People v. Swindlehurst

120 Mich. App. 606 (1982) 328 N.W.2d 92

PEOPLE
v.
SWINDLEHURST

Docket No. 56052.

Michigan Court of Appeals.

Decided October 19, 1982.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Joseph T. Barberi, Prosecuting Attorney, and Thomas C. Nelson, Assistant Attorney General, for the people.

Carl Ziemba, for defendant on appeal.

Before: BEASLEY, P.J., and T.M. BURNS and E.A. QUINNELL,^[*] JJ.

PER CURIAM.

Defendant appeals as of right from his September 26, 1980, jury conviction of delivery of cocaine. MCL 333.7401, subds (1) and (2)(a)(iii); MSA 14.15(7401), subds (1) and (2)(a)(iii). He was sentenced to life probation and appeals as of right.

Defendant first argues that the controlled substances provisions of the Public Health Code violate the title-object clause of our state constitution. This argument, however, has been rejected by this Court. People v Ensign (On Rehearing), 112 Mich. App. 286; 315 NW2d 570 (1982); People v Trupiano, 97 Mich. App. 416; 296 NW2d 49 (1980), lv den 409 Mich. 895 (1980).

Similarly, there is no merit to defendant's argument that the information was inadequate because it did not name the party to whom he was alleged to have delivered cocaine. We note that the defendant failed to object to this alleged defect in the information in a timely manner. People v O'Brien, 60 Mich. 8; 26 N.W. 795 (1886). Further, this issue was decided in a manner adverse to his position in People v Carriger, 37 Mich. App. 605; 195 NW2d 25 (1972), lv den 388 Mich. 812 (1972). Defendant could have demanded a bill of particulars had he wished.^[1]

Defendant next claims that he was prejudiced at trial when evidence regarding two similar offenses was admitted. The record does not reflect that defendant objected to this evidence, but we have considered this issue nonetheless.

In People v Nieves, 92 Mich. App. 613; 285 NW2d 389 (1979), this Court enunciated a three-part test to be applied when ascertaining whether error occurred in the admission of similar act testimony. First, substantial evidence must be presented to show that the defendant had committed the prior offenses; second, there must be some special circumstances of the prior bad acts that tended to prove one of the statutory items; and third, the particular statutory item must be material to the case. To these three factors must be added the requirement that the probative value of the similar act testimony must outweigh its prejudicial effects. People v Duncan, 402 Mich. 1; 260 NW2d 58 (1977).

In the present case, substantial evidence was presented to establish that defendant committed the prior offenses. With regard to the second part of the test, the statutory item established by this evidence was "knowledge", that is, the prior sales tended to establish that defendant was a heroin dealer and not merely a narcotics user. Nieves, supra, 616-617. Further, evidence pertaining to defendant's intent or knowledge was a material issue in this case. Finally, upon consideration of the whole record, we cannot say with firm conviction that the trial judge abused his discretion in admitting this evidence; that is, its prejudicial nature does not outweigh its probative value.

We also find to be without merit defendant's argument that the failure to mention the principal's name in the information on which he was convicted, on a theory of aiding and abetting, requires reversal. See People v Lamson, 44 Mich. App. 447; 205 NW2d 189 (1973), lv den 389 Mich. 783 (1973). The distinction between an aider and abettor and a principal has been abolished in this state. MCL 767.39; MSA 28.979. Therefore, Mulligan v Commonwealth, 84 Ky 229; 1 S.W. 417 (1886), is distinguishable. A prosecutor need not set forth his theory of law in the information and if a criminal defendant wishes to ascertain the name of the principal, he may request a bill of particulars. Carriger, supra.

Defendant next argues that error occurred because his counsel's argument to the jury amounted to a confession of guilt. The record discloses that defense counsel admitted defendant's participation in two previous deliveries of controlled substances but that he did not concede defendant's involvement with the instant one. While there are certain hazards to admitting the familiarity of a defendant with the type of crime with which he is charged, this strategy is effective to neutralize the damaging effect of a prosecutor's evidence in some cases. Intentionally bringing up past criminal convictions does not make counsel ineffective and, in fact, it is a legitimate trial tactic. People v Armstrong, 100 Mich. App. 423; 298 NW2d 752 (1980), lv den 412 Mich. 865 (1981). Although the tactic was not effective in this case, this Court will not substitute its judgment for that of trial counsel in matters of trial strategy. People v Lotter, 103 Mich. App. 386; 302 NW2d 879 (1981), lv den 412 Mich. 852 (1981).

Defendant next claims that the prosecutor impermissibly shifted the burden of proof when he commented during closing argument to the jury on defendant's failure to present a corroborating accomplice witness.

The witness in question, one Evans, had pled guilty and was awaiting sentence at the time of this trial. The record is silent as to whether, if he had been called by either side, he would have claimed his Fifth Amendment privilege. Having in mind the possibilities of a withdrawal of his guilty plea, or a successful appellate challenge to his conviction, there is reason to believe that he would have invoked his Fifth Amendment privilege if called.

It would have been error for either the prosecutor or defense counsel to call Evans as a witness under such circumstances. People v Giacalone, 399 Mich. 642; 250 NW2d 492 (1977). See also People v DeGoenaga, 202 Mich. 503; 168 N.W. 436 (1918). A prosecutor should not denigrate an opponent for failure to do something which would have been improper if done.^[2] However, the record indicates that defendant failed to object to the comments of the prosecutor during closing argument. For this reason, any error has been waived. People v Clemons, 91 Mich. App. 68; 282 NW2d 838 (1979), remanded on other grounds 407 Mich. 939 (1979).

Nor can we agree with defendant's argument that his counsel was ineffective because he did not object to the similar acts testimony, because he did not object to the form of the information, and because he did not object to the prosecutor's statement in his closing argument that the defendant could have called a corroborating witness. The similar acts evidence properly was admitted into evidence and the information was not defective. Further, under the standard of People v Degraffenreid, 19 Mich. App. 702; 173 NW2d 317 (1969), we find it not reasonably likely that defendant would have been acquitted if defense counsel had objected to the prosecutor's improper argument about defendant having failed to call the accomplice as a witness.

Affirmed.

NOTES

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

[1] We do realize that certain 19th Century cases in this state require that the person to whom contraband is furnished be identified in the information. E.g., People v Keefer, 97 Mich. 15; 56 N.W. 105 (1893); People v Heffron, 53 Mich. 527; 19 N.W. 170 (1884); People v Minnock, 52 Mich. 628; 18 N.W. 390 (1884). However, they have not been relied on since Brown v Hadwin, 182 Mich. 491; 148 N.W. 693 (1914). Further, we note that leave to appeal was denied in Carriger.

[2] As such, this is an exception to the general rule announced in People v Jackson, 108 Mich. App. 346, 351-352; 310 NW2d 238 (1981).