People v. Stewart

• Decision Date: 18 July 1977
• Docket Number: No. 55230,55230
• Citation: 256 N.W.2d 31,400 Mich. 540
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Howard STEWART, Defendant-Appellant. 400 Mich. 540, 256 N.W.2d 31
• Court: Michigan Supreme Court

Page 31

256 N.W.2d 31

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Howard STEWART, Defendant-Appellant.

No. 55230.

400 Mich. 540, 256 N.W.2d 31

Supreme Court of Michigan.

July 18, 1977.

William L. Cahalan, Pros. Atty., Patricia J. Boyle, Principal Atty., Research, Training & Appeals, Robert A. Reuther, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

State Appellate Defender Office by Norris J. Thomas, Jr., Asst. Defender, Chari Grove, Rolf Berg, Research Assts., Detroit, for defendant-appellant.

MOODY, Justice.

Defendant Howard Stewart was convicted on March 8, 1971, of sale and possession of heroin in violation of M.C.L.A. § 335.152; M.S.A. § 18.1122, and M.C.L.A. § 335.153; M.S.A. § 18.1123. The defendant was sentenced from 20 to 25 years and from 7 and 1/2 to 10 years respectively.

Defendant appealed his conviction as a matter of right. The Court of Appeals affirmed defendant's conviction in a brief opinion. That court held that certain statements allegedly made by a non-produced codefendant were admissible against the defendant under the co-conspirators exception to the hearsay rule. It also held that sale and possession, while having common elements in certain cases, are nonetheless separate crimes. Therefore, it concluded double jeopardy (more aptly "double punishment") problems do not arise when the charges of possession and sale of narcotics are joined in a criminal prosecution arising out of the same transaction. People v. Stewart, 46 Mich.App. 282, 207 N.W.2d 907 (1973). ¹

This Court originally granted leave to appeal in this matter on March 29, 1974. On June 4, 1976, it affirmed both the trial court and Court of Appeals. People v. Stewart, 397 Mich. 1, 242 N.W.2d 760 (1976). This Court's majority limited its discussion of defendant's appeal in that opinion to a single issue: the aforementioned hearsay exception problem.

Thereafter, in light of our decision in People v. Martin, 398 Mich. 303, 247 N.W.2d 303 (1976), this Court on December 9, 1976, decided to grant the defendant a rehearing "limited to issues raised on appeal but not discussed in the opinion of the Court released on June 4, 1976". 398 Mich. 951 (1976).

Those issues are as follows:

1) Whether conviction of both sale and possession of the same heroin, upon proof of sale incident to possession, was constitutionally proscribed double punishment.

2) Whether the prosecution failed to meet its burden of proof to establish that the defendant did not have a license to either possess or sell heroin.

3) Whether the trial court erred in not instructing the jury sua sponte on two possible defenses:

(a) That the defendant was entrapped as a matter of law, or;

(b) That the defendant was only acting as a procuring agent in the alleged transaction.

4) Whether the prosecution failed to show "due diligence" in attempting to produce defendant's named codefendant.

5) Whether the mandatory 20 year minimum sentence received by the defendant for the sale of heroin constitutes cruel and unusual punishment, thus rendering the statute unconstitutional and requiring that defendant's sentence be vacated.

We find merit only in the first issue. We therefore reverse and vacate defendant's conviction of possession of heroin and affirm his conviction of sale of heroin.

I

Justice Levin succinctly set out the pertinent facts in his dissenting opinion in the original case:

"The people made their case entirely from the testimony of LaTonia Boldin, an unpaid civilian undercover narcotics agent working for the Detroit Police Department. She testified that she went to Stewart's restaurant, introduced herself as 'Candy', and told him she needed a job to support her 'habit'. Stewart asked her when she could begin work, and she said as soon as she got a 'fix'. Stewart first offered her marijuana, which she rejected because it was 'too mild', and then agreed to sell her 'some P's' (heroin) for $20.

"Boldin testified that Stewart left the restaurant and entered an apartment building across the street. While he was gone, Boldin talked 'for 10 or 15 minutes' with a man who introduced himself as 'Junior'. During the conversation they discussed narcotics.

"Boldin testified that when Stewart returned to the restaurant he went directly to the kitchen and called 'Junior'. She said that she did not see Stewart carrying anything or give anything to 'Junior'. She could see that Stewart and 'Junior' were talking, but could not hear what they said.

"Stewart remained in the kitchen. 'Junior' rejoined Boldin and sold her heroin for $20." (Footnotes omitted.) 397 Mich. 1, 11-12, 242 N.W.2d 760, 764-765.

There is no dispute in the instant case that the same heroin was allegedly possessed and sold by the defendant in a single continuous transaction. There was no evidence of possession distinct and apart from the overall sale sequence.

The opinion of the Court of Appeals is correct in its determination that possession and sale of narcotics are separate crimes which may be separately charged. People v. Stewart, supra. In a given case, sale may be found without possession. Likewise, possession may be determined without sale. However, depending upon the facts developed at trial, when the circumstance of possession is not severable or apart from a sale and the jury concludes the defendant is guilty of sale, then the possession blends together with the sale so as to constitute one single wrongful act.

Therefore, from the evidence adduced at this trial, the illegal possession of heroin was obviously a lesser included offense of the illegal sale of heroin. When the jury in the case at bar found the defendant guilty of the illegal sale of this heroin, they necessarily found him guilty of possession of the same heroin.

In the recent case of People v. Martin, 398 Mich. 303, 247 N.W.2d 303 (1976), this Court reached a similar conclusion in a case where possession was clearly a lesser included offense of delivery. Martin relied on State v. Allen, 292 A.2d 167, 172 (Me.1972), as authority for its holding. The Allen case facts and rationale are directly on point with the instant case:

" * * * It is elementary that the State cannot divide a single offense into several parts according to time and conduct and base separate prosecutions upon and impose separate punishments for the various necessary divisions of that single crime. * * *

"The possession of narcotic drugs is an offense distinct from the sale thereof. But in the instant case the possession and sale clearly constituted one single and same act. The possession, as legally defined, is necessarily a constituent part of the sale, as legally defined. Where the only possession of the narcotic drug is that incident to and necessary for the sale thereof, and it does not appear that there was possession before or after and apart from such sale, the State cannot fragment the accused's involvement into separate and distinct acts or transactions to obtain multiple convictions, and separate convictions under such circumstances will not stand. * * * The error is not cured by the fact the trial court permitted the two sentences to run concurrently. * * * The conviction and sentence upon the charge of possession must be set aside." Martin, supra, 398 Mich. 307-308, 247 N.W.2d 304-305.

The logic of Martin and Allen applies here. Defendant Stewart may not be "doubly punished" by convicting him of possession, which in this case was a "necessary" prerequisite or the sine qua non for the very sale for which he was also convicted.

Furthermore, as we stated in Martin :

"The guarantee against double jeopardy protects against not only a second prosecution for the same offense, but it also 'protects against multiple punishments for the same offense'. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2089, 23 L.Ed.2d 656 (1969).

" '(T)he Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it.' Ex Parte Lange, 85 U.S. (18 Wall.) 163, 173, 21 L.Ed. 872 (1874).

" 'It is clear that preventing multiple punishment for the same offense was foremost in the minds of the framers of the double jeopardy clause. * * * Until joinder became permissible and commonplace, however, multiple punishment could result only from multiple trials.' Comment, Twice In Jeopardy, 75 Yale L.J. 262, 266, fn. 13 (1965)." Martin, supra, 398 Mich. 309-310, 247 N.W.2d 305-306. (Citations omitted.)

Nor can we accept the argument that since the two sentences run concurrently, a reversal on the lesser included offense is not required. The concept of "double punishment" not only applies to the sentence, but also includes the conviction. The possession conviction, if allowed to stand, could punish the defendant in several ways, including parole considerations, impeachment at subsequent trials, and habitual offender treatment. See Martin, supra, 398 Mich. 310, 247 N.W.2d 303.

For these reasons, we affirm the defendant's conviction on the higher charge of sale and vacate defendant's conviction on the lower charge of possession. ²

II

We do not find any of the defendant's other issues to be meritorious. Therefore, we will discuss them only summarily.

Defendant maintains that the prosecution failed to meet its burden of proof by establishing through competent evidence that he had no license to either sell or possess heroin. While it is true that lack of a license is a necessary element for any crime involving the unlawful sale of narcotics, People v. Rios, 386 Mich. 172, 191 N.W.2d 297 (1971), the record here discloses that defendant during trial, in effect, stipulated that he had no such license. ³ Also, the court instructed the jury, " * * * it has been stipulated in this case that the defendant did not have a license * * * ". Defendant neither objected to the charge as given nor requested that the change be modified. Furthermore, we note that at the time this trial occurred, it was...