People v. Catanzarite ( 1995 )

Wahls, P.J.

Following a bench trial in 1986, defendant was convicted of possession with intent to deliver 225 grams or more, but less than 650 grams, of cocaine, MCL 333.7401(2)(a)(ii); MSA 14.15(7401)(2)(a)(ii), and was sentenced to twenty to thirty years’ imprisonment. The trial court granted a bond pending defendant’s filing a motion for a new trial. Five years later, the prosecution filed a motion to revoke the bond upon realizing that no final disposition had been rendered. The court granted the motion and ordered defendant to begin serving his sentence. Defendant filed a motion for a new trial and a motion for resentencing. The court denied the motion for a new trial, but granted resentencing and reduced defendant’s sentence to time served, which was six months. In Docket No. 165709, defendant appeals as of right. Regarding Docket No. 168610, this Court granted the prosecutor’s application for leave to appeal defendant’s sentence. We now affirm defendant’s conviction, but remand for resentencing.

On June 24, 1986, defendant was driving a GMC Jimmy, which was towing a trailer, with Paul Spikes as a passenger. The Jimmy had been recently purchased in the name of C & S Auto, a business of which defendant and Spikes were partners. A Michigan state motor carrier officer noticed that the Jimmy was driving partially in the center lane and that the trailer did not have a license plate. The officer activated his emergency lights and defendant pulled over.

After running defendant’s name , through a Law Enforcement Information Network check, the officer learned that there was an outstanding arrest warrant for disorderly conduct. A Michigan state trooper arrived and requested confirmation that the arrest warrant was valid. He then spoke to defendant, who was standing outside the car and holding a small leather bag. The trooper forcibly took the bag from defendant after defendant refused to hand it over, and the trooper placed the bag in his patrol car. Upon receiving confirmation of the warrant, the trooper handcuffed the defendant and placed him under arrest. The trooper opened the bag and discovered two cellophane packets containing 36.3 grams of cocaine. The trooper searched the Jimmy and discovered on the floor behind the front seat a garment bag containing $16,319 in cash and 470.98 grams of cocaine. Paul Spikes then was placed under arrest, and the Jimmy was impounded.

DOCKET NO. 165709

A

First, defendant contends that the evidence was insufficient to support his conviction of possession with intent to deliver between 225 and 650 grams of cocaine. We disagree.

In determining whether sufficient evidence was presented to sustain a conviction, an appellate court is required to view the evidence in a light most favorable to the prosecution and to determine whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v Jaffray, 445 Mich 287, 296; 519 NW2d 108 (1994); People v Hampton, 407 Mich 354, 368; 285 NW2d 284 (1979). To sustain a conviction for this offense, the prosecution is required to show (1) that the recovered substance was cocaine, (2) that the cocaine was in a mixture weighing between 225 and 650 grams, (3) that the accused was not authorized to possess the cocaine, and (4) that the accused knowingly possessed the cocaine with the intent to deliver it. People v Wolfe, 440 Mich 508, 517; 489 NW2d 748 (1992). Possession may be either actual or constructive. Constructive possession is established where the accused had the right to exercise control of the cocaine and knew that it was present. Id. at 520.

Viewed in a light most favorable to the prosecution, the evidence was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant knowingly possessed the cocaine with intent to deliver. Defendant was driving the Jimmy at the time it was stopped by the officer and subsequently was holding a leather bag that contained 36.3 grams of cocaine. We believe that an inference reasonably may be made from this evidence that defendant knew that more cocaine was in the garment bag and that defendant had the right to exercise control over it. Moreover, given the amount of the cocaine involved, a reasonable inference can also be drawn that defendant intended to sell the cocaine. People v Ray, 191 Mich App 706, 708; 479 NW2d 1 (1991). Therefore, the evidence was sufficient to support his conviction.

B

Next, defendant claims that the trial court erred in failing to admit evidence that showed that Paul Spikes had been convicted of conspiracy to possess with intent to distribute marijuana in 1983. We disagree.

MRE 404(b), at the time of trial, provided:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, scheme, plan, or system in doing an act, knowledge, identity, or absence of mistake or accident when the same is material, whether such other crime, wrongs, or acts are contemporaneous with, or prior or subsequent to the crime charged. [Emphasis added.]

Evidence of another crime may be admitted if (1) it is relevant to an issue other than character or propensity, (2) it is relevant to an issue or fact of consequence at trial, and (3) its probative value is not substantially outweighed by the danger of unfair prejudice. People v VanderVliet, 444 Mich 52, 74-75; 508 NW2d 114 (1993). The admissibility of other bad-acts evidence is a matter within the trial court’s discretion. People v Miller, 198 Mich App 494, 495; 499 NW2d 373 (1993).

This Court has previously held that MRE 404(b), now 404(b)(1), applies to the admissibility of evidence of other acts of any person, such as a defendant, a victim, or a witness. People v Rockwell, 188 Mich App 405, 409-410; 470 NW2d 673 (1991). Paul Spikes, however, was neither a codefendant nor a witness. Although there are no Michigan cases on point, the Ninth Circuit Court of Appeals has held that FRE 404(b) permits an accused to introduce "other crimes, wrongs, or acts” of a third party, United States v McCourt, 925 F2d 1229, 1231-1232 (CA 9, 1991), noting that the rule on its face applies to "a person,” and is not limited to the defendant. Id. at 1231. See also State v Gardner, 1 Neb App 450, 456-458; 498 NW2d 605 (1993). MRE 404(b)(1), which is virtually identical to FRE 404(b), also on its face applies to "a person.” Therefore, we are persuaded by these decisions that a defendant may introduce prior bad acts of a third party.

Nonetheless, a defendant remains bound by the requirement that the evidence is not offered to prove conformity with character. At trial, defendant argued that evidence of Spikes’ prior conviction was admissible in order to prove that Spikes had knowledge that the cocaine was in the garment bag. However, whether Spikes knew there was cocaine in the bag was not relevant to whether defendant knowingly possessed the cocaine with intent to deliver. Furthermore, we disagree with defendant that the prior conviction establishes Spikes’ knowledge of the cocaine. Rather, the evidence only establishes that Spikes may have acted in conformity with his prior drug trafficking on this occasion, a purpose that is prohibited under MRE 404(b)(1). Accordingly, we find that the court did not abuse its discretion in disallowing the evidence.

c

Next, defendant argues that the government should have been compelled to grant Paul Spikes immunity from prosecution because then Spikes would have testified on defendant’s behalf and admitted that he, rather than defendant, possessed the cocaine. We disagree. A prosecutor has no duty to grant a witness immunity so that the witness can testify for a defendant, and a defendant cannot compel a grant of immunity. People v Lawton, 196 Mich App 341, 346; 492 NW2d 810 (1992). Therefore, the court did not err in denying defendant’s request for immunity for Paul Spikes.

D

Lastly, defendant contends that the search without a warrant of his leather bag was unconstitutional. We disagree.-

The Fourth Amendment of the United States Constitution and its counterpart in the Michigan Constitution guarantee the right of persons to be secure against unreasonable searches and seizures. US Const, Am IV; Const 1963, art 1, § 11. A search incident to an arrest is a reasonable search and, therefore, permitted by the Fourth Amendment, even though the police do not have a search warrant. Chimel v California, 395 US 752; 89 S Ct 2034; 23 L Ed 2d 685 (1969); People v Arterberry, 431 Mich 381, 384; 429 NW2d 574 (1988); People v Chapman, 425 Mich 245, 250; 387 NW2d 835 (1986). Within the warrant exception for searches incident to an arrest, the police may search the arrestee and the area within his immediate control, Chimel, supra at 763, as well as any containers seized from the arrestee. United States v Robinson, 414 US 218; 94 S Ct 467; 38 L Ed 2d 427 (1973). Furthermore, when the police have made a lawful arrest of the occupant of a vehicle, the officers may search the entire passenger compartment of the automobile, as well as any closed containers found during search of that area. New York v Belton, 453 US 454, 458-460; 101 S Ct 2860; 69 L Ed 2d 768 (1981).

In this case, defendant was stopped for towing a trailer without a license plate, but was detained for an outstanding arrest warrant for disorderly conduct. The trooper who arrived upon the scene during the detention seized the leather bag from defendant as he was standing outside the vehicle. The trooper testified at the preliminary examination that he seized the bag out of concern for his own personal safety. The trooper put the bag in his patrol car and then placed defendant under arrest once he received confirmation that the outstanding warrant was valid. The search of the bag occurred after defendant was handcuffed and inside the patrol car.

Defendant argues that the exception for searches incident to an arrest is not applicable because the bag was not within his immediate control at the time the trooper searched it. Notably, cases from other jurisdictions have rejected this narrow interpretation that a search of a container incident to an arrest is barred once the police have exclusive control of the container upon seizing it from the arrestee. Generally, a search of the container will be upheld where the events that transpired between the arrest and the search do not render the search unreasonable. United States v Nohara, 3 F3d 1239, 1243 (CA 9, 1993); United States v Turner, 926 F2d 883, 887-888 (CA 9, 1991); United States v Morales, 923 F2d 621 (CA 8, 1991); United States v Fleming, 677 F2d 602, 607 (CA 7, 1982); State v Smith, 119 Wash 2d 675; 835 P2d 1025 (1992); State v Sassen, 240 Neb 773; 484 NW2d 469 (1992); Ricks v State, 322 Md 183; 586 A2d 740 (1991); Commonwealth v Madera, 402 Mass 156; 521 NE2d 738 (1988); State v Heinen, 114 Idaho App 656; 759 P2d 947 (1988); State v Boff, 766 P2d 646 (Colo, 1988); Carrasco v State, 712 SW2d 120 (Tex Crim App, 1986). See also 2 LaFave, Search and Seizure (2d ed), § 5.5(a), pp 535-536. Most of these cases have found the search of a container reasonable when it occurred at the scene while the accused was still present and within a reasonable amount of time from the arrest. In our case, defendant was in actual possession of the bag before his arrest, and the search occurred within minutes after he was placed under arrest and at the scene of the arrest. Under these circumstances, we find that the search of the bag was not unreasonable. Therefore, the search was a valid search incident to an arrest.

DOCKET NO. 168610

The prosecution first contends that the court did not have authority to resentence defendant. We disagree.

A court may correct an invalid sentence, but may not modify a valid sentence after it has been imposed except as provided by law. MCR 6.429(A); In re Jenkins, 438 Mich 364, 368; 475 NW2d 279 (1991). An invalid sentence refers to any error or defect in the sentence or sentencing procedure that entitles a defendant to be resentenced or to have the sentence changed. People v Pfeiffer, 207 Mich App 151, 158-159; 523 NW2d 640 (1994).

In this case, the trial court held that the original sentence was invalid because the sentencing judge based the sentence upon local sentencing policies. A sentence is invalid if the court conforms the sentence to a local sentencing policy rather than imposing an individualized sentence. People v Whalen, 412 Mich 166, 169-170; 312 NW2d 638 (1981); People v Chapa, 407 Mich 309; 284 NW2d 340 (1979). At sentencing, the judge stated:

One of the problems and it’s just so bad with drugs, and I’ve noticed — I can say I’ve noticed this personally because of my experience here in court, people who haven’t been involved in any kind of crime are getting involved in drugs because there’s so much money in it. . .

[The Defendant:] Your honor—

. . . one or two times and they can get themselves all set for life. I realize that big car manufacturer, DeLorean, wasn’t found guilty and I guess we have to stand by that decision but I think he decided he was going to make his money that way and he had never been involved in any crime before, at least he was tried for that. I say that because you’re 45 years old and you have had a productive life and not a life of crime, and your family isn’t a family of any notoriety in crime, but this drug thing is beyond all of us.

From these comments, we conclude that the judge did not base the original sentence upon local sentencing policies, but rather was remarking upon the senseless motivations of people with no criminal backgrounds to engage in drug trafficking. Therefore, the original sentence was not invalid.

Regardless of the validity of the sentence, we believe that the trial court was authorized to consider whether there were substantial and compelling reasons to depart from the mandatory minimum sentence of twenty years. Effective March 30, 1988, the Legislature amended the controlled substances act to allow a sentencing court to depart from the statutory minimum sentences if it found on the record substantial and compelling reasons to do so, MCL 333.7401(4); MSA 14.15(7401X4). 1987 PA 275. The Michigan Supreme Court has ruled that the amendment should be applied retroactively to cases that were pending in the trial court when the amendments took effect and to cases where the issue was raised on direct appeal. People v Schultz, 435 Mich 517, 526-531, 533-534; 460 NW2d 505 (1990). See also People v Scarborough, 189 Mich App 341; 471 NW2d 567 (1991). Although the amendment was not in effect at the time of the original sentence, defendant had not yet fully appealed as of right when MCL 333.7401(4); MSA 14.15(7401)(4) became effective. Because the Supreme Court has granted resentencing in numerous cases that were pending when the act was amended, Scarborough, supra, the trial court was authorized to reduce defendant’s sentence below the mandatory minimum sentence.

We must now determine whether the trial court abused its discretion in departing from the statutory mandatory minimum sentence. A court may deviate downward from a mandatory controlled substance sentence pursuant to MCL 333.7401(4); MSA 14.15(7401)(4) if there are substantial and compelling reasons to do so. The substantial and compelling reasons must be objective and verifiable. People v Harvey, 203 Mich App 445, 446; 513 NW2d 185 (1994); People v Hill, 192 Mich App 102, 105; 480 NW2d 913 (1991). The factors to be considered may include, but are not limited to: (1) the facts of the crime that mitigate the defendant’s culpability, (2) the defendant’s prior record, (3) the defendant’s age, (4) the defendant’s work history, (5) the defendant’s cooperation with police following arrest, and (6) the defendant’s criminal history. Id. at 110, 114.

Here, the trial court gave the following reasons for departing from the statutory minimum:

As the record reveals, Defendant Catanzarite was forty-five years of age when he committed the offense. Prior to 1986, Defendant had no significant contact with the criminal justice system as a juvenile or as an adult. Voluminous, [sic] correspondence received by this Court further reveals that Defendant raised and educated three daughters, was involved in community service and gainfully employed prior to starting his own business. Additionally, since being out on bond, Defendant has obeyed all the laws of the State of Michigan. Therefore, in view of these pre and post arrest factors, this court concludes that Defendant Catanzarite should be sentenced to time served.

We agree with the court that a departure was justified by substantial and compelling reasons. However, a six-month sentence for a case involving over five hundred grams of cocaine is grossly inadequate and in clear disregard of the Legislature’s intent to use harsh sentences against drug dealers. Given the amount of cocaine involved and the degree of departure, we find that the sentence is disproportionately low and was clearly an abuse of discretion. Therefore, defendant must be resentenced.

Accordingly, we affirm defendant’s conviction but remand for resentencing. We do not retain jurisdiction.

J. P. Noecker, J., concurred.