People v. Ward
People v. Ward
Opinion of the Court
On April 7, 1981, defendant Michael Ward, also known as Kenneth Dean Watson, was found guilty by a Washtenaw County jury of possession of a controlled substance with intent to deliver 650 or more grams, contrary to MCL 333.7401, subds (1) and (2)(a)(i); MSA 14.15(7401), subds (1) and (2)(a)(i). Defendant was sentenced to a statutorily mandated life sentence and appeals as of right.
The facts set forth below resulted in two criminal prosecutions: the one which comprises the instant case, and an Ingham County prosecution for conspiracy to deliver cocaine. A lower court order dismissing the Ingham County charge was reversed by this Court, People v Ward, 107 Mich App 38; 308 NW2d 664 (1981), lv den 417 Mich 938 (1983).
In March, 1979, the Tri-County Metro Narcotic Squad was investigating cocaine trafficking in the Michigan State University campus area. Information had been received that one Randall Seaver was a large-scale cocaine dealer in the Lansing area. The house that Seaver lived in on West Lake Lansing Road in Ingham County was placed under periodic surveillance beginning in late 1978 or early 1979. Tri-County Metro Officer Rick Boyd testified that on two separate occasions informa
On the afternoon of March 20, 1979, defendant was observed for the first time by the Tri-County Metro surveillance team. He arrived at Seaver’s house on West Lake Lansing Road, driving a white 1979 Pontiac Bonneville. He removed a briefcase from the trunk of his car and carried it into Seaver’s house. A short time later, defendant was observed leaving the house carrying the briefcase. He placed the briefcase in the trunk of the car and drove away. Defendant reappeared at the Seaver residence, stayed for a short period of time, and left again. The police officer on surveillance followed him south on US 127, east on 1-96 to US 23 and then north to the M-59 exit. At this time, the surveillance officers saw a Michigan state police patrol car. Officer Stanley Granger spoke to the state trooper and requested that he stop defendant in order to ascertain his identity. As a result of the contact between defendant and the state trooper, it was learned that defendant had a Florida driver’s license in the name of Kenneth Dean Watson with an address in Plantation, Florida. The state trooper informed the narcotics officers that he stopped defendant for an illegal turn, but no traffic citation was issued.
Within 15 minutes of defendant’s arrest, other officers from the surveillance team made an entry without a warrant into Seaver’s home. They detained Seaver and a female friend for several hours while awaiting the arrival of a search warrant. During this time, Seaver was "high” and fell asleep for a couple of hours, having previously ingested cocaine and Quaaludes. Before the issuance of the search warrant, the officers found Quaaludes, cocaine, and psilocybin mushrooms in Seaver’s home. Officer Boyd arrived with the search warrant for the Seaver residence. Mr. Seaver approached Boyd and requested a private conversation. The two men went into a bedroom. Seaver asked Boyd if it would be helpful to his case if he had information to give to the police. Boyd informed Seaver that the Ingham County Prosecutor would have to approve any deals.
Officer Boyd informed Seaver that defendant
The telephone number found in defendant’s car proved to be that of the Wolverine Inn. Through his telephone conversation with the clerk at the Wolverine Inn, Boyd discovered that the Inn was located in Ann Arbor and that a person named Kenneth Watson was registered in room 147. The front desk put Boyd through to room 147 but no one answered the room’s telephone.
Boyd and two other officers traveled to Ann Arbor to obtain a warrant to search the hotel room. After securing the warrant, officer Boyd utilized the room key seized from defendant at arrest to open the door to room 147. Defendant’s suitcase and clothing bag were searched first, and no cocaine was found in either one. The officers then looked under the bed and searched the drawers in the bathroom. One of the uniformed Ann Arbor officers unscrewed the plumbing access panel in the bedroom. He informed the other officers that there were two grocery bags inside the panel. Officer Granger removed both bags, which were sealed with silver duct tape. Both bags were opened. The first bag contained $55,900 cash. The money was wrapped in several stacks and consisted of 10-, 20-, 50-, and 100-dollar bills. The second bag contained 21 clear plastic heat-sealed bags containing a white powdery substance. The two grocery bags and their contents were taken by
Defendant was charged by the Washtenaw County prosecutor with possession with intent to deliver 650 or more grams of cocaine and possession of 650 or more grams of cocaine. (In Ingham County, defendant was charged with conspiracy to deliver cocaine.) Before his preliminary examination, defendant filed a motion to suppress evidence. This motion was denied. Defendant was bound over to circuit court. An evidentiary hearing was held on defendant’s motion to quash the search warrant and to suppress evidence before Washtenaw County Circuit Court Judge Edward D. Deake, who denied defendant’s motion in an opinion issued on May 14, 1980. A similar hearing was also held before Ingham County Circuit Court Judge James R. Giddings, who granted the motion and dismissed the charge against defendant pending in that county. This case, however, went to trial and defendant was found guilty as charged.
The first four issues raised by defendant concern the propriety of various searches and seizures undertaken during the investigation of this case. These issues were previously decided, adversely to defendant, by this Court when the Ingham County Prosecutor appealed Judge Giddings’ dismissal of the conspiracy case. People v Ward, 107 Mich App 38; 308 NW2d 664 (1981), lv den 417 Mich 938
The doctrine of collateral estoppel, or issue preclusion, bars the relitigation of issues previously decided where the parties to a second litigation are the same as those in the prior litigation. Rinaldi v Rinaldi, 122 Mich App 391; 333 NW2d 61 (1983); Topps-Toeller, Inc v Lansing, 47 Mich App 720; 209 NW2d 843 (1973), lv den 390 Mich 788 (1973). The doctrine applies to criminal cases as well as civil matters. Ashe v Swenson, 397 US 436; 90 S Ct 1189; 25 L Ed 2d 469 (1970); People v Gray, 393 Mich 1; 222 NW2d 515 (1974).
The necessary elements for application of the doctrine are present. The legal and factual issues are the same. There is an identity of parties, as the Ingham and Washtenaw County prosecutors are creatures of a common sovereign, the State of Michigan. People v Grainger, 117 Mich App 740, 753-754; 324 NW2d 762 (1982). Also, because leave was denied by the Supreme Court in the Ingham County conspiracy case, the decision of the Court of Appeals has become the final adjudication. GCR 1963, 853.2(2). We conclude that defendant is barred from raising these same issues before this Court. See People v Ford, 19 Mich App 519; 173 NW2d 3 (1969).
Defendant next maintains that the trial court erred in allowing admission of items seized from the room at the Wolverine Inn which were not listed on the search warrant. In considering the propriety of seizing property not identified in a search warrant, we apply the standard used by the Supreme Court in People v Secrest, 413 Mich 521; 321 NW2d 368 (1982), reh den 414 Mich 1102 (1982). In that case the police had a warrant authorizing them to search for guns, ammunition,
We have different facts before us in this matter. At the time the officers entered room 147 at the Wolverine Inn, they knew defendant was in custody in Ingham County and that his real name was Michael Ward, but that he used the alias Kenneth Dean Watson. Any evidence that would connect defendant with the hotel room was incriminating.
Defense counsel, in his brief, has questioned the admissibility only of people’s exhibits 17-20 and 23, so those are the ones that will be addressed. People’s exhibit 20 was an Avis car rental receipt made out to Kenneth D. Watson and 23 was a receipt from the Ann Arbor Holiday Inn, dated March 20, 1979, made out to K, Watson. The incriminating value of both these items was immediately apparent, as they served to link defendant to his alias and also to control of the hotel room.
People’s exhibits 19 was a shaving kit. Because it contained nothing bearing defendant’s name or alias, and was not otherwise incriminating, its admission was erroneous. At trial, however, defense counsel elicited the fact that certain items found in the shaving kit contained surfaces which were conducive to fingerprints, but that no attempt was made to lift prints from these items. Defense counsel also mentioned his in this closing argument, claiming it raised a reasonable doubt. Thus, any error was negated by defense counsel’s attempts to use the evidence to defendant’s advantage. See People v Baines, 68 Mich App 385; 242 NW2d 784 (1976). For the foregoing reasons we find no reversible error under the Secrest standard.
Defendant’s next claim of error relates to his motion to suppress his prior conviction record for impeachment purposes. MRE 609(a)(2). Although defendant had several such convictions, the trial court determined that evidence of only one prior conviction could be used for impeachment — a 1979 federal conviction for possession and distribution of cocaine. We find no error. While similarity of the prior conviction to the charged offense weighs against admission, the admission of evidence of a defendant’s prior conviction for a crime similar or identical to the crime charged does not per se result in reversible error. People v Carpenter, 120 Mich App 574, 581; 327 NW2d 523 (1982); People v Monasterski, 105 Mich App 645, 655; 307 NW2d
Defendant next claims that the court erred in admitting testimony concerning the street value of the cocaine, arguing that the prejudicial potential of such testimony overshadowed its probative value. MRE 403. This Court has previously held that admission of such testimony does not constitute an abuse of discretion. People v Wimbley, 108 Mich App 527; 310 NW2d 449 (1981); People v Gould, 61 Mich App 614; 233 NW2d 109 (1975). Testimony regarding the street value of a drug has been held relevant to intent to deliver. Gould, supra, p 624.
Defendant also argues that error was committed because officer Granger was under the impression that the average street cocaine is 15 percent pure, while the chemist testified that it is 25 percent pure, a factor which could have affected Granger’s calculations. Defense counsel’s own arithmetic, using an average purity of 25 percent, still puts the street value of the cocaine at over $1,000,000. In addition, this Court has taken notice that 1,000 grams of cocaine has a street value of over $1,000,-000. People v McCarty, 113 Mich App 464; 317 NW2d 659 (1982), lv den 414 Mich 958 (1982). Using that formula, the cocaine seized in the instant case would have a street value of $2.5 million dollars, much higher than the figure to which defendant objects.
Defendant’s remaining arguments have previously been made to this Court without success. We have determined that the classification of cocaine on the same level with narcotic drugs for penalty purposes does not violate the rights of due process
Defendant’s conviction and sentence are affirmed.
Concurring Opinion
(concurring). In People v Harman, 124 Mich App 93, 101; 333 NW2d 591 (1983), lv den 417 Mich 1100.45 (1983), I expressed the opinion that the mandatory life sentence provided for conviction of possession of 650 grams or more of a mixture containing cocaine constitutes cruel and/or unusual punishment in violation of the United States and Michigan Constitutions (US Const, Am VIII; Const 1963, art 1, § 16). I have not changed my mind, but the Supreme Court has denied leave in that case, so the lone voice crying in the wilderness has been silenced.
Although the Supreme Court is not completely clear on the effect of its denial of an application to appeal a Court of Appeals decision, cf. Tebo v Havlik, 418 Mich 350; 343 NW2d 181 (1984). I conclude there is little sentiment for my view.
I therefore concur in the result.
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