People v. Sutherlin

• Citation: 116 Mich.App. 494,323 N.W.2d 456
• Decision Date: 01 September 1982
• Docket Number: Docket No. 53361
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Douglas Edward SUTHERLIN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 456

323 N.W.2d 456

116 Mich.App. 494

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Douglas Edward SUTHERLIN, Defendant-Appellant.

Docket No. 53361.

Court of Appeals of Michigan.

Submitted Feb. 2, 1982.

Decided May 21, 1982.

Released for Publication Sept. 1, 1982.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., David H. Sawyer, Pros. Atty., and Carol S. Irons, Chief Appellate Asst. Pros. Atty., for the people.

George S. Buth, Grand Rapids, for defendant-appellant.

Before ALLEN, P. J., and R. B. BURNS and J. H. GILLIS, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of unlawful delivery of cocaine, M.C.L. Sec. 333.7401(2)(a)(iv); M.S.A. Sec. 14.15(7401)(2)(a)(iv), and conspiracy to commit the unlawful delivery of cocaine, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1). He was sentenced to 3 to 20 years imprisonment on each count, said sentences to run concurrently. Defendant appeals as of right.

On February 8, 1979, at about 9 p. m. Robert Ungrey, an undercover police officer, and his partner drove to an apartment at 529 1/2 College Avenue Northeast in Grand Rapids pursuant to a tip from a police informant, Roger Swain. The informant accompanied the two officers. Ungrey and Swain went into the apartment, while the partner waited in the car parked out front. Upon entering the apartment, Swain introduced Ungrey to a man nicknamed "Scooter", who was later identified as Raymond Jaskiewicz. A conversation followed about drugs, specifically cocaine. Scooter made a phone call to a person called Doug and asked whether he had any cocaine and what it would cost. After finishing the call, Scooter told Ungrey it would cost $90 and that they would have to go to the Windy Ridge Apartments where he would talk to Doug who was supposed to obtain the cocaine from his brother.

The three men left the apartment and drove to the Windy Ridge Apartments. When they arrived, Ungrey got out of the car and he gave Scooter $90 in unmarked bills for the cocaine. Scooter then went to 1053 College and went inside the building. However, it was unknown which one of the six apartments in the building Scooter went into. The owner of the apartments testified that the defendant and his wife were tenants in that building on the day in question. After about 15 minutes, Scooter returned and told them they would have to go back to his place since Doug would bring the cocaine there. They drove back to Scooter's residence where they went inside and sat in the living room. Within a half-hour, there was a knock at the back door. Scooter opened the door and let the suspect into the kitchen area of his residence. Ungrey was approximately 25-30 feet away from the suspect, whom he saw give a packet to Scooter. Ungrey was unable to overhear any of their conversation. The suspect stayed in the kitchen for about two minutes and then left. Scooter then handed the packet to Ungrey. The packet was later determined to be cocaine.

At trial, Ungrey was able to identify the suspect as the defendant. At the close of the prosecution's case, the defendant moved for a directed verdict of acquittal on the conspiracy charge, which the trial court denied.

On appeal, defendant raises two issues. The first issue asserts that the trial court committed reversible error by admitting hearsay statements of a coconspirator to prove the existence of the alleged conspiracy. We disagree.

It is well settled that a coconspirator's declarations made during the course and in furtherance of the conspiracy are admissible if a prima facie case of conspiracy is established by independent proof. MRE 801(d)(2)(E), People v. Stewart, 397 Mich. 1, 6, 242 N.W.2d 760 (1976); People v. Scotts, 80 Mich.App. 1, 263 N.W.2d 272 (1977). A prima facie case of conspiracy can be and is usually proven by way of circumstantial evidence and may be based on reasonable inferences drawn from the facts. There need not be direct proof of an agreement. People v. Taurianen, 102 Mich.App. 17, 300 N.W.2d 720 (1980).

Therefore, the question here is whether the prosecution made at least a prima facie case of the alleged conspiracy beyond the hearsay declarations of the coconspirator. The evidence introduced by the prosecution was that Officer Ungrey gave Scooter money to purchase cocaine; they subsequently drove to an apartment building where defendant was a tenant; Scooter entered and departed from that building; a man, whom Ungrey later identified as the defendant, arrived at Scooter's residence within a half-hour and handed him a packet which was determined to be cocaine; Scooter then handed the packet to Ungrey. We find that the prosecution presented sufficient independent evidence to establish the conspiracy which therefore made the coconspirator's statements admissible.

Defendant next claims that his motion for a directed verdict made at the close of the prosecution's case should have been granted. Defendant states that, because his conviction was based entirely on circumstantial evidence, the prosecution was required to disprove every reasonable theory consistent with defendant's innocence. Additionally, defendant argues that the trial court engaged in an impermissible pyramiding of inferences in denying his motion for a directed verdict.

It is clear from the record that the case against the defendant herein was based on circumstantial evidence. In a recent case, People v. McWilson, 104 Mich.App. 550, 305 N.W.2d 536 (1981) this Court rejected the rule requiring the prosecution to disprove all possible innocent theories. Thus, contrary to defendant's contention, the prosecution was only required to prove its own theory beyond a reasonable doubt.

The proper standard of review of a denial of a defendant's motion for directed verdict of acquittal was established in People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1978), where the Supreme Court stated:

"In summary, the trial judge when ruling on a motion for a directed verdict of acquittal must consider the evidence presented by the prosecution up to the time the motion is made, [ People v. Garcia, 398 Mich. 250, 247 N.W.2d 547 (1976) ], view that evidence in a light most favorable to the prosecution, People v. Vail, 393 Mich. 460, 463, 227 N.W.2d 535 (1976), and determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. [ Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, [2789] 61 L.Ed.2d 560 (1979) ]."

Defendant was convicted of conspiracy to deliver cocaine. The elements of a conspiracy to deliver a controlled substance were summarized in People v. Atley, 392 Mich. 298, 310-311, 220 N.W.2d 465 (1974), as follows:

"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...