People v. Stout

• Decision Date: 01 September 1982
• Docket Number: No. 52170,52170
• Citation: 116 Mich.App. 726,323 N.W.2d 532
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Etheridge STOUT, Defendant-Appellant. 116 Mich.App. 726, 323 N.W.2d 532
• Court: Court of Appeal of Michigan — District of US

Page 532

323 N.W.2d 532

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Etheridge STOUT, Defendant-Appellant.

No. 52170.

116 Mich.App. 726, 323 N.W.2d 532

Court of Appeals of Michigan.

Submitted April 13, 1982.

Decided June 8, 1982.

Released for Publication Sept. 1, 1982.

[116 MICHAPP 727] Frank J. Kelley, Atty. Gen., Louis J. [116 MICHAPP 728] Caruso, Sol. Gen., Edward J. Grant, Pros. Atty., and John L. Wildeboer, Chief Appellate Asst. Pros. Atty., for the People.

Peter Jon Van Hoek, Asst. State Appellate Defender, for defendant-appellant on appeal.

Before DANHOF, C. J., and R. B. BURNS and WAHLS, JJ.

DANHOF, Chief Judge.

Defendant was charged with possession of cocaine, M.C.L. Sec. 333.7403(1), (2)(a)(iv); M.S.A. Sec. 14.15(7403)(1), (2)(a)(iv), and possession of marijuana, M.C.L. Sec. 333.7403(1), (2)(d); M.S.A. Sec. 14.15(7403)(1), (2)(d). A supplemental information charged defendant as a fourth time habitual offender ¹, M.C.L. Sec. 769.12; M.S.A. Sec. 28.1084. Following a jury trial defendant was convicted of possession of cocaine and marijuana. Subsequently the supplemental information was dismissed. Applying the sentence enhancement provisions contained in the Public Health Code, M.C.L. Sec. 333.7413; M.S.A. Sec. 14.15(7413), the trial court sentenced defendant to from 2 1/2 to 8 years imprisonment for possession of cocaine. ² Defendant was also sentenced to nine months imprisonment for possession of marijuana. Defendant now appeals as of right.

In his first issue defendant argues that the classification of cocaine in Michigan's Public Health Code, M.C.L. Sec. 333.7101 et seq.; M.S.A. Sec. 14.15(7101) et seq., as the equivalent of a "narcotic"[116 MICHAPP 729] drug for purposes of punishment violates fundamental constitutional principles of due process and equal protection of the laws, infringes on the right of privacy and constitutes cruel and unusual punishment. ³

In support of his constitutional claims defendant asks this Court to take judicial notice of the large amount of current scientific evidence on the properties and potential for abuse of cocaine. No factual record in support of defendant's claims was developed in the instant case.

Because of the lack of a factual record to support defendant's claims and because no objections were made in the proceedings below on the question of the constitutionality of the statute, this issue has not been preserved for appellate review in the absence of clear and manifest injustice. People v. Penn, 70 Mich.App. 638, 247 N.W.2d 575 (1976). We discern no clear and manifest injustice in the instant case.

In reaching this conclusion we note that another panel of this Court has recently held that the classification of cocaine as the equivalent of a "narcotic" drug for purposes of punishment does not conflict with the constitutional provisions for equal protection. People v. Kaigler, 116 Mich.App. ---, 323 N.W.2d 486 (1982). See also, People v. McCarty, 86 Ill.2d 247, 56 Ill.Dec. 67, 427 N.E.2d 147 (1981), noting that all courts addressing the issue, with the exception of one trial court in Michigan, have upheld the classification of cocaine as the [116 MICHAPP 730] equivalent of a "narcotic" drug for penalty purposes. Furthermore, a number of panels of this Court have found that the penalty provisions for a conviction for possession of a controlled substance do not constitute cruel and/or unusual punishment. See, Kaigler, supra; People v. Campbell, 115 Mich.App. 369, 320 N.W.2d 381 (1982); People v. McCarty, 113 Mich.App. 464, 317 N.W.2d 659 (1982); People v. DeLeon, 110 Mich.App. 320, 313 N.W.2d 110 (1981); People v. Lemble, 103 Mich.App. 220, 303 N.W.2d 191 (1981). Finally, we find defendant's assertion that the constitutional right to privacy guarantees some reasonable personal use of cocain to be without merit. State v. Erickson, 574 P.2d 1, 21-22 (Alaska, 1978).

Defendant next argues that various statements made by the prosecutor in closing argument were improper and denied defendant a fair trial. Defendant first asserts that the prosecutor improperly vouched for the credibility of a police officer's testimony and that the prosecutor denigrated the role of defense counsel. No objections to the complained-of remarks were made at trial.

As a general rule, a conviction will not be reversed where there has been no objection and request for a cautionary instruction unless, in all likelihood, a curative instruction would not have eliminated the prejudice arising from the prosecutor's remarks. People v. Duncan, 402 Mich. 1, 260 N.W.2d 58 (1977).

Our review of the record indicates that the prosecutor's reference to the police officer was more in the nature of commenting on the witness's responses and demeanor rather than an expression of personal belief in the witness's credibility. As such, these remarks were proper. See People v. Smith, 87 Mich.App. 18, 28, 273 N.W.2d 573 (1978). [116 MICHAPP 731] As to the prosecutor's comments about defense counsel, rather than objecting defense counsel chose to respond to the remarks in his closing argument. Defense counsel placed the complained-of remarks in proper perspective.

In any case, even if the complained-of remarks were improper, any prejudice created by the remarks could have been cured by an objection and a curative instruction. Under these circumstances reversal is not warranted. Duncan, supra.

Defendant also argues that the prosecutor committed error in his closing argument by commenting on defendant's failure to produce certain corroborating evidence. Defendant's timely objection to this remark was overruled by the trial court.

We find that the trial court correctly overruled defendant's objection. Our courts have permitted a prosecutor to comment on a defendant's failure to produce corroborating witnesses when the defendant has taken the stand and testified on his own behalf. See People v. Jackson, 108 Mich.App. 346, 351-352, 310 N.W.2d 238 (1981), and cases cited therein. In the instant case the prosecutor's remarks did not impermissibly shift the burden of proof. People v. Gant, 48 Mich.App. 5, 8-10, 209 N.W.2d 874 (1973).

Defendant next argues that the trial court abused its discretion in allowing a juror to present a question to an expert witness.

A chemist for the narcotics unit of the Michigan State Police Crime Laboratory testified concerning the tests which he performed on the contents of two plastic bags, a "Sucrets" box and a prescription bottle, all of which were seized in connection with defendant's arrest. The tests positively identified the contents of these items as either marijuana or cocaine.

[116 MICHAPP 732] After redirect examination of this witness a juror raised his hand and asked the trial judge if he, the juror, could ask the witness a question. The trial judge asked the juror to state the question and the juror replied:

"Oh, okay. I'm just curious if there are any other substances that would interfere with the results of your wet chemistry tests, * * * it could possibly cloud the issue?"

Defense counsel objected to the question and the jury was removed from the courtroom. Out of the presence of the jury defense counsel argued that the question was impermissible as it was outside the scope of the witness's testimony. The trial court overruled the objection, stating that it would exercise its discretion and allow the question.

Defendant concedes that in People v. Heard, 388 Mich. 182, 200 N.W.2d 73 (1972), the Supreme Court ruled that, at least under some circumstances, a trial court may exercise its discretion and allow a juror to question a witness. However, defendant argues that the Heard rule is limited to questions which seek to clarify testimony and that a trial court may not permit a juror to request additional information in a subject area that has not been brought out by the prosecutor.

While we share defendant's concern that a juror's question may interject prejudice into the proceedings, we disagree with defendant's reading of Heard and application of that case to the facts of the instant case.

In holding that jurors may question witnesses the Heard Court stated:

"The practice of permitting questions to witnesses propounded by jurors should rest in the sound discretion[116 MICHAPP 733] of the trial court. It would appear that in certain circumstances, a juror might have a question which could help unravel otherwise confusing testimony. In such a situation, it would aid the fact-finding process if a juror were permitted to ask such a question. We hold that the questioning of witnesses by jurors, and the method of submission of such questions, rests in the sound discretion of the trial court. The trial judge may permit such questioning if he wishes, and we hold that it was error for the judge to rule that under no circumstances might a juror ask any questions." Id., 188-189, 200 N.W.2d 73.

In our view, Heard leaves to the sound discretion of the trial court whether a question from a juror should be permitted because it aids the fact-finding process. Although the Heard opinion specifically referred to juror questions which "help unravel otherwise confusing testimony" we do not believe that the Court meant to limit juror questions to only those situations, but, rather, was merely posing an example of where juror questions might aid in the fact-finding process. In the instant case, the juror's question was competent and did not indicate that the juror was prejudiced against defendant. The juror's question aided the fact-finding process and, if anything, was favorable to defendant in that it sought to determine whether the expert's test was valid. Accordingly, the trial court did not abuse its discretion in allowing this question to be asked.

We note that even if, arguendo, the trial court abused its discretion in allowing the question, reversal of defendant's conviction would not be warranted as the error, if any, would be harmless. S...