People v. Borney

110 Mich. App. 490 (1981) 313 N.W.2d 329

PEOPLE
v.
BORNEY.

Docket No. 48395.

Michigan Court of Appeals.

Decided October 20, 1981.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter D. Houk, Prosecuting Attorney, and Charles M. Sibert, Chief Appellate Attorney, for the people.

Emery & DeVine, for defendant on appeal.

Before: R.B. BURNS, P.J., and ALLEN and T. GILLESPIE,^[*] JJ.

T. GILLESPIE, J.

Defendant was convicted by a jury of violating MCL 333.7401(1), (2)(a)(iv); MSA 14.15(7401)(1), (2)(a)(iv), by delivery of a controlled substance in an amount less than 50 grams. Defendant subsequently pled guilty to an habitual criminal charge filed on August 15, 1979. Defendant was sentenced to a term of imprisonment of 10 to 20 years. Defendant appeals as of right.

Helen Janson, an undercover police officer, and Claudette Arle, an acquaintance of the defendant, testified that defendant approached them and handed them a packet with white powder inside. This packet was a "fifty cent" bag of cocaine. The undercover officer then gave defendant $50.

Defendant testified that he met the officer and Arle on the day in question. Defendant originally claimed the defense of entrapment. He claimed that Arle motioned for him to come to their car. She got out and asked him if he had some drugs. Defendant then saw his brother-in-law from whom defendant procured the cocaine. Defendant then received $50 and gave the money to his brother-in-law. The trial court rejected defendant's claim of entrapment.

Defendant claims that the trial court made a clear error when it found the defense of entrapment unavailable to him. Defendant's claim is that the trial court used the subjective test for entrapment rather than the objective test. Michigan uses the objective test for entrapment. People v Turner, 390 Mich. 7, 22-23; 210 NW2d 336 (1973). During the hearing, defendant failed to object to testimony on the ground which he now asserts on appeal. The failure to object precludes appellate review unless the alleged error results in manifest injustice. Here there was no manifest injustice because there was ample evidence to support the trial court's finding that the police did not manufacture this crime nor engage in any reprehensible conduct. People v Gratzer, 104 Mich. App. 705, 706-709; 305 NW2d 300 (1981), People v Artuso, 100 Mich. App. 396, 402-403; 298 NW2d 746 (1980). The trial court applied the objective test for entrapment.

Defendant also claims that the trial court erred when it failed to rule upon defendant's procuring agent defense at the entrapment hearing. The trial court's ruling on the procuring agent defense is as follows:

"This appears to be a lingering issue here concerning a procuring agent defense. I find, however, that the testimony of the defendant and Miss Arle is greatly disparating when it comes to that particular portion of the testimony. I find even from the defendant's own position that the procuring agent defense is not a defense which is not totally created by his testimony as it stands. Accordingly this court believes that this is not the appropriate time at the entrapment hearing to deal with that procuring agent defense and that further this court finds that to be so contradicted by this defendant's testimony that I do not find a preponderance of the evidence tipping in the direction of that defense anyway."

The validity of the procuring agent defense is of substantial doubt in this jurisdiction. People v Auer, 393 Mich. 667, 678, fn 4; 227 NW2d 528 (1975). Assuming that the defense is available, we would be required to find the trial court's decision to be clearly erroneous and that the defense was proved by a preponderance of the evidence. The opposite appears in the record. People v Gratzer, supra.

Defendant also alleges that the trial court erred in allowing the use of evidence of prior convictions to impeach defendant's testimony. The court recognized that it had discretion in the use of such evidence to impeach defendant, People v Jackson, 391 Mich. 323, 336; 217 NW2d 22 (1974), People v West, 408 Mich. 332; 291 NW2d 48 (1980), and the record positively established that the trial court exercised its discretion, People v Cherry, 393 Mich. 261; 224 NW2d 286 (1974). See also People v Whigham, 102 Mich. App. 96, 100-101; 300 NW2d 753 (1980), People v Crawford, 83 Mich. App. 35, 39; 268 NW2d 275 (1978). The trial court noted that evidence of defendant's uttering and publishing conviction, attempted receiving and concealing stolen property over $100 conviction, and breaking and entering conviction was more probative of defendant's credibility than its prejudicial impact. The court did exclude evidence of a marijuana conviction because (1) it was stale, and (2) it did not involve theft, dishonesty, or a false statement. The trial court did not abuse its discretion on this issue.

Defendant claims that the trial court's decision which granted the prosecution's motion to quash defendant's subpoena duces tecum denied defendant his right to compulsory process and confrontation. The prosecution alleged that the defendant's subpoena was unduly burdensome and vague. Defendant had requested "all records concerning the number, type, and style of analysis performed by Nancy Wagner May 15, 16, 17, 18, 19, 20, 21st of 1979. All samples used, all records concerning the number and type of samples delivered or received by Nancy Wagner from the Tri-County Metro from April 23rd to May 21st". The trial court did rule that the results and analysis of the materials which were to be used against defendant should be turned over to him. It ruled that any handwritten notes, reports or surveillance notes were the property of the prosecution and would be turned over only upon cross-examination of the prosecutor's witnesses. Accordingly, the court used its discretion and quashed defendant's subpoena duces tecum. Discovery should be granted when the information sought is necessary to a fair trial and a proper preparation of a defense, and not merely a fishing expedition. People v Maranian, 359 Mich. 361, 368-369; 102 NW2d 568 (1960). This Court reviews the trial court's decision for an abuse of discretion. People v Freeman (After Remand), 406 Mich. 514, 516; 280 NW2d 446 (1979). The refusal to grant discovery is not reversible error if defendant's rights can be fully protected by cross-examination. People v Jesse Smith, 81 Mich. App. 190, 198; 265 NW2d 77 (1978). Defendant's rights, in the case at bar, were adequately protected by cross-examination; accordingly, there was no reversible error. See People v Anderson, 88 Mich. App. 513, 517; 276 NW2d 924 (1979).

Defendant alleges that he was denied due process when the prosecutor secured a court order for a second analysis of the "controlled substance" without any prior notice to defendant. Defendant's claim apparently is that the failure to give notice of the prosecutor's attempt to secure an order to force the state police to conduct a second test denied him effective assistance of counsel and suppressed exculpatory evidence.

Defendant cites no authority for the proposition that he is entitled to notice prior to any testing or orders for testing of incriminating evidence. We do not believe that he is entitled to that notice, particularly in the instant case where the order for the second test was necessary because the state police refused to conduct a second test without a court order. The order was necessary to resolve the problems between the prosecution and the state police. Defendant was informed of the results of the second test and was not denied the use of any exculpatory evidence. Any questions as to the result of the test were fully protected by the opportunity for cross-examination. People v Bell, 74 Mich. App. 270, 275; 253 NW2d 726 (1977).

Defendant alleges that the trial court refused to allow questioning at trial as to the need for the second test. Defendant, however, has not informed this Court as to where in the record such a denial occurred. After an examination of the record, we find one occasion which might be construed as a denial of defendant's right to question on the reasons for the second test, and this questioning and subsequent objection is as follows:

"Q. (By defense counsel Mr. Colvert): Were you told why they wanted a second test?

"A. Not specifically, no, sir.

"Q. As a chemist and a qualified expert in this court, do you have an opinion as to why they wanted you to run a second test?

"Mr. Edwards (Assistant Prosecutor): Objection, your Honor, as to what her opinion would be. It would be irrelevant.

"Mr. Colbert: Your Honor, she's a qualified expert. She can give an opinion in this area of why a second test might be necessary.

"The Court: That's asking to probe the thought processes of another person. I'll sustain the objection."

It is apparent that the question was not within the witness's area of expertise, and the witness did not have any first-hand knowledge as to why the second test was to be run. Accordingly, the question was properly stricken as it was not based upon the perception of the witness. MRE 602, 701.

Defendant also claims as error the trial court's refusal to give the final sentence of CJI 3:1:04, which is as follows: "By stating that the prosecution must prove guilt beyond a reasonable doubt, I mean there must be such evidence that causes you to have a firm conviction to a moral certainty of the truth of the charge here made against this defendant." The trial court refused to give that portion of the instruction because the court was of the opinion that there was no adequate definition of what constituted a moral certainty of the truth of the charge. The court indicated that it had informed defense counsel, in advance of his closing argument, that that portion of the instruction would not be given.

Defendant had adequate notice that the instruction would not be given; therefore, no error can be predicated upon his assertion that closing argument was based upon his belief in the fact that that portion of the instruction would be given. Secondly, the court was not obliged to give a criminal jury instruction as it is written as long as the court adequately informed the jury of its duty. People v Ritsema, 105 Mich. App. 602; 307 NW2d 380 (1981). The trial court adequately apprised the jury of the high degree of certainty necessary to find defendant guilty beyond a reasonable doubt.

Finally, defendant claims that the prosecutor filed the information charging defendant as an habitual criminal too late under the rule in People v Fountain, 407 Mich. 96, 98-99; 282 NW2d 168 (1979). The information charging defendant with delivery of cocaine was filed on July 16, 1979. A supplemental information charging defendant as an habitual criminal was filed on August 15, 1979, which was amended on September 4, 1979, to change one conviction from "receiving and concealing" to "attempted receiving and concealing". Defendant's trial lasted two days, September 4 and 6, 1979. On September 6, 1979, defendant pled guilty to the habitual criminal charge. Sentencing occurred on October 10, 1979, at which he received 10 to 20 years.

In People v Young, 410 Mich. 363, 367-368; 301 NW2d 803 (1981), the Michigan Supreme Court said as follows:

"We conclude that People v Fountain is applicable to cases pending on appeal on August 28, 1979, the date of decision in People v Fountain, provided the issue was raised during pendency of the appeal; and in cases, the original trial or guilty plea hearing of which concluded 20 days after the date of decision in People v Fountain."

Certainly the Supreme Court meant that (1) all cases which were on appeal on August 28, 1979, would fall within the rule of Fountain and (2) that all cases in which the original trial was concluded or guilty plea was taken more than 20 days after August 28, 1979, would fall within the purview. In other words, the Court gave prosecutors a 20-day grace period to acquaint themselves with the rule.

Since this trial ended September 6, 1979, it fell within the 20-day grace period which removed it from the purview of Fountain.

The Fountain rules can be summarized as: (1) a prosecutor who knows a person has a prior felony record must promptly proceed, if at all, against the person as an habitual offender, (2) the prosecutor is not foreclosed from proceeding against a person as an habitual offender after conviction on the current offense provided he is unaware of a prior felony record until after conviction, and (3) prosecutors are presumed to know of a prior felony record if their respective offices prosecuted the prior felonies. A delay in filing will be permitted when the delay is due to the need to verify outstate convictions based on the "rap sheet". People v Westbrook, 102 Mich. App. 296, 298; 301 NW2d 511 (1980).

We have decided that Fountain does not apply because it did not become applicable until September 18, 1979, as to original cases. The prosecutor filed the supplemental information by August 15, 1979. At least some of defendant's prior convictions were not in Ingham County and there is no showing that the prosecutor had, or should have had, knowledge of them when he filed the information. It was filed three weeks before trial.

The prosecutor therefore met the "promptly" requirement of Fountain. People v Martin, 100 Mich. App. 447, 453-459; 298 NW2d 900 (1980).

Affirmed.

NOTES

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