Opinion
Docket No. 96159.
Decided February 11, 1994.
On application by the people for leave to appeal, the Supreme Court, in lieu of granting leave, affirmed the judgment of the Court of Appeals.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Jon Sahli, Prosecuting Attorney, and Nancy Mullett, Assistant Prosecuting Attorney, for the people.
Gemrich, Moser, Bowser, Fette Lohrmann (by Scott Graham) for the defendant.
MEMORANDUM OPINION.
The defendant was convicted of conspiracy to possess 650 or more grams of a mixture containing cocaine. MCL 750.157a, 333.7403(2)(a)(i); MSA 28.354(1), 14.15(7403)(2)(a)(i). He was then sentenced to a life term of imprisonment.
The defendant attempted to purchase a large amount of cocaine, but the seller evidently intended to cheat him. Thus, the seller delivered a much smaller amount of cocaine in a package that was physically arranged to create the illusion of a larger amount. One feature of the package was that the small amount of cocaine was kept separate from a much larger quantity of baking soda.
The Court of Appeals reversed the defendant's conviction because there was insufficient evidence of conspiracy (it was not proven that the seller ever intended to provide the promised amount), and because the separately packaged cocaine and baking soda did not constitute a "mixture." 198 Mich. App. 551, 558; 499 N.W.2d 396 (1993). The prosecutor appeals.
The statute imposes liability for possessing "an amount of 650 grams or more of any mixture containing that controlled substance. . . ." MCL 333.7403(2)(a)(i); MSA 14.15(7403)(2)(a)(i).
We also grant the defendant's motion for immediate consideration.
We affirm the judgment of the Court of Appeals. MCR 7.302(F)(1). However, we emphasize that the analysis employed by the Court of Appeals is limited strictly to the facts of this case.
CAVANAGH, C.J., and BRICKLEY, BOYLE, RILEY, GRIFFIN, and MALLETT, JJ., concurred.
I would deny leave to appeal rather than purport to "affirm the judgment of the Court of Appeals" with the flag that the Court emphasizes "that the analysis employed by the Court of Appeals is limited strictly to the facts of this case."
The Court does not indicate how the Court of Appeals might have erred in its analysis.
Today's decision is similar to today's decisions in Bernthal v Aetna Casualty Surety Co, 444 Mich. 1216 (1994), and Ginther v Ovid-Elsie Area Schools, 444 Mich. 1218 (1994), where the Court denies leave to appeal with the flag that in those cases the reported "opinion of the Court of Appeals shall have no precedential force or effect." I repeat what I said in separate statements in those cases:
The Michigan Court of Appeals was established by the 1963 Constitution, and the judges of the Court are elected public officials who perform a function set forth in the constitution. Their published opinions are authoritative statements of law, not by grace of this Court, but by the power vested in the Court of Appeals by the constitution.
The precedential force or effect of an opinion of the Court of Appeals should not be set aside absent a determination by this Court or the United States Supreme Court that the Court of Appeals erred. Such a decision should not be lightly made, and clearly should not be made without plenary consideration, and the resulting notice to other persons, here other insurance companies, who might be favorably or adversely affected by an affirmance or reversal of the decision of the Court of Appeals and who might seek to file a brief as amicus curiae.
Further, this Court's order denying precedential force or effect to an opinion of the Court of Appeals avoids compliance with the constitutional imperative that decisions of this Court "shall be in writing and shall contain a concise statement of the facts and reasons for each decision and reasons for each denial of leave to appeal." Const 1963, art 6, § 6. [ Bernthal, pp 1217-1218; Ginther, p 1218.]