People v. Schultz

• Citation: 635 N.W.2d 491,246 Mich. App. 695
• Decision Date: 09 October 2001
• Docket Number: Docket No. 216299.
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kimberly A. SCHULTZ, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

635 N.W.2d 491

246 Mich. App. 695

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kimberly A. SCHULTZ, Defendant-Appellant.

Docket No. 216299.

Court of Appeals of Michigan.

Submitted December 7, 2000, at Detroit.

Decided July 20, 2001, at 9:00 a.m.

Released for Publication October 9, 2001.

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, David Gorcyca, Prosecuting Attorney, and Thomas Richards, Assistant Prosecuting Attorney, for the people.

John D. Lazar, Royal Oak, for the defendant on appeal.

Before SAWYER, P.J., and JANSEN and GAGE, JJ.

GAGE, J.

Following a jury trial, defendant was convicted of delivering less than fifty grams of heroin, M.C.L. § 333.7401(2)(a)(iv). The trial court sentenced defendant as a third-offense habitual offender, M.C.L. § 769.11, to one year in jail and lifetime probation. Defendant appeals as of right. We affirm.

I

Early on October 2, 1997, defendant Kimberly A. Schultz summoned a neighbor for help. Defendant's boyfriend, Steven Schultz, was unconscious, lying on his back on the living room floor. Because the boyfriend had no heartbeat and was not breathing, defendant called 911 and the neighbor performed cardiopulmonary resuscitation until emergency workers arrived. Shortly thereafter, several police officers and firefighters arrived at the apartment, but could not successfully revive defendant's boyfriend (hereinafter the decedent).¹ The Oakland County Deputy Medical Examiner autopsied the decedent and concluded that he died from a combination of alcohol² and morphine³ intoxication. The examiner detected on the decedent's upper left arm a fresh needle mark, but noticed no further markings indicating past drug use by the decedent. The Oakland County Medical Examiner's chief toxicologist opined on the basis of the decedent's blood test results that his death occurred within minutes of the moment the heroin was injected.

To the police who arrived at the decedent's apartment on the morning of the decedent's death, defendant claimed that during the previous evening she was at a bar until 1:30 a.m. and when she returned home she found the decedent unconscious on the floor and his former girlfriend leaving the apartment. Leslie Brock, who was a friend of defendant and who had occupied the apartment directly above the decedent's apartment for approximately five months before his death, testified that she never observed the decedent use heroin, only alcohol, but witnessed defendant inject heroin every day. According to Brock, the decedent disliked that defendant used heroin, expressing that her drug use "was a big problem." Brock recalled that she encountered defendant near the decedent's apartment later on the morning of the decedent's death. Brock testified that defendant, who appeared hysterical, stated that the decedent was dead, and that defendant, in response to Brock's question about what had transpired, stated that "she [defendant] shot him up with a hit." The prosecutor also presented several other witnesses who testified that the decedent had an alcohol addiction, but disliked and never used drugs.

Detective Sergeant Thomas Cleyman of the Hazel Park Police Department testified regarding several statements he took from defendant during the afternoon following the decedent's death. Defendant acknowledged to Cleyman her past use of heroin, and that she had broken a promise to the decedent to stop using heroin. Cleyman eventually elicited from defendant four different versions of the events surrounding the decedent's death. Initially, defendant denied knowing whether the police might find heroin in the decedent's blood because she did not spend the entire evening with him. She and the decedent began drinking outside an apartment of some friends of the decedent. She and the decedent then went to Sugarbaker's bar until 10:30 p.m., when defendant dropped the decedent off at his apartment because of his advanced state of drunkenness. Defendant then went to another bar. On returning to the apartment in the early morning hours, defendant observed another woman leaving the apartment and that the decedent had turned blue. Defendant next claimed that she had dropped off the decedent, who was very drunk, at the apartment and returned to a bar, and speculated that the decedent might have ridden his bicycle to Detroit to obtain heroin for himself. Defendant subsequently indicated that she and the decedent bought some heroin together, and returned to the apartment where they separately injected it. Cleyman testified that defendant's last version of events went as follows:

The last one is she stated that she did the works, she admitted that she mixed the Heroin, she said she was selfish she took most of it.... [Defendant] told [the decedent] that she would do the works, but she wanted the first hit. She told officer [sic] that is how she knew he did the Heroin and once again I disagreed with her because she still stated that she went into the bathroom to shoot up and that she possibly still could not have known if he shot up or not because she stated she wasn't in the room with him.

In response to Cleyman's inquiry about how the decedent knew how to shoot himself up, defendant replied that during the 1970s the decedent previously had injected heroin, and that the decedent injected heroin three times during September 1997. Defendant signed a written statement matching the last version of her story and including the observation that "God showed me the dangers of what [heroin] will do and I know that I could be next. I can't bring him back and the Lord knows I'm only asking for death myself." After the interview, defendant marked on a truth/lie chart that Cleyman prepared that she had been ninety-seven percent truthful.

More than two months later, Cleyman arrested defendant,⁴ which precipitated further statements by defendant the following day. Cleyman read aloud defendant's final written statement, which described the following:

Steven J. Schultz and I were out October 1, 1997, drinking. The second bar we approached wouldn't serve us. Steven and I were in the area to buy Heroin and he suggested we get high. I said no, let's just go home. We went anyhow, got home, we both did each other. I can't remember much, who went first, but I do remember fighting over the drug. We seem to fight over alcohol and Heroin as Steven wanted his way and his way only.

I always and/or in most cases gave it to him. We did each other. I noticed ten minutes or so later something seemed strange so I try when I fixed the syringe, the dose, I put in there was just water. I thought I had most of or all of it, still not knowing if Steven had more of his own. I only meant for us to get our life in order, his death intentional [sic].

Defendant informed Cleyman that the decedent purchased the heroin with money from the paycheck he had collected earlier that afternoon. Defendant further explained orally that she injected heroin into the decedent's left arm, after which the decedent fell unconscious, and that the decedent's death was not intended. According to Cleyman, defendant also "stated that she knew it was dangerous, the Heroin" "[b]ecause she had fallen out. She said she had never witnessed anyone falling out before, but she stated she had fallen out herself, personally."⁵

Defendant stood trial on charges of involuntary manslaughter and delivering less than fifty grams of heroin. At the close of the prosecutor's case, defendant moved for a directed verdict regarding the delivery count,⁶ arguing that the delivery charge must fail because the evidence indicated that the decedent purchased the heroin, and defendant could not transfer to him something that he already owned. The prosecutor responded that defendant's injection of heroin into the decedent's arm fell within the clear statutory definition of delivery as a transfer. The trial court denied defendant's motion on the bases that (a) social sharing of drugs constitutes delivery under the controlled substance statutes, citing People v. Brown, 163 Mich. App. 273, 413 N.W.2d 766 (1987); (b) although evidence showed that the decedent purchased the heroin, "[t]he law does not recognize an ownership concept for illegal substances"; (c) because both defendant and the decedent had access to the heroin "[y]ou could make the argument ... that [defendant] delivered a portion of her share to him"; and (d) "the social policy behind the delivery statute is to discourage the flow of illegal substances between individuals in our society and the social policy is better promoted by allowing the charge to go forward in this factual scenario." The jury found defendant not guilty of involuntary manslaughter, but guilty of delivering heroin.

II

Defendant contends that the trial court erred in denying her motion for a directed verdict regarding the charge of delivery of heroin because the evidence, which established that she and the decedent jointly purchased and then shared heroin, was insufficient to establish a delivery of heroin. In ruling on a motion for a directed verdict, the trial court must consider in the light most favorable to the prosecutor the evidence presented by the prosecutor up to the time the motion is made and determine whether a rational trier of fact could have found that the essential elements of the crime were proved beyond a reasonable doubt. People v. Vincent, 455 Mich. 110, 121, 565 N.W.2d 629 (1997). Circumstantial evidence and reasonable inferences arising therefrom can sufficiently establish the elements of a crime. People v. Jolly, 442 Mich. 458, 466, 502 N.W.2d 177 (1993). "However, it is not permissible for a trial court to determine the credibility of witnesses in deciding a motion for directed verdict of acquittal, no matter how inconsistent or vague that testimony might be." People v. Mehall, 454 Mich. 1, 6, 557 N.W.2d 110 (1997). This Court applies the same standards in reviewing the trial court...