People v. Plunkett

760 N.W.2d 850, 281 Mich. App. 721
CourtMichigan Court of Appeals
DecidedDecember 16, 2008
DocketDocket 284943
StatusPublished
Cited by4 cases

This text of 760 N.W.2d 850 (People v. Plunkett) 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. Plunkett, 760 N.W.2d 850, 281 Mich. App. 721 (Mich. Ct. App. 2008).

Opinions

Fitzgerald, P.J.

The prosecution appeals by delayed leave granted the circuit court’s order granting defendant’s motion to quash the district court’s bindover for trial on charges of delivery of a controlled substance (heroin), thereby causing death, MCL 750.317a; and delivery of less than 50 grams of heroin, MCL 333.7401(2)(a)(iv).1 We affirm.

[723]*723I. FACTS AND PROCEDURAL HISTORY

The following relevant facts were established at the preliminary examination. Tracy Corson was a prostitute who first met defendant through a drug dealer, Darryl Shavers, who informed her that defendant wanted the company of a female who would “be provided drugs to go and get high at his house.” Shavers drove Corson to defendant’s apartment in February 2006 and provided crack cocaine to defendant before leaving the apartment. Corson and defendant used crack cocaine and watched pornography throughout the evening. Defendant gave Corson $380 when she left.

Corson again contacted defendant on May 20, 2006, and met with him on that day “to get high and to get money from him.” Corson moved in with defendant during the Memorial Day weekend of 2006. Corson stopped working as a prostitute after moving in with defendant and was not employed. According to Corson, she and defendant drove to Detroit daily to purchase drugs from a drug dealer, Harold Spencer, with whom Corson was acquainted before meeting defendant. She indicated that “on average we would buy around a [sic] eight ball of crack and a bundle, if not more, of heroin.” According to Corson, she used crack cocaine and heroin, but defendant used only crack cocaine. Corson used the entire amount of heroin in one day, while the crack cocaine lasted “a few hours” for Corson and defendant.

In early June 2006, Corson contacted Tiffany Gregory, a childhood friend and the victim of the alleged homicide. The two met at Gregory’s apartment twice in June. During the first meeting, Corson introduced Gregory to heroin and taught her how to prepare the drug. During the second meeting, Gregory loaned Cor-son $100 and drove Corson to Detroit to purchase [724]*724drugs. The two then returned to Gregory’s apartment and used crack cocaine and heroin.

On June 15, 2006, defendant and Corson traveled to Detroit in defendant’s vehicle to purchase drugs from Spencer. Defendant gave Corson $200 to purchase crack cocaine and heroin. Corson left defendant’s vehicle and entered Spencer’s vehicle to make the purchase. After handing Spencer the money and receiving the heroin and crack cocaine, Corson returned to defendant’s vehicle. On the drive home from Detroit, defendant and Corson smoked crack cocaine, and Corson injected three packets of heroin.

That same night, Gregory went to a bar with Andrew Voltattorni. Gregory consumed alcohol throughout the evening and left the bar when it closed at 2:00 a.m. Later, Gregory, her roommate Ashley, and Voltattorni went to a pizza restaurant. Gregory received several telephone calls while at the restaurant, including one from Corson. After talking to Corson on the phone, Gregory spoke to Voltattorni about using heroin. Gregory told Voltattorni that Corson owed her $20 and she wanted to be paid back with $20 worth of heroin.

Gregory called Corson at approximately 3:00 a.m. on June 16, 2006, asking for drugs and reminding Corson that she owed Gregory $20. Corson invited Gregory to defendant’s apartment. Gregory arrived at 3:30 a.m., and she was intoxicated but able to walk and talk. Corson, Gregory, defendant, and his friend Veronica smoked crack cocaine in the living room. Afterward, Gregory and Corson went into a bedroom and injected themselves with heroin.2 Gregory thereafter slumped over and Corson called for help. While Veronica administered cardiopulmonary resuscitation (CPR) to Gre[725]*725gory, Corson hid the drugs and drug paraphernalia in the laundry room. Gregory was dead by the time emergency personnel arrived at 4:30 a.m.3

Dr. Yung Chung performed an autopsy on Gregory and concluded that the death was accidental and caused by “multiple drug intoxication.” She testified that Gregory’s body had a high morphine content of 269 nanograms, cocaine metabolites, and a high alcohol content. She indicated that heroin changes into morphine once it enters the body and that Gregory had three times the normal recreational-use level of that drug in her body. Dr. Chung opined that Gregory died from a heroin overdose that was exacerbated by the alcohol she had consumed.

Following the presentation of the proofs, defendant argued against a bindover on the charges of delivery of heroin causing death and delivery of less than 50 grams of heroin on the ground that there was no evidence that defendant ever possessed the heroin or transferred the heroin to anyone. He maintained that, at most, the prosecutor had shown that defendant funded Corson’s heroin purchase. He also maintained that a purchaser of heroin could not be convicted of aiding and abetting the delivery of heroin. The prosecutor argued that even though defendant had not possessed the heroin, he provided the transportation to Detroit and the money used to purchase the heroin. The district court concluded that defendant drove Corson to buy drugs on a regular basis, that he gave her money to purchase the drugs, and that the heroin purchased on June 15 caused Gregory’s death. On that basis, the court found sufficient probable cause to bind defendant over on all four counts.

[726]*726Defendant moved to quash the bindover, asserting that with respect to the charges of delivery of heroin causing death and delivery of heroin, the prosecutor failed to present evidence on the element of delivery. Specifically, defendant asserted that with respect to the charge of delivery of heroin causing death, the prosecutor failed to present evidence that defendant delivered heroin to another person. With respect to the charge of delivery of less than 50 grams of heroin, defendant asserted that the prosecutor failed to present evidence that defendant delivered to Corson the heroin that caused Gregory’s death. Following argument on the motion, the circuit court issued a written opinion, ruling in relevant part that defendant’s actions did not constitute delivery of heroin to Corson under either statute. The circuit court concluded that the district court had abused its discretion in binding defendant over on the charges of delivery of heroin causing death and delivery of less than 50 grams of heroin.

II. THE ELEMENT OF DELIVERY

The prosecution argues that probable cause existed to bind defendant over on the charges of delivery of heroin causing death, MCL 750.317a, and delivery of less than 50 grams of heroin, MCL 333.7401(2)(a)(iu). MCL 750.317a provides:

A person who delivers a schedule 1 or 2 controlled substance, other than marihuana, to another person in violation of section 7401 of the public health code .. . that is consumed by that person or any other person and that causes the death of that person or other person is guilty of a felony punishable by imprisonment for life or any term of years.[4]

[727]

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Related

State v. McQueen
811 N.W.2d 513 (Michigan Court of Appeals, 2011)
People v. Plunkett
780 N.W.2d 280 (Michigan Supreme Court, 2010)
People v. Plunkett
760 N.W.2d 850 (Michigan Court of Appeals, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
760 N.W.2d 850, 281 Mich. App. 721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-plunkett-michctapp-2008.