People v. Lemble , 103 Mich. App. 220 ( 1981 )

103 Mich. App. 220 (1981) 303 N.W.2d 191

PEOPLE
v.
LEMBLE

Docket No. 46914.

Michigan Court of Appeals.

Decided January 23, 1981.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and David A. King, Assistant Prosecuting Attorney, for the people.

O'Brien, Moran & Dimond, for defendant.

Before: DANHOF, C.J., and M.F. CAVANAGH and MacKENZIE, JJ.

PER CURIAM.

Defendant was charged with possession of more than 50 grams but less than 225 grams of cocaine in violation of MCL 333.7403(1), (2)(a)(iii); MSA 14.15(7403)(1), (2)(a)(iii). Defendant was found guilty after a trial to the bench, was sentenced to probation for life and ordered to pay a fine of $1,500 and costs of $10 per month. Defendant appeals as of right.

The defendant's first issue is that the substance-abuse provisions of the Public Health Code violate the title-object clause of the Michigan Constitution, Const 1963, art 4, § 24. This issue has been addressed by this Court in People v Trupiano, 97 Mich. App. 416; 296 NW2d 49 (1980), lv den 409 Mich. 895 (1980), where the Court determined that there was no violation of the constitution's title-object clause.

The statutory scheme of the controlled substances portion of the health code punishes those found to be in possession of greater amounts of mixtures containing controlled substances with more severe penalties. We find that the legislative policies underlying criminal penalties — rehabilitation of the offender, society's need to deter the behavior in others, the prevention of the offender from causing injury to others — are achieved by this statute's graduated punishment. People v Lorentzen, 387 Mich. 167; 194 NW2d 827 (1972). The penalties that may be imposed under this statute do not shock the judicial conscience in light of the gravity of the offenses.

Nor was this defendant denied equal protection of the laws. It is reasonable for the Legislature to impose more severe punishment for those possessing greater amounts of a mixture containing a controlled substance due to the potential for wider dissemination with an increased potential harm to society. The wording of MCL 333.7403; MSA 14.15(7403) indicates to this Court that the Legislature intended to punish defendants more severely for possession of greater amounts of "any mixture" containing a controlled substance with the recognition that purchasers of such mixtures often have little or no idea of what percentage of the mixture is filler and what percent is the "pure" drug. The greater the quantity of the mixture, regardless of the degree of purity, the greater the potential harm to society. Therefore, the different treatment for persons in different situations under the code is proper because it is based on the object of the legislation, deterrence of the distribution of the drug. People v Chapman, 301 Mich. 584; 4 NW2d 18 (1942).

As to the defendant's claim that there was insufficient evidence to support the finding that he was in possession of the cocaine, we disagree. The presence of the cocaine in a box which also contained personal papers of the defendant which was in an apartment leased and occupied by the defendant and his girl friend and the fact that at the time of his arrest the defendant stated that his girl friend had nothing to do with "that stuff" supplies sufficient evidence of the defendant's possession of the cocaine.

The defendant's final claim of error asserts that, because an attorney from the county prosecutor's office who was present at the arrest of the defendant testified at the trial, the litigating prosecutor from the same office should have been prohibited from prosecuting the case. The defendant contends that he was denied a fair trial because of the failure to get an outside prosecutor. The defendant knew approximately two months before trial that the prosecuting attorney witness was going to testify and so moved to disqualify the Washtenaw Prosecutor's Office from conducting the trial. The defense attorney was not surprised by the witness's testifying. There was no denial of a fair trial to the defendant because this witness was a member of the prosecutor's staff. This is especially true in light of the fact that the trial was to the bench. DR 5-101(B) of the Code of Professioanl Responsibility states that:

"A lawyer shall not accept employment in contemplated or pending litigation if he knows or it is obvious that he or a lawyer in his firm ought to be called as a witness, except that he may undertake the employment and he or a lawyer in his firm may testify:

* * *

"(4) As to any matter, if refusal would work a substantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case."

In light of the particular nature of prosecutor's offices, the trial court was justified in refusing the request for dismissal of the people's counsel where the grant of such a request and the securing of independent prosecutorial counsel would cause time and money expenditures without an accompanying increase in the "fairness" provided to the defendant.

For the reasons stated above, we affirm the defendant's conviction.

Affirmed.