Opinion
Docket No. 29679.
Decided February 24, 1978. Opinion amended March 21, 1978.
Appeal from Kent, John T. Letts, J. Submitted February 7, 1978, at Grand Rapids. (Docket No. 29679.) Decided February 24, 1978, opinion amended March 21, 1978.
Phillip J. Smith was convicted of delivery of heroin and of being a second offender. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Donald A. Johnston III, Chief Appellate Attorney, for the people.
Buth Riley, for defendant on appeal.
Before: J.H. GILLIS, P.J., and R.B. BURNS and ALLEN, JJ.
On May 11, 1976, defendant was convicted of delivery of heroin, contrary to MCLA 335.341(1)(a); MSA 18.1070(41)(1)(a), following a jury trial in Kent County Circuit Court. Defendant was also convicted of being a second offender under MCLA 335.348; MSA 18.1070(48). Defendant was sentenced May 26, 1976, to a prison term of from 5 to 40 years. He appeals as of right.
An addict-informer allegedly made a heroin purchase from defendant with money obtained from police officers. The prosecution's case rested on the testimony of the addict-informer. The possible personal interests, biases and prejudices of the addict-informer were brought out during the trial. The only issue on appeal raised by defendant concerns the trial court's refusal to give a requested instruction that an addict-informer's testimony deserved special scrutiny by the jury.
At the time of defendant's trial the law in Michigan was that an instruction such as that requested by defendant was unnecessary. People v Foster, 68 Mich. App. 276, 278-279; 242 N.W.2d 553 (1976), People v Martin, 53 Mich. App. 321; 220 N.W.2d 186 (1974), People v Atkins, 47 Mich. App. 558; 209 N.W.2d 735 (1973), lv granted, 391 Mich. 766 (1974). Therefore it was not error for the trial court to refuse to give the requested instruction.
Subsequent to defendant's trial, the Supreme Court decided People v Atkins, 397 Mich. 163; 243 N.W.2d 292 (1976). In Atkins, the Supreme Court, at 170, noted that it "would not be adverse" to an instruction similar to the one requested in the instant case. In the future, therefore, an instruction concerning special scrutiny of the testimony of addict-informants should be given upon request, where the testimony of the informant is the only evidence linking the defendant to the offense. We note that a majority of the Supreme Court in Atkins, 397 Mich at 171, refused to adopt an argument similar to defendant's argument that the logic of People v McCoy, 392 Mich. 231; 220 N.W.2d 456 (1974), changed the law in Michigan and made it necessary that the instruction in question be given. The circumstances in McCoy are distinguishable, as mentioned by the Supreme Court in Atkins, and we do not find that McCoy affects the decision in this case.
CJI 5:2:04 suggests the form for such an instruction.
Affirmed.