People v. Sammons

• Decision Date: 07 October 1991
• Docket Number: Docket No. 115051
• Citation: 191 Mich.App. 351,478 N.W.2d 901
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Martin Howard SAMMONS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 901

478 N.W.2d 901

191 Mich.App. 351

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Martin Howard SAMMONS, Defendant-Appellant.

Docket No. 115051.

Court of Appeals of Michigan.

Submitted Aug. 6, 1991, at Lansing.

Decided Oct. 7, 1991, at 9:10 a.m.

Released for Publication Feb. 3, 1992.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., George B. Mullison, Pros. Atty., and Martha G. Mettee, Asst. Pros. Atty., for the People.

Martin H. Sammons, in pro. per.

State Appellate Defender by Ronald E. Steinberg, Jackson, for defendant-appellant on appeal.

Before MacKENZIE, P.J., and REILLY and CONNOR, JJ.

REILLY, Judge.

Defendant was convicted by a jury of possession with intent to deliver 225 grams or more, but less than 650 grams, of cocaine, M.C.L. Sec. 333.7401(2)(a)(ii); M.S.A. Sec. 14.15(7401)(2)(a)(ii), and conspiracy to deliver 225 grams or more, but less than 650 grams, of cocaine, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1). On September 6, 1988, defendant was sentenced to a term of twenty to thirty years of imprisonment for each offense, to be served consecutively. On March 27, 1989, this Court granted the defendant's application for a delayed appeal. We remand for proceedings consistent with this opinion.

At trial, Officer Buczek of the Bay City Police Department testified that on December 4, 1987, he and a police informant went to the Imperial Hotel in Bay City, Michigan, for the purpose of buying one pound of cocaine. Buczek and the informant were admitted into a hotel room by defendant, who was accompanied by codefendants Alan Stone and James Wallace. Defendant told the informant that the "shit" was in the bathroom. While the defendant and the informant went into the bathroom, Buczek remained in the room with Stone and Wallace, who discussed the problems associated with obtaining such a large quantity of cocaine. After defendant and the informant came out of the bathroom, defendant gave the informant a "sample" from a small pile on a night stand. The informant tasted the sample and indicated that it was "good." Buczek then told defendant the money was in the car. Defendant pointed to Stone and said, "[H]e's the money man." Stone told Buczek to get the money, which he did. Defendant commented that he hoped the bills were not little. After Stone counted the money, Wallace went outside to get "the product." Defendant told Buczek, "[W]e don't like to keep the coke and the money in the room at the same time."

After Wallace left the room, other police officers arrived and the suspects were arrested. Wallace was arrested after entering a van parked outside the hotel room. A warrant was secured to search the van, and the police discovered a sealed package under one of the seats. This package, along with the material from the night stand, and a packet that was seized from Stone were turned over to the Michigan State Police for testing. Analysis of the materials indicated that all three contained cocaine. Defendant, Wallace, and Stone were all charged with conspiracy to deliver 225 grams or more, but less than 650 grams, of cocaine, and possession with intent to deliver 225 grams or more, but less than 650 grams, of cocaine. ¹

Defendant, along with Wallace and Stone, raised the issue of entrapment before trial, and extensive hearings were conducted from May 4, 1988, through June 7, 1988. Defendant testified and identified the informant who accompanied Officer Buczek during the drug sale as a person he knew merely as "Rick." Defendant claimed that Rick set up the drug sale and pressured him into participating. The prosecution called Rick to rebut the defendant's allegations. Over defendant's objection, Rick was permitted to testify while wearing a mask and without disclosing his true identity. Rick denied either pressuring or threatening defendant, and the trial court found no entrapment.

Codefendants Wallace and Stone eventually pleaded guilty of possession with intent to deliver 225 grams or more, but less than 650 grams, of cocaine in exchange for the dismissal of the remaining charges against them. The defendant, however, declined a similar plea offer, electing instead to go to trial. At the subsequent trial, Rick was not called as a witness. Following trial, defendant was convicted by a jury of both counts as charged. This appeal followed.

Defendant on appeal has raised a host of issues addressing pretrial procedure, trial procedure, and sentencing. We will review each of them.

I

The first issue we have been asked to decide is whether the defendant's Sixth Amendment right of confrontation was violated when the trial court permitted Rick, the prosecution's chief witness, to testify at the entrapment hearing while wearing a mask, and without disclosing his true identity.

The Confrontation Clause of the Sixth Amendment, made applicable to the states through the Fourteenth Amendment, Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), guarantees to a criminal defendant the right, "[i]n all criminal prosecutions, ... to be confronted with the witnesses against him." The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. Maryland v. Craig, 497 U.S. ---, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990).

A

At the entrapment hearing, defendant testified that he first met Rick at a "dope house" approximately eight months before he was arrested. Defendant claimed that until November 16, 1987, he saw Rick about once a week at various dope houses where they would "do" cocaine together. Beginning on November 16, defendant said Rick began telephoning him repeatedly, up to ten times a day, trying to persuade him to sell cocaine. At first Rick asked for two ounces, and then a pound. Defendant said he kept trying to put Rick off and told him that he didn't want to sell cocaine. Rick kept calling though, telling defendant that he had spent $1,500 "profit money," and that his people were "putting the heat on him." Further, defendant was told that if he did not help out, Rick would have his people "put the heat" on defendant. Defendant said he finally agreed to help because Rick was desperate and in trouble. Defendant said that although he was a cocaine addict, and knew people who "turn dope," he was not a drug dealer.

Defendant's sister corroborated defendant's testimony, claiming that Rick called approximately seventy times during the last two weeks in November 1987. She said Rick called one time "hollerin' " that his people were upset because defendant had not shown up with two ounces of cocaine. He told her that defendant "better come through or else."

In rebuttal, the prosecution called Rick as a witness. At the prosecutor's request, and over defendant's objection, Rick was permitted to testify while wearing a mask, and defense counsel was instructed that he could not ask any identifying questions of Rick. The court, however, did allow admission of Rick's criminal record, but with identifying information struck therefrom. The justification for these procedures was that either defendant or one of his codefendants had allegedly offered someone a quarter pound of cocaine to kill Rick. ²

According to Rick, beginning in October 1987, he and a friend made several trips from Bay City to Detroit, where they bought drugs from defendant's younger brother and then defendant. In mid-November, after Rick's fifth trip to Detroit, the police searched Rick's house and discovered cocaine. Although Rick was not arrested, he was given a card with a phone number to call at the police department if he wanted help with his "situation." Consequently, Rick contacted the police and volunteered to assist them in catching his suppliers. Rick said he called both defendant and another source, identified as "Jim," about arranging a delivery of two ounces of cocaine to Bay City. Although Rick thought defendant and Jim were working together, Jim delivered the drugs in late November without defendant. Rick then called defendant to arrange for a sale of one pound of cocaine. Rick said he made numerous telephone calls to arrange the deal.

According to Rick, there was never any resistance by defendant to the sale, and he never put any pressure on defendant, whether by threats or appeals for his own safety. Rick said he was in constant contact with the police and discussed each phone call with them. Officer Buczek testified that Rick was closely supervised through the use of in-person meetings and phone consultations. Although Rick testified that he was not promised anything for his cooperation, the prosecutor eventually stipulated that Rick was told that the police would inform the prosecutor of his cooperation, and that the more help he provided, the more they "could talk."

At the conclusion of the entrapment hearing, the trial court made extensive findings, reflecting acceptance of the testimony of Rick and the police. The court found that defendant had sold drugs to Rick before Rick's involvement with the police, that defendant had indicated a willingness to deliver drugs to Bay City, that there was no improper inducement of Rick's cooperation and no improper pressuring of defendant, and that Rick had been adequately supervised. Thus, the court concluded that there had been no entrapment.

B

Defendant now argues, as he did below, that his Sixth Amendment right of confrontation was violated through the use of the mask because he was prevented from confronting his accuser face-to-face and because the trial judge, as the trier of fact, was prevented from adequately assessing the witness' credibility, a major issue in the entrapment hearing. Defendant also argues that his right of confrontation was violated when the trial court precluded cross-examination regarding identifying information.

The prosecution claims that the masking...