People v. Sinclair , 30 Mich. App. 473 ( 1971 )

30 Mich. App. 473 (1971) 186 N.W.2d 767

PEOPLE
v.
SINCLAIR

Docket No. 7814.

Michigan Court of Appeals.

Decided February 16, 1971. Leave to appeal granted August 31, 1971.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Angelo A. Pentolino, Assistant Prosecuting Attorney, for the people.

Philo, Maki, Ravitz, Glotta, Adelman, Cockrel & Robb and Sheldon Otis, for defendant.

Before: LESINSKI, C.J., and BRONSON and ENGEL,^[*] JJ.

Leave to appeal granted August 31, 1971. 385 Mich. 786.

LESINSKI, C.J.

Defendant John Sinclair was convicted by a jury of illegal possession of marijuana (MCLA § 335.153 [Stat Ann 1957 Rev § 18.1123]), and was sentenced to a prison term of 9-1/2 to 10 years. He appeals as of right.

On December 22, 1966, defendant gave two marijuana cigarettes to undercover policemen. He was arrested 33 days later.

Prior to trial, defendant challenged the constitutionality of the statute prohibiting the unlawful sale and possession of marijuana by raising issues of equal protection of law, due process of law, and the right to privacy. A special three-judge panel found the statute constitutional.

Defendant was originally charged with both possession and sale of narcotics. The trial court sustained a motion to dismiss the charge of illegal sale on the ground of entrapment. Defendant moved to suppress the two cigarettes on the ground that they were seized by reason of the illegal entrapment. This motion was denied.

The statute prohibiting the possession of narcotic drugs is an exercise of the police power of the state designed to protect the public health, safety, and welfare. See People v. Baker (1952), 332 Mich. 320. The inclusion of marijuana in that statute does not offend equal protection or due process of law. People v. Stark (1965), 157 Colo 59 (400 P2d 923). A narcotic, as defined in Webster's Third New International Dictionary, p 1503, is "a drug * * * that in moderate doses allays sensibility, relieves pain, and produces profound sleep but that in poisonous doses produces stupor, coma, or convulsions". The evidence advanced by both the defendant and the prosecution showed that marijuana possesses those properties. We recognize the difference of medical opinion over the proscription against marijuana; however, the determination that marijuana is a harmful substance is for the legislature. The presumption of constitutionality favors validity of the statute. If the relationship between the statute and the public welfare is debatable, the legislative judgment must be accepted. Grocers Dairy Company v. Department of Agriculture Director (1966), 377 Mich. 71.

The exclusion of other drugs, such as alcohol, from the statute does not violate equal protection or due process of law. As stated in Kelley v. Judge of Recorder's Court of Detroit (1927), 239 Mich. 204, 215:

"A statute does not violate the equal protection clause merely because it is not all-embracing. * * * A State may properly direct its legislation against what it deems an existing evil without covering the whole field of possible abuses. * * * The statute must be presumed to be aimed at an evil where experience shows it to be most felt, and to be deemed by the legislature coextensive with the practical need; and is not to be overthrown merely because other instances may be suggested to which also it might have been applied."

In the instant case, it is clear that the legislature has determined the danger of marijuana, and other crimes linked with it, is sufficient to justify the prohibition. The exclusion of alcohol, or other drugs, from the statute does not make marijuana any less dangerous.

Defendant relies on Stanley v. Georgia (1969), 394 U.S. 557 (89 S. Ct. 1243, 22 L. Ed. 2d 542), in his argument that possession of marijuana in the home is protected by the right of privacy. The Stanley case held that the First and Fourteenth Amendments to the Federal Constitution prohibit making private possession of obscene material a crime. Defendant's confidence in Stanley, supra, is misplaced. In a footnote to that opinion, at 568, the United States Supreme Court cautioned that:

"What we have said in no way infringes upon the power of the State or Federal Government to make possession of other items, such as narcotics, firearms, or stolen goods, a crime. * * * No First Amendment rights are involved in most statutes making mere possession criminal."

Correspondingly, we find no First Amendment rights involved with possession of marijuana.

Defendant argues that the 33-day delay between the alleged commission of the crime and his subsequent arrest denied him due process of law. People v. Hernandez (1968), 15 Mich. App. 141, 147, held that undue prejudice which results from a delay in the arrest of a suspect is a denial of procedural due process. However, a delay is permissible "(1) when the delay is explainable, (2) when it is not deliberate, (3) where no undue prejudice attaches to the defendant". We find no such prejudice in the instant case. Defendant was not denied access to critical evidence.

The tardiness of the police in arresting defendant was justified. The two police agents were conducting extensive undercover operations as to other persons in the general area and did not desire to reveal their identities prematurely. People v. Rios (1970), 27 Mich. App. 54. People v. Albert White (1970), 27 Mich. App. 432.

Furthermore, as stated in Hoffa v. United States (1966), 385 U.S. 293, 310 (87 S. Ct. 408, 417, 17 L. Ed. 2d 374, 386):

"There is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect. * * * Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction."

Assuming, without deciding, that the trial court properly dismissed the charge of illegal sale on the grounds of entrapment, we hold that it was not error to admit the two marijuana cigarettes into evidence. Defendant does not contend that the possession of the drug was unlawfully induced, but argues that the evidence should be suppressed as the fruit of illegal police activity.

There can be no entrapment when the criminal activity pre-exists the unlawful inducement. United States v. Stephan (ED Mich, 1943), 50 F Supp 445; People v. Smith (1941), 296 Mich. 176. We adopt the persuasive reasoning of State v. Hochman (1957), 2 Wis 2d 410, 419, 420 (86 NW2d 446, 451, 452), where the Supreme Court of Wisconsin noted:

"The defense of entrapment is to be determined upon the trial, — it pertains to the merits of the cause — it is not to be raised in a preliminary or collateral manner — it affects the substance of the charge and is not a ground for excluding evidence. Evidence illegally obtained will be suppressed or excluded in a criminal case only upon a showing that it was obtained in violation of a constitutional right. * * *

"With respect to the defense of entrapment, the court is not called upon to deal with constitutional considerations as it is in the case of the validity of a search warrant or of a search made without a warrant. A challenge to an unlawful search is a collateral matter. The defense of entrapment is not in such category."^[1]

We do not agree that the 9-1/2 to 10-year sentence imposed by the trial court is cruel or unusual within the meaning of the Eighth Amendment to the Federal Constitution or art 1, § 16 of the Michigan Constitution. The statute under which defendant was convicted provides a maximum penalty of ten years for the first offense. The sentence imposed was within the statutory maximum. Such sentences are not regarded as cruel or unusual punishments. People v. Collins (1969), 16 Mich. App. 667; People v. Girard (1969), 18 Mich. App. 593. Sentences within the statutory maximum for violation of the anti-marijuana statutes do not differ from those imposed for conviction of crime generally and are not violative of the constitutional prohibition against cruel and unusual punishments. People v. Nelson White (1970), 26 Mich. App. 35; People v. Albert White, supra. The current uncertain state of scientific knowledge of marijuana does not justify striking down anti-marijuana laws on cruel and unusual punishment grounds. United States v. Ward (CA7, 1967), 387 F2d 843, 848. Appellate courts do not have supervisory control over sentences which are within the statutory maximum. People v. Doran (1967), 6 Mich. App. 86; People v. Pate (1965), 2 Mich. App. 66.

Defendant's contention that the prosecution failed to carry its burden of proof of establishing that the substance defendant gave the police agents was, in fact, marijuana is without merit. A police chemist, with experience in analyzing marijuana, testified that the substance was cannabis sativa. That conclusion was substantiated by microscopic and chemical tests conducted on the drug. Defendant offered no rebuttal testimony. The evidence fully warranted the jury's verdict.

Defendant also assigns as error the trial court's ruling that if the defendant took the stand to testify in his own behalf, the prosecution could use two prior marijuana convictions to impeach his credibility and to show a common plan or scheme. See MCLA § 768.27 (Stat Ann 1954 Rev § 28.1050). While the prior convictions were too remote in time to be used to show a common plan or scheme, we find the trial court correctly ruled that these prior convictions would be available to the prosecution to impeach defendant's credibility if he testified. MCLA § 600.2158 (Stat Ann 1962 Rev § 27A.2158), provides:

"No person shall be excluded from giving evidence on any matter, civil or criminal, by reason of crime or for any interest of such person in the matter, suit, or proceeding in question, or in the event of such matter, suit or proceeding, in which such testimony may be offered, or by reason of marital or other relationship to any party thereto; but such interest, relationship, or conviction of crime, may be shown for the purpose of drawing in question the credibility of such witness, except as is hereinafter provided."

In People v. Payne (1970), 27 Mich. App. 133, 134, the following is found:

"In this state, whenever a defendant takes the stand in his own behalf, he may be cross-examined about prior convictions of any crime for purposes of testing his credibility. People v. Diaolo (1962), 366 Mich. 394; People v. Roney (1967), 7 Mich. App. 678; People v. Cybulski (1968), 11 Mich. App. 244; People v. Koontz (1970), 24 Mich. App. 336."

Defendant chose not to testify as a matter of trial strategy. We find no error.

Defendant challenges the constitutional validity of obtaining the names of prospective jurors for duty in Detroit's Recorder's Court from a complete list of registered electors residing in that city. Defendant maintains that this system, authorized by MCLA § 725.115 (Stat Ann 1962 Rev § 27.3985), unnecessarily excludes 30% of the adult citizenry as jurors, particularly the poor and those who decline to participate in elections.

The right to an impartially-selected jury as secured by the Fourteenth Amendment to the Federal Constitution does not entitle one accused of a crime to a jury tailored to the circumstance of his particular case. Hoyt v. Florida (1961), 368 U.S. 57 (82 S. Ct. 159, 7 L. Ed. 2d 118). The use of voter registration rolls to obtain candidates for jury duty presents the most exhaustive means available to secure as wide and as varied a random sample of the community as possible. The states are free to choose the source of jury lists so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty. Brown v. Allen (1953), 344 U.S. 443, 474 (73 S. Ct. 397, 416; 97 L. Ed. 469, 498); Carter v. Jury Commission of Greene County (1970), 396 U.S. 320, 332, 333 (90 S. Ct. 518, 525; 24 L. Ed. 2d 549, 559). Exclusive reliance on voter registration lists as the basis for selection of jurors is permissible unless it appears that there is systematic and intentional exclusion from those lists of a particular economic, social, racial or political group. Gorin v. United States (CA1, 1963), 313 F2d 641, 644. Defendant has failed to show any such exclusion.

Affirmed.

ENGEL, J., concurred.

BRONSON, J. (concurring).

The facts of the instant case can be briefly stated. On July 25, 1969, the defendant, John Sinclair, was found guilty by jury verdict of having illegally possessed two marijuana cigarettes in violation of MCLA § 335.153 (Stat Ann 1957 Rev § 18.1123). On July 28, 1969, Sinclair was sentenced by the trial judge to serve a term of 9-1/2 to 10 years in prison — a minimum term 95% of the statutory maximum.

Testimony adduced at trial established that the alleged offense occurred on December 22, 1966, inside Sinclair's residence. Two undercover police agents to whom Sinclair is alleged to have given, free of charge, the two marijuana cigarettes, after their frequent requests, had disguised their appearances and infiltrated the Wayne State University and Artists' Workshop area. This infiltration began on October 18, 1966, and lasted through January 24, 1967. During this time period, the two police agents ingratiated themselves with Sinclair and others at the workshop by doing typing, sweeping the floors, helping put together and collate publications, and bringing food to Sunday communal dinners.

In addition to being charged with illegal possession, Sinclair was also originally charged with making an illegal sale of marijuana. The sale count was dismissed by the trial judge after he found that the conduct of the undercover police officers constituted an illegal entrapment.

John Sinclair is the avowed leader of an acknowledged radical political party. Sinclair's lawyer argues that this Court would have to be naive if we were to believe that Sinclair was arrested and tried simply because he possessed two marijuana cigarettes. He argues that Sinclair's past activities, unpopular beliefs, long hair, habitual vulgar language, and bizarre life style are the real reasons which led to his incarceration.

If several of the issues presented in this case were matters of first impression, I would dissent from the opinion of the majority. However, since I am bound by the decisions of our state Supreme Court, I must concur.

I recognize that a sentence within the statutory limits is like a Brahmin — untouchable by appellate courts. People v. Jones (1968), 11 Mich. App. 703. I lack the power to alter this sentence and the period of incarceration.

I write separately to speak about the present state of the law which makes possession of marijuana, regardless of quantity, a felony punishable by incarceration for a maximum period of 10 years imprisonment.^[1]

Medical authorities are not in agreement on the long-term effects, if any, of the use of marijuana on the human body. However, it is generally accepted that marijuana is not addictive as an opiate.^[2] Whatever the effect may be, as may be shown by future medical studies, it is now clear that the adverse effects of marijuana are not as disruptive as is thought by those who share the view that has thus far prevailed in the legislature.

The estimate of the number of people who have tried marijuana at least once numbers in the millions and touches all ages and social groupings.^[3] Such widespread disrespect for the law will quickly foster its own progeny. The present statute which extracts such severe punishment nurtures hostility between the police agencies and the citizenry. The problem is particularly acute with the youth of our state who are further alienated by what they perceive to be a hypocritical and arbitrary law.

If the "stepping stone" theory has been medically discredited, it is still legally viable inasmuch as one who transgresses the marijuana statute may go on to violate other and more serious laws.^[4] Law and order will prevail only so long as the public has respect for that concept and only so long as there is a rational relationship between the conduct forbidden and the alleged evil to be curbed. The era of prohibition has apparently taught us nothing about the society in which we live. As one writer cogently observed:

"In part because marijuana-users — unlike cheaters — do not rationalize their use of the drug as an aberrant event unrelated to their total personality, it becomes especially unhealthy for their society to declare them serious criminals. It is obvious that when any society criminalizes such a large percentage of its young people, it raises very serious social problems. We do not know whether those who violate such serious criminal laws will thereby become more likely to violate others. It may or may not be true that the second crime comes easier — though it is perhaps no coincidence that the Prohibition era and the present are two of the most lawless periods of our history. It is hard to see, however, how a realization that one has committed what is officially a very serious crime can fail to engender at least a somewhat more generalized lack of respect for both the law and the society that has so defined his action."^[5]

Today crime is society's omnipresent malignancy. Almost all classifications of criminal activity increase annually.^[6] Our police are seriously overworked; prosecutors are too few; court dockets too crowded. Regardless of the highly commendable and vigorous action on the part of law enforcement officers, the battle is being lost. To me, it is incomprehensible why marijuana penalties are not reduced in order to free police manpower for law enforcement activities which will better control and curtail crimes of violence. Police officers should be utilized more effectively in stemming more acute criminal manifestations such as rapes, murders, robberies, muggings, extortions, thefts, and assaults. During these times of rising crime and limited law enforcement personnel, we can no longer afford the luxury of predicating our priorities upon marijuana laws which injure no innocent party, do no damage to property, and apparently do not denigrate the users themselves.

A law, bottomed on questionable medical evidence, violated with impunity by a large and growing segment of our population, permits only enforcement so selective that but a handful of the violators become known, apprehended, charged, tried and convicted, and only an infinitesimal percentage incarcerated, let alone for a minimum term of nine and one-half years.

I do not understand the psychic pyrotechnics of John Sinclair's philosophy. Like many parents, I am uncomfortable with the thought that he may be an influence on our children. But one thing I do understand, as a citizen, a lawyer, and a judge, is that it is bad business to imprison an individual so that his ideas cannot vigorously compete with those of others in the marketplace of men's minds. Can it be that Howard Mumford Jones was pungently correct when he observed: "Persecution is the first law of society because it is always easier to suppress criticism than to meet it".^[7]

The courts of this state should not permit any citizen's rights to be abridged by highly selective enforcement of a law commonly violated in order to curb unrelated activities. Such selective enforcement encourages unsavory enforcement techniques such as were manifested in the instant case, and which resulted in the trial court's dismissal of the sale count against Sinclair. Such techniques are an affront to a system of government predicated upon the concept of equal justice.

I must, additionally, express my amazement that conduct engaged in by so many citizens still invokes such severe statutory criminal sanctions. A few years ago, in my position as Prosecuting Attorney for Oakland County, I appeared before a state legislative committee whose purpose was legislative reform. The topic under discussion was the escalation of drug abuse in our state. My views then, as now, were formulated upon my experience as a prosecutor and one who early recognized the myriad problems of growing drug abuse. At that time I urged that a more sound and realistic approach be taken to the problem. I renew that plea today.

I urge the legislative body to reconsider the present law which imposes such severe sanctions for activity which is indulged in by a growing percentage of our population. A new marijuana perspective is necessary. The time has come for responsible action to reform the present statute which has such a destructive effect upon our citizenry. I would hope that the legislature would re-evaluate the present law, the current medical data, and the objective which that body is attempting to attain. The guiding principle for reform should be one of making the punishment fit the crime. Coke said that "reason is the life of the law". If this is so, then to me reason mandates reform of our marijuana statutes.

The law is not an end in itself but a means to an end. The end is a just and peaceful society. The law should serve man in society.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] See, also, United States, ex rel. Hall, v. Illinois (CA7, 1964), 329 F2d 354.

[1] The 10-year maximum sentence is applicable to the first offense only. A second offense is punishable by a maximum 20-year prison term, and subsequent convictions are subject to a 40-year maximum sentence. MCLA § 335.153 (Stat Ann 1957 Rev § 18.1123).

[2] For those acutely interested in the problem of the proper medical classification of marijuana, attention is directed to the recent hearings in the case of the People v. Eric Lorentzen, Oakland County Circuit Court Number CR 70-6119, held July 13-17, 1970. See, Task Force Report: Narcotics and Drug Abuse, Ch 8, pp 211-231 (U.S. Government Printing Office, 1967). Also see, generally, John Kaplan, Marijuana — The New Prohibition, Chapter III (The World Publishing Co., 1970) (hereinafter cited as "Kaplan"); Richard J. Bonnie and Charles H. Whitebread, II, "The Forbidden Fruit and the Tree of Knowledge: An Inquiry into the Legal History of American Marijuana Prohibition", 56 Virginia L Rev 971 (1970) (hereinafter cited as "Bonnie and Whitebread"); Edward R. Bloomquist "Marijuana: Social Benefit or Social Detriment", 106 California Medicine 346-352 (May, 1967); H.B.M. Murphy, "The Cannabis Habit: A Review of Recent Psychiatric Literature", United Nations Bulletin on Narcotics, Vol. XV, 1963, pp 15-23; J.D. Reichard, "Some Myths About Marijuana", 10 Fed Probation, Oct-Dec 1946, pp 15-23; Walter Bromberg, "Marijuana: A Psychiatric Study", 113 Jour AMA 4 (1939).

[3] Kaplan, supra, fn 2, p 23; Statement of Stanley F. Yolles, Jr., before the Subcommittee to Investigate Juvenile Delinquency of the Committee in the Judiciary, U.S. Senate, on Control of Drug Abuse, September 17, 1969, p 3. A relatively recent study performed at Stanford University revealed that 69% of the student body had, at one time or another, used marijuana. Emily Garfield and Michael Boreing, "Marijuana Use on a Campus" (1969). Kaplan, supra, fn 6, p 23. "It is probably a conservative guess that one-third of the population of California between the ages of 16 and 29 has committed the serious crime of using marijuana and the figure seems to be rising yearly; and while in other areas the absolute number does not match that of California, the rate of increase is of similar magnitude." Kaplan, supra, fn 24, pp 25, 26.

[4] Herbert L. Packer, The Limits of the Criminal Sanction 340-341 (Stanford University Press, 1968).

[5] Kaplan, supra, p 33.

[6] See, Crime in the United States — Uniform Crime Reports — 1969 (United States Government Printing Office). However, intellectual honesty mandates that these statistics be viewed with jaundiced eye. See, e.g., Sophia M. Robison, "A Critical View of the Uniform Crime Reports", 64 Mich. L Rev 1031 (1966).

[7] Howard Mumford Jones, Primer of Intellectual Freedom, Introduction, p xiv (Harvard University Press, 1949).