People v. Sears

• Decision Date: 06 July 1983
• Docket Number: Docket No. 45969
• Citation: 336 N.W.2d 210,124 Mich.App. 735
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James William SEARS, Defendant-Appellant. 124 Mich.App. 735, 336 N.W.2d 210
• Court: Court of Appeal of Michigan — District of US

Page 210

336 N.W.2d 210

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James William SEARS, Defendant-Appellant.

Docket No. 45969.

124 Mich.App. 735, 336 N.W.2d 210

Court of Appeals of Michigan.

Submitted Jan. 7, 1983.

Decided April 18, 1983.

Released For Publication July 6, 1983.

[124 MICHAPP 737] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Peter D. Houk, Pros. Atty., Janis L. Blough, Chief Appellate Asst. Pros. Atty., and Charles L. Toy, Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by P.E. Bennett, Asst. State Appellate Defender, for defendant-appellant on appeal.

Before ALLEN, BRONSON and WAHLS, JJ.

WAHLS, Judge.

Defendant was convicted by a jury of possession with intent to deliver heroin, M.C.L. Sec. 335.341(1)(a); M.S.A. Sec. 18.1070(41)(1)(a), and as an habitual offender, fourth felony, M.C.L. Sec. 769.12; M.S.A. Sec. 28.1084. Sentenced to a prison term of from 15 to 30 years, defendant appeals as of right.

Following a Walker hearing [People v. Walker (On Rehearing), 374 Mich. 331, 132 N.W.2d 87 (1965) ], the trial court held that, while it was a "very difficult situation", the "greater weight" of the evidence showed defendant's statements to the police following his arrest to be voluntary and that the same were therefore admissible. Defendant contends, however, that in Michigan the prosecutor's burden is to prove voluntariness beyond a reasonable doubt rather than, as was the case here, by a preponderance of the evidence.

This Court reviews a lower court's determination of voluntariness by looking at the totality of circumstances and will not reverse a trial court's finding unless it is clearly erroneous or unless this Court is left with a definite and firm conviction that a mistake has been made. People v. Dean, 110 [124 MICHAPP 738] Mich.App. 751, 754, 313 N.W.2d 100 (1981). The prosecution bears the burden of proving voluntariness. People v. White, 401 Mich. 482, 494, 257 N.W.2d 912 (1977). At issue here is the nature of that burden, a question heretofore not addressed by this or the Supreme Court.

The United States Supreme Court, in Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), held that, as a matter of federal constitutional law, the burden of proof applicable to the issue of the voluntariness of a confession is that of a preponderance of the evidence. In rejecting the proof beyond a reasonable doubt standard, however, the Court indicated that the individual states are free, pursuant to their own law, to adopt a "higher standard".

As defendant points out, approximately ten states have adopted a proof beyond a reasonable doubt standard. See Comment, Jailhouse Confessions: The Need to Prove their Voluntariness Beyond a Reasonable Doubt, 12 U.S.F.L.Rev. 331, 347-353 (1975), see e.g., People v. Jimenez, 21 Cal.3d 595, 147 Cal.Rptr. 172, 580 P.2d 672 (1978). We decline, however, to hold that a more stringent standard of proof applies under Michigan law to Walker hearings. If such a rule is to be formulated, we conclude, in the absence of Michigan law to support defendant's position, that it is within the province of the Michigan Supreme Court to do so. Cf. People v. Mosley (On Remand), 72 Mich.App. 289, 291-292, 249 N.W.2d 393 (1976), aff'd on other grounds, 400 Mich. 181, 254 N.W.2d 29 (1977), cert. den. 434 U.S. 861, 98 S.Ct. 189, 54 L.Ed.2d 135 (1977).

Defendant next asserts that the trial court erred reversibly by allowing the prosecutor to cross-examine the defendant regarding his 1965 conviction [124 MICHAPP 739] for carrying a concealed weapon and his "first trip to prison", in 1956, for an unspecified offense which was described only as being unrelated to drugs. Evidence of these convictions was inadmissible for impeachment purposes under MRE 609 as their use was barred by the 10-year rule. MRE 609(b).

The prosecutor argues, however, that defense counsel "opened the door" to such cross-examination by eliciting from defendant the fact that he had often been in trouble due to his drug use, including a 1964 conviction for possession of marijuana. The prosecutor argues that defense counsel had attempted to falsely portray that all of defendant's difficulties with the law were solely the result of his misuse of drugs, and that the cross-examination was proper to show defendant's past difficulties with the law had not originally or all been drug related.

We agree with defendant that this line of cross-examination was improper. Assuming arguendo that the fact that not all of defendant's troubles were drug-related would have been admissible to rebut a claim to the contrary, see MRE 404(a)(1), neither defendant nor defense counsel actually implied that all of his troubles were drug-related. Defense counsel merely inquired of defendant when his drug problem began.

We believe, however, that while the cross-examination was improper, it was harmless error. People v. Robinson, 386 Mich. 551, 194 N.W.2d 709 (1972), People v. Swan, 56 Mich.App. 22, 31-34, 223 N.W.2d 346 (1974). Defense counsel revealed to the jury that defendant had an extensive criminal record. We do not think that, absent revelation of the two other non-drug-related convictions to the jury, it is reasonably possible that one jury member might have voted to acquit the defendant.

[124 MICHAPP 740] Defendant next argues that the prosecutor improperly charged defendant as an habitual offender based on prior drug-related offenses rather than under the more specific augmentation statute of the controlled substances act, M.C.L. Sec. 335.348; M.S.A. Sec. 18.1070(48). The latter statute was repealed by 1978 P.A. 368, and replaced by M.C.L. Sec. 333.7413; M.S.A. Sec. 14.15 (7413), effective September 30, 1978, after defendant was arrested and charged, but before his trial.

The sentence augmentation statute provided, prior to September 30, 1978, as follows:

"Sec. 48. (1) Any person convicted of a second or subsequent offense under this act may be imprisoned for a term up to twice the term otherwise authorized or fined an amount up to twice that otherwise authorized, or both.

"(2) For purposes of this section, an offense is considered a second, or subsequent offense, if, prior to his conviction of the offense, the offender has at any time been convicted under this act or under any statute of the United States or of any state relating to narcotic drugs, marihuana, depressant, stimulant or hallucinogenic drugs." M.C.L. Sec. 335.348; M.S.A. Sec. 18.1070(48).

The statute was replaced in part by 1978 P.A. 368, effective September 30, see M.C.L. Sec. 333.7401; M.S.A. Sec. 14.15(7401). Defendant faced a maximum prison term of life under the habitual offender statute, in contrast to a maximum possible term of 40 years under the sentence-augmentation provision.

The habitual offender statute in effect at the time of defendant's arrest made no reference to the sentence augmentation statute as amended by 1978 P.A. 77, effective September 1. However, the habitual offender statute now expressly provides that if the fourth felony is a "major controlled substance offense" the person shall be punished by [124 MICHAPP 741] the controlled substances sentence augmentation statute.

In People v. Edmonds, 93 Mich.App. 129, 285 N.W.2d 802 (1979), lv. den. 408 Mich. 918 (1980), the defendant had been convicted of delivery of heroin and of being a third-felony offender. Since one of his prior convictions was drug-related, this was his second conviction under the controlled substances act. The trial court then, using both the sentence augmentation provision of the control substances act and the third-felony offender provision of the habitual offender statute, sentenced the defendant to a prison term of 53 years 4 months to 80 years. This Court, in Edmonds, supra, p. 135, 285 N.W.2d 802, stated:

"We next consider the propriety of the lower court's use of both the habitual offenders statute, MCL 769.11; MSA 28.1083, and Sec. 48 of the controlled substances act, MCL 335.348; MSA 18.1070(48), to increase the maximum term for delivery of heroin from 20 to 80 years. We hold such sentence enhancement to be improper.

"The controlled substances act was enacted to regulate the control, manufacture, production, sale, possession, use, etc., of controlled substances, with penalties for violation of the act specifically delineated. As such the act represents this state's comprehensive policy toward the use of controlled substances. As a specific and comprehensive measure the act's sentence-augmentation provision controls over the general habitual offender statute. Accordingly the sentence on a second or subsequent drug offense is under the purview of Sec. 48 of the controlled substance act exclusively. In accordance with the above the defendant's sentence is reduced to 26 years 8 months to 40 years." (Footnote omitted.)

In asserting that the prosecutor's use of the habitual offender, rather than sentence augmentation, statute was improper defendant relies on the above-quoted language in Edmonds and the "fundamental[124 MICHAPP 742] rule of statutory construction that when two statutes encompass the same subject matter, one being general and the other specific, the latter will control", People v. Shaw, 27 Mich.App. 325, 326, 183 N.W.2d 390 (1970), lv. den. 385 Mich. 760 (1971).

We conclude, however, that under the facts in this case, the prosecutor had discretion to charge defendant as an habitual offender, fourth felony. M.C.L. Sec. 769.12; M.S.A. Sec. 28.1084 does not cover the "same subject matter" as the sentence augmentation statute and, accordingly, the rule stated in Shaw is inapplicable. See People v. Ford, 417 Mich. 66, 331...