People v. Wyngaard ( 1998 )

Sawyer, J.

Defendant was convicted after a jury trial of being a prisoner in possession of a controlled substance, MCL 800.281(4); MSA 28.1621(4), and a third-offense habitual offender, MCL 769.11; MSA 28.1083. This case arose after defendant was found in possession of marijuana while an inmate at the Kin-ross Correctional Facility in Kincheloe, Michigan. Defendant appeals as of right. We affirm and remand for the trial court to conduct an in camera hearing in order to determine whether the confidential informant who told the prison guards that defendant was in possession of marijuana could provide testimony helpful to defendant.

Defendant first argues that his criminal conviction must be reversed because it violated his right to be free from double jeopardy, given that he had been already punished for this incident when $874.84 was taken from his prisoner account pursuant to a civil forfeiture action. We disagree. This Court recently addressed this issue in People v Acoff, 220 Mich App 396; 559 NW2d 103 (1996). Defendant has not provided the transcript of the civil forfeiture proceeding or any proof that the forfeiture was so punitive in purpose or effect that it was equivalent to a criminal proceeding. Therefore, defendant’s double jeopardy claim is without merit. Id.

Defendant next argues that his rights to due process and a fair trial were denied where the trial court refused defendant’s request that the prosecution be ordered to identify and make available for examination at trial the confidential informant who told the prison guards that defendant was in possession of marijuana. A confidential informant advised Captain Michael Zimmerman that defendant would be in possession of marijuana on the day he was detained and found in possession of marijuana. Defendant claimed that he did not know that the box he was given contained marijuana. He believed he had been set up by other inmates. Defendant asked that the informant be produced in hopes of eliciting testimony that would corroborate this defense theory.

When a defendant requests the production of a confidential informant, the court should conduct an in camera hearing and interview the informant outside the defendant’s presence, thereby protecting the informant’s anonymity, in order to determine if the informant could offer testimony that would be helpful to the defendant. People v Underwood, 447 Mich 695, 706; 526 NW2d 903 (1994); People v Stander, 73 Mich App 617, 622-623; 251 NW2d 258 (1977). The trial court erroneously determined that defendant was required to demonstrate an actual, rather than possible, need for the informant’s testimony before the in camera hearing would be deemed appropriate. Consequently, we remand for the court to conduct this in camera hearing. If the trial court finds that the informant could offer no testimony favorable to the defense, then defendant’s conviction shall be affirmed. A contrary finding shall require reversal and a new trial. Stander, at 623.

Defendant next argues that evidence of his admission regarding the instant offense, made at an administrative disciplinary proceeding, was erroneously admitted at trial because he was not given Miranda¹ warnings before the hearing at which he made this statement. However, defendant has failed to preserve this issue because he neither objected at trial nor raised the issue in his motion for a new trial. Furthermore, I am not persuaded that this presents an important constitutional issue that is decisive of the outcome. People v Newcomb, 190 Mich App 424, 431; 476 NW2d 749 (1991). Accordingly, I would decline to review the issue.

Defendant next argues that he was denied the effective assistance of counsel where his trial counsel elicited character evidence suggesting that defendant was a known drug dealer. We disagree. Defendant has not overcome the presumption that his trial counsel’s actions were consistent with a trial strategy. Also, where there was overwhelming evidence of defendant’s guilt, it cannot be said that there is a reasonable probability that the jury would have concluded differently. Thus, there was no ineffective assistance. People v Stanaway, 446 Mich 643, 687-688; 521 NW2d 557 (1994).

Finally, defendant argues that the crime of being a prisoner in possession of a controlled substance requires a showing of specific intent and that the prosecution failed to provide sufficient evidence to support a jury finding on this element. We disagree. Specific intent is not an element of this offense. People v Norman, 176 Mich App 271, 274-275; 438 NW2d 895 (1989). Further, prosecution witnesses testified that defendant admitted knowing he was in possession of marijuana. Therefore, there was sufficient evidence of intent.

Affirmed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694 (1966).