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holding that two separate sales of heroin on the same day were not part of the same criminal transaction because there was no connection between the two deliveries, such as an agreement to return for a second sale after the first
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Docket No. 78-605.
Decided October 16, 1979. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Harvey A. Koselka, Prosecuting Attorney, for the people.
Wilcox Robison, P.C. (by Charles A. Robison and John M. Sims), for defendant.
Before: V.J. BRENNAN, P.J., and BRONSON and CYNAR, JJ.
Defendant, Cleveland Edmonds, appeals as of right from his jury conviction of delivery of heroin, contrary to MCL 335.341(1)(a); MSA 18.1070(41)(1)(a). Defendant was tried with Robert Elmore, who was also found guilty of delivery of heroin. Defendant was also found to be a third-felony offender, MCL 769.11; MSA 28.1083, and the trial court determined that defendant's conviction for delivery of a controlled substance was his second conviction under the controlled substances act. MCL 335.348; MSA 18.1070(48). Using both sentence-augmentation statutes, the trial court sentenced defendant to prison for from 53 years and 4 months to 80 years.
On the morning of April 22, 1977, Philip "Pete" Cagle, a heroin addict and police informant, met Officer Ralph Fogarty, a deputy with the Jackson County Sheriff's Department, assigned to the narcotics unit. Cagle was fitted with a body transmitter and given $100 to purchase narcotics. Followed by Fogarty, Cagle drove to the apartments in the rear of the E E Pool Parlor building in Adrian, Michigan. Cagle knocked on the door to codefendant Elmore's apartment where he found Elmore and the defendant. Cagle told Elmore that he wanted to buy $100 worth of heroin. Elmore had only five $10 packets of heroin. Defendant said, "I have got the rest". Defendant then gave Cagle 5 more packets and Cagle gave defendant the $100. Cagle then said, "Maybe I will be back to cop again * * * see you later". Defendant said, "okay". The packets were turned over to the authorities and this prosecution resulted.
Defendant raises several claims of error on appeal, the first being that the prosecutor deliberately suppressed and later destroyed tape recordings favorable to defendant. Before trial defendant brought a motion to produce which in pertinent part reads as follows:
"1. That in the Preliminary Examination Transcript and prior trial testimony, the informant testified that he was wired with a microphone and transmitter.
"2. If any recordings of any type or any notes taken from any person receiving transmission of the same were taken, the defendant feels they would exculpate this defendant.
"3. That if the Prosecution or any officer or persons have possession of the aforesaid they should be ordered to produce the same for defendant's inspection prior to the trial * * *."
At the hearing on defendant's motion the prosecutor attested to the fact that no tape recordings of any buys from this defendant existed. The court denied defendant's motion to produce.
There is nothing in the record to indicate that there was a tape recording of the transaction that occurred on the morning of April 22, 1977. Tapes of conversations that took place on other days could have little bearing on the charged transaction. Their production was unnecessary to the preparation of the defense and irrelevant to the interests of a fair trial. People v Jessee Smith, 81 Mich. App. 190, 198; 265 N.W.2d 77 (1978).
Defendant next argues that the examining magistrate abused his discretion and denied defendant due process of law when he refused to grant defendant a continuance to allow defendant to procure retained counsel. However, defendant did not object before or during trial to the action of the examining magistrate, nor has he shown that he was prejudiced by the magistrate's refusal to grant a continuance. Under these circumstances the magistrate's action does not require reversal of defendant's conviction. See People v Wilson, 397 Mich. 76; 243 N.W.2d 257 (1976), People v Frederick Lester, 78 Mich. App. 21; 259 N.W.2d 370 (1977), People v Debreczeny, 74 Mich. App. 391; 253 N.W.2d 776 (1977).
Defendant next challenges the validity of this conviction as violative of the double jeopardy clause. The informant made two purchases of heroin from defendant, one in the morning and one in the afternoon of April 22, 1977. Defendant was previously convicted of the afternoon buy and argued below that application of the "same transaction" test prohibits bringing of charges based on the earlier buy. We disagree.
The "same transaction" test for double jeopardy as set forth in People v White, 390 Mich. 245; 212 N.W.2d 222 (1973), applies to offenses which are part of one criminal transaction, committed in a continuous time sequence and displaying a single intent and goal. In the present case although the deliveries occurred on the same day between defendant and the same informant, the record does not show any connection between them such as an agreement after the first delivery to return for another sale. We find no double jeopardy violation. People v Cuellar, 76 Mich. App. 20; 255 N.W.2d 755 (1977), People v Martinez, 58 Mich. App. 693; 228 N.W.2d 523 (1975).
Defendant next argues that the trial court's failure to sua sponte hold an entrapment hearing warrants reversal. Defendant made no effort to have the trial court pass on the issue of entrapment thus appellate review is precluded. See People v Ginther, 390 Mich. 436, 443; 212 N.W.2d 922 (1973).
We next address defendant's claim that it was improper for the prosecutor to confront the codefendant with instances when he had delivered heroin in the presence of defendant. The codefendant, Robert Elmore, testified that he had never sold heroin to the informant but had stored it for him on many occasions. On direct examination Elmore testified that he thought that defendant Edmonds was an informant and that he, Elmore, had made no deliveries of heroin in the presence of defendant.
On cross-examination the prosecutor asked Elmore if he had delivered heroin on specified dates to the informant in the presence of defendant. Over defendant's objection, the trial court ruled that the questions were proper to impeach the witness. We agree with this ruling. Matters which may not be admissible on direct examination may be used to impeach a defendant. People v Brown, 399 Mich. 350, 356; 249 N.W.2d 693 (1976). The prosecutor was not bound to refrain from attacking Elmore's statements, even though disproving the statement required evidence of other crimes that Elmore had committed.
We next consider the propriety of the lower court's use of both the habitual offenders statute, MCL 769.11; MSA 28.1083, and § 48 of the controlled substances act, MCL 335.348; MSA 18.1070(48), to increase the maximum term for delivery of heroin from 20 to 80 years. We hold such sentence enhancement to be improper.
The controlled substances act was enacted to regulate the control, manufacture, production, sale, possession, use, etc., of controlled substances, with penalties for violation of the act specifically delineated. As such the act represents this state's comprehensive policy toward the use of controlled substances. As a specific and comprehensive measure the act's sentence-augmentation provision controls over the general habitual offender statute. Accordingly the sentence on a second or subsequent drug offense is under the purview of § 48 of the controlled substance act exclusively. In accordance with the above the defendant's sentence is reduced to 26 years 8 months to 40 years.
It must be noted that application of the controlled substances act penalty augmentation is proper when the defendant is being sentenced on a drug conviction. If the defendant commits a nondrug felony after one or more drug convictions then the habitual offender act applies upon conviction of that nondrug felony. For other reasons which prohibit the use of the third-felony provision of the habitual offender act on the facts of this case see People v Covington, 70 Mich. App. 188; 245 N.W.2d 558 (1976).
The remaining claims of error relating to the alleged bolstering of the prosecution's witness before attack and the alleged improper considerations at sentencing have not been preserved by proper objection below. See People v Moore, 395 Mich. 643; 237 N.W.2d 464 (1976), People v Powell, 87 Mich. App. 192; 274 N.W.2d 16 (1978).
Defendant's conviction is affirmed with sentence reduced in conformity with this opinion.