People v. Stewart, No. 5

CourtSupreme Court of Michigan
Writing for the CourtCOLEMAN; LEVIN; T. G. KAVANAGH
Citation242 N.W.2d 760,397 Mich. 1
Docket NumberNo. 5
Decision Date04 June 1976
PartiesThe PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Howard STEWART, Defendant-Appellant.

Page 760

242 N.W.2d 760
397 Mich. 1
The PEOPLE of the State of Michigan, Plaintiff-Appellee,
Howard STEWART, Defendant-Appellant.
No. 5.
Supreme Court of Michigan.
June 4, 1976.

Page 761

[397 Mich. 4] William L. Cahalan, Pros. Atty., Patricia J. Boyle, Principal Atty., Research, Training & Appeals, Robert A. Reuther, Asst. Pros. Atty., Detroit, for plaintiff-appellee. jury so find." Stewart v. Rudner, 349 Mich. J. Thomas, Jr., Asst. Defender, Detroit, for defendant-appellant.

BEFORE THE ENTIRE BENCH (except Lindemer and Ryan, JJ.).

COLEMAN, Justice.

Howard Stewart was convicted in Recorder's Court of selling and possessing heroin. The Court of Appeals affirmed. Defendant claims the conviction should be reversed because the trial court did not reject certain testimony as hearsay. To the contrary, we find the testimony was properly admitted. The conviction is affirmed.

[397 Mich. 5] LaTonia Boldin was working as an agent for the Detroit police when defendant was arrested. The controversy concerns her appearance as a witness.

In chronological order, the testimony in question was:

(1) Mrs. Boldin went to defendant's restaurant, telling defendant she wanted a job to support her habit.

(2) When defendant asked when she could start work, Mrs. Boldin answered she could start as soon as she got her head together (i.e., got a fix).

(3) Defendant Asked her what she 'was on'.

(4) Defendant suggested some 'P' (pure heroin):

'A. (Mrs. Boldin) . . .. He says, 'Well, how about marijuana? I said, 'No.' I said, 'Because that's too mild.' . . .

'He says, 'well, how about some P's?'

(5) Defendant asked Mrs. Boldin how much money she had, responding that the 20 dollars would be fine.

(6) Defendant told Mrs. Boldin he could get the 'P' for her.

'A. (Mrs. Boldin) . . . and I asked him, I says, 'Well, could you get it for me?' . . . And he said yes.'

(7) Defendant then left the restaurant, walking across the street to an apartment building.

(8) Junior joined Mrs. Boldin while she was waiting in the restaurant.

(9) Defendant returned to the restaurant, walking directly to the kitchen in back of the restaurant.

(10) Defendant called Junior back to the kitchen and they engaged in conversation.

(11) Junior returned and Mrs. Boldin gave him [397 Mich. 6] twenty dollars. Junior passed a packet of heroin to her under the table.

(12) Defendant emerged, asking Mrs. Boldin, 'Do you think you'll have yourself together around 3 o'clock?'

In the kitchen, Junior was positioned so that Mrs. Boldin could not see what, if anything, passed to him from defendant, but concert of action can be established by circumstantial evidence. The conversations between defendant and Mrs. Boldin and defendant's and Junior's movements comprise sufficient circumstantial evidence, independent of Junior's conversation, to establish a prima facie 1 case of concert of

Page 762

action. 2

Of notable impact is the fact that Mrs. Boldin did not tell Junior of the agreed purchase or price of the heroin, yet after Junior's return from speaking with defendant, he exchanged the packet of heroin for twenty dollars. Testimony concerning his conversation was not crucial to jury deliberation, although it did add flesh to the bare bones of the transaction.

[397 Mich. 7] In defendant's absence Junior introduced himself to Mrs. Boldin and asked whether she would be working at the restaurant and if defendant had gone. He asked her if she got high, to which she replied affirmatively. Junior then asked, '. . . did Stewart go over to the apartment building to get some?'

After defendant returned to the restaurant and had spoken with Junior in the kitchen, Junior sat next to Mrs. Boldin at the counter and allegedly asked,

'Q. Do you have any money for me?

'A. What?

'Q. Do you have any money for me? Twenty Dollars?

'A. Yeah.'

Junior then told her to slip it up under the counter so no one will see her. She handed him the twenty dollars and he handed her a small tinfoil packet. She asked if that was all she was going to get and Junior replied, 'Yeah, because Howard sells them real mellow P.'

It was then that defendant came out and asked if she would have herself together by 3:00.

In our opinion, a prima facie case of concert of action was made by the prosecutor, so the conversation with Junior (an unnamed codefendant) comes within a well-established exception to the hearsay rule. 3 Even without the hearsay, adequate facts to go to the jury were in evidence.

In 1867 Justice Christiancy stated:

[397 Mich. 8] 'The general rule is well settled that, where several persons are engaged in one common unlawful enterprise, whatever is said or done by any one of them in the prosecution of the common enterprise, or while it is still in progress, is evidence against all the parties to it.' People v. Pitcher, 15 Mich. 397, 403--404.

The challenged acts and declarations in this case were during the alleged concerted action, not before or after. A prima facie case of concert of action was established without any of Junior's declarations. The acts of Junior are not those 'assertive' acts sometimes excluded (e.g., pointing, sign language) nor remote or irrelevant (e.g., collection of insurance as proof of death at sea). To the contrary, Junior's acts were relevant, immediate and constituted part of the transaction. His only crucial act outside of defendant's presence was passing the heroin to the witness who had been searched before entering the restaurant and who had the heroin when she emerged. We find no case in which a similar act was excluded.

The United States Supreme Court has recognized a valid distinction between acts and declarations of co-conspirators. In Lutwak v. United States, 344 U.S. 604, 73 S.Ct. 481, 97 L.Ed. 593 (1953), Reh. den. 345 U.S. 919, 73 S.Ct. 726, 97 L.Ed. 1352 (1953), the Court approved the use of a co-conspirator's acts against other members of the conspiracy

Page 763

although the conspiracy had ended. At the same time use of declarations was not allowed. The Court characterized the problem of declarations as one of hearsay:

'Therefore, the declarations of a conspirator do not bind the co-conspirator if made after the conspiracy has ended. That is the teaching of Krulewitch v. United States, supra (336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790) and [397 Mich. 9] Fiswick v. United States supra (329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196 (1946). Those cases dealt only with declarations of one conspirator after the conspiracy had ended. They had no application to Acts of a conspirator or others which were relevant to prove the conspiracy. True, there is dictum in Logan v. United States, supra (144 U.S. (263) at 309, 12 S.Ct. 617, 36 L.Ed. 429), frequently repeated, which would limit the admissibility of both acts and declarations to the person performing them. This statement of the rule overlooks the fact that the objection to the declarations is that they are hearsay. This reason is not applicable to acts which are not intended to be a means of expression. The Acts, being relevant to prove the conspiracy, were admissible, even though they might have occurred after the conspiracy ended. United States v. Rubenstein (CA 2d N.Y.) 151 F.2d 915, 917, 918; see Fitzpatrick v. United States, 178 U.S. 304, 312, 313, 20 S.Ct. 944, 44 L.Ed. 1078, 1081, 1082; Ferris v. United States (CA 9th Cal.) 40 F.2d 837, 839.'

Similarly, the necessity of proving a prima facie case of conspiracy is a problem arising out of the use of hearsay.

Statements declared by a co-conspirator (or one engaged in a concert of action) are hearsay if used against another member of the conspiracy. But, a widely recognized exception to the hearsay rule allows such use if the conspiracy is properly proven (prima facie) by evidence independent of the hearsay. People v. Chambers, 279 Mich. 73, 271 N.W. 556 (1937); People v. Lewis, 264 Mich. 83, 249 N.W. 451 (1933). The rationale is that the agency relation charges each conspirator with declarations and admissions missions of other co-conspirators. Lutwak v. United States, supra. The same follows for certain acts of a co-conspirator. Acts or conduct not intended as assertive are not hearsay and, therefore, they are admissible. It should be noted that nonassertive acts or conduct are not an exception[397 Mich. 10] to the hearsay rule--rather, they are not hearsay in the first place. 4

In view of the circumstances absent Junior's statement, their safe bounds of relevancy and 'indicia of reliability,' 5 the trial judge did not err in allowing the tesitimony about the absent codefendant.

In addition, the non-assertive acts of the parties did not constitute hearsay and no error was committed in allowing a description to go to the jury.

We follow long recognized and necessary theories of criminal law as to this set of facts.

We affirm the conviction.


LINDEMER and RYAN, JJ., not participating.

LEVIN, Justice.

Howard Stewart was convicted of sale 1 and possession 2 of heroin.

At trial, a witness testified that she purchased heroin from a man known as 'Junior.'

Page 764

The witness was permitted over objection to report certain statements she said were made by 'Junior' which inculpated Stewart. 'Junior' has not been identified. His asserted assistance has not been independently verified. If he exists he was not apprehended. [397 Mich. 11] It does not appear that the people made any effort to produce him at the trial.

The Court of Appeals, finding 'evidence, aliunde, of a conspiracy (between Stewart and 'Junior') to sell heroin,' held that 'Junior"s statements were admissible under the coconspirators exception to the hearsay rule and affirmed the convictions. 3

We would reverse. The statements allegedly made by 'Junior' are not admissible. Evidence aliunde of the commission of a crime and the connection of defendant to the crime cannot consist of hearsay statements or be established by testimony of the sole...

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