People v. Stewart , 400 Mich. 540 ( 1977 )

Blair Moody, Jr., J.

Defendant Howard Stewart was convicted on March 8, 1971, of sale and possession of heroin in violation of MCLA 335.152; MSA 18.1122, and MCLA 335.153; MSA 18.1123. The defendant was sentenced from 20 to 25 years and from 7-1/2 to 10 years respectively.

Defendant appealed his conviction as a matter of right. The Court of Appeals affirmed defendant’s conviction in a brief opinion. That Court held that certain statements allegedly made by a non-produced codefendant were admissible against the defendant under the co-conspirators exception to the hearsay rule. It also held that sale and possession, while having common elements in certain cases, are nonetheless separate crimes. Therefore, it concluded double jeopardy (more aptly "double punishment”) problems do not arise when the charges of possession and sale of narcotics are joined in a criminal prosecution arising out of the same transaction. People v Stewart, 46 Mich App 282; 207 NW2d 907 (1973).¹

This Court originally granted leave to appeal in this matter on March 29, 1974. On June 4, 1976, it affirmed both the trial court and Court of Appeals. People v Stewart, 397 Mich 1; 242 NW2d 760 (1976). This Court’s majority limited its discussion of defendant’s appeal in that opinion to a single issue: the aforementioned hearsay exception problem.

Thereafter, in light of our decision in People v Martin, 398 Mich 303; 247 NW2d 303 (1976), this Court on December 9, 1976, decided to grant the defendant a rehearing "limited to issues raised on appeal but not discussed in the opinion of the Court released on June 4, 1976”. 398 Mich 951 (1976).

Those issues are as follows:

1) Whether conviction of both sale and possession of the same heroin, upon proof of sale incident to possession, was constitutionally proscribed double punishment.

2) Whether the prosecution failed to meet its burden of proof to establish that the defendant did not have a license to either possess or sell heroin.

3) Whether the trial court erred in not instructing the jury sua sponte on two possible defenses:

(a) That the defendant was entrapped as a matter of law, or;

(b) That the defendant was only acting as a procuring agent in the alleged transaction.

4) Whether the prosecution failed to show "due diligence” in attempting to produce defendant’s named codefendant.

5) Whether the mandatory 20-year minimum sentence received by the defendant for the sale of heroin constitutes cruel and unusual punishment, thus rendering the statute unconstitutional and requiring that defendant’s sentence be vacated.

We find merit only in the first issue. We therefore reverse and vacate defendant’s conviction of possession of heroin and affirm his conviction of sale of heroin.

I

Justice Levin succinctly set out the pertinent facts in his dissenting opinion in the original case:

"The people made their case entirely from the testimony of LaTonia Boldin, an unpaid civilian undercover narcotics agent working for the Detroit Police Department. She testified that she went to Stewart’s restaurant, introduced herself as 'Candy’, and told him she needed a job to support her 'habit’. Stewart asked her when she could begin work, and she said as soon as she got a 'fix’. Stewart first offered her marijuana, which she rejected because it was 'too mild’, and then agreed to sell her 'some P’s’ [heroin] for $20.

"Boldin testified that Stewart left the restaurant and entered an apartment building across the street. While he was gone, Boldin talked 'for 10 or 15 minutes’ with a man who introduced himself as 'Junior’. During the conversation they discussed narcotics.

"Boldin testified that when Stewart returned to the restaurant he went directly to the kitchen and called 'Junior’. She said that she did not see Stewart carrying anything or give anything to 'Junior’. She could see that Stewart and 'Junior’ were talking, but could not hear what they said.

"Stewart remained in the kitchen. 'Junior’ rejoined Boldin and sold her heroin for $20.” (Footnotes omitted.) 397 Mich 1, 11-12.

There is no dispute in the instant case that the same heroin was allegedly possessed and sold by the defendant in a single continuous transaction. There was no evidence of possession distinct and apart from the overall sale sequence.

The opinion of the Court of Appeals is correct in its determination that possession and sale of narcotics are separate crimes which may be separately charged. People v Stewart, supra. In a given case, sale may be found without possession. Likewise, possession may be determined without sale. However, depending upon the facts developed at trial, when the circumstance of possession is not severable or apart from a sale and the jury concludes the defendant is guilty of sale, then the possession blends together with the sale so as to constitute one single wrongful act.

Therefore, from the evidence adduced at this trial, the illegal possession of heroin was obviously a lesser included offense of the illegal sale of heroin. When the jury in the case at bar found the defendant guilty of the illegal sale of this heroin, they necessarily found him guilty of possession of the same heroin.

In the recent case of People v Martin, 398 Mich 303; 247 NW2d 303 (1976), this Court reached a similar conclusion in a case where possession was clearly a lesser included offense of delivery. Martin relied on State v Allen, 292 A2d 167, 172 (Me, 1972), as authority for its holding. The Allen case facts and rationale are directly on point with the instant case:

"It is elementary that the State cannot divide a single offense into several parts according to time and conduct and base separate prosecutions upon and impose separate punishments for the various necessary divisions of that single crime. * * *

"The possession of narcotic drugs is an offense distinct from the sale thereof. But in the instant case the possession and sale clearly constituted one single and same act. The possession, as legally defined, is necessarily a constitutent part of the sale, as legally defined. Where the only possession of the narcotic drug is that incident to and necessary for the sale thereof, and it does not appear that there was possession before or after and apart from such sale, the State cannot fragment the accused’s involvement into separate and distinct acts or transactions to obtain multiple convictions, and separate convictions under such circumstances will not stand. * * * The error is not cured by the fact the trial Court permitted the two sentences to run concurrently. * * * The conviction and sentence upon the charge of possession must be set aside.” Martin, supra, 307-308.

The logic of Martin and Allen applies here. Defendant Stewart may not be "doubly punished” by convicting him of possession, which in this case was a "necessary” prerequisite or the sine qua non for the very sale for which he was also convicted.

Furthermore, as we stated in Martin:

"The guarantee against double jeopardy protects against not only a second prosecution for the same offense, but it also 'protects against multiple punishments for the same offense’. North Carolina v Pearce, 395 US 711, 717; 89 S Ct 2072; 23 L Ed 2d 656 (1969).

" '[T]he Constitution was designed as much to prevent the criminal from being twice punished for the same offense as from being twice tried for it.’ Ex Parte Lange, 85 US (18 Wall) 163, 173; 21 L Ed 872 (1874).

" 'It is clear that preventing multiple punishment for the same offense was foremost in the minds of the framers of the double jeopardy clause. * * * Until joinder became permissible and commonplace, however, multiple punishment could result only from multiple trials.’ Comment, Twice In Jeopardy, 75 Yale L J 262, 266, fn 13 (1965).” Martin, supra, 309-310. (Citations omitted.)

Nor can we accept the argument that since the two sentences run concurrently, a reversal on the lesser included offense is not required. The concept of "double punishment” not only applies to the sentence, but also includes the conviction. The possession conviction, if allowed to stand, could punish the defendant in several ways, including parole considerations, impeachment at subsequent trials, and habitual offender treatment. See Martin, supra, 310.

For these reasons, we affirm the defendant’s conviction on the higher charge of sale and vacate defendant’s conviction on the lower charge of possession.²

II

We do not find any of the defendant’s other issues to be meritorious. Therefore, we will discuss them only summarily.

Defendant maintains that the prosecution failed to meet its burden of proof by establishing through competent evidence that he had no license to either sell or possess heroin. While it is true that lack of a license is a necessary element for any crime involving the unlawful sale of narcotics, People v Rios, 386 Mich 172; 191 NW2d 297 (1971), the record here discloses that defendant during trial, in effect, stipulated that he had no such license.³ Also, the court instructed the jury, "it has been stipulated in this case that the defendant did not have a license”. Defendant neither objected to the charge as given nor requested that the change be modified. Furthermore, we note that at the time this trial occurred, it was legally impossible for anyone to obtain a license to either possess or sell heroin in Michigan. See People v Harper, 379 Mich 440; 152 NW2d 645 (1967). Also see 18 USC 1402^* and Harper v Kropp, 426 F2d 108 (1970).

Defendant Stewart next contends that the trial court erred in not instructing the jury sua sponte as to two possible defenses:

(a) That defendant was entrapped as a matter of law, or, alternatively;

(b) That he was only acting as a procuring agent in the transaction between Ms. Boldin and "Junior”.

Defendant relies heavily on People v Turner, 390 Mich 7; 210 NW2d 336 (1973).

However, the defendant failed to raise either defense at his trial (which occurred, incidentally, before our decision in Turner). The defendant’s defense at trial was that he did not commit either of the charged offenses. He made no motion either before or during trial alleging entrapment. Nor did he assert the procuring agent theory.⁴ Furthermore, he entered no objection to the instructions given as required by GCR 1963, 516.2. It is also noted the defendant failed to raise these issues at the Court of Appeals.

Accordingly, we cannot second-guess defendant’s trial strategy and reevaluate the evidence in light of possible defenses not raised. Nor can we reasonably expect a trial judge to instruct sua sponte on such defenses when they are not raised. Such instructions, if given sua sponte, could have interfered with defendant’s theory of the case and proofs, and given credence to the people’s theory and proofs. Conceivably, defendant then could allege on appeal that the trial court abused its discretion by giving unsolicited instructions.

Defendant Stewart next maintains that the prosecution failed to show due diligence in attempting to produce defendant’s named codefendant "Junior”. However, the information in this case discloses that "Junior” was not an indorsed res gestae witness, MCLA 767.40; MSA 28.980. The people are not obligated to produce an unindorsed res gestae witness who is an accomplice.⁵

Therefore, defendant had no reason to expect the prosecution to produce "Junior”. Cf. People v Mitchell, 48 Mich App 361; 210 NW2d 509 (1973), lv den 391 Mich 752 (1973). Furthermore, the defendant, even if indigent, has the power to subpoena a codefendant. MCLA 775.15; MSA 28.1252. The record discloses that the defense never asked that the codefendant be produced or requested a showing of due diligence be made by the prosecution. The record does disclose that the police did attempt to apprehend the codefendant and would have prosecuted him had they been able to locate him. Defendant’s issue lacks merit.

Finally, defendant asserts that a 20-year minimum sentence for the sale of heroin constitutes cruel and/or unusual punishment⁶ and, thus renders the statute unconstitutional. MCLA 335.152; MSA 18.1122.⁷ We do not agree. In People v Lorentzen, 387 Mich 167; 194 NW2d 827 (1972), we found the 20-year minimum as applied to the sale of marijuana to be cruel and unusual punishment. We did not find the statute itself unconstitutional. We are not prepared to extend our holding in Lorentzen to heroin.

Lorentzen determined, upon reviewing United States Supreme Court and Michigan Supreme Court cases, that the dominant test governing cruel and unusual punishment is whether "the punishment is in excess of any that would be suitable to fit the crime”. We do not conclude that the statutorily prescribed penalty of a mandatory minimum imprisonment of 20 years, which may mean 10 years, 7 months, 6 days, given full credit for good time, is in excess of any that would be suitable to fit sellers of heroin.⁸ It is not so excessive that it "shocks the conscience”.

The social loss and attendant crime which is occasioned by heroin addiction in our society has reached tragic proportions.⁹ We are unwilling to strike down as cruel and unusual this former statutory punishment, imposed upon those who sold heroin and thus traded in such human ignorance, weakness and degradation.¹⁰

Affirmed as modified.

Williams, Coleman, Fitzgerald, and Ryan, JJ., concurred with Blair Moody, Jr., J.

1 In light of People v Tanner, 387 Mich 683; 199 NW2d 202 (1972), and GCR 1963, 820.1(7), the Court of Appeals did order the minimum sentence imposed for the possession of the heroin reduced to 6 years, 8 months.

2 In Martin, supra, we affirmed the conviction on the lower charge of possession and vacated the conviction on the higher charge of delivery.

However, Martin also included a pertinent erroneous instruction. In that case, the trial judge incorrectly instructed the jury that it could only find the defendant guilty of possession and delivery, or not guilty. The judge, in effect, compelled the jury to adopt an all-or-nothing approach. This Court’s majority reasoned it could not readily be determined whether the jury believed the defendant guilty of the lesser or greater offense. Hence, the majority opted for the lesser offense.

In the instant case, the trial judge advised the jury, "there are three possible verdicts”: guilty of sale, guilty of possession, or not guilty. Therefore, we can determine that the jury found the defendant guilty of the greater offense of sale since it could have returned a separate guilty verdict on the possession charge and a not guilty verdict on the sale charge. The jury’s verdict was timely clarified on the record and specifically found defendant guilty of both counts.

The failure of the court to merely omit charging the jury that it could find but one of the two possible guilty verdicts does not vitiate the jury’s determination here that the defendant was guilty of the greater charge. In this case, the jury was not instructed that they had to find the defendant guilty of both counts in order to find him guilty at all.

3 The colloquy in open court, with the jury absent, was:

"Mr. Lauck [Prosecutor]: Your Honor, there is one more point I would like to bring out. That the statute, as read — and possibly it will come out as an instruction — talks about a person not having a license. "Now, there is nobody in the state of Michigan, as I understand, does [sic]have a license to sell heroin.

"The Court: No.

"Mr. Lauck: So, I don’t know whether we should enter into the stipulation that the jury should be told nobody has a license in the state of Michigan to sell heroin, so that they won’t go off on that point.

"Defense counsel and I have talked about that previously, and he said he would agree he has no license.

"Of course, nobody can get a license to sell heroin.

"The Court: That’s my understanding. Of course, his defense is he didn’t do it. He doesn’t have to have a license. He is not doing that.

"Mr. Lauck: Right. I just hope to make it clear to the jury they shouldn’t decide the case on the fact there is no proof he didn’t have a license, because there is nobody who does have a license.

"Mr. Townsend [Defense Counsel]: Well, your Honor, unless I went into an argument that assuming somebody made a sale that there is no proof that they did have a license. I don’t think that matter will be considered anyway. ” (Emphasis supplied.)

* Repealed by 84 Stat 1292 (1970). See 21 USC 801 et seq. — Reporter.

4 It should be emphasized that this Court has not passed on the validity of the "procuring agent” defense. People v Auer, 393 Mich 667, 678, fn4; 227 NW2d 528, 533, fn4 (1975). In view of the fact that this "theory” was not even raised at trial, we need not treat the validity of this defense herein.

5 People v McCullough, 81 Mich 25, 34; 45 NW 515 (1890); People v Resh, 107 Mich 251, 253; 65 NW 99 (1895); People v Knoll, 258 Mich 89, 98; 242 NW 222 (1932).

6 The United States Constitution prohibits cruel and unusual punishment and the Michigan Constitution prohibits cruel or unusual punishment; the prohibition of punishment that is unusual but not necessarily cruel carries an implication that unusually excessive imprisonment is included in that prohibition. (US Const, Am VIII; Const 1963, art 1, § 16).

7 Repealed by 1971 PA 196, § 66, eff April 1, 1972. MCLA 335.341; MSA 18.1070(41). Under the Controlled Substances Act, which became effective after defendant’s conviction, the maximum sentence for sale of heroin is now 20 years and $25,000.

8 "An offender with a 20 year minimum sentence may get out after serving 10 years, 7 months, and 6 days, if he gets full credit for 'good time’ and 'special good time’, according to Michigan Department of Corrections computations made pursuant to MCLA 800.33; MSA 28.1403.” Lorentzen, supra, 181.

9 See: Drug Enforcement Administration, Heroin Related Crime, "A Comprehensive Analysis of the Major Aspects of Heroin User Crime” (United States Department of Justice, February, 1977).

Drug Enforcement Administration, Drug Enforcement Statistical Report, "Drug Indicators” (United States Department of Justice, December, 1975), pp 27-40.

The Strategy Council on Drug Abuse, Federal Strategy For Drug Abuse and Drug Traffic Prevention, "The Nature and Extent of Drug Abuse”, (Washington, DC: United States Government Printing Office, November, 1976), pp 9-17.

See also: Kaplan, A Primer on Heroin, 27 Stan L Rev 801 (1975).

10 This Court notes that harsh sentence results in a given case may be modified in view of recent corrective action taken by the Legislature. MCLA 335.361; MSA 18.1070(61). Depending upon his record, defendant may seek Parole Board consideration and possible commutation in light of the foregoing statute and the facts of this case.