Opinion
Docket No. 16193.
Decided May 29, 1974.
Appeal from Oakland, Clark J. Adams, J. Submitted Division 2 March 12, 1974, at Lansing. (Docket No. 16193.) Decided May 29, 1974.
John L. Gaines was convicted of selling or dispensing narcotics without a license. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, and Rimantas A. Rukstele, Assistant Prosecuting Attorney, for the people.
Elbert L. Hatchett, for defendant.
The defendant, John L. Gaines, was convicted by a jury in Oakland County Circuit Court of selling or dispensing narcotics without a license. MCLA 335.152; MSA 18.1122. The drugs in question were heroin and cocaine. Under the then existing law these drugs were defined as "narcotics". MCLA 335.151(2)(a)(e); MSA 18.1121(2)(a)(e). He was sentenced to 5 to 20 years in state prison.
This case arose before the effective date of the Controlled Substances Act of 1971. MCLA 335.367; MSA 18.1070(67).
The defendant had been introduced to an undercover police agent by Margy Pohl, an addict and cooperator, in a Detroit "dope pad". Barry Blackstone, a member of the Oakland County Narcotics Enforcement Team, was informed by the cooperator that the defendant was a dealer in narcotics. Phone numbers were exchanged between Blackstone and the defendant. Blackstone indicated to the defendant that he wished to purchase drugs from him.
Pursuant to a telephone conversation of December 20, 1971, an alleged sale of heroin transpired between the defendant and Blackstone at Northland Shopping Center in Oakland County on that date. The alleged value of the drugs purchased was $100. Later in that month, Blackstone again telephoned the defendant and attempted to purchase a large quantity of heroin. He was allegedly informed by the defendant that defendant could provide him only with $500 worth of heroin and $250 worth of cocaine. The two met again at the Northland Shopping Center and a transaction took place. Defendant was arrested and charged with the sale of heroin and cocaine.
The defense was one of coercion. The defendant asserted that he had supplied drugs to Blackstone because he was told by him that if he didn't, he would go to jail. The defense further asserted that the defendant had been entrapped.
I
Whether the failure of the prosecution to conduct a quantitative analysis of the drugs was reversible error?
At the preliminary examination, the district judge was concerned with a possible issue, viz., the quantity of drugs actually sold or dispensed. The court stated:
"The court is concerned about this issue that is now pending before the court relative to this very issue. I might help defense counsel in this regard * * *. [T]he Court of Appeals rejected that, we follow the rule that any amount of heroin was sufficient for the establishment of a crime."
When defense counsel requested that the court instruct the state lab employee to conduct a quantitative analysis of the drugs, the court said:
"I see no reason why we cannot call your attention to it, to find out what the circuit court would do on that case; because I am satisfied it will be raised at the time of trial. So, for that reason, I would request that you do proceed with the quantitative analysis on Exhibit I and II; and, may the record reflect that you re-open both envelopes for the purpose of that analysis with concurrence of defense counsel." (Emphasis supplied.)
A preliminary examination is in no sense a trial to determine guilt or innocence. It serves the limited purpose of a factual presentation from which the examining magistrate determines whether a crime has been committed and whether there is probable cause to believe that the accused committed it. People v McLean, 230 Mich. 423, 425; 202 N.W. 1005, 1006 (1925); People v Zaleski, 375 Mich. 71, 81-82; 133 N.W.2d 175, 180-181 (1965); People v Hatt, 384 Mich. 302, 306; 181 N.W.2d 912, 914 (1970). The examining magistrate's determination as to probable cause will not be disturbed unless an abuse of discretion is found. People v Medley, 339 Mich. 486, 492-493; 64 N.W.2d 708, 712 (1954); People v Stirewalt, 16 Mich. App. 343; 167 N.W.2d 779 (1969); People v Brocato, 17 Mich. App. 277, 283; 169 N.W.2d 483, 485 (1969). "It is not the function of the circuit court to second-guess the district court. The findings of the examining magistrate are to be set aside only when there is an abuse of discretion." People v Randall, 42 Mich. App. 187, 193; 201 N.W.2d 292, 295-296 (1972).
The manner in which the preliminary examination is conducted is within the sound discretion of the examining magistrate. People ex rel Ingham County Prosecutor v East Lansing Municipal Judge, 42 Mich. App. 32, 37-38; 201 N.W.2d 318, 322 (1972). The magistrate is not merely an impartial observer, he has the power and responsibility to control the proceedings, to see that evidence is presented within the general bounds of competency, relevancy, and materiality. People ex rel Ingham County Prosecutor, supra, p 39; 201 N.W.2d 323.
The circuit court acquires jurisdiction upon the filing of a proper return by the magistrate before whom the defendant has either been examined or waived examination. People v Curtis, 389 Mich. 698, 707; 209 N.W.2d 243, 247-248 (1973); Genesee Prosecutor v Genesee Circuit Judge, 391 Mich. 115; 215 N.W.2d 145 (1974). In the present case, the requested analysis was not performed. Defense counsel objected in the following fashion:
"Your Honor, may I interpose a further objection? Now the court, and I have the transcript here, did order him to give specific scientific proof in this regard. This witness candidly said he did not do it because he did not have time. I don't submit that he maliciously did not do it, but he did not do it in any time, and I should not be punished and my subject jeopardized and subjected to a guess on his part particularly in the light of the fact he could have done better had he taken the time to do it. If you saddle me with the responsibility of taking a guess, there is no purpose in the court ordering him to — ."
The trial court answered: "[Interposing]: I am not imposing any burden on you. I didn't realize the district court could direct how to try a lawsuit".
In People v Havey, 11 Mich. App. 555, 558; 161 N.W.2d 785, 787 (1968), this Court stated: "A magistrate's authority is limited to binding over to circuit court the criminally accused who waive examination or who have become implicated in a crime by a finding of probable cause".
The question of the power and authority of the examining magistrate on this issue is explained in the case of People v Sherrod, 32 Mich. App. 183, 186; 188 N.W.2d 221, 222 (1971), where the district court ordered defense counsel to notify the prosecutor within ten days as to the date, time and place of the alleged offense. On appeal, this Court wrote: "Assuming that the district court had authority * * * that court lost jurisdiction to enforce its order upon the filing of its return to the circuit court". (Emphasis supplied.) See, also, In re Elliott, 315 Mich. 662, 675; 24 N.W.2d 528, 533 (1946). Here we find a request only and the district court lost jurisdiction upon filing of the return.
While it may have been within the discretion of the district court to order an analysis of the drugs, it is unnecessary to so determine. We find that by the court's clear words, it intended only a request that the analysis be performed. Taken in its proper context, the exchange shows clearly that the district court was attempting to assist the parties and the court as to a possible defense. This is further underscored by the district court's statement that:
"The other hurdle that is left for the court to cross is that I am not going to go into, and that is a quantitative argument. I am leaving that up, if necessary, to a higher court to address itself to."
II
Whether the defendant was entrapped as a matter of law?
Blackstone admitted that on the day of the transaction here in question, he called the defendant at least three times. He called to purchase narcotics from him. He "attempted to set up a buy of any quantity of heroin * * * up to $2000". Further, Blackstone was introduced to the defendant as the cooperator Pohl's boyfriend, which, in fact, was untrue. Blackstone admitted that on the occasion of his first meeting with the defendant he stood by and allowed the cooperator to use a drug which appeared to be heroin. He admitted that he had some question as to the possibility of the cooperator's overdosing on that drug. The defendant asserted that, at that time, he saw Blackstone "doing up", i.e., "put some dope up his nose". Blackstone had had transactions with the defendant at least once and possibly twice before. Blackstone admitted that he made no attempt to arrest the defendant on any prior occasion.
The parties have briefed this case on the basis of the recent Supreme Court decision in People v Turner, 390 Mich. 7; 210 N.W.2d 336 (1973). In Turner the Supreme Court sets out an objective standard from which to view the defense of entrapment. The Court rejected the "creative activity" approach and the defendant's predisposition as a factor for consideration, and accepted Justice Stewart's dissenting opinion in United States v Russell, 411 U.S. 423; 93 S Ct 1637; 36 L Ed 2d 366 (1973). We are faced with determining if Turner is prospective or retroactive in effect. The Turner case was decided in September of 1973 and the conviction here in question was had almost a year to the day prior thereto.
Turner was decided September 18, 1973, and the jury returned its verdict in the present case on September 19, 1972.
In People v Ruppuhn, 25 Mich. App. 62, 65-66; 180 N.W.2d 900, 901-902 (1970), Judge R.B. BURNS, of this Court, wrote:
"The United States Supreme Court has given retroactive effect to its decisions where the integrity of the fact-finding process itself was in question. Gideon v Wainwright, 372 U.S. 335; 83 S Ct 792; 9 L Ed 2d 799 (1963); 93 ALR2d 733 (right to counsel at trial); Jackson v Denno, 378 U.S. 368; 84 S Ct 1774; 12 L Ed 2d 908; 1 ALR3d 1205 (1964) (involuntary confessions inadmissible); and Roberts v Russell, 392 U.S. 293; 88 S Ct 1921; 20 L Ed 2d 1100 (1968) (retroactive application of Bruton v United States, 391 U.S. 123; 88 S Ct 1620; 20 L Ed 2d 476, in which admission of codefendant's extrajudicial confession against other codefendant was held to violate the right of confrontation).
"The United States Supreme Court did not give retroactive effect to its decisions where such rulings would seriously disrupt the administration of the criminal laws. In Johnson v New Jersey, 384 U.S. 719; 86 S Ct 1772; 16 L Ed 2d 882 (1966), the Court refused to apply Miranda and Escobedo retroactively. In Stovall v Denno [ 388 U.S. 293; 87 S Ct 1967; 18 L Ed 2d 1199 (1967)], the Court refused to apply United States v Wade, 388 U.S. 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967), and held Wade was to apply only to confrontations after the date of the Wade ruling because `today's rulings were not foreshadowed'."
See, also, People v Whisenant, 21 Mich. App. 518; 522-523; 175 N.W.2d 560, 562 (1970). The key factors which have been taken into account in determining the effective date of a new rule of law are (1) the purpose of the new rule; (2) the general reliance on the old rule; and (3) the effect on the administration of justice. People v Hampton, 384 Mich. 669, 674; 187 N.W.2d 404, 405 (1971). See, also, Linkletter v Walker, 381 U.S. 618; 85 S Ct 1731, 14 L Ed 2d 601 (1965), and Tehan v United States ex rel Shott, 382 U.S. 406; 86 S Ct 459; 15 L Ed 2d 453 (1966).
There is a large measure of judicial discretion involved in deciding the time from which a new principle of law is to be deemed controlling. People v Whisenant, supra, pp 521-522; 175 N.W.2d at 561-562. Notwithstanding this discretion, in light of the fact that the Supreme Court has not, as of this date, manifested its determination that the Turner decision should be applied retroactively, we are constrained to hold that it shall apply prospectively only. It would appear from the fact that the jury returned a verdict of guilty as charged that they found that the defendant had not been entrapped. Beyond this, the fact that the defendant admitted that a prior transaction had taken place could well have led the jury to believe that the defendant was predisposed to commit this offense.
We hold that until the Supreme Court clearly mandates that Turner is to be applied retroactively, we must approach this on the basis of the standards which were applicable prior to Turner. To do otherwise would have a highly detrimental effect on the administration of justice. This seriously disruptive effect predisposes a prospective application, in a fashion not dissimilar to the United States Supreme Court's refusal to apply Miranda and Escobedo retroactively.
Miranda v Arizona, 384 U.S. 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1966); Escobedo v Illinois, 378 U.S. 478; 84 S Ct 1758; 12 L Ed 2d 977 (1964).
Affirmed.
All concurred.