People v. Porterfield

128 Mich. App. 35 (1983) 339 N.W.2d 683

PEOPLE
v.
PORTERFIELD

Docket No. 58834.

Michigan Court of Appeals.

Decided August 16, 1983.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and A. George Best, II, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Rolf E. Berg), for defendant on appeal.

Before: V.J. BRENNAN, P.J., and WAHLS and M.E. DODGE,^[*] JJ.

V.J. BRENNAN, P.J.

After a jury trial, the defendant was convicted of conspiracy to deliver over 50 grams of a controlled substance, MCL 750.157a; MSA 28.354(1) and MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii). Defendant was sentenced to 10 to 20 years in prison. Thereafter, the trial court denied the defendant's motion for a new trial.

We first reject the defendant's claims: (1) that he was denied equal protection of the law because the statutory scheme punishes weight and not purity of the controlled substance mixture; and (2) that the controlled substances act violates the title-object clause of the Michigan Constitution. Defendant's arguments have been addressed by this Court on numerous occasions and rejected. See People v Puertas, 122 Mich. App. 626; 332 NW2d 399 (1983); People v Campbell, 115 Mich. App. 369; 320 NW2d 381 (1982); People v Prediger, 110 Mich. App. 757; 313 NW2d 103 (1981); People v Lemble, 103 Mich. App. 220; 303 NW2d 191 (1981), lv den 412 Mich. 888 (1981). Also, see People v Berry, 123 Mich. App. 237; 333 NW2d 234 (1983); People v Key, 121 Mich. App. 168; 328 NW2d 609 (1982); People v Swindlehurst, 120 Mich. App. 606; 328 NW2d 92 (1982); People v Trupiano, 97 Mich. App. 416; 296 NW2d 49 (1980), lv den 409 Mich. 895 (1980).

Next, the defendant claims that the prosecutor made civic duty arguments and references to the evils of heroin in closing argument which constituted reversible error because the defendant objected and his request for a curative instruction was denied.

We have reviewed the defendant's claim and find it to be without merit. When reading the prosecutor's comments as a whole and in the context in which they were made, it does not appear that the complained-of conduct amounted to an impermissible "civic duty" argument. Furthermore, the prosecutor did not play upon the jurors' fears of illegal heroin traffic and did not stress that the jurors had to convict the defendant in order to alleviate the effects of narcotics. This conclusion is borne out by the fact that the jury acquitted a codefendant of the same charges. In addition, we find no error in the trial court's refusal to give a curative instruction. The court's instructions at trial essentially covered what was requested by defense counsel.

Defendant's final claim is that there was insufficient evidence presented to establish one conspiracy to deliver over 50 grams of heroin rather than a series of lesser conspiracies to deliver smaller amounts of heroin. Defendant maintains that the evidence merely showed day-to-day operations in which there were no outstanding agreements between the parties beyond the consignment sale of 10 to 20 coin envelopes which held a mixture containing heroin to the two runners whose testimony at trial provided the primary evidence against the defendant.

In determining whether there was sufficient evidence to support the defendant's conviction, the reviewing court views the evidence in a light most favorable to the prosecution and determines whether a rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. People v Gregory Johnson, 112 Mich. App. 483, 489; 316 NW2d 247 (1982).

The issue to be determined is whether there was sufficient evidence to prove that the defendant had the intent to deliver over 50 grams of a mixture containing heroin and also whether he had the intent to combine with others to deliver over 50 grams of a mixture containing heroin. Furthermore, it must be shown that the coconspirators each had the intent to deliver over 50 grams of a mixture containing heroin and the intent to combine for the purpose of delivering over 50 grams of a mixture containing heroin. Defendant claims that there was no such predetermined concert of action between the parties alleged to be members of the conspiracy. The defendant maintains that the accumulation of the alleged multiple transactions into one general conspiracy did not demonstrate a meeting of the minds.

We find that there was sufficient evidence that the defendant had the intent to deliver over 50 grams of a mixture containing heroin. Testimony established that the heroin delivery operation occurred almost daily. Heroin in one-quarter-ounce quantities was frequently cut and mixed by the defendant with the object of selling the mixture on the street soon thereafter. When the quarter ounce was sold (the aim was 90 bags per quarter ounce), the defendant cut and mixed more for sale. When the heroin supply dwindled or dried up, there were ways in which more could be obtained in order for sales to be made either that day or the next. Michael Williams, who was a runner for the defendant, testified that he sold approximately 90 bags per day for the defendant and Tommy Facen, another runner, testified that he sometimes received one or two bundles (10 to 11 bags of heroin per bundle) or from two to four bundles depending upon the supply. Although Williams could not estimate how much money he made each week, Facen testified that he sold approximately $1,000 worth of heroin each week (his profits would have been approximately $200 per week if he received $2.50 per packet). Williams's increased drug usage would have accounted for less profit on his part. Also, a witness from an office supply company testified that the defendant frequently purchased large quantities of coin envelopes and Williams testified that there were 500 envelopes to a box and he was present when defendant purchased three boxes of envelopes. A chemist testified that a little less than approximately 200 packets of heroin (coin envelopes or bags) would total 50 grams of heroin. Two ounces of heroin would equal 56 grams. A reasonable trier of fact could easily have inferred that the defendant had the intent to deliver over 50 grams of a mixture containing heroin.

We also find that there was sufficient evidence to establish defendant's intent to combine with others to deliver over 50 grams of a mixture containing heroin. Although a codefendant was acquitted, testimony established that there was an intent to combine with Facen and Williams to deliver the narcotics. Furthermore, the testimony also indicated that defendant introduced Williams to established customers so that Williams could be trusted on the street. Facen and Williams helped package the merchandise for sale. Facen received the heroin from either Williams or the defendant. Both Williams and Facen's testimony tended to show that the sales were not isolated incidents designed for a quick profit but were part of an ongoing venture to deliver heroin as long as it could be supplied, and sales were made in different areas where there would be known customers.

Furthermore, there was sufficient evidence to prove beyond a reasonable doubt that the coconspirators, Facen and Williams, combined with the defendant, each having the knowledge that they were going to deliver and continue to deliver heroin for profit. The evidence established that both Facen and Williams had the requisite intent to commit the crime of delivery of a controlled substance.

Thus, we find that there was sufficient evidence to support the defendant's conviction.

Defendant also claims that it was error to charge him with an ongoing conspiracy to deliver over 50 grams of a mixture containing heroin rather than multiple separate conspiracies to deliver amounts under 50 grams. Defendant bases his argument solely upon the fact that the alleged separate transactions could not be aggregated to show that there was an agreement to deliver over 50 grams of a mixture containing a controlled substance.

We find the defendant's argument to be without merit. The alleged separate transactions are smaller conspiracies constituting parts of a "single scheme or plan". The overall conspiracy to deliver over 50 grams of a substance containing heroin included the mixing, packaging, delivery and sale of narcotics on almost a daily basis which contributed to the promotion of a continuing conspiracy to deliver more than 50 grams and these actions were not separate transactions. The multiple transactions were part of the ongoing conspiracy to deliver over 50 grams of a mixture containing heroin.

Affirmed.

NOTES

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