. Rustin, 406 Mich. 527, 533, 280 N.W.2d 448 (1979). We have considered the remaining issues raised by defendant on appeal and find no further reversible error. Because ......
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