People v. Smith

• Decision Date: 22 August 1978
• Docket Number: Docket No. 77-2193
• Citation: 85 Mich.App. 404,271 N.W.2d 252
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Samuel SMITH, Defendant-Appellant. 85 Mich.App. 404, 271 N.W.2d 252
• Court: Court of Appeal of Michigan — District of US

Page 252

271 N.W.2d 252

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Samuel SMITH, Defendant-Appellant.

Docket No. 77-2193.

85 Mich.App. 404, 271 N.W.2d 252

Court of Appeals of Michigan.

Aug. 22, 1978.

Rehearing Denied Oct. 5, 1978.

Released for Publication Nov. 13, 1978.

[85 MICHAPP 407] James R. Neuhard, State App. Defender by Barbara R. Levine, Asst. State App. Defender, for defendant-appellant.

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

Before D. E. HOLBROOK, Jr., P. J., and R. B. BURNS and VanVALKENBURG,* JJ.

VanVALKENBURG, Judge.

Defendant was jury convicted of delivery of heroin contrary to M.C.L. § 335.341(1)(a); M.S.A. § 18.1070(41)(1)(a) and conspiracy to deliver heroin contrary to M.C.L. § 750.157a(a); M.S.A. § 28.354(1)(a). He was sentenced to concurrent terms of from ten to twenty years and appeals as of right.

An understanding of the issues in the present case requires a brief statement of the pertinent facts. Samuel Smith and Helen Smith, husband and wife, jointly own property at 420 South Thirty-First Street, Saginaw, Michigan, which was alleged to have been a "fortress" for the sale of narcotics to middlemen, who in turn sold to consumers. On April 6, 1976, Detective Sergeant Clifford[85 MICHAPP 408] DeFeyter, while acting as an undercover agent under the alias of "Butch", delivered $140 in marked money to one James Choyce. The latter entered the house and returned with two mental foil packets which proved to contain heroin.

About two or three hours later a crew of officers arrived on the scene and observed defendant exiting the home. He was arrested and found to be carrying $849 of which $135 matched the serial numbers of the money given to Choyce by Officer DeFeyter.

A search of the premises, after a warrant was obtained, revealed that people lived there and that various drug paraphernalia, including two bags of a reducing agent, a measuring spoon and a square piece of mirror, were kept in the kitchen and bathroom.

Defendant based his defense on the theory that the evidence did not support the charges set forth in the information. He did not deny the fact that Choyce bought heroin from a person in the house, but claimed that he knew nothing about it. He also argued that he did not know Choyce and consequently never agreed to deliver anything to anybody.

Defendant has presented five issues for consideration.

I.

Defendant first contends that the trial court committed reversible error in failing to direct a verdict of acquittal at the close of the people's case on the ground that the evidence was insufficient to support a conviction on the delivery and conspiracy charges.

For assistance we quote in part the guidelines [85 MICHAPP 409] set forth in 2 Gillespie, Michigan Criminal Law & Procedure (1978 rev. 2d ed.), § 632, p. 238:

"Reasonable inferences arising from the evidence may constitute satisfactory proof of the elements of the offense. However, if the prosecution, without the aid of defendant's proofs, does not establish some evidence on every element, a directed verdict for acquittal or a motion to dismiss must be granted. If there is no evidence at all on any one of the elements, the motion must be granted and it is reversible error to fail to do so.

"The test to be applied on a motion for a directed verdict is not whether the evidence presented proves guilt beyond a reasonable doubt but whether there is any evidence at all on each material element of the offense. If there is, then the trial should proceed to conclusion, at which time the fact finder then decides whether or not the evidence is sufficient to establish guilt beyond a reasonable doubt. An appellate court tests the correctness of the denial of a motion to direct a verdict of acquittal by taking the evidence presented by the prosecution in the light most favorable to the prosecution and deciding if there was any evidence upon which the trier of fact could predicate a finding of guilty. A reviewing court must determine whether that evidence, if credible and believed, would justify a reasonable man in concluding that all elements of the crime were established beyond a reasonable doubt.

"In passing on a motion for a directed verdict of acquittal the court may only consider the evidence which has been introduced at the time the motion is made, * * *."

The above rules are set out in: People v. DeClerk, 400 Mich. 10, 17, 252 N.W.2d 782 (1977); People v. Garcia, 398 Mich. 250, 256, 247 N.W.2d 547 (1976); People v. Killingsworth, 80 Mich.App. 45, 48, 263 N.W.2d 278 (1977); People v. Trotter, 76 Mich.App. 260, 262, 256 N.W.2d 585 (1977); People v. Royal, 62 Mich.App. 756, 758, 233 N.W.2d 860 (1975).

[85 MICHAPP 410] As may be gleaned from the facts, the evidence here was entirely circumstantial and will be governed by the rule promulgated in People v. Davenport, 39 Mich.App. 252, 256, 197 N.W.2d 521, 522 (1972):

"The established rule is that where the people's case is based on circumstantial evidence the prosecution has the burden of proving 'that there is no innocent theory possible which will, without violation of reason, accord with the facts'." (Citations omitted.)

A similar statement of the rule can be found in People v. Jablonski, 70 Mich.App. 218, 225, 245 N.W.2d 571, 574 (1976):

"We agree with defendant that the test was stated in People v. Sessions, 58 Mich. 594, 606, 26 N.W. 291 (1886), that where guilt in a criminal matter is sought to be proved by circumstantial evidence, the facts from which the inferences are drawn must be proved beyond any reasonable doubt, and the inferences must be such as will admit of no other rational conclusion."

See People v. Ridgeway, 74 Mich.App. 306, 316, 253 N.W.2d 743 (1977).

While a reasonable inference may be drawn from an established fact, inferences cannot be built on inferences. People v. Atley, 392 Mich. 298, 314-315, 220 N.W.2d 465 (1974).

Furthermore, a person cannot be convicted on imagination. Brownell v. People, 38 Mich. 732, 737 (1878).

Was there a conspiracy between Choyce and defendant to deliver heroin? The record shows that the drug was secured from another person, not defendant, and no evidence was presented which would lead a reasonable person to believe that [85 MICHAPP 411] Smith had any knowledge of the sale to Sgt. DeFeyter.

Therefore, it is difficult to conclude, under these circumstances, that any type of agreement existed between the two men. That being the case, the prosecutor failed to meet the tests as set forth in Atley, supra, 392 Mich. at 310-311, 220 N.W.2d at 471:

"Therefore, defendant's intent to sell marijuana must be established in the present case, and to establish that intent, there must be evidence of knowledge of the unlawful purpose of sale. To prove the crime of conspiracy, however, it must further be proven that that intent, including that knowledge, was possessed by More than one individual since there can be no conspiracy without a combination of two or more persons. People v. DiLaura, 259 Mich. 260, 243 N.W. 49 (1932). Where only one person has knowledge of the unlawful end, there is no combined intent to do what is unlawful. Perkins, On Criminal Law, 545 (1957).

"It must be shown that the respective conspirators intended to further, promote, or cooperate in the unlawful enterprise. The gist of the offense of conspiracy lies in the unlawful agreement between two or more persons. People v. Smith, 296 Mich. 176, 295 N.W. 605 (1941); People v. Asta, 337 Mich. 590, 611, 60 N.W.2d 472 (1953)." (Emphasis in original.)

The prosecutor attempted during the trial, in view of the joint ownership of the house and the marked money found on defendant, to show that he aided and abetted Choyce's delivery of the heroin to the police officer. Again, this effort is based on inferences. The fact that a person is a joint owner of a certain piece of property does not indicate that he entertained a specific intent to deliver. People v. Johnson, 68 Mich.App. 697, 700, 243 N.W.2d 715 (1976).

Furthermore, it was never established that defendant and Choyce even knew one another. Patently,[85 MICHAPP 412] there could be no aiding and abetting where there were no communications between them.

This Court is fully cognizant of the difficulties often encountered by prosecutors in proving defendants guilty of drug offenses beyond a reasonable doubt. However, courts are bound by the rules as presently established. Except for the marked money, which could have been turned over to defendant by the others in the house for rent, a loan, or other purposes, no evidence was presented to connect Mr. Smith with these charges.

Therefore, having reviewed the evidence in the light most favorable to the people, we hold on authority of Atley, Davenport, Jablonski and Ridgeway that the trial court erred in not granting the motion for a directed verdict as to both charges.

II.

Defendant next contends that he was denied his due process right to be tried by a properly instructed jury since the trial court's instructions as a whole misled the jury as to the proofs necessary for conviction on each offense and that the court erroneously denied a legitimate defense request...