People v. Konrad

536 N.W.2d 517, 449 Mich. 263

• Court: Michigan Supreme Court
• Decided: July 19, 1995
• Docket: 96938, (Calendar No. 17)
• Status: Published

Opinions

Boyle, J.

The question presented is whether there was sufficient evidence from which to conclude that the defendant possessed cocaine. We hold that there was, and affirm the decision of the Court of Appeals.

i

The events leading to the arrest of the defendant took place on August 30, 1984, in a Kmart parking lot in Livonia, where it appears that undercover officers of the Livonia Police- Department gave $550 in marked funds to a woman named Laurie Clark for the purpose of purchasing cocaine. Sergeant Peter Kunst gave the money to Ms.. Clark, who then drove her car across the parking lot to a fence that ran between the Kmart parking lot and the neighboring McDonald’s parking lot. According to surveillance officers, a man got into her car, and Ms. Clark drove the car several feet before stopping. The same man then left the car, jumped over the fence into the McDonald’s parking lot, got on a motorcycle, and sped away.

The police arrested Laurie Clark and a man named Gordon Grimes for the cocaine delivery in the K mart parking lot. The police did not find any of the marked money in either Ms. Clark’s or Mr. Grime’s possession.

Backup surveillance officers followed the motorcycle for a short distance. Although they lost sight of it in traffic, they managed to record the license plate number. The motorcycle was registered to the defendant, Mark Konrad.¹

Shortly thereafter, a number of police officers arrived at Konrad’s home. Parked in the driveway was the motorcycle that had been at the scene of the controlled purchase. Sergeant John Jandasek testified that a woman answered the door and let the officers into the house where he arrested the defendant. At that time, the defendant said, "What you are looking for is in a locked room in the basement. I have the keys.” Sergeant Jandasek left the defendant in the custody of other police officers while he went to request a warrant to search the house.

Officer William Bryant testified that he searched the defendant incident to his arrest. In the defendant’s pockets, he found a large roll of currency and a key. Officer Bryant testified that a scout car arrived to take the defendant to the police station. As he was being led away, the defendant said to his wife, "Call Joel and tell him not to come and look at my bike.” The defendant then said to Officer Bryant, "This guy is supposed to come and look at my motorcycle. I think he wants to buy it.” The defendant’s wife asked him for a phone number, and the defendant gave it to her. Mrs. Konrad then began walking toward the kitchen where the phone was located when the defendant said to her, "Not now, do it later.”

Sergeant Kunst testified that when he arrived at the defendant’s home, still undercover, officers were already there awaiting a search warrant. As he waited, he' turned away ten to twelve people who arrived at the house during a forty-five minute period. Just after 6:30 p.m., as he was waiting in the front yard, a young man approached carrying a box. On top of the box was an egg-shaped object wrapped with masking tape and partially covered with a pair of khaki shorts and a Detroit Tigers baseball cap. As the person came close to the house, he asked Sergeant Kunst whether the defendant was home. Sergeant Kunst told the man, later identified as Joel Hamp, that the defendant was not home but that his wife was inside. Sergeant Kunst asked, "Do you have something for him?” Hamp said that he did and walked up the walkway.

As Sergeant Kunst followed, Hamp entered the house. Inside, Sergeant Sitner identified himself as a police officer. Hamp turned, knocked Sergeant Kunst to the floor, and ran out of the house.. Sergeant Kunst and another officer chased the defendant several blocks on foot, before apprehending and arresting him. The egg-shaped object, which Hamp had dropped on the lawn, contained 881.8 grams of cocaine.'

Later, Sergeant Kunst used the key taken from the defendant to open a door in the basement. There he found two scales, boxes of baggies, over one hundred zip-lock baggies, and at least fifteen partially filled or empty bottles of cutting-agents. He also found two sifters, which are used to mix cocaine with diluting powders. Behind paneling in the corner, he found just under $10,000 in cash. From the bedroom, Sergeant Kunst seized a phone with special electronic equipment.

Sergeant Kunst testified that he returned to the police station about midnight, at which point he interviewed the defendant for about thirty minutes. Sergeant Kunst testified² that Konrad confessed that he had arranged to purchase cocaine from a man named Chris. He later gave $40,000 as payment for the kilogram of cocaine to a man named Todd who had come to his house. Konrad understood that Chris would be traveling either to Tennessee or Florida to obtain it. On the afternoon of August 30, 1984, Joel Hamp called Konrad and told him that "everything is together,” meaning that Hamp had the cocaine and was ready to deliver it to Konrad. They arranged that Hamp would deliver it to Konrad’s home at seven that evening. Konrad told Officer Kunst that this was to be the fourth such shipment from Chris and Joel. In each of the three previous transactions, Joel had delivered the cocaine to Konrad’s home. Konrad confessed to having earned $80,000 in the last year by selling cocaine, and described how he had spent the profits. He also told Kunst that he had purchased a special phone that could detect wire taps.

Officer Perkins also interviewed the defendant. He testified that Konrad had admitted giving $40,000 to Joel as payment for the cocaine. Perkins also testified that Konrad told him that he knew Joel would be traveling either to Florida or Tennessee to pick up the cocaine. Konrad confessed that he had recently started selling cocaine and that Joel was obtaining the kilogram at a good price.

The defendant was charged with possession with intent to deliver over 650 grams of cocaine, MCL 333.7401; MSA 14.15(7401), and with conspiracy to possess the same amount, MCL 750.157a; MSA 28.354(1). He was tried in December, 1986, and convicted of both charges, but was granted a new trial on his own motion.

In November, 1988, defendant was tried a second time and convicted by a Recorder’s Court jury. After initially reversing the defendant’s conviction,³ the Court of Appeals affirmed in an unpublished opinion per curiam. The defendant applied to this Court for leave to appeal. We granted leave "limited to whether there was sufficient evidence to satisfy the element of possession . . . .” 447 Mich 1011 (1994).

n

The defendant claims that the trial court erred in denying his motion for a directed verdict of acquittal on the count of possession with intent to deliver because there was insufficient evidence that he possessed the cocaine. This claim rests on the defendant’s argument that his statements to police should have been excluded under the corpus delicti rule: "the trial court erred in denying the motion for a directed verdict because the record is devoid of any evidence whatever — aside from the evidence contained in the two statements allegedly made by defendant to the police — to support the prosecution’s theory that defendant either constructively possessed the cocaine or that he aided and abetted Hamp in Hamp’s physical possession of the cocaine . . . .” In light of our specific grant order, this argument, which concerns the admissibility of evidence rather than its sufficiency, is not well taken.

Moreover, the argument is fallacious. The corpus delicti rule is designed to prevent the use of a defendant’s confession to convict him of a crime that did not occur. See People v Williams, 422 Mich 381, 391; 373 NW2d 567 (1985); People v Hughey, 186 Mich App 585, 587-588; 464 NW2d 914 (1990). Specifically, the rule provides that a defendant’s confession may not be admitted unless there is direct or circumstantial evidence independent of the confession establishing (1) the occurrence of the specific injury (for example, death in cases of homicide) and (2) some criminal agency as the source of the injury. People v Cotton, 191 Mich App 377, 394; 478 NW2d 681 (1991).

The Legislature has established that no person may legally possess cocaine unless that person falls within a statutory exception, see MCL 333.7401; MSA 14.15(7401); MCL 333.7403; MSA 14.15(7403), and the burden of proving an exception falls on the person claiming it, see MCL 333.7531; MSA 14.15(7531). We have no common-law authority to redefine the body of this crime. Therefore, the corpus delicti was satisfied by evidence independent of defendant’s confession that the cocaine existed and was possessed by someone. See, e.g., United States v Di Orio, 150 F2d 938, 939 (CA 3, 1945) (the corpus delicti for possession of an unregistered still was satisfied by independent evidence of the existence of an unlawful still). The defendant’s contention that proof of the corpus delicti requires evidence that the cocaine was constructively possessed by the defendant is incorrect. "Proof of the identity of the perpetrator of the act or crime is not a part of the corpus delicti.” Di Orio, 150 F2d 939. It is sufficient to show that the crime was committed by someone. See also LaFave & Scott, Criminal Law (2d ed), § 1.4(b), pp 18-19. In the words of a noted authority, the position that the corpus delicti of a crime includes the identity of the perpetrator is "too absurd indeed to be argued with,” because it would require that the entire crime be proved before a confession could ever be admitted. 7 Wigmore, Evidence (Chadbourn rev), § 2072, p 526.

hi

Given that the defendant’s statements to police were properly admitted, we hold that the trial court did not err in denying his motion for a directed verdict. The defendant argues that there was insufficient evidence to establish that he possessed the cocaine in question.⁴ Proof of actual physical possession, however, is unnecessary for a conviction under MCL 333.7401; MSA 14.15(7401); proof of constructive possession will suffice. See Wolfe, supra at 508, 519-520; 489 NW2d 748 (1992). Moreover, possession need not be exclusive and may be joint, with more than one person actually or constructively possessing a controlled substance. Id. at 520; United States v Staten, 189 US App DC 100, 105; 581 F2d 878 (1978).

The essential question is whether the defendant had dominion or control over the controlled substance. People v Germaine, 234 Mich 623, 627; 208 NW 705 (1926). In the foremost discussion of what is necessary to have dominion or control over drugs, Judge Posner explained that a defendant "need not have them literally in his hands or on premises that he occupies but he must have the right (not the legal right, but the recognized authority in his criminal milieu) to possess them, as the owner of a safe deposit box has legal possession of the contents even though the bank has actual custody.” United States v Manzella, 791 F2d 1263, 1266 (CA 7, 1986). Similarly, our Court has recognized that, regarding a predecessor statute, it not only "reach[es] the actual peddler of narcotics who carries his stock in trade in hand or secretes it, but it reaches the kingpin of the narcotics traffic who controls its disposition but never himself possesses the stuff.” People v Harper, 365 Mich 494, 507; 113 NW2d 808 (1962).

This Court also approved the notion of constructive possession in People v Bercheny, 387 Mich 431; 196 NW2d 767 (1972). The defendant, along with five others, had been convicted of possession of heroin, conspiracy to possess heroin, and control of heroin. Id. at 434. When the police entered the house where the arrest took place, the defendants "were found in a small living room in which a quantity of heroin was located, to which all of the defendants were situated in close proximity.” People v Iaconis, 29 Mich App 443, 449; 185 NW2d 609 (1971). The Court of Appeals held that the evidence was sufficient to support a finding that the defendants possessed or controlled the heroin:

The people presented evidence tending to show among other things that, on several occasions, while the premises in question were under surveillance, defendants frequently arrived at the premises and remained there for short periods of time; that certain of the defendants left the premises in a manner which indicated to an officer on the scene, who testified that he had had experience in observing persons under the influence of heroin, that they were under such an influence; that when defendants, as well as others entered the premises, they often went through a procedure, as they did on the night of the raid, i.e., they would kncsk on the door, look through a window fan, knock again, after which a blind was opened in a window, and closed again, and the door was then opened to them; that, on the night of the raid defendants were found in a small room in close proximity to heroin and narcotic paraphernalia; that one defendant, on the night of the arrests, had blood marks on his shirt and a raised black and blue mark and two red dots on his afín, and another had scars on the inner portion of both arms. [Id. at 459.]

This Court granted leave and affirmed, adopting the opinion of the Court of Appeals.⁵ 387 Mich 435.

In the present case, there is ample evidence⁶ from which a rational trier of fact could conclude beyond a reasonable doubt that the defendant constructively possessed the cocaine through his agent, Joel Hamp. See Wolfe, supra at 514. The evidence permits the conclusion that the defendant had paid for the drugs and that they were his —that is, that he had the intention and power, in the sense referred to by Judge Posner, to exercise control over them. There is evidence that the defendant made a prior arrangement with Joel Hamp and others to purchase a kilogram of cocaine, that he had already paid for the cocaine, that he told Joel to come to his house about seven that evening, and that, after he had been arrested, he had instructed his wife to direct Joel not to come. Joel arrived after 6:30 p.m. and acknowledged that he had something for the defendant.⁷

Although most cases discussing constructive possession through a defendant’s agents involve agents who have sold controlled substances,⁸' Michigan courts have recognized that defendants also may constructively possess substances that their agents have bought for them. In People v Davis, 109 Mich App 521, 527; 311 NW2d 411 (1981), the Court held that "a finder of fact could readily conclude that defendant had 'acquire[d] or obtained] possession,’ ” of prescription drugs that a co-worker had - agreed to pick up, pay for, and deliver to the defendant, "whereupon the defendant would reimburse the co-worker for the purchase price.” Id. at 525. The co-worker was apprehended by police after he obtained the prescription but before he delivered it to defendant. The panel rejected defendant’s argument that "since he never had possession of the controlled substance, the most he could have been convicted of is an attempt to obtain a controlled substance . . . .” Id.

Decisions from other jurisdictions support this result. The circumstances strongly indicate that the package carried by Mr. Hamp belonged to the defendant and merely awaited delivery. The United States Court of Appeals for the Fifth Circuit held these facts sufficient to support a finding of constructive possession in United States v Harold, 531 F2d 704 (CA 5, 1976). In that case, defendant Tom Barber was waiting in a car at Houston Intercontinental Airport while his wife picked up an air freight package addressed to him that "contained 160 balloons filled with heroin.” He apparently never took possession of the package, because the defendant and his wife, along with their passenger, Richard Harold, were arrested as she returned to the car. Nevertheless, the court rejected his challenge of the sufficiency of the evidence: "The fact that the package containing the heroin was addressed to Tom Barber, and that his wife picked it up apparently as his agent while he waited outside in his car, is enough to indicate sufficient dominion and control by Tom Barber to support the finding of constructive possession.” Id: at 705.

In addition, the evidence indicates that the defendant had already paid for the cocaine. In some circumstances, courts have held that evidence that a defendant had already paid for cocaine can be sufficient to support a finding of constructive possession. In United States v Russo, 796 F2d 1443, 1461 (CA 11, 1986), the court explained that "[wjhile the evidence might have been clearer on this point, it does tend to show that Sanchez and Granados had a financial interest in and at least part ownership of the drugs until they were distributed, sold, and Sanchez and Granados were paid. This would constitute constructive possession by Sanchez.”⁹

The evidence that the transaction had been completed distinguishes the present case from United States v Batimana, 623 F2d 1366 (CA 9, 1980), on which the defendant relies. Like Mr. Konrad, the defendants in Batimana did not have actual possession. Unlike Mr. Konrad, however, the defendants in Batimana were shown only to have viewed the contents of the drug package and had not yet completed their transaction. "[F]or all that appears, further negotiating may have remained before Lavadia [the deliverer in Batimana] would have relinquished his dominion and control . . . .” Santiago v United States, 889 F2d 371, 376 (CA 1, 1989).

Defendant also points to the decision by the United States Court of Appeals for the Sixth Circuit in United States v Ward, 37 F3d 243, 248 (CA 6, 1994), for the proposition that "[fronting cocaine, without additional elements of control, is nothing more than a variation on the traditional buyer-seller relationship.” That case, however, was a prosecution of a continuing criminal enterprise under 21 USC 848. The passage cited by defendant concerns whether the government had proven that narcotics laws were violated by people "for whom the defendant is an organizer or supervisor . . . .” The issue, in other words, was whether the defendant controlled, supervised or managed the people selling the drugs. 37 F3d 247. The case stands for the proposition that a defendant does not supervise or manage a person within the meaning of 21 USC 848 simply by selling him cocaine on credit. It does not address the question whether the'defendant was controlling the cocaine. More importantly, it does not address the role of the person receiving, as opposed to selling, the cocaine on credit.

IV

For the foregoing reasons, we hold that there was sufficient evidence from which a rational trier of fact could conclude that the defendant possessed the cocaine in question. Because of our resolution of this issue, we need not address the sufficiency of the evidence supporting the prosecutor’s alternate theory — that the defendant aided and abetted Mr. Hamp. Therefore, we affirm the decision of the Court of Appeals.

Riley, Mallett, and Weaver, JJ., concurred with Boyle, J.

1 The source of the facts described thus'far is the prosecution’s response to a motion to suppress filed before the defendant’s first trial. This information was not presented at the trial in question. We include it solely as background.

2 Because of a court reporter error, part of the transcript of the second trial is unavailable, including portions of Officer Kunst’s and Officer Perkins’ testimony. We rely on the officers’ testimony as it appears in the transcript of the first trial because defense counsel has stipulated, both in his brief and at oral argument, that the officers’ testimony at the second trial was essentially the same as it was at the first trial.

3 The Court reversed defendant’s conviction on the ground that the prosecutor had violated the Interstate Agreement on Detainers. MCL 780.601; MSA 4.147(1). On the prosecutor’s application for leave to appeal, however, this Court ordered the Court of Appeals to direct the Recorder’s Court to hold a hearing and make findings about whether the defendant had ever requested a final disposition. Because it had been the prosecutor, not the defendant, who asked for a trial in state court under the iad, the Court proceeded to aifirm the conviction.

4 Although the defendant challenges the sufficiency of the proofs generally, he does not specifically challenge ■ the sufficiency of the evidence regarding intent to deliver. We note that the evidence, including the quantity and packaging of the substance, is sufficient to justify a finding that the possessor intended to deliver the drugs. Cf. People v Wolfe, 440 Mich 508, 524; 489 NW2d 748 (1992).

5 This Court also distinguished State v McGee, 473 SW2d 686 (Mo, 1971), relied on by the defendant. That case involved marijuana found in containers (the heroin in Bercheny was in open piles) in a house that the defendant shared with two friends. 473 SW2d 687. Consequently, the presence of the marijuana "did not raise the same inference as in the instant case.” 387 Mich 434-435.

6 Even in a case relying on circumstantial evidence, the prosecution need not negate every reasonable theory consistent with the defendant’s innocence, but merely introduce evidence sufficient to convince a reasonable jury in the face of whatever contradictory evidence the defendant may provide. People v Wolford, 189 Mich App 478, 480; 473 NW2d 767 (1991); People v Gravedoni, 172 Mich App 195, 197; 431 NW2d 221 (1988); People v Daniels, 163 Mich App 703, 707; 415 NW2d 282 (1987).

7 The dissenting opinion argues that "[tjhere was no evidence produced at trial from which a reasonable jury could conclude beyond a reasonable doubt that” Hamp was an agent of the defendant for the purpose of this transaction. Post at 283. The dissent appears to assume that if Hamp was not the criminal equivalent of the defendant’s full-time exclusive employee, then the defendant cannot be found responsible for any of his acts. This is not the case, even under formal agency principles' which provide for agents "authorized to conduct a single transaction or a series of transactions not involving continuity of service.” Restatement Agency, 2d, § 3(2), p 15. A "special agent” can bind a principal by contracts or conveyances that he is authorized to make. See Restatement Agency, 2d, § 161A, pp 382-383; Rowen & Blair Electric Co v Flushing Operating Corp, 66 Mich App 480; 239 NW2d 633 (1976).

We do not hold that Joel Hamp was the criminal equivalent of the defendant’s general agent, which might render the defendant liable for any cocaine Hamp possessed during that time. We hold only that there is sufficient evidence to convict the defendant of possessing cocaine that had been procured by Hamp but that belonged to the defendant. Assuming arguendo that the Restatement principles govern, it provides that wide discretion regarding the assigned transaction is consistent with special, as opposed to general, agency. Restatement Agency, 2d, comment to § 3, p 16.

8 This appears to reflect the practical reality that law enforcement is much more likely to detect and apprehend drug dealers than drug buyers, and that relatively greater penalties for drug dealers make them more likely to go to trial and subsequently appeal their convictions, leading to more published appellate decisions.

9 The dissenting opinion asserts that we have "neglect[ed] to state the active role the defendant[s] played in the distribution and sale of these drugs.” Post at 287. The dissent’s statement that "[o]bviously, a finding of constructive possession was based on much more than the defendant’s financial interest in the drugs,” id. at 288, misrepresents the Russo opinion. The passage at issue, including the portions omitted by the dissenting opinion, state that although the defendants’ involvement was more than financial, their financial interest alone would be sufficient to support a finding of constructive possession:

Sanchez contends that the evidence does not show that he was ever in actual or constructive possession of the drugs. While the evidence might have been clearer on this point, it does tend to show that Sanchez and Granados had a financial interest in and at least part ownership of the drugs until they were distributed, sold, and Sanchez and Granados were paid. This would constitute constructive possession by Sanchez. In any case, Sanchez did aid and abet the possession of the drugs at Tampa by participating in supplying them and participating in planning their importation into Tampa. His actions manifested his intent to aid in the commission of an offense, and he shared criminal intent with those who actually possessed the drugs at Tampa. When we view the evidence in a light most favorable to the government, we hold that the evidence was sufficient for the jury to find beyond a reasonable doubt that Sanchez was guilty of possessing with intent to distribute marijuana and methaqualone .... [796 F2d 1461.]