People v. Sinclair

• Decision Date: 09 March 1972
• Docket Number: No. 19,19
• Citation: 387 Mich. 91,194 N.W.2d 878
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John A. SINCLAIR, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 878

194 N.W.2d 878

387 Mich. 91

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

No. 19.

Supreme Court of Michigan.

March 9, 1972.

William L. Cahalan, Wayne County Pros. Atty., Dominick R. Carnovale, Chief, Appellate Dept., Angelo A. Pentolino, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Justin C. Ravitz, Detroit, for defendant-appellant.

David Hood, Wayne State University, Detroit, of counsel for Subcommittee on Drug Treatment, New Detroit, Inc., amicus curiae.

R. Keith Stroup, Washington, D.C., National Organization for the Reform of Marijuana Laws, amicus curiae.

Sol Plafkin, Detroit, for Representatives Jackie Vaughn III, William Brodhead, James Bradley, Edward Suski, Mrs. Daisy Elliott, Senators Coleman Young, Basil Brown and Jack Faxon, amici curiae.

Michael Schumann, Highland Park, Gary Roth, Southfield, for YPC-Center House of Ferndale, amicus curiae.

Bernard D. Fischman, New York City, for The American Orthopsychiatric Assn., Inc., amicus curiae.

Philip J. Hirschkop, Alexandria, Va., Executive Director, Penal Reform Institute, amicus curiae in support of appeal.

Joel M. Shere and Sheridan Holzman, Co-Chairmen, Legal Committee, by Wallace H. Glendening, Detroit, American Civil Liberties Union of Mich., amicus curiae.

Ernest Winsor, Boston, Mass., for the Committee for a Sane Drug Policy, amicus curiae.

Goodman, Eden, Robb, Millender, Goodman & Bedrosian by William H. Goodman, Detroit, for Medical Committee for Human

Rights, amicus curiae, in support of the appellant, John Sinclair.

Thomas Meyer, M. Gerald Schwartzbach, Glotta, Adelman & Dingus by Ronald D. Glotta, Gage, Burgess & Knox by Laurence C. Burgess, Neal Bush, Lafferty, Reosti, Jabara, Papakhian, James & Stickgold by Marc Stickgold, Mark Weiss, Colista, Moore & Baum by Warfield Moore, Jr., Detroit, for Detroit Chapter, National Lawyers Guild, amicus curiae.

Before the Entire Bench, except BLACK, J.

PER CURIAM.

For the reasons set forth in our several opinions, the judgment of conviction of defendant Sinclair is reversed and set aside and the defendant discharged.

SWAINSON, Justice.

Defendant, John A. Sinclair, was arrested on January 24, 1967, and charged with the unlawful sale ¹ and unlawful possession ² of two marijuana cigarettes. Defendant was convicted by a jury in the Recorder's Court for the city of Detroit of unlawful possession of the two marijuana cigarettes, on July 25, 1969, and on July 28, 1969, he was sentenced to nine and one-half to ten years imprisonment. During the two and one-half years between his arrest and trial, defendant was free on bond in the amount of $1,000, and never failed to appear when required to do so.

Prior to the trial, a special three-judge panel of Recorder's Court was convened to consider the constitutionality of the Michigan statutes prohibiting sale or possession of marijuana. On April 17, 1968, the panel upheld the statutes against the contentions that they violated the equal protection of the laws; ³ denied defendant due process of law; ⁴ violated rights of privacy retained by the people; ⁵ and that the penalty provisions imposed cruel and unusual punishment. ⁶ Judge Robert J. Colombo a member of the three-judge panel, in a concurring opinion stated that he personally believed that there was a question of whether defendant had been entrapped. ⁷ The trial judge (Hon. Robert J. Colombo), on June 23, upon motion of defense counsel, dismissed the count for unlawful sale on the ground that the sale was entrapped by the police officers. ⁸ Defendant was thereafter convicted of the unlawful possession of marijuana based on the two cigarettes introduced into evidence. The Court of Appeals affirmed the conviction. 30 Mich.App. 473, 186 N.W.2d 767. We granted leave to appeal. 385 Mich. 786.

The Detroit Police Department Narcotics Bureau had instructed Patrolman Vahan Kapagian and Policewoman Jane Mumford Lovelace to assist in an investigation of illegal activities involving narcotic violations in an area surrounding Wayne State University and, in particular, an establishment known as the Artists' Workshop which was located at 4863 John Lodge, in the city of Detroit. Defendant Sinclair made his residence above the Artists' Workshop, at 4867 John Lodge.

In pursuance of this assignment, Patrolman Kapagian grew a beard and began to let his hair grow long, in late August 1966. On October 18, 1966, using the aliases of Louis Cory and Pat Green, the officers commenced their assignment. They continued working until January 24, 1967, on this particular assignment. The officers assisted in doing typing and other odd chores at the Artists' Workshop, including sweeping floors and collating literature. They sat in at communal dinners and provided the food for one of these dinners. They joined a group called LEMAR, which advocated that marijuana be legalized. They listened to poetry and helped in the preparation of certain literature. Patrolman Kapagian visited the shop and saw defendant approximately two or three times a week until the defendant's arrest. As part of the assignment, Patrol Kapagian took a job at the Candle Shop. Patrolman Kapagian was equipped with a Portatalk radio transmitter which allowed him to keep in contact with other police officers stationed outside and nearby.

Patrolman Kapagian testified at the preliminary examination that on two occasions prior to December 22, 1966, during the investigation, the police officers asked defendant for marijuana. He denied this at the trial, despite the fact that his testimony to that effect at the preliminary examination was read to him from the transcript. Policewoman Lovelace stated that she had asked defendant on previous occasions to obtain marijuana for them.

Officer Kapagian testified that on December 22nd, at about 7:00 P.M., defendant appeared at the Workshop and following an exchange of greetings, defendant asked whether they had received any marijuana the previous night. The officers responded affirmatively and stated that they were looking for some more. At approximately 8:55 that evening, Kapagian told the defendant that they had to leave and defendant asked them to accompany him upstairs to his residence. Once inside the residence, the officers were seated at the kitchen table. Defendant went to a shelf and removed a brown porcelain bowl which he set down on the table before him. Defendant took some cigarette paper and from the contents of the bowl rolled a cigarette, which he gave to Kapagian. Kapagian handed this cigarette to Lovelace, who inserted it into a partially filled Kool pack. Defendant then rolled a second cigarette, lit it, and handed it to Kapagian. The officer said he did not want to smoke it then because he had to drive and the cigarette would make him dizzy. Kapagian gave the cigarette to Lovelace after defendant Sinclair had butted it. She placed the cigarette in the same Kool pack. At that time they said they had to leave, and departed. Sinclair was not arrested for committing a felony in the officers' presence because, as Kapagian stated, he did not want to tip his hand since numerous arrests were to be made as the result of this investigation.

At the trial, the only witnesses were the two police officers. ⁹ No corroborating evidence was introduced. Although officer Kapagian was equipped in a manner to enable the transmission of his conversation to other officers, no arrangements were made to tape the conversations, which allegedly occurred between defendant and the police officers. In addition, officer Kapagian testified that he did not preserve his log book for the year 1966 because he decided that it was not worth saving. He did admit that if the log book had been preserved, the presence or absence of entries relating to the transactions of December 22nd and all previous transactions during the investigation, would either confirm or disprove his testimony.

Prior to trial, the defendant made several motions to quash the information and to exclude the marijuana cigarettes from evidence. These were denied by the trial court.

Defendant raises ten issues on appeal, and the prosecutor lists five. We will deal with two of these:

1) Whether the classification of marijuana as a narcotic under M.C.L.A. § 335.151 violates the equal protection of the laws under the U.S.C.onst. Am. XIV, and

2) Whether the two marijuana cigarettes should have been excluded from evidence on the ground that they constituted evidence obtained as the result of an illegal police entrapment?

I.

It is not denied that the State of Michigan has the power to pass laws against the sale and use of marijuana. Rather, the issue is whether marijuana may be constitutionally classified as a narcotic drug if, in fact, it is not a narcotic. A threshold question is raised--and that is whether this Court has the power to determine the actual state of facts concerning marijuana and other drugs. It cannot be doubted that the judiciary has the power to determine the true state of facts upon which a law is based. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).

A trial court may take judicial notice of any records of the court where it sits. Knowlton v. Port Huron, 355 Mich. 448, 452, 94 N.W.2d 824 (1959). Moreover, it is clear that 'an appellate court can properly take judicial notice of any matter which the court of original jurisdiction may take notice.' Pennington v. Gibson, 57 U.S. (16 How.) 65, 14 L.Ed. 847 (1853).

Const.1963, art. 6, § 1, provides:

'The judicial power of the state is vested exclusively in one court of justice which shall be divided into one supreme court, one court of appeals, one trial court of general jurisdiction known as the circuit court, one probate court, and courts of limited jurisdiction that the legislature may establish by a two-thirds vote of the members elected to and serving in each house.'

As such, the records of...