People v. Schultz, Docket No. 101072

Citation172 Mich.App. 674,432 N.W.2d 742
Decision Date16 December 1988
Docket NumberDocket No. 101072
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. David M. SCHULTZ, Defendant-Appellant. 172 Mich.App. 674, 432 N.W.2d 742
CourtCourt of Appeal of Michigan (US)

[172 MICHAPP 676] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Thomas S. Richards, Asst. Pros. Atty., for the People.

Faintuck, Shwedel & Wolfram by William G. Wolfram, Franklin, for defendant-appellant on appeal.

[172 MICHAPP 677] Before MICHAEL J. KELLY, P.J., and SULLIVAN and SHAMO, * JJ.

MICHAEL J. KELLY, Presiding Judge.

The information originally charged that defendant and Daniel Jamieson did manufacture, deliver or possess with intent to manufacture or deliver 225 grams or more but less than 650 grams of a mixture containing cocaine. M.C.L. Sec. 333.7401(2)(a)(ii); M.S.A. Sec. 14.15(7401)(2)(a)(ii). The prosecution's theory of the case was that defendant aided and abetted Jamieson's delivery of cocaine to an undercover police officer.

Following a jury trial, on April 28, 1987, defendant was convicted of possession of 225 grams or more but less than 650 grams of cocaine. M.C.L. Sec. 333.7403(2)(a)(ii); M.S.A. Sec. 14.15(7403)(2)(a)(ii). Jamieson absconded while on bail and his case is not before this Court. Defendant was sentenced to a prison term of from twenty to thirty years, the statute at the time of sentencing mandating that the minimum sentence be for not less than twenty years. He appeals as of right.

I

The charge arose from the events of November 13, 1986, when an undercover police officer made a controlled buy of approximately ten ounces of cocaine from Jamieson, in Jamieson's basement. Twice during the course of the transaction Jamieson withdrew into an adjacent room in the basement and conferred with someone.

Once the prearranged signal for the raid was given, the police quickly entered the Jamieson residence. Within seconds of going into the home, a police officer pushed open the door to this adjacent[172 MICHAPP 678] room and found defendant sitting on a bed. This room was apparently Jamieson's bedroom. In the room with defendant officers found, in plain view, a scale, a compound commonly used in cutting cocaine, and a mirror with residue of white powder on it and a switchblade knife next to it.

Defendant was subsequently taken to the police station and questioned about his presence at the scene. The questioning followed the police informing defendant of his Miranda 1 rights. Defendant initialed a Miranda card after each separate right was explained to him and defendant signed the card at the bottom. Defendant stated at trial that the signature on the card was his and that he understood his rights.

The single officer who interrogated defendant testified that defendant explained he was at the Jamieson residence to work out. Evidently there was some sort of a weight training center in the basement of the Jamieson home. The officer stated that defendant did not at any time during the interrogation request an attorney. About midway through the interrogation defendant was allowed to call his girlfriend. The officer was present during the conversation. Picking up on what was said in defendant's conversation with his girlfriend, the interrogating officer told defendant he did not believe his story. The officer testified that defendant then told the officer that he had taken a package to the Jamieson home, at Jamieson's request. The officer also testified that defendant told the officer that he had looked into the package and knew it contained cocaine.

Defendant testified that he never knew the package contained cocaine; however, he admitted that [172 MICHAPP 679] he did deliver a package to the Jamieson home on the 13th.

Defendant explained that he knew Jamieson from high school; however, that was several years earlier. The two had recently met and discussed working out with each other. On November 11, 1986, defendant first went to Jamieson's home. Jamieson resided with his parents. On that occasion the two began a weight training exercise routine and discussed meeting again on the 13th.

Defendant testified that on the 13th, while at his girlfriend's apartment, he had a phone conversation with Jamieson and Jamieson explained to him that a friend, whom Jamieson's father did not get along with, had a package for Jamieson. Jamieson asked if the friend could leave the package with defendant and if defendant would then deliver it to Jamieson when he came over to work out. Defendant stated that he agreed to deliver the package, and it was arranged for the package to be dropped off into defendant's car, which was parked at his girlfriend's apartment. Defendant was expected at the Jamieson home within ninety minutes of the telephone conversation.

Defendant stated that when he left his girlfriend's he checked his car and found a rolled up brown paper sack. Defendant retrieved the sack from the car and then walked to the Jamieson home. Defendant testified that he did not look in the sack and suspected nothing.

Defendant stated that he did not tell the interrogating officer that he looked in the bag. Defendant also testified that he requested an attorney during the interrogation but that the police officer disregarded this request and no attorney was provided. The interrogating officer disputes these claims. Defendant did not sign a written statement and no [172 MICHAPP 680] video or audio recording was made of the interrogation.

II

Defendant's first claim on appeal is that the trial court erred in denying his motion for a directed verdict on the charge of delivery of cocaine. Defendant argues that no rational trier of fact, on the evidence presented, could conclude that defendant knew and agreed to assist Jamieson in the delivery of cocaine to the undercover police officer.

Relying on the prosecution's theory that defendant was a mere aider and abetter, defendant argues that the prosecution failed to prove that defendant had the required intent necessary to support a conviction for delivery of cocaine, even as an aider and abettor. Therefore, defendant argues that the trial court erred in not directing a verdict in favor of defendant and this error requires reversal. We disagree.

In ruling on a motion for a directed verdict, the trial court must consider the evidence presented by the prosecution up to the time the motion is made, this evidence must be viewed in a light most favorable to the prosecution and the trial court must then determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979); People v. Petrella, 424 Mich. 221, 380 N.W.2d 11 (1985).

Four elements are necessary to support a finding that a defendant possessed with intent to deliver 225 grams or more but less than 650 grams of a mixture containing cocaine: (1) the substance must [172 MICHAPP 681] be shown to be cocaine; (2) the mixture containing the cocaine must weigh at least 225 grams, but less than 650 grams; (3) it must be shown defendant was not authorized to possess the substance; and (4) it must be shown defendant knowingly possessed the cocaine with intent to deliver. People v. Acosta, 153 Mich.App. 504, 511-512, 396 N.W.2d 463 (1986), lv. den., 428 Mich. 865 (1987). Defendant here only challenges whether there was sufficient proof of the fourth element.

As defendant states, the prosecution here was based on a theory of aiding and abetting. To support a finding that defendant aided and abetted in the commission of a crime the following three elements must be shown: (1) the crime charged was either committed by defendant or some other person; (2) defendant performed acts or gave encouragement which aided and assisted the commission of the crime; and (3) it must be shown that defendant intended the commission of the crime, or had knowledge that the principal intended its commission at the time of giving aid and encouragement. Id. at 512, 396 N.W.2d 463. Only the third element is called into question here.

Viewing the evidence presented by the prosecution in a light most favorable to the prosecution, the evidence showed: that defendant knew he was delivering cocaine to Jamieson, and that Jamieson expected it within ninety minutes; that defendant remained in a separate room from where the transaction took place but, when it came time for the transaction, Jamieson retrieved the cocaine from the room defendant was in, returning from that room with a clear plastic bag containing cocaine in his hands; that, when police found and arrested defendant in the bedroom, the police also found in plain view, a scale, a compound commonly used for cutting cocaine, and a mirror with [172 MICHAPP 682] a white powder residue on it; and that the room defendant was found in was very small.

Viewing this evidence in a light most favorable to the prosecution, a rational trier of fact could conclude that defendant intended the commission of the crime, or had knowledge that Jamieson intended its commission. Here, circumstantial evidence and reasonable inferences arising from that evidence provided satisfactory proof that defendant intended the commission of the crime, or had knowledge that Jamieson intended its commission. People v. Acosta, supra at 511, 396 N.W.2d 463. Therefore, we agree with the trial court. Defendant's motion for directed verdict was properly denied.

III

Defendant next argues that the prosecution violated his right to due process of law and his privilege against self incrimination by arguing in rebuttal that defendant's silence and his failure to make exculpatory statements to the police provided proof of defendant's guilt. In rebuttal argument the prosecution argued that, "if you believe that he...

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