People v. Wright

• Decision Date: 04 March 1980
• Docket Number: Docket No. 6046,No. 7,7
• Citation: People v. Wright, 408 Mich. 1, 289 N.W.2d 1 (Mich. 1980)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Arnold Ricardo WRIGHT and Salvador Perez, Defendants-Appellees. Calendar408 Mich. 1, 289 N.W.2d 1
• Court: Michigan Supreme Court

Page 1

289 N.W.2d 1

PEOPLE of the State of Michigan, Plaintiff-Appellant, v.Arnold Ricardo WRIGHT and Salvador PerezDefendants-Appellees.

Docket No. 6046.

Calendar No. 7.

408 Mich. 1, 289 N.W.2d 1

Supreme Court of Michigan.

Argued Jan. 10, 1979.

Decided March 4, 1980.

William L. Cahalan, Pros.Atty., Michael R. Mueller, Larry L. Roberts, Asst. Pros.Attys., Detroit, for plaintiff-appellant.

P. E. Bennett, Asst. Defender, Detroit, for defendants-appellees.

RYAN, Justice.

The question presented is whether jury instructions, "unless the testimony satisfies you of something else * * * (t)he law presumes that every man or woman intends the natural, the probable, and the legitimate consequences of his or her own willful and voluntary acts", is reversible error.

We conclude that the instructions may have been interpreted by the jury as a burden-shifting presumption and are therefore unconstitutional.U.S.Const., Am. XIV;Const.1963, art. 1, § 17.Upon careful examination of the entire record, however, we find that as to defendant Wright, the erroneous instructions were harmless beyond a reasonable doubt and his conviction is reinstated.The same cannot be said of the instructions' effect on defendant Perez's case, however, and the reversal of his conviction is affirmed.

I.

DefendantsArnold Wright and Salvador Perez, and their codefendant Carol McCuin, ¹ were charged with conspiracy to deliver heroin and delivery of heroin.M.C.L. § 750.157a;M.S.A. § 28.354(1).M.C.L. § 335.341(1)(a);M.S.A. § 18.1070(41)(1)(a).Wright was charged with three counts of delivery, Perez with one count of delivery, and McCuin with five counts of delivery.All three defendants were charged with conspiracy under a separate count.

All three defendants were jointly tried and each was convicted as charged.Wright was sentenced to four concurrent terms of 13 years, 4 months to 20 years imprisonment.Perez was sentenced to five years probation on condition that he leave the country within two days after which his probation would be suspended and McCuin, whose case is not before us, was sentenced to three years probation.

A.

The prosecution's theory of the case was that Wright was a dope dealer who, on one occasion, was supplied heroin by Perez and for whom McCuin made actual sales of heroin to police undercover agents.The prosecution alleged that McCuin personally delivered heroin on five separate occasions either to undercover Police Officer Fleming or to informant Thomas Moss.

During his opening argument, the prosecutor admitted that neither Wright nor Perez ever personally passed any heroin to Fleming or Moss, and that it was the prosecution's theory that Wright and Perez aided and abetted McCuin in the criminal enterprise.

Although the conspiracy to deliver heroin allegedly lasted from September 5, 1974 to October 3, 1974, the record fails to disclose any specific reference to Perez by the other alleged members of the conspiracy during that time.Perez's only encounter with the other two defendants occurred on the night of September 27-28 when he came to McCuin's home, stayed for a short time and left just prior to the consummation of the last charged delivery of heroin by McCuin to Moss.

The prosecution's case rested chiefly on the testimony of a paid informant, Moss, and an undercover police officer, Fleming, both of whom remained under police surveillance throughout the investigation.Moss had a history as a narcotics dealer himself and admitted cooperating with police in the investigation of Wright and McCuin because he bore a grudge against Wright stemming from an earlier sale of "bad" drugs to him by Wright.

The prosecution presented the following case:

On September 12, 1974, informant Moss, under the direction of Detroit Police Department narcotics officers, went to McCuin's residence and purchased a quantity of heroin.McCuin told Moss that if he wanted more he should come back because Wright was expecting "a real good package".

The next day, September 13, Moss, while under the surveillance of narcotics officers, met Wright at a bar where Wright told him to go to McCuin's residence where he could get what he wanted (an ounce) from McCuin.Moss did so and received $650 worth of heroin from McCuin.At one point during the transaction, McCuin went upstairs and then returned, whereupon the delivery was completed.

The third sale of narcotics occurred five days later, on September 18.Moss, in the company of undercover police officer Fleming, went to the same bar and met defendant Wright.Moss introduced Fleming as his girlfriend and explained to Wright that she would be making purchases of narcotics for him from time to time.Wright suggested that Moss take Fleming over to meet McCuin.Moss agreed, stating that he wished to purchase an ounce of heroin now and possibly an eighth (of a kilo) later in the week.Wright once again directed Moss to McCuin's address and stated that it would cost Moss about $1,600 for the purchase of an ounce of the narcotic.Moss, having only $1,200 of police funds with him at the time, asked Wright if he might have $400 credit.Wright agreed.During the conversation, Wright said he was "copping from some Mexicans in Delray".

Moss and Fleming proceeded to McCuin's home where McCuin supplied Moss with an ounce of heroin for $1,200 after being told by Moss that Wright had agreed to extend him $400 credit.Moss was then directed by McCuin to take a "dime spoon" of heroin to Wright at the bar, which Moss did.

On September 20, Officer Fleming went to McCuin's home alone and bought an ounce of heroin for $1,600.The transaction had been arranged by Moss in a phone call to McCuin.

According to the prosecution's evidence, defendant Perez's first appearance on the scene occurred at the time of the fifth narcotics transaction, September 27.On that date, Moss and Officer Fleming went to McCuin's residence in order to purchase an eighth of a kilo of heroin (approximately four ounces).After being asked whether Wright was present in the house, McCuin answered that he was not.McCuin placed a couple of phone calls after which she stated that Wright would arrive in a few minutes.Shortly after Wright's arrival, he and Moss left the McCuin home and went to the bar where the parties had rendezvoused earlier.There Wright explained that he was waiting for a phone call from his "connect" some Mexicans from Delray with whom he was dealing.He said he didn't know how much the narcotics would cost because his regular "connect" might not receive his "package" which would require him to deal with the "connect's" nephew who might hold out for a higher price.Wright told Moss to multiply 1600 times 4 ounces and add a bit more in order to determine the cost of dealing with the nephew; $1,600 was the price of an ounce.

Officer Fleming testified that she remained at McCuin's residence after Wright and Moss left and that no one entered or left the home while Wright and Moss were gone.From 5:30 p. m. until 10:30 p. m. Wright and Moss were constantly in one another's immediate presence, except for a few moments just prior to their return to the McCuin residence at 10:30.The two had been driving around when Wright stopped the car in front of an unidentified house and went to the door.In the dark Moss observed Wright from the car.Moss did not see Wright enter the house and did not see anyone come to the door.After a few moments Wright returned to the car and then drove to McCuin's residence.

After the two arrived at McCuin's residence, Wright received a phone call after which he told Moss that delivery would be in about 20 minutes.Wright then went upstairs while Moss went to his car and retrieved $6,600 which he gave to McCuin who then followed Wright upstairs.Shortly thereafter, Wright came down and told Moss that they would have to return to the bar.The two left only to return to the McCuin home about 20 minutes later.Observing that there was a Thunderbird in the driveway (owned by Perez's wife), Wright stated that the "connect" was there and Moss could get his "package" in the next few minutes.

Perez and his wife, both of Mexican descent, had arrived shortly after Wright and Moss had departed the second time.Perez and McCuin were upstairs and Officer Fleming and Perez's wife were downstairs when Wright and Moss entered the house.Wright went upstairs and returned shortly, followed by Perez and McCuin.The prosecution presented no testimony as to what transpired while the three were upstairs.The record reveals no conversation whatever between Perez and Moss or Fleming.Perez and his wife left the house.Wright then pointed upstairs and McCuin went up, returning with three coin envelopes containing four ounces of heroin and handed them to Moss.

The next day, September 28, the police recorded a telephone conversation between Wright and Moss wherein Wright asked that Moss pay him the money he still owed him.Payment was necessary, Wright said, because he had received a phone call ² soon after Moss had left McCuin's house the day before in which the caller demanded the payment of the $1,100 which Wright had been "short" and which he acknowledged was owed the caller.The prosecution's contention was that Wright could only have been referring to Perez who was the only person to fit into this time sequence and attendant circumstances.

On October 2, Moss and Fleming again went to McCuin's home with the intention of buying four ounces of heroin.McCuin tried to locate Wright but could not.Moss left $6,800 with McCuin and departed with Fleming only to return later the same day, ostensibly to recover the money.Just about that time Wright arrived and persuaded Moss to leave the money, saying that he would call Moss when "the package" arrived.No call was forthcoming and the next day Moss returned to McCuin's house and recovered the money.No narcotics were transferred on this occasion.

Defendan...