Docket No. 57464.
Decided July 21, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Kay F. Pearson, Assistant Prosecuting Attorney, for the people.
Terence R. Flanagan, Assistant State Appellate Defender, for defendant on appeal.
Defendant was charged with possession of marijuana with intent to deliver, MCL 333.7401(1), (2)(c); MSA 14.15(7401)(1), (2)(c). After a jury trial, he was found guilty as charged. Defendant was sentenced to served 2-1/2 years probation and to pay $10 per month for the length of the probationary period as court costs. Defendant appeals as of right.
Defendant first complains that the affidavit in support of the search warrant was inadequate. Defendant claims that the affiant police officer lied regarding statements attributed to an informant.
One statement in the affidavit which defendant claims to be false is as follows: "Further that after the cocaine was loaded in the motor vehicle and returned to the motel the subject Danny Howey was to drive the vehicle back to the Saginaw area predetermined location which was 2306 So. 24th Street, Township of Buena Vista, County of Saginaw, the State of Michigan".
At the hearing on defendant's motion to suppress the statement, the affiant police officer testified that he did not know the address to which defendant would be driving and that he had never before heard of the 2306 S. 24th Street address. At a hearing shortly before trial, the officer explained the wording in the affidavit. He testified that "predetermined" meant predetermined by the driver. The actual address was unknown to the informant and the officer.
The officer testified at trial that he saw defendant's wife, Maxine, leave 3145 Walters Street at approximately 11 p.m. on February 6, 1980. He and other officers followed her to 2306 S. 24th Street. Five to ten minutes after she arrived at that address, a reddish 1979 Oldsmobile pulled up. Defendant was the driver of the Oldsmobile and had a female passenger with him. They both entered a pickup truck and left with defendant's wife. Defendant returned to the 3145 Walters Street address. The persons inside the truck were defendant, Maxine Howey, and Pamela Sharp.
Defendant further complains because the police officer attributed to the informant a statement regarding the fact that defendant's wife would pick up defendant at the 2306 S. 24th Street address. The officer testified that this statement, attributed to the informant, was merely an assumption on his part and not a statement by the informant.
Defendant argues that Franks v Delaware, 438 U.S. 154; 98 S Ct 2674; 57 L Ed 2d 667 (1978), did not specifically overrule United States v Luna, 525 F.2d 4 (CA 6, 1975), cert den 424 U.S. 965; 96 S Ct 1459; 47 L Ed 2d 732 (1976). In Luna, the federal court of appeals held that if there was in fact perjury by the officer, suppression of the evidence was required regardless of materiality. Id., 8. The Supreme Court indicated that a defendant is not even entitled to a hearing if the information which he claims is false is not material. Franks, supra, 171-172.
The recent decisions of this Court indicate that the Franks standard should be used. See People v Ward, 107 Mich. App. 38, 52-53; 308 N.W.2d 664 (1981); People v Poindexter, 90 Mich. App. 599; 282 N.W.2d 411 (1979), lv den 407 Mich. 876 (1979); People v Price (On Remand), 91 Mich. App. 328; 283 N.W.2d 736 (1979).
The officer in the case at bar did not request a search warrant until after defendant was in custody. The officer's addition of the S. 24th Street address appears to have been the unfortunate result of hindsight rather than a deliberate falsehood. This Court will, however, consider the affidavit without the erroneous material.
Upon extracting the erroneous material, the affidavit indicates that the informant, "Blizzard", had a conversation with defendant on February 4, 1980. During that conversation, defendant allegedly told Blizzard that he was to leave Saginaw on February 4, 1980, and drive to Florida. In Florida, defendant was to drop the vehicle at a motel where an unknown person would pick up the vehicle and return it to defendant at the motel. During the time the vehicle was absent from the motel, it was to be loaded with cocaine. At a date unspecified in the affidavit, the automobile was to be returned by defendant to Saginaw with the cocaine inside.
The officer's observation began on February 6, 1980. Defendant's wife was seen leaving defendant's residence and was followed to 2306 S. 24th Street at approximately 11 p.m. Approximately ten minutes later, defendant arrived in the Oldsmobile. In a conversation with defendant's wife, the affiant police officer was informed that she had last seen defendant on February 3, 1980. Furthermore, defendant called her on February 6, 1980, and asked her to pick him up around 11 p.m. at 2306 S. 24th Street.
In a conversation with defendant, defendant stated that he was paid to drive the vehicle to Saginaw from an unknown location. Defendant indicated that the occupant of 2306 S. 24th Street was his cousin.
A close question is presented upon extraction of the erroneous material. The inclusion of the erroneous material could arguably make the affidavit more persuasive to a magistrate. There is, however, one point of the affidavit which persuades this Court to refuse to reverse on this issue. The officer indicated that surveillance was conducted at defendant's residence, i.e., 3145 Walters Road. This statement suggests the officers were unaware of the S. 24th Street address until after following defendant's wife. With this point in mind, it could appear to a magistrate that the affidavit was merely hastily drawn. This appears a reasonable conclusion in view of the multitude of typographical errors.
In light of defendant's attacks upon the veracity of the affiant police officer, defendant argues the court abused its discretion by not requiring the production of the informant. The standard for requiring the production of an informant when an attack is made upon an affidavit is set forth in Poindexter, supra, 609-610. In the instant case, however, the requirements contained in Poindexter are unnecessary because the court granted an evidentiary hearing. Accordingly, the determining aspect is:
"If the judge is convinced that the officer is being truthful regarding the existence of the informant, he should deny defendant's request for production. However, if the judge determines that there is some doubt as to the officer's credibility, he may require production of the informant." Poindexter, supra, 610.
Defense counsel indicated that he was challenging the existence of the informant. He argued that the only way to prove that the informant existed was to have the informant produced.
The court relied upon Poindexter, recognized that it had discretion in this matter, concluded that the officer was truthful as to the other matters and refused to order the production of the informant.
Considering the court's resolution of defendant's complaints regarding the affidavit in support of the search warrant, no abuse of discretion appears in this case.
Defendant additionally complains that the informant was unreliable. When an affidavit contains hearsay statements from a confidential informant, the information given by that informant must be accompanied by a recitation of the underlying circumstances upon which the informant based his conclusions. People v Fuller, 106 Mich. App. 263, 265; 307 N.W.2d 467 (1981). Additionally, "there must be some basis for concluding either that the informant was credible or that his information in the particular instance was reliable". Id., 265. Accord, Spinelli v United States, 393 U.S. 410; 89 S Ct 584; 21 L Ed 2d 637 (1969), Aguilar v Texas, 378 U.S. 108; 84 S Ct 1509; 12 L Ed 2d 723 (1964). In the instant case, the informant gained his information through a personal conversation with defendant. This appears to be a sufficient circumstance for the basis of his conclusion. Because this informant had given the police information on prior occasions, it appears that the officer's statement that the informant had given him information in the past which later proved to be correct was sufficient to establish reliability. People v Walker, 401 Mich. 572, 582-583; 259 N.W.2d 1 (1977), citing McCray v Illinois, 386 U.S. 300; 87 S Ct 1056; 18 L Ed 2d 62 (1967). See, also, People v Mayes, 78 Mich. App. 618, 622; 261 N.W.2d 22 (1977).
Defendant claims that the allowance of certain remarks in the prosecutor's rebuttal argument constitutes reversible error. Defendant failed to object to the argument, which precludes appellate review absent a miscarriage of justice. People v Duncan, 402 Mich. 1, 15-16; 260 N.W.2d 58 (1977). We perceive no miscarriage of justice. The prosecutor's argument was responsive to defense counsel's argument that defendant and the jury should not forget this trial. Due to its responsive nature, it does not constitute reversible error. See Id., 16.
Defendant finally argues that it was error not to produce two alleged res gestae witnesses at trial. One missing witness was Pamela Sharp, the passenger in the automobile at the time defendant was arriving from Florida. The other was Tony Hoffman, the owner of the Oldsmobile driven from Florida to Saginaw by defendant.
In spite of defendant's knowledge of Sharp and Hoffman, defendant made no motion during trial for the endorsement and production of these two individuals as res gestae witnesses. Defendant made no objection to the fact that Sharp and Hoffman were not endorsed and produced. Defendant's attorney only raised the issue to the jury during his closing argument. By failing to make a timely motion for the endorsement and production of the missing witnesses, even though aware of their identity prior to trial, defendant waived any right he may have had to the witnesses' presence at trial. People v Ferguson, 94 Mich. App. 137, 148; 288 N.W.2d 587 (1979), lv den 409 Mich. 949 (1980); People v Robideau, 94 Mich. App. 663, 675-676; 289 N.W.2d 846 (1980).
Furthermore, the failure to move for a hearing will normally foreclose this issue on appeal, People v Pearson, 404 Mich. 698, 722-723; 273 N.W.2d 856 (1979), unless manifest injustice will result. People v LeFlore, 96 Mich. App. 557, 563-564; 293 N.W.2d 628 (1980), lv den 409 Mich. 927 (1980). See, also, People v Buschard, 109 Mich. App. 306, 312-313; 311 N.W.2d 759 (1981).
No manifest injustice appears in the case at bar. There was ample evidence to convict defendant.