People v. Harman

333 N.W.2d 591, 124 Mich. App. 93

• Court: Michigan Court of Appeals
• Decided: March 10, 1983
• Docket: Docket 59178
• Status: Published

Opinions

Per Curiam.

On December 17, 1979, defendant, Roy Andrew Harman, was bound over for trial on the offense of possession of cocaine in excess of 650 grams, in violation of MCL 333.7403(2)(a)(i); MSA 14.15(7403)(2)(a)(i). On April 20, 1981, the trial judge issued a written opinion in which he granted defendant’s motion to quash the information. From this holding, the prosecutor appeals as of right.

At an evidentiary hearing held on December 17, 1980, Dr. Lester Grinspoon, a:.i expert on the subject of psychoactive drugs, testified on defendant’s behalf. Among other things, Dr. Grinspoon testified that the classification of cocaine as a narcotic drug is unwarranted and that it has a less deleterious effect than alcohol or barbiturates.

Based on the testimony of the expert witness and an Illinois Court of Appeals case, People v McCarty,1 the trial judge, in quashing the information, made the following findings regarding the constitutionality of the statute: (1) the mandatory life sentence prescribed for possession of in excess of 650 grams of cocaine is a denial of due process and equal protection of the law; (2) since the life sentence shocks the judicial conscience, it constitutes cruel and unusual punishment; and (3) the classification of cocaine in the same classification as heroin and other "hard drugs” is without a rational basis and, therefore, is a denial of equal protection of the law.

In People v McCarty,² we held that a mandatory life sentence for conviction of possession of 650 grams or more of cocaine does not constitute cruel or unusual punishment under the United States³ and Michigan Constitutions.⁴ The bases for this holding, with which we agree, were that the mandatory life sentence for the offense served to prevent the offender from causing injuries to others by reason of involvement with large quantities of cocaine and society’s need to deter individuals from engaging in the proscribed conduct.

In People v Lemble,5 we discussed the penalty provisions of the controlled substance act of 1978:⁶

"The statutory scheme of the controlled substances portion of the health code punishes those found to be in possession of greater amounts of mixtures containing controlled substances with more severe penalties. We find that the legislative policies underlying criminal penalties — rehabilitation of the offender, society’s need to deter the behavior in others, the prevention of the offender from causing injury to others — are achieved by this statute’s graduated punishment. People v Lorentzen, 387 Mich 167; 194 NW2d 827 (1972). The penalties that may be imposed under this statute do not shock the judicial conscience in light of the gravity of the offenses.

"Nor was this defendant denied equal protection of the laws. It is reasonable for the Legislature to impose more severe punishment for those possessing greater amounts of a mixture containing a controlled substance due to the potential for wider dissemination with an increased potential harm to society. The wording of MCL 333.7403; MSA 14.15(7403) indicates to this Court that the Legislature intended to punish defendants more severely for possession of greater amounts of 'any mixture’ containing a controlled substance with the recognition that purchasers of such mixtures often have little or no idea of what percentage of the mixture is filler and what percent is the 'pure’ drug. The greater the quantity of the mixture, regardless of the degree of purity, the greater the potential harm to society. Therefore, the different treatment for persons in different situations under the code is proper because it is based on the object of the legislation, deterrence of the distribution of the drug. People v Chapman, 301 Mich 584; 4 NW2d 18 (1942).”

In Peole v Kaigler,⁷ this Court held that the classification of cocaine among the Schedule 2⁸ list of controlled substances for penalty provisions did not violate the equal protection clauses of the federal⁹ and state¹⁰ constitutions. However, the Kaigler Court noted that the defendant failed to adduce any scientific data in support of his claim that the Legislature acted arbitrarily in classifying cocaine as a Schedule 2 drug.

The Illinois Supreme Court, in People v McCarty,11 overruled the Illinois Court of Appeals case which the trial court herein relied upon to quash the information. As summarized in Kaigler, supra,12 the McCarty court upheld the classification of cocaine as a narcotic for penalty purposes:

"The bases enumerated by the court were: (1) enormous profit from illegal cocaine traffic has led to a great deal of crime, including violent crime, as major importers and dealers compete with each other; (2) a strong correlation between the use of cocaine and the use of heroin and the opiates; (3) potential harm to a user inherent in the illegal use of cocaine including the danger inherent in the increase in the practice of smoking coca paste or freebase cocaine; and (4) the ongoing dispute in the scientific and medical community as to the potential harm inherent in the use of cocaine and the abundance of unresolved questions concerning the effect of cocaine on humans.”

We adopt the reasoning delineated by the Illinois Supreme Court and hold that the statutory scheme that places cocaine in Schedule 2 for penalty purposes does not violate an individual’s due process or equal protection rights under the federal and state constitutions.

Reversed and remanded for trial

1 93 Ill App 3d 898; 418 NE2d 26 (1981).

2 113 Mich App 464; 317 NW2d 659 (1982).

3 US Const, Am VIII.

4 Const 1963, art 1, § 16.

5 103 Mich App 220, 222-223; 303 NW2d 191 (1981), lv den 412 Mich 888 (1981).

6 MCL 333.7101 et seq.; MSA 14.15(7101) et seq.

7 116 Mich App 567; 323 NW2d 486 (1982).

8 MCL 333.7214; MSA 14.15(7214).

9 US Const, Am XIV, § 1.

10 Const 1963, art 1, § 2.

11 86 Ill 2d 247; 427 NE2d 147 (1981), rev’g 93 Ill App 3d 898; 418 NE2d 26 (1981).

12 Kaigler, supra, p 571.