People v. Swindlehurst

• Decision Date: 06 January 1983
• Docket Number: Docket No. 56052
• Citation: 328 N.W.2d 92,120 Mich.App. 606
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Hugh SWINDLEHURST, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 92

328 N.W.2d 92

120 Mich.App. 606

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Hugh SWINDLEHURST, Defendant-Appellant.

Docket No. 56052.

Court of Appeals of Michigan.

Submitted Feb. 3, 1982.

Decided Oct. 19, 1982.

Released for Publication Jan. 6, 1983.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Joseph T. Barberi, Pros. Atty. and Thomas C. Nelson, Asst. Atty. Gen., for the People.

Carl Ziemba, Detroit, for defendant-appellant.

Before BEASLEY, P.J., and T.M. BURNS and QUINNELL ^*, JJ.

PER CURIAM.

Defendant appeals as of right from his September 26, 1980, jury conviction of delivery of cocaine. M.C.L. 333.7401, subds. (1), and (2)(a)(iii); M.S.A. 14.15(7401), subds. (1), and (2)(a)(iii). He was sentenced to life probation and appeals as of right.

Defendant first argues that the controlled substances provisions of the Public Health Code violate the title-object clause of our state constitution. This argument, however, has been rejected by this Court. People v. Ensign (On Rehearing), 112 Mich.App. 286, 315 N.W.2d 570 (1982); People v. Trupiano, 97 Mich.App. 416, 296 N.W.2d 49 (1980), lv. den. 409 Mich. 895 (1980).

Similarly, there is no merit to defendant's argument that the information was inadequate because it did not name the party to whom he was alleged to have delivered cocaine. We note that the defendant failed to object to this alleged defect in the information in a timely manner. People v. O'Brien, 60 Mich. 8, 26 N.W. 795 (1886). Further, this issue was decided in a manner adverse to his position in People v. Carriger, 37 Mich.App. 605, 195 N.W.2d 25 (1972), lv. den. 388 Mich. 812 (1972). Defendant could have demanded a bill of particulars had he wished. ¹

Defendant next claims that he was prejudiced at trial when evidence regarding two similar offenses was admitted. The record does not reflect that defendant objected to this evidence, but we have considered this issue nonetheless.

In People v. Nieves, 92 Mich.App. 613, 285 N.W.2d 389 (1979), this Court enunciated a three-part test to be applied when ascertaining whether error occurred in the admission of similar act testimony. First, substantial evidence must be presented to show that the defendant had committed the prior offenses; second, there must be some special circumstances of the prior bad acts that tended to prove one of the statutory items; and third, the particular statutory item must be material to the case. To these three factors must be added the requirement that the probative value of the similar act testimony must outweigh its prejudicial effects. People v. Duncan, 402 Mich. 1, 260 N.W.2d 58 (1977).

In the present case, substantial evidence was presented to establish that defendant committed the prior offenses. With regard to the second part of the test, the statutory item established by this evidence was "knowledge", that is, the prior sales tended to establish that defendant was a heroin dealer and not merely a narcotics user. Nieves, supra, 92 Mich.App. at 616-617, 285 N.W.2d 389. Further, evidence pertaining to defendant's intent or knowledge was a material issue in this case. Finally, upon consideration of the whole record, we cannot say with firm conviction that the trial judge abused his discretion in admitting this evidence; that is, its prejudicial nature does not outweigh its probative value.

We also find to be without merit defendant's argument that the failure to mention the principal's name in the information on which he was convicted, on a theory of aiding and abetting, requires reversal. See People v. Lamson, 44 Mich.App. 447, 205 N.W.2d 189 (1973), lv. den. 389 Mich. 783 (1973). The distinction between an aider and abettor and a principal has been abolished in this state. M.C.L. Sec. 767.39; M.S.A. Sec. 28.979. Therefore, Mulligan v. Commonwealth, 84 Ky. 229, 1 S.W. 417 (1886), is distinguishable. A prosecutor need not set forth his theory of law in the information and if a criminal defendant wishes to ascertain the name of the principal, he may request a bill of particulars. Carriger, supra.

Defendant next argues that error occurred because his counsel's argument to the jury amounted to a confession of guilt. The record discloses that defense counsel admitted defendant's participation in two previous deliveries of controlled substances but that he did not concede defendant's involvement with the instant one. While there are certain hazards to admitting the familiarity of a defendant with the type of crime with which he is charged, this strategy is effective to neutralize the damaging effect of a prosecutor's evidence in some cases. Intentionally bringing up past criminal convictions does not make counsel ineffective and, in fact, it is a legitimate trial tactic. People v. Armstrong, 100 Mich.App. 423, 298 N.W.2d 752 (1980), lv. den. 412 Mich. 865 (1981). Although the tactic was not effective in this case, this Court will not substitute its judgment for that of trial counsel in matters of trial strategy. People v. Lotter, 103 Mich.App. 386, 302 N.W.2d 879 (1981), lv. den. 412 Mich. 852 (1981).

Defendant next claims that the prosecutor impermissibly shifted the burden of proof when he commented during closing argument to the jury on defendant's failure to present a corroborating accomplice witness.

The witness in question, one Evans, had pled guilty and was awaiting sentence at the time of this trial. The record is silent as to whether, if he had been called by either side, he would have claimed his Fifth Amendment privilege. Having in mind the possibilities of a withdrawal of his guilty plea, or a successful appellate challenge to his conviction, there is reason to believe that he would have invoked his Fifth Amendment privilege if called.

It would have been error for either the prosecutor or defense counsel to call Evans as a witness under such circumstances. People v. Giacalone, 399 Mich. 642, 250 N.W.2d 492 (1977). See also People v. DeGoenaga, 202 Mich. 503, 168 N.W. 436 (1918). A prosecutor should not denigrate an opponent for failure to do something which would have been improper if done. ² However, the record indicates that defendant failed to object to the comments of the prosecutor during closing argument. For this reason, any error has been waived. People v. Clemons, 91 Mich.App. 68, 282 N.W.2d 838 (1979), remanded on other...