People v. Sesson

• Citation: 45 Mich.App. 288,206 N.W.2d 495
• Decision Date: 23 February 1973
• Docket Number: No. 3,Docket No. 13826,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mack SESSON, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 495

206 N.W.2d 495

45 Mich.App. 288

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mack SESSON, Defendant-Appellant.

Docket No. 13826.

Court of Appeals of Michigan, Division No. 3.

Feb. 23, 1973.

Released for Publication April 26, 1973.

Leave to Appeal Denied June 1, 1973.

Thomas R. Fette, Ryan, McQuillan & Vander Ploeg, St. Joseph, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., John A. Smietanka, Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P.J., and HOLBROOK and VanVALKENBURG, ^* JJ.

HOLBROOK, Judge.

Defendant, Mack Sesson, was convicted in a two-day jury trial held March 17--18, 1971, of illegally selling a quantity of heroin in violation of M.C.L.A. § 335.152; M.S.A. § 18.1122, and sentenced to 20 to 40 years imprisonment. Defendant brings this delayed appeal by leave of court.

Of the six prosecution witnesses, the testimony of five was confined to the chain of custody of the exhibits involved; one of the five, duly qualified as an expert, identified the substance transferred in the alleged sale as diacetyl morphine, more commonly known as heroin, diluted with sugar and methepyrilene. No serious question is raised over this testimony and it need not be summarized here. Only one witness, Dorman Johnson, testified as to the details of the substantive crime and it is necessary to review his testimony.

In the evening of October 17, 1970, Dorman Johnson, an undercover agent working for the Michigan State Police on a narcotics operation, was driven from the South Haven State Police Post to an establishment known as the 'Fair Avenue Recreation (Hall)' located in Benton Township, by the senior agent assigned to the case, Frederick Johnson, Dorman's uncle. During the trip Frederick gave Dorman a $5 bill, presumably to be used as part of the police operation. Dorman entered the pool hall alone, intending to purchase controlled substances from a particular individual in the poolroom. The person from whom he wanted to buy illegal drugs had none at that time, so Dorman prepared to leave. On the way out, he was directed by an unknown person to a fellow who was supposed to have drugs at that time, the defendant, Mack Sesson.

Defendant at first refused to sell Dorman Johnson any drugs; then Johnnie Kirk stated to the defendant that Johnson was 'OK', and defendant sold Johnson a tinfoil packet containing heroin. Johnson gave the defendant a $5 bill in exchange for the tinfoil packet, then left, returned to the car, and turned the packet over to the senior agent.

On cross-examination, Johnson admitted that he had been mistaken in several respects in his testimony at the preliminary examination. During the preliminary examination, Johnson had stated that a third person, identified as agent 558, had been a witness to the transaction in question; at the trial, he testified that the identity of this third person was unknown to him. The other variations in his trial testimony were minor, such as whether he left from South Haven or from somewhere else when the operation began, the exact point at which Fred Johnson gave him the $5 bill he used to effect the purchase, and the identity of the person who referred him to the defendant. At the preliminary examination, Dorman testified that defendant had taken a tinfoil packet from his pocket, while at trial he admitted that he did not know from where on defendant's person the packet came.

Concerning his credibility, Dorman Johnson stated that he had been working as an agent for the State Police only several weeks prior to October 17, 1970; and also because as an agent he was involved in many such transactions, he felt he had become confused. Johnson admitted that he had been convicted of a Selective Service violation, which consisted of his refusal to be inducted, since he was a Jehovah's Witness. He spent 13 months in prison on this charge, and at the time of trial was on parole arising from that federal offense. He also admitted having been arrested on a narcotics charge in 1970 in Grand Rapids.

At the close of the people's proofs, defense counsel moved for a directed verdict, which motion was denied. Defendant then called John Kirk to the stand, who testified that on the date and at the time of the alleged crime he, John Kirk, was in the Fair Avenue Recreation Hall, but did not see either Dorman Johnson or the defendant in the room. Defendant then testified in his own behalf, and denied having sold any drugs to Dorman Johnson on October 17, 1970, or at any other time.

Defendant raises four issues on appeal which we will discuss in proper order.

I

Was the evidence sufficient to warrant a jury verdict of guilty of the crime charged?

The standard employed in determining sufficiency of the evidence questions in criminal cases is 'whether the evidence warrants a finding of guilty beyond a reasonable doubt of the crime charged'. People v. Schram, 1 Mich.App. 279, 282, 136 N.W.2d 44, 45 (1965). A review of the record indicates that the people's evidence in this case, if believed by the triers of fact, warrants a finding of guilty beyond a reasonable doubt. People v. Crittle, 38 Mich.App. 118, 195 N.W.2d 799 (1972).

Defendant's allegation of error in regard to the sufficiency of evidence is clearly untenable. It is true that the testimony of the people's witness, Dorman Johnson, and the testimony of defendant was conflicting. When conflicting testimony is presented, it is properly left to the jury to resolve the conflict. People v. Blackwell, 17 Mich.App. 377, 169 N.W.2d 512 (1969). The credibility of the people's witness was for the jury and likewise when the defendant took the stand and testified, his credibility was for the jury and the jury could disbelieve him. People v. Mills, 16 Mich.App. 179, 167 N.W.2d 890 (1969). There is no merit in defendant's contention as to issue I.

II

Did the prosecutor deprive the defendant of a fair trial by virtue of certain remarks made in his closing statement to the jury?

In considering the merit of defendant's contention with regard to the prosecutor's allegedly prejudicial remarks, we set out the relevant portions of the prosecutor's closing argument:

'As Mr. Globensky told you, this is a serious case. It is a serious charge. We are talking about sale of heroin, not a sale of marijuana. There has been a lot of controversy about that; it is not a sale of just any narcotic; it is a sale of heroin.

'Now, I am not going to go into any great length here about what heroin does to a man, what heroin does to a man's body, what heroin does to a man's life. I think you are all pretty much aware of it. But I think we are all agreed that a person who sells this stuff, a person who makes it available to some of these poor people whose lives are ruined, that person is indeed guilty of a very serious crime.

'Now, many salesmen, many pushers of heroin, have an excuse. It is a feeble excuse, but it is an understandable one; and that is that they are addicts themselves; they are users themselves; they have been led down the path, down the road of degradation, to the point where they have to do anything to support their habit; and so they have resorted to this way to make the money to support their own habit, and so it is sold to others. But the defendant doesn't even have that excuse. You heard him on the stand. He says he has never even used heroin. He has never even used marijuana and he has never even used a narcotic. He doesn't even have an excuse. He sold it; he made it available to these people for one reason, to line his pockets.

'Yes, it is a serious crime, ladies and gentlemen. I just want you to fully realize the seriousness of it before we start to go into the evidence. * * *

'Ladies and gentlemen, you took a solemn oath in this case; and I feel confident that you will carry out that oath. This is a man who is dangerous to the community, a man who will sell heroin. It doesn't stop with his selling heroin; it doesn't stop there. The persons who use it have to support their habits and they have to commit crimes. It mushrooms; it gets worse and worse, and that is what happens if you let this man continue to do it. * * *

'Now, the question has come up why did Dorman Johnson do something like this, make buys, risk his life, go into this community and work for the police? Why did he do something like this if not for gain, for monetary gain or some gain? Why indeed? How involved has he been? How many fine outstanding men, I wonder, have been lured into the use of heroin, and I wonder how many of those people, what they would like to do to the people that lured them into that use in the first place. What gain? Perhaps the only gain that was necessary for him that justified what he did, exposing his name to the court and defendant and you just was--perhaps the only satisfaction was to stamp out the traffic in heroin. Perhaps he knows too well what that traffic does.'

The prosecutor claims that his argument was based upon matters of common or general knowledge, subjects which may be referred to and counted upon by way of argument or illustration in the closing address to the jury.

In 23A C.J.S. Criminal Law § 1096, p. 157, it is stated in part as follows:

'Matters of common and general public information and of known and settled history properly may be referred to, and commented on, by way of argument and illustration; and counsel may allude to such principles of divine law relating to the transactions of men as may be appropriate to the case.'

The issue then is whether or not the sociological consequences of heroin addiction, the motivation of heroin pushers in general, and the dangers attendant upon undercover narcotics work are generally known within the Berrien County area, assuming that the prosecutor may argue facts which may be judicially noticed. In People v. White, 38 Mich.App. 651, 655, 197 N.W.2d 121, 122 (1972) this Court, per Judge Levin, stated:

'In the...