People v. White

197 N.W.2d 121, 38 Mich. App. 651, 1972 Mich. App. LEXIS 1698

• Court: Michigan Court of Appeals
• Decided: February 25, 1972
• Docket: Docket 10524
• Status: Published

Opinions

Levin, J.

The defendant, Norma White, appeals her conviction by a jury of selling or dispensing marijuana. MCLA 335.152; MSA 18.1122. Under that statute the court was required to impose a sentence of not less than 20 years nor more than life. She was sentenced to serve a term of 20 years to 20 years and 1 day.

The people’s evidence tended to show that at 10:30 p.m. on September" 5, 1969 the defendant admitted to her home James Ball, a police informer, and Joseph Young, an undercover narcotics agent for the Michigan State Police, and that she sold them a quantity of marijuana for $10, and that they left before 11 p.m.

The defense was alibi. Five persons testified that on September 5 the defendant was at a party from 6 o’clock in the evening until at least 11 o’clock.

I

During the direct examination of informer Ball and narcotics agent Young they testified that they asked the defendant whether she could furnish a quantity of “smack” and that she replied she could not. In response to the prosecutor’s follow-up question, “What does smack refer to?”, Ball said that smack is a street term for heroin.

The defendant’s attorney moved for a mistrial on the ground that his client was charged with the sale of marijuana, not the sale of heroin, and that the reference to the possibility that the defendant might be a heroin seller was prejudicial. The motion was denied. In our opinion the motion should have been granted.

This is not a case of a witness blurting out an unanticipated remark. Ball and Young were the people’s principal witnesses. They were testifying about what occurred at the defendant’s home when the marijuana was purchased. Both witnesses gave precisely the same testimony about the attempted purchase of' smack; the witnesses’ references to smack were not inadvertent. The prosecutor’s request that Ball define the term “smack” was obviously deliberate.

In the judgment of a considerable portion of the citizenry there is an enormous difference between selling marijuana and selling heroin. This judgment is reflected in the recent amendment of the statutes which reduces the maximum prison term for the “delivery” of marijuana to 4 years, while the maximum penalty for the delivery of heroin is set at 20 years. (The maximum prison term for possession of marijuana has been reduced to one year, while the maximum for possession of heroin is four years:¹) These substantial differences in the maximum penalties adumbrate the extent of the difference in the public’s attitude regarding marijuana and heroin.

We are persuaded that the clear innuendo of the prosecutor’s questions and the witnesses’ responses was that the defendant, whether she could then supply heroin or not, was a seller of heroin, not just a seller of marijuana. In the light of the commonly-held attitude regarding sellers of heroin, this was highly prejudical. The jurors, who represented a cross section of the community from which they were drawn, could well have been influenced unfavorably to the defendant by the unsavory innuendo deliberately and extraneously injected by the prosecutor. A mistrial should have been granted.²

II

Before the new trial the defendant may renew her motion for dismissal in the light of United States v Marion, 404 US 307; 92 S Ct 455; 30 L Ed 2d 468 (1971), and the record made at the trial³ and any other evidence that can be produced, on the ground that she suffered “actual prejudice” as a result of the five-month delay between the date, September 5, 1969, that the charged offense occurred, and the date, February 9, 1970, that the people obtained an arrest warrant.

There is no need to discuss the defendant’s contention that the people failed to establish that she did not have a license to sell narcotics. Recently, in People v Rios, 386 Mich 172, 180-181 (1971), the Michigan Supreme Court outlined procedures that can be followed in making such proof.

The photograph of the defendant taken, according to the photographer, at the party between 8 and 9 o’clock on the evening in question, and the photographs of other persons said to have been taken at the party between 7:30 and 10:30 o’clock tend to corroborate the testimony of the defendant and her alibi witnesses that there was a party which the witnesses and the defendant attended. Although the time sequences during which the photographs were taken do not obviate the possibility that the defendant was both at the party and made the illegal sale between 10:30 and 11 o’clock, the photographs were of some probative value.

During his cross-examination of one of the alibi witnesses, the. prosecutor asked the witness whether she had made certain statements to the police. At the time, the prosecutor was holding a document in Ms hand. After he fiMshed tMs line of questioning the defendant’s lawyer asked to see the “statement”. The judge refused to allow him to see the document saying that “there was no statement read into the record. Hé had a pencil and paper in his hand. He asked this witness if she made certain oral statements to the man that visited her”. During oral argument in our Court an assistant prosecutor indicated that the trial prosecutor may have been bluffing — that there was no written statement or memorandum of a statement of the witness.

The defendant’s trial lawyer needed to see the document in the trial prosecutor’s hand to determine whether its contents might enable Mm to rehabilitate the credibility of the witness which had been weakened by the innuendo that she had given a different account to the police reflected in the document. After the witness had finished her testimony, there could be no justification for shielding the document from scrutiny. Even if — and on this we need intimate no opinion — a prosecutor may properly attempt to bluff a witness, he has no right to bluff the jury.⁴ The judge should have directed the prosecutor to yield the document for examination so that the jury might become apprised of its true contents.⁵

Tbe judge did not err in allowing the technician employed by the Kalamazoo Police Department to testify that in his opinion the substance purchased from the defendant was marijuana.

The contention that Ball and Young should not have been permitted to relate statements alleged to have been made by the defendant when she sold them the marijuana because before the statements were made an investigation had focused on her and she was, therefore, entitled to the protection of an advance independent judicial determination of probable cause before the investigating team “invaded” her privacy and to be represented by counsel during the “interrogation” that led to the claimed unlawful sale is, in the present state of the law, manifestly without merit.

There was sufficient evidence to support the jury’s verdict.

Beversed and remanded for a new trial.

T. M. Burns, J., concurred.

1 1971 PA 196, § 41; MCLA 335.341; MSA 18.1070(41).

2 See People v Greenway, 365 Mich 547, 551 (1962); People v Camel, 11 Mich App 219, 221 (1968); People v Ignofo, 315 Mich 626, 636 (1946); People v Montevecchio, 32 Mich App 163 (1971) ; People v Milkovich, 31 Mich App 582, 585 (1971); Cachola v The Kroger Co, 32 Mich App 557, 558 (1971).

3 “Events of the trial may demonstrate actual prejudice”. United States v Marion, 404 US 307, 326; 92 S Ct 455, 466; 30 L Ed 2d 468, 482 (1971).

4 It appears that the court reporter was under the impression that the trial prosecutor was purporting to read from the document he was holding in his hand. The reporter placed the portions of the prosecutor’s questions consisting of the statements allegedly made by the witness to the police in quotation marks, viz:

“Q. Did you tell the detective you stated at that party, 'Well, it is 11 o’clock, and Norma and I have to go to work.’?

“A. If he got that down there, I must have said it.

“Q. I am asking you if you told him that?

“A. I don’t know. If he has got it there, I must have said it.”

5 Cf. People v Dellabonda, 265 Mich 486, 499 (1933); People v Marra, 27 Mich App 1, 7, 14 (1970).

Cf. People v Wimberly, 384 Mich 62, 68 (1970), where the Michigan Supreme Court declared: “Once a witness has testified at trial we hold as a matter of law that the traditional reasons for secrecy no longer exist and, as a matter of right, the defendant is entitled to all the testimony that witness gave before the grand jury relevant to the defendant’s guilt or innocence.”