People v. Harrison

Michigan Court of Appeals

People v. Harrison

247 N.W.2d 360, 71 Mich. App. 226, 1976 Mich. App. LEXIS 940

CourtMichigan Court of Appeals

DecidedSeptember 8, 1976

DocketDocket 26214

StatusPublished

Cited by21 cases

This text of 247 N.W.2d 360 (People v. Harrison) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Harrison, 247 N.W.2d 360, 71 Mich. App. 226, 1976 Mich. App. LEXIS 940 (Mich. Ct. App. 1976).

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Opinions

M. F. Cavanagh, J.

Defendant was convicted by a jury of delivery of a controlled substance, MCLA 335.341; MSA 18.1070(41), and sentenced to 2 to 20 years imprisonment.

Defendant’s conviction must be reversed because the trial judge refused to instruct on the lesser included offenses of attempted delivery and of possession despite defense counsel’s request. People v Lovett, 396 Mich 101; 238 NW2d 44 (1976), People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975). The key issue is whether Ora Jones is [228]*228retroactive. On the basis of People v Lovett, supra, we conclude that it is.

In Lovett the Supreme Court reversed a conviction because the trial judge failed to instruct on the lesser included offense of attempted armed robbery despite defense counsel’s request. The Court reversed on the basis of Ora Jones and People v Henry, 395 Mich 367; 236 NW2d 489 (1975). Lovett did not discuss retroactivity; however, it applies Ora Jones retroactively, since Lovett’s trial took place before the Jones decision. Lovett was on appeal to the Supreme Court at the time of Jones. The instant case (claim of appeal filed, August 27, 1975) was on appeal to our Court at the time of Jones. We conclude that any discrepancy that might exist between Lovett, supra, and People v Thomas, 68 Mich App 302; 242 NW2d 564 (1976), would not have occurred had the Thomas panel been aware of the Supreme Court’s application of Ora Jones, supra, in Lovett, supra.

Defendant’s two other claims of error are without merit. Under the Controlled Substances Act of 1971, there is no procuring agent defense. People v Collins, 63 Mich App 376; 234 NW2d 531 (1975), People v Williams, 54 Mich App 448; 221 NW2d 204 (1974). As regards the alleged res gestae witness, there was neither a motion at trial to endorse the witness, although defendant knew the witness and the witness’s connection to the transaction, nor a motion for new trial on the ground of nonendorsement or nonproduction.

Reversed and remanded for a new trial.

D. T. Anderson, J., concurred.

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M. F. Cavanagh, J.

Defendant was convicted by a jury of delivery of a controlled substance, MCLA 335.341; MSA 18.1070(41), and sentenced to 2 to 20 years imprisonment.

Defendant’s conviction must be reversed because the trial judge refused to instruct on the lesser included offenses of attempted delivery and of possession despite defense counsel’s request. People v Lovett, 396 Mich 101; 238 NW2d 44 (1976), People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975). The key issue is whether Ora Jones is [228]*228retroactive. On the basis of People v Lovett, supra, we conclude that it is.

In Lovett the Supreme Court reversed a conviction because the trial judge failed to instruct on the lesser included offense of attempted armed robbery despite defense counsel’s request. The Court reversed on the basis of Ora Jones and People v Henry, 395 Mich 367; 236 NW2d 489 (1975). Lovett did not discuss retroactivity; however, it applies Ora Jones retroactively, since Lovett’s trial took place before the Jones decision. Lovett was on appeal to the Supreme Court at the time of Jones. The instant case (claim of appeal filed, August 27, 1975) was on appeal to our Court at the time of Jones. We conclude that any discrepancy that might exist between Lovett, supra, and People v Thomas, 68 Mich App 302; 242 NW2d 564 (1976), would not have occurred had the Thomas panel been aware of the Supreme Court’s application of Ora Jones, supra, in Lovett, supra.

Defendant’s two other claims of error are without merit. Under the Controlled Substances Act of 1971, there is no procuring agent defense. People v Collins, 63 Mich App 376; 234 NW2d 531 (1975), People v Williams, 54 Mich App 448; 221 NW2d 204 (1974). As regards the alleged res gestae witness, there was neither a motion at trial to endorse the witness, although defendant knew the witness and the witness’s connection to the transaction, nor a motion for new trial on the ground of nonendorsement or nonproduction.

Reversed and remanded for a new trial.

D. T. Anderson, J., concurred.

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Bluebook (online)

247 N.W.2d 360, 71 Mich. App. 226, 1976 Mich. App. LEXIS 940, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-harrison-michctapp-1976.

Opinions

M. F. Cavanagh, J.

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