People v. Sinclair, Docket No. 7814

• Decision Date: 16 February 1971
• Docket Number: Docket No. 7814,No. 1,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John A. SINCLAIR, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 767

186 N.W.2d 767

30 Mich.App. 473

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John A. SINCLAIR, Defendant-Appellant.

Docket No. 7814.

Court of Appeals of Michigan, Division No. 1.

Feb. 16, 1971.

Released for Publication May 20, 1971.

Justin C. Ravitz, Detroit, for defendant-appellant; Sheldon Otis, Detroit, of counsel.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Angelo A. Pentolino, Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and BRONSON and ENGEL ^*, JJ.

LESINSKI, Chief, Judge.

Defendant John Sinclair was convicted by a jury of illegal possession of marijuana (M.C.L.A. § 335.153 (Stat.Ann.1957 Rev. § 18.1123)), and was sentenced to a prison term of 9 1/2 to 10 years. He appeals as of right.

On December 22, 1966, defendant gave two marijuana cigarettes to undercover policemen. He was arrested 33 days later.

Prior to trial, defendant challenged the constitutionality of the statute prohibiting the unlawful sale and possession of marijuana by raising issues of equal protection of law, due process of law, and the right to privacy. A special three-judge panel found the statute constitutional.

Defendant was originally charged with both possession and sale of narcotics. The trial court sustained a motion to dismiss the charge of illegal sale on the ground of entrapment. Defendant moved to suppress the two cigarettes on the ground that they were seized by reason of the illegal entrapment. This motion was denied.

The statute prohibiting the possession of narcotic drugs is an exercise of the police power of the state designed to protect the public health, safety, and welfare. See People v. Baker (1952), 332 Mich. 320, 51 N.W.2d 240. The inclusion of marijuana in that statute does not offend equal protection or due process of law. People v. Stark (1965), 157 Colo. 59, 400 P.2d 923. A narcotic, as defined in Webster's Third New International Dictionary, p. 1503, is 'a drug * * * that in moderate doses allays sensibility, relieves pain, and produces profound sleep but that in poisonous doses produces stupor, coma, or convulsions.' The evidence advanced by both the defendant and the prosecution showed that marijuana possesses those properties. We recognize the difference of medical opinion over the proscription against marijuana; however, the determination that marijuana is a harmful substance is for the legislature. The presumption of constitutionality favors validity of the statute. If the relationship between the statute and the public welfare is debatable, the legislative judgment must be accepted. Grocers Dairy Co. v. Department of Agriculture Director (1966), 377 Mich. 71, 138 N.W.2d 767.

The exclusion of other drugs such as alcohol, from the statute does not violate equal protection or due process of law. As stated in Kelley v. Judge of Recorder's Court (1927), 239 Mich. 204, 215, 214 N.W. 316, 320:

'A statute does not violate the equal protection clause merely because it is not all-embracing. * * * A State may properly direct its legislation against what it deems an existing evil without covering the whole field of possible abuses. * * * The statute must be presumed to be aimed at an evil where experience shows it to be most felt, and to be deemed by the Legislature coextensive with the practice need; and is not to be overthrown merely because other instances may be suggested to which also it might have been applied.'

In the instant case, it is clear that the legislature has determined the danger of marijuana, and other crimes linked with it, is sufficient to justify the prohibition. The exclusion of alcohol, or other drugs, from the statute does not make marijuana any less dangerous.

Defendant relies on Stanley v. Georgia (1969), 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542, in his argument that possession of marijuana in the home is protected by the right of privacy. The Stanley case held that the First and Fourteenth Amendments to the Federal Constitution prohibit making private possession of obscene material a crime. Defendant's confidence in Stanley, supra, is misplaced. In a footnote to that opinion, at 568, 89 S.Ct. at 1249, the U.S. Supreme Court cautioned that:

'What we have said in no way infringes upon the power of the State or Federal Government to make possession of other items, such as narcotics, firearms, or stolen goods, a crime. * * * No First Amendment rights are involved in most statutes making mere possession criminal.'

Correspondingly, we find no First Amendment rights involved with possession of marijuana.

Defendant argues that the 33 day delay between the alleged commission of the crime and his subsequent arrest denied him due process of law. People v. Hernandez (1968), 15 Mich.App. 141, 147, 170 N.W.2d 851, 854, held that undue prejudice which results from a delay in the arrest of a suspect is a denial of procedural due process. However, a delay is permissible '(1) when the delay is explainable, (2) when it is not deliberate, (3) where no Undue prejudice attaches to the defendant.' We find no such prejudice in the instant case. Defendant was not denied access to critical evidence.

The tardiness of the police in arresting defendant was justified. The two police agents were conducting extensive undercover operations as to other persons in the general area and did not desire to reveal their identities prematurely. People v. Rios (1970), 27 Mich.App. 54, 183 N.W.2d 321. People v. White (1970), 27 Mich.App. 432, 183 N.W.2d 606.

Furthermore, as stated in Hoffa v. United States (1966), 385 U.S. 293, 310, 87 S.Ct. 408, 417, 17 L.Ed.2d 374, 386:

'There is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect. * * * Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.'

Assuming, without deciding, that the trial court properly dismissed the charge of illegal sale on the grounds of entrapment, we hold that it was not error to admit the two marijuana cigarettes into evidence. Defendant does not contend that the possession of the drug was unlawfully induced, but argues that the evidence should be suppressed as the fruit of illegal police activity.

There can be no entrapment when the criminal activity pre-exists the unlawful inducement. United States v. Stephen (E.D.Mich., 1943), 50 F.Supp. 445; People v. Smith (1941), 296 Mich. 176, 295 N.W.605. We adopt the persuasive reasoning of State v. Hochman (1957), 2 Wis.2d 410, 419, 420, 86 N.W.2d 446, 451, 452, where the Supreme Court of Wisconsin noted:

'The defense of entrapment is to be determined upon the trial,--it pertains to the merits of the cause,--it is not to be raised in a preliminary or collateral manner,--it affects the substance of the charge and is not a ground for excluding evidence. Evidence illegally obtained will be suppressed or excluded in a criminal case only upon a showing that it was obtained in violation of a constitutional right. * * *

'With respect to the defense of entrapment, the court is not called upon to deal with constitutional considerations as it is in the case of the validity of a search warrant or of a search made without a warrant. A challenge to an unlawful search is a collateral matter. The defense of entrapment is not in such category.' ^**

We do not agree that the 9 1/2 to 10 year sentence imposed by the trial court is cruel or unusual within the meaning of the Eighth Amendment to the Federal Constitution or art. 1, § 16 of the Michigan Constitution. The statute under which defendant was convicted provides a maximum penalty of 10 years for the first offense. The sentence imposed was within the statutory maximum. Such sentences are not regarded as cruel or unusual punishments. People v. Collins (1969), 16 Mich.App. 667, 168 N.W.2d 624; People v. Girard (1969), 18 Mich.App. 593, 171 N.W.2d 567. Sentences within the statutory maximum for violation of the antimarijuana statutes do not differ from those imposed for conviction of crime generally and are not violative of the constitutional prohibition against cruel and unusual punishments. People v. White (1970), 26 Mich.App. 35, 181 N.W.2d 803; People v. White, Supra. The current uncertain state of scientific knowledge of marijuana does not justify striking down anti-marijuana laws on cruel and unusual punishment grounds. United States v. Ward (C.A. 7, 1967), 387 F.2d 843, 848. Appellate courts do not have supervisory control over sentences which are within the statutory maximum. People v. Doran (1967), 6 Mich.App. 86, 148 N.W.2d 232; People v. Pate (1965), 2 Mich.App. 66, 138 N.W.2d 553.

Defendant's contention that the prosecution failed to carry its burden of proof of establishing that the substance defendant gave the police agents was, in fact, marijuana is without merit. A police chemist, with experience in analyzing marijuana testified that the substance was Cannabis sativa. That conclusion was substantiated by microscopic and chemical tests conducted on the drug. Defendant offered no rebuttal testimony. The evidence fully warranted the jury's verdict.

Defendant also assigns as error the trial court's ruling that if the defendant took the stand to testify in his own behalf, the prosecution could use two prior marijuana convictions to impeach his credibility and to show a common plan or scheme. See M.C.L.A. § 768.27 (Stat.Ann.1954 Rev. § 28.1050). While the prior convictions were too remote in time to be used to show a common plan or scheme, we find the trial court correctly ruled that these prior convictions would be available to the prosecution to impeach defendant's...