Petition for Writ of Certiorari — Michigan v. Sammons

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. IF AND WHEN A

BETTER COPY CAN BE OBTAINED,

WILL BE ISSUED.

A NEW FICHE

oye

91-1732 | Ores

NO. APR 28 W992

IN THE SUPREMS COURT OF THE UNIT SBFIQETORTRIE CLERK

OCTOBER TERM, 1991

PEOPLE OF THE STATE OF MICHIGAN,

PETITIONER

V

N HOWARD SAMMONS,

RESPONDENT

OF MICHIGAN,

TONE,

ON PETITION FOR A WRIT OF CERTIORARI

TO TH®= COURT OF APPEALS

OF THE STATE OF MICHIGAN

PETITION FOR CERTIORARI

Bay County Buiidi

city, Michigan 4

95-85

QUESTIONS PRESENTED

WHETHER THE 6TH AMENDMENT

"CONFRONTATION CLAUSE" APPLIES TO

PRETRIAL HEARINGS?

WHERE TESTIMONY AT A PRETRIAL HEARING

SHOWED THAT ONE OR MORE DEFENDANT

CHARGED WITH POSSESSING A POUND OF

COCAINE WITH INTENT TO DELIVER, AND

CONSPIRACY TO DELIVER COCAINE, HAD

OFFERED TO PAY TO HAVE AN "INFORMANT"

WITNESS KILLED AND A PART OF HIS BODY

BROUGHT TO THE LEFENDANT, AND THE

TESTIMONY ALSO SHOWED THAT THE

DEFENDANTS HAD FORGOTTEN WHAT THE

"INFORMANT™ LOOKED LIKE, MAY THE

TRIAL JUDGE ALLOW THE “INFORMANT"

WITNESS TO WEAR A SKI MASK WHILE

‘TESTIFYING AT THE PRETRIAL HEARING SO

THAT THE DEFENDANTS AND OTHERS

PRESENT IN THE COURTROOM CANNOT SEE

THE WITNESS’S FACIAL FEATURES WITHOUT

VIOLATING THE 6TH AMENDMENT’ S

CONFRONTATION CLAUSE?

WHETHER, IN A PROSECUTION FOR

POSSESSION WITH INTENT TO DELIVER

OVER 225 GRAMS OF A MIXTURE

CONTAINING COCAINE, MAY A TRIAL

JUDGE, CONSISTENT WITH THE 6TH

AMENDMENT’S “CONFRONTATION CLAUSE"

AND THE 14TH AMENDMENT’S "DUE PROCESS

CLAUSE", PRECLUDE CROSS EXAMINATION

AT A PRETRIAL HEARING THAT MIGET

REVEAL THE IDENTITY OF THE WITNESS,

WHERE THE DEFENSE HAD BEEN SUPPLIED

WITH A LIST OF THE WITNESS’S CRIMINAL

CONVICTIONS, AND WHERE THE DEFENSE

ATTORNEYS HAD BEEN GIVEN AN

OPPORTUNITY TO TALK WITH AND QUESTION

THE WITNESS PRIOR TO THE PRETRIAL

HEARING, WHERE TESTIMONY SHOWED THAT

DEFENDANTS HAD FORGOTTEN WHAT THE

"WITNESS LOOKED LIKE, AND WHERE THE

TRIAL JUDGE CONCLUDED THAT SUCH A

a

-3-

PROCEDURE WAS NECESSARY DUE TO

STATEMENTS BY ONE OR MORE DEFENDANT

THAT COCAINE WOULD BE PAID TO A

PERSON WHO KILLED THE WITNESS AND

DELIVERED A BODY PART OF THE WITNESS

TO THE DEFENDANT?

- 4-

TABLE OF CONTENTS

Questions PLSSONted. . 1. cecescecessece 1-3

Tngex Gl AUtROritiesS...ccvcvceswesceeses 5

OBIBTONS BOLO. so osc he heb es vadamean ees 7

Statement of JUTisaiction..icvsisvcccvewves 8

Constitutional Provisions Involved...... 8

SCACGMORt OF CRO CRB. 6 cc cicnvdecvvues 9-20

Reasons for Granting the Writ....... 21-36

COMCIGBAOG s ioc ccceciceticenetenenseaseas 37

Appendix

7 Opinion of the Michigan

Court of Appeals in

People v Sammons.......... la-48a

i ae Order of the Michigan

Supreme Court in

Peovle v Sammons......... 48a-53a

as, Opinion of the Michigan

Court of Appeals in

Peop T Bee cat wenn 54a-59a

— Order of the Michigan

Supreme Court in

POORIG VF SUOGG sos k 6s ca heute 60a

Cases

r Vv P

390 US 719; 88 S Ct 1318;

20 L Ed 2d 255 (1968)

of

lj i v Green,

399 US 149; 90 S Ct 1930;

26 L Ed 2d 489 (1970)

Kentucky v Stincer,

482 US 730; 107 S Ct 2658;

96 L Ed 2d 631 (1987)

Pennsylvania v Ritchie,

480 US 39; 107 S Ct 989;

94 L Ed 2d 40 (1987)

People v Sammons,

191 Mich App 351;

478 NW2d 901 (1991),

lv den 439 Mich 933 (1992)

23

23

23-24,

26-27

23

24-25

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1991

THE PEOPLE OF THE STATE OF MICHIGAN,

PETITIONER

Vv

MARTIN HOWARD SAMMONS,

RESPONDENT

THE PEOPLE OF THE STATE OF MICHIGAN,

PETITIONER

Vv

ALAN MICHAEL STONE,

RESPONDENT

PETITION FOR A WRIT OF CERTIORARI

TO THE COURT OF APPEALS —

OF THE STATE OF MICHIGAN

NOW COME the People of the State of

Michigan, by George B. Mullison,

Prosecuting Attorney for the County of

Bay, Martha G. Mettee, Assistant

Prosecuting Attorney, Chief of Training

and Appeals, and Richard I. Dresser,

Assistant Prosecuting Attorney, Director,

Career Offender Unit, and pray that a

writ of certiorari issue to review the

judgments of the Court of Appeals of the

State of Michigan entered in the

above-entitled matters on October 7, 1991

in People v Sammons, and on October 3,

1991 in Peeple v Stone, leave to appeal

denied by the Michigan Supreme Court

February 7, 1992 in Sammons, and on

January 29, 1992 in Stone.

OPINIONS BELOW

The order of the Michigan Court of

Appeals in People v Sammons is a reported

opinion at 191 Mich App 351; 478 NW2d 901

(1991) and is appended as Appendix A.

The order of the Michigan Supreme Court

is reported at 439 Mich 933 (1992), and

is appended as Appendix B.

The order of the Michigan Court of

Appeals in People v Stone is unreported

and is appended as Appendix C. The order

of the Michigan Supreme Court is reported

at 439 Mich 917 (1992), and is appended

as Appendix D.

Both cases involve identical

questions and are joined in a single

petition pursuant to Rule 12.2.

The judgments of the Court of Appeals

of the State of Michigan were entered in

the above-entitled matters on October 7,

1991 in People v Sammons, and on October

3, 1991 in People v Stone. The orders of

the Michigan Supreme Court were entered

on February 7, 1992 in Sammons, and on

January 29, 1992 in Stone.

The jurisdiction of this Court is

invoked under 28 USC { 1257 (3).

CONSTITUTIONAL PROVISION INVOLVED

Sixth Amendment: "In all criminal

prosecutions, the accused shall enjoy the

right . . . to be confronted with the

witnesses against him... .-

Fourteenth Amendment: *. « « SOF

shall any State deprive any person of

life, liberty, or property, without due

process of law; ..-- -

STATEMENT OF THE CASE

Both defendants were charged together

with a third co-defendant in a joint

Information with the crimes of possession

with intent to deliver between 226 grams

and 650 grams of a mixture containing the

controlled substance cocaine and

conspiracy to deliver between 226 grams

and 650 grams of a mixture containing

cocaine. They claimed that they were

entrapped.

Michigan follows the minority view of

entrapment (the “objective"™ test),

holding that it is a question of law to

be determined by the trial court at a

pretrial hearing. The burden of proof is

on the defendant, and he must prove

entrapment by a preponderance of the

evidence. The issue of entrapment is not

presented to the jury.

"A pretrial entrapment hearing was

held before the trial court judge,

William J. Caprathe. Following the

- 10 -

presentation of proofs by the defendants,

the prosecution presented testimony by an

informant called "Rick". "Rick" is the

person who, in cooperation with the

police, made arrangements for the

defendants to come to Bay City, Michigan

to sell one pound of cocaine for

$14,500.00.

When "Rick" was called to testify he

came into the courtroom and took the

witness stand wearing a ski mask so that

his facial features could not be seen.

Counsel for the defendants objected, and

a hearing was eventually held to

determine whether "Rick" should be

allowed to wear the mask, and whether the

Court should preclude the defense from

asking any questions on cross examination

that might lead to the it kreky of

"Rick’s" identity. Testimony was

presented to show that the defendants did

not remember what "Rick" looked like:

"QO: Officer Buczek, have you

overheard comments by the

- ll -

defendants regarding the

identity of the defendant--er,

I’m sorry, the identity of the

informant?

A: Yes.

Q: And can you tell us what

you’ve overheard in terms of

their conversations?

A: Last week, we had a

witness from the phone company

up here. And when he was

seated in the hallway, Mr.

Wallace, particularly, took

quite a bit of attention -

Starin’ at him; and then once

we were in the courtroom, all

three of ’em, when I brought

the witness in, kept sayin’,

"Yeah, I think that’s him,"

"That’s him," "That looks like

him," for quite a bit of time

while he was seated in here.

x * &®

———EEEEE—EEeEeEeEe———EE

~ 92 =

Q: When Officer Chambers came

into the--there came a time

when Officer Chambers came

into the courtroom later that

day; is that correct?

A: Yes.

Q: Were there any comments

when Officer Chambers came

into the courtroom?

A: Yes.

Q: And what were--what

comments were there when

Officer Chambers came into the

courtroom?

A: The three defendants were

again together and they seemed

to indicate that Officer

Chambers was--

x * *

A: Officer Chambers came in

and was seated in the chair by

the door. I believe Mr. Stone

looked at him and said, "Is

that him?" addressing the

= 13 «

other two defendants. Mr.

Sammons said, "I don’t know if

that’s him or not" and he made

reference to "I’ve been clean

for five months, I was up for

five days the night--"

x * *

A: - « +» Mr. Sammons made a

comment that he didn’t know if

that was the informant or not.

He said, “It was five months

ago, I’ve been straight for

five months; at the time I was

up here, I’d been up for five

days, I don’t know if that’s

him or not." (E.Hrg., 5-10-88,

p. 5-10.)

Testimony was also presented by a

second confidential informant who was a

prisoner in the Bay County Jail, along

with the third co-defendant, James

WalTace. (Mr. Wallace’s case is not

involved in this petition as the Michigan

Court of Appeals ruled that he did not

- 14 -

have standing to claim entrapment, and

his plea based conviction was affirmed.)

According to Informant #2, Wallace called

defendant Stone (who was free on bond)

from the jail and talked to Stone.

Following this conversation, Wallace told

Informant #2 that Stone would pay “op? ,

which means a quarter pound of cocaine,

"to have Rick killed and have a part of

his body brought to him." In response to

a question about what Wallace had told

Informant #2 about his conversation with

Stone, Informant #2 stated:

"He said that Rick’s testimony

wasn’t really was - what was

hurten’ him, that Officer

Buczek’s was the one he was

really more concerned about,

not Rick’s. But if I had Rick

taken care of and brought him

his dick, that he would give

me the QP any way." (E.Hrg.,

5-10-88, p. 127.)

- 18 «

At the conclusion of the hearin:

relating to the issue of whether "Rick'

could wear the ski mask while testifying,

and whether the defense should be

precluded from cross-examining "Rick" ir

areas that might lead to disclosure of

his identity, Judge Caprathe ruled as

follows:

"THE COURT: All right, the

Court has given consideration

to the arguments and to the

testimony and as far as the

issue of disclosure of the

informant is concerned, I

believe that this is a

preliminary question and, of

course, I’m not sure and I

don’t think it matters about

trying to compare the

Standards between trial and a

motion to suppress. It isn’t

SeLtaes Oo2Cctweiiv, At’s

somewhere in between the two I

would say, but the point is I

-~16-

think that it" s a

preponderance of the evidence

test - preliminary evidentiary

question; and it’s certainly

not 4a reas--beyond a

reasonable doubt test which

would be required for a

conviction regarding the

behavior that’s been alleged.

ot think you have to take a

look at all the factors and

then determine whether or not

there’s a preponderance of the

evidence that it would be

necessary to preclude the

disclosure to deal with the

potential adverse safety

affect on the witness that’s

testifying; but is asking to

not have his identity

disclosed.

You look at the large

guantity of drugs that are

involved in the charge, the

o- {7 «

am--large amount of money, the

long potential prison terms,

possibly some of it being

mandatory depending upon which

statutes are applied.

The fact that there is the

testimony of the second

confidential informant and if

you weigh all that on the one

hand I think you see a

potential safety problem for

the witness; on the other

side, the need for the

information.

Apparently the prosecutor

has already shared the record

of this individual, and would

share any other information

which wouldn’t result in

disclosing the identity such

as any work that he’s done

with the police, that can be

done on cross examination and

that hasn’t been precluded.

- 18 -

The only thing we have

precluded were questions that

would lead directly to the

identity, and thus the safety

of the individual; and

weighing all of those factors,

I -- it would appear to the

Court that there is a

preponderance of the evidence

weighing in favor of not

disclosing the witness’

identity any further than it

already has been and allowing

him to complete his testimony

with the mask on and limiting

the questions to those that do

not disclose the actual

identity of the individual;

but questions such as what

he’s doing and what he has

been doing, or arrangements

that have been made ‘and that

sort of thing, will have to be

asked and unless there’s an

~ 19 «

objection that it would

disclose identity then they

will be permitted and I’ll

deal with those on an

individual question to

question basis." (emphasis

added) (E.Hrg., 6-7-88, p.

26-28.)

At the conclusion of the entrapment

hearing, the ccurt found that the defense

had not proven entrapment.

Defendant Sammons was convicted

following a jury trial. The informant

"Rick" was not called as a witness at

triei.

Defendant Stone entered a plea of

guilty to the charge of possession with

intent to deliver between 226 grams and

650 grams of a mixture containing the

controlled substance cocaine. The charge

of conspiracy was dismissed.

Both defendants appealed to the

Michigan Court of Appeals. That court

determined that "the protections afforded”

- 20 -

by the Confrontation Clause were

available to defendant at the entrapment

hearing as a means of ensuring the

reliability of the evidence submitted

against him." The court also concluded

that "Because the masking of the

prosecution’s chief witness precluded the

trial judge from adequately observing the

witness’ demeanor when testifying, we are

constrained to find that the procedure of

masking denied defendant a esiticai

aspect of his confrontation rights." In

addition, the court concluded that "it

was a violation of defendant’s

confrontation rights to completely

preclude disclosure of identifying

information." Accordingly, the court

remanded the cases to the trial court for

a new entrapment hearing.

The People sought leave to appeal to

the Michigan Supreme Court which denied

leave, with three of the steven Justices

dissenting.

The People now seek certiorari.

= 21 =

REASONS FOR GRANTING THE WRIT

This case is important because it ma:

well have a profound effect upon thi

government’s ability to fight the wa:

against illegal drugs. Due to the nature

of drug offenses, it is often necessary;

to utilize informants, or “cooperatinc<

individuals", to infiltrate drug networks

or set up transactions. However, due tc

the large amounts of money involved anc

the potential for very long prisor

sentences upon conviction, the lives of

the cooperating individuals are sometimes

in jeopardy. This case presents one

method of dealing with this problem,

while still assuring that the rights of

the defendants are maintained.

"Rick", a confidential informant, was

reluctant to testify due to fear of

reprisals, yet, while his testimony was

notrsnecessary at trial, it was necessary

at a pretrial entrapment hearing, since

he was the person who had direct contact

eo

- 22 -

with defendant Sammons in setting up the

delivery of a pound of cocaine. (In

Michigan, entrapment is a question of law

to be decided by the trial court, and it

does not become a question for the jury

at trial.) Furthermore, the police had

become aware of a desire by one or more

of the co-defendants to have "Rick"

killed. Therefore, it was decided to

have "Rick" wear a ski mask during his

testimony so that the defendants and

others in the courtroom would not be able

to see what he looked like. For the same

reason the People objected to any

cross-examination questions that might

lead to determining "Rick’s" identity.

However, the defense was provided with

information relating to "Rick’s" criminal

history, as well as information relating

to any deals made between "Rick" and the

police. Furthermore, an opportunity was

provided to the defense "attorneys to

question "Rick" in advance of the

entrapment hearing. Only the attorney

- 23 -

for defendant Stone took advantage o:

this opportunity, and his conversatio:

with "Rick" was tape recorded by the

police so as to preserve it for future

use if that became necessary. The fact

that "Rick" was not a necessary trial

witness is demonstrated by the fact that

neither side called him to testify at the

trial of defendant Sammons. The People

did not need his testimony in order to

gain a conviction, and the defense

apparently determined that his testimony

would not be helpful.

It is the People’s position that the

right to "confrontation" is a trial

right. Barber v Page, 390 US 719; 88

S Ct 1318; 20 L Ed 2d 255 (1968);

California v Green, 399 US 149; 90 S§ Ct

1930; 26 L Ed 2d 489 (1970); Pennsylvania

v Ritchie, 480 US 39; 107 S Ct 989; 94

L Ed 2d 40 (1987). However, we recognize

that in Ritchie, only a plurality of the

Court agreed with this position, and that

in Kentucky v Stincer, 482 US 7303 107 §

= 24 «

Ct 2658; 96 L Ed 2d 631 (1987), Justice

Blackmun, writing for the Court,

expresses his personal view that the

confrontation right "is somewhat broader

than that of the Ritchie plurality".

Stincer, ftnt 9. In Stincer, the Court

chose not to determine whether a hearing

held after trial had commenced, but held

outside the presence of the jury, to

determine whether a child witness was

competent to testify was a trial or

pretrial proceeding.

The Michigan Court of Appeals felt

that:

"to deny the protections

afforded by the Confrontation

Clause to a defendant at an

entrapment hearing would be to

deny him the opportunity to

ensure that the evidence

presented against him, which

may defeat his ctaim of

entrapment and remove any

impediment to a subsequent

= 28 «

trial and conviction, ‘is

reliable and subject to the

rigorous adversarial testing

that is the norm of

Anglo-Americal criminal

proceedings.’ Craig [Marvland

v Craig) 497 US at __¢; 110

S Ct at 3163; 111 L Ed 2d at

678-679. Finally, we believe

it would be fundamentally

unfair, and contrary to

principles of due process, to

allow the state to present

evidence designed to defeat

defendant’s claim of

entrapment and at the same

time restrict the defendant’s

ability to effectively examine

the reliability of such

evidence.” Sammons, 191 Mich

App at 361-362; 478 NW2d at

907.

However, even if the Michigan court

is correct in its conclusion that the

net

Confrontation Clause is applicable to

- 26 -

pretrial hearings, the People believe

that the court is dead wrong in its

conclusion that the defendants’ rights

were violated!

First, "Rick" did testify at the

entrapment hearing, and he was subject to

full, complete and rigorous cross

examination, subject only to the

limitation that questions that might

reveal his identity could not be asked.

This limited restriction on cross

examination was imposed only after the

trial judge conducted a hearing and

determined that the evidence regarding

the threats against the witness’s life

necessitated such a ruling. Thus, the

procedures utilized at the hearing fall

with the ambit of the Confrontation

Clause:

"The Court has emphasized that

‘a primary interest s@cured by

[the Confrontation Clause] is

the right of cross-

- 97 «

examination.’ RDeuglas v

Alabama, 380 US 415, 418; 85

S Ct 1074; 13 L.Ed.2d 934

(1965). The opportunity for

cross-examination, protected

by the Confrontation Clause,

is critical for ensuring the

integrity of the fact-finding

process." Stincer, 482 US at

736; 96 L Ed 2d at 641. |

Second, the "face-to-face", "look me

in the eyes" aspect of confrontation was

present, since "Rick" testified in an

open courtroom, in the presence of the

three co-defendants. The ski mask did

not block the view of the witness. All

that was masked were his facial features.

Third, while the Michigan Court of

Appeals felt that the inability of the

trial court judge to see the face of the

witness was a major factor, apparently

feeling that credibility cannot be

determined without being able to view the

witness’s facial features, this emphasis

= 28 -

on the need to watch a witness’s face is

misplaced.

At the entrapment hearing the

witness, "Rick", testified in the

presence of the defendants, their

attorneys, the prosecutor, the judge, and

the spectators present in the courtroom.

He wore a ski mask that had eye holes.

He was able to see and be seen. The only

thing that was not visible were his

facial features.

While Petitioner recognizes that we

all like to see the people we talk to,

and that we may think that we can pick up

hints regarding whether someone is

telling the truth or not from facial

expressions, in reality this is not an

accurate method of determining

credibility. We all know that there are

people who can lie with a straight face.

We know that there are people who tell

the truth, but when nervous they do not

look you in the eye when talking. We

know that there are people who lie while

= 99 -

they look you straight in the eye. We

know that out of nervousness some people

laugh or smirk when telling the truth,

and other people may laugh or smirk when

fabricating. In other words, what does a

poker face or any other facial expression

mean? No one, not the Michigan Court of

Appeals nor the defendants have cited any

scientific study or theory which suggests

that certain facial expressions mean that

a person is telling the truth or telling

a lie. Since the meaning of one persons

facial expression may or may not be the

same as the next person’s facial

expression, what was lost by allowing the

witness to testify while wearing a mask?

In pretrial hearings, or at bench

trials, judges are expected to make

detailed findings to support their legal

conclusions. In order to make the

necessary findings, most judges take

detfiled written notes while witnesses

are testifying. It is not possible for a

judge to study the facial expressions of

ancl

- 30 -

a witness while at the same time taking

detailed written notes. Furthermore, the

physical arrangement of the courtroom in

many instances precludes the judge from

studying the facial expressions of

witnesses while they testify. In many

courtrooms, as was the situation in the

instant case, the judge sits slightly

above and to the side of the witness.

While the judge would be able to see the

side of the witness’s face, depending on

which way the witness was looking, the

judge would by no means have a clear view

of the witness’s entire face.

Furthermore, the view of the Michigan

Court of Appeals can be read to preclude

blind people, from sitting as jurors or

from serving as fact-finders, since blind

people would have no way of observing any

of the facial features of a witness.

Should we tell all of the blind trial

court judges around the coufftry that they

are not qualified to be judges in a trial

court and send them off on full

- 31 -

disability retirement? Should we tell

blind lawyers to forget about seeking

judicial positions in the trial courts

because they are not qualified to judge

the credibility of a witness and

therefore cannot properly fulfill the

role of being a trial court judge?

Should we tell the blind citizens of our

nation that they are not qualified to

fulfill one of the most solemn roles a

citizen can be asked to perform, that of

a juror? Finally, should we tell the

blind criminal defendant that he or she

has a right to be tried by a jury of his

or her peers, so long as they are not

peers who are blind? A reading of the

decision of the Michigan Court of Appeals

would require an affirmative answer to

each of these questions!!

The reasons for seeking review of the

decision of the Michigan Court of Appeals

are’>perhaps best phrased by Michigan

Supreme Court Justice Patricia Boyle in

her dissent from the denial of leave to

appeal to the Michigan Supreme Court:

a

a"

- 32 -

"I dissent from the order

and would grant leave to

appeal to determine whether

the masking of a witness who

testified under oath, in

defendant’s presence and

subject to cross examination

violated defendant’s right to

confrontation where it is

clear that the identity of the

witness was known to the

defendant since defendant

claimed entrapment by the

witness. The Court of Appeals

concluded that the

Confrontation Clause applies

fully to an entrapment hearing

despite the irreducible

literal meaning of the clause:

"’a right to meet fact to face

all those who appear and give

evidence at trial, " Cov v

Iowa, 487 US 1012, 1016

(1988), quoting California v

- 33-

Green, 399 US 149, 175

(1970) (Harlan J., concurring).

Moreover, it is well

established that the

Confrontation Clause reflects

a preference for face-to-face

confrontation, and thus a

defendant’s right physically

to face those who testify

against him is not absolute,

even when it encompasses the

irreducible literal meaning of

the clause, Green, supra;

Dutton v Evans, 400 US 74

(1970); Bourjaily v United

States, 483 US 171 (1987). As

the Supreme Court observed in

Maryland v Craig, 497 US __;

110 S Ct 3157, 3165; 111 L Ed

2d 666 (1990):

‘Given our hearsay cases,

the word ’confront,’ as used

in the Confrontation Clause,

cannot simply mean

- 34 «

face-to-face confrontation,

for the Clause would then,

contrary to our cases,

prohibit the admission of any

accusatory hearsay statement

made by an absent declarant--a

declarant who is undoubtedly

as much a ’/witness against’ a

defendant as one who actually

testifies at trial.’

To be sure, the elements of

face-to-face confrontation

encompass oath, cross-

examination, and observation

of the witnesses’ demeanor.

The Court in Craig, however,

upheld a procedure which

preserved all of the other

elements of the right, but

prevented a child witness from

seeing the defendant as the

witness testified at trial.

The test is whether the

procedure employed ’adequately

- 35 <-

ensures that the testimony is

both reliable and subject to

rigorous adversarial testing

in amanner functionally

equivalent to that accorded

live, in-person testimony.’

Maryland v Craig, supra, 110 S

Ct 3166.

In the instant case,

assuming that the entrapment

hearing was atrial for

purposes of confrontation

analysis, see Kentucky v

Stincer, 482 US 730 (1987),

the only element of

Confrontation Clause analysis

that the procedure had an

effect on was the trial

court’s ability to see the

face of the witness.

Defendant was present, the

witness was subjected to

cross-examination under oath,

and there was confrontation in

- 36 -

the literal sense. The

opinion of the Court of

Appeals is published and may

have significant consequences

for the protection of

informant witnesses, as well

as for the development of

other innovative procedures

which the state is able to

demonstrate are necessary to

further an important state

interest." (emphasis added)

= 37 «

CONCLUSION

WHEREFORE, the Petitioner requests

that plenary review be granted.

Respectfully submitted,

GEORGE B. MULLISON

Prosecuting Attorney

County of Bay

MARTHA G. METTEE

Chief of Training and Appeals

2 dyOuue.

RICHARD I. DRESSER

Assistant Prosecuting Attorney

Director, Career Offender Unit

APPENDIX A

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE October 7, 1991

STATE OF MICHIGAN, 9:10 a.m.

Plaintiff-Appellee,

Vv No. 115051

MARTIN HOWARD SAMMONS,

Defendant-Appellant.

Sefore: Mackenzie, ».0., and Reilly and

Connor, JJ.

REILLY, J.

Defendant was convicted by a jury

of possession with intent to deliver 225

grams or more, but less than and (sic)

650 grams, ef cocaine, MCL

333.7401 (2) (a) (ii) MSA

14.15(7401) (2) (a) (ii), and conspiracy to

deliver 225 grams or more, but less than

650 grams, of cocaine, MCL 750.157a; MSA

28.354(1). On September 6, 1988,

defendant was sentenced to a term of

twenty to thirty years of imprisonment

for each offense, to be served

consecutively. On March 27, 1989, this

- 2a -

Court granted the defendant’s application

for a delayed appeal. We remand for

proceedings consistent with this opinion.

At trial, Officer Buczek of the Bay

City Police Department testified that on

December 4, 1987, he and a police

informant went to the Imperial Hotel in

Bay City, Michigan, for the purpose of

buying one pound of cocaine. Buczek and

the informant were admitted into a hotel

room by defendant, who was accompanied by

codefendants Alan Stone and James

Wallace. Defendant told the informant

that the “shit™ was in the bathroom.

While the defendant and the informant

went into the bathroom, Buczek remained

in the room with Stone and Wallace, who

discussed the problems associated with

obtaining such a large quantity of

cocaine. After defendant and the

informant came out of the bathroom,

defendant gave the informant a "sample"

from a small pile on a night stand. The

informant tasted the sample and indicated

that it was "good." Buczek then told

defendant the money was in the car.

Defendant pointed to Stone and said,

"(H}e’s the money man." Stone told

Buczek to get the money, which he did.

Defendant commented that he hoped the

bills were not little. After Stone

counted the money, Wallace went outside

to get “the product.” Defendant told

Buczek "{Wje don’t like to keep the coke

and the money in the room at the same

time."

After Wallace left the room, other

police officers arrived and the suspects

were arrested. Wallace was arrested

after entering a van parked outside the

hotel room. A warrant was secured to

search the van, and the police discovered

a sealed package under one of the seats.

This package, along with the material

from the night stand, and a packet that

was seized from Stone were turned over to

the Michigan State Police for testing.

Analysis of the materials indicated that

- 4a -

all three contained cocaine. Defendant,

Wallace, and Stone were all charged with

conspiracy to deliver 225 grams or more,

but less than 650 grams, of cocaine, and

possession with intent to deliver 225

grams or more, but less than 650 grams,

of cocaine.1l

Defendant, along with Wallace and

Stone, raised the issue of entrapment

before trial, and extensive hearings were

conducted from May 4, 1988, through June

7, 1988. Defendant testified and

identified the informant who accompanied

Officer Buczek during the drug sale as a

person he knew merely as "Rick."

Defendant claimed that Rick set up the

drug sale and pressured him into

participating. The prosecution called

Rick to rebut the defendant’s

allegations. Over defendant’s objection,

Rick was permitted to testify while

wearing a mask and without disclosing his

true identity. Rick denied either

pressuring or threatening defendant, and

the trial court found no entrapment.

ET

- 5a -

Codefendants Wallace and Stone

eventually pleaded guilty of possession

with intent to deliver 225 grams or more,

but less than 650 grams, of cocaine in

exchange for the dismissal of the

remaining charges against them. The

defendant, however, declined a similar

plea offer, electing instead to go to

Sraeai . At the subsequent trial, Rick

was not called as a witness. Following

trial, defendant was convicted by a jury

of both counts as charged. This appeal

followed.

Defendant on appeal has raised a

host of issues addressing pretrial

procedure, trial procedure, and

sentencing. We will review each of them.

I

The first issue we have been asked

to decide is whether the defendant’s

Sixth Amendment right of confrontation

was violated when the trial court

permitted Rick, the prosecution’s chief

witness, to testify at the entrapment

- 6a -

hearing while wearing a mask, and without

disclosing his true identity.

The Confrontation Clause of the

Sixth Amendment, made applicable to the

States through the Fourteenth Amendment,

Pointer v Texas, 380 US 400; 85 S Ct

1065; 13 L Ed 2d 923 (1965), guarantees

to a criminal defendant the right, "[iJn

all criminal prosecutions, . . . to be

confronted with the witnesses against ~

him." The central concern of the

Confrontation Clause is to ensure the

reliability of the evidence against a

Criminal defendant by subjecting it to

rigorous testing in the context of an

adversary proceeding before the trier of

fact. Maryland v Craig, 497 US _; 110 §

Ct 3157; 111 L Ed 2d 666 (1990).

A

At the entrapment hearing,

defendant testified that he first met

Rick at a “dope house" approximately

eight months before he was arrested.

Defendant claimed that until November 16,

Sapte

- Ja -

1987, he saw Rick about once a week at

various dope houses where they would "do"

cocaine together. Beginning on November

16, defendant said Rick began telephoning

him repeatedly, up to ten times a day,

trying to persuade him to sell cocaine.

At first Rick asked for two ounces, and

then a pound. Defendant said he kept

trying to put Rick off and told him that

he didn’t want to sell cocaine. Rick

kept calling though, telling defendant

that he had spent $1,500 “profit money,”

and that his people were “putting the

heat on him." Further, defendant was

told that if he did not help out, Rick

would have his people “put the heat” on

defendant. Defendant said he finally

agreed to help because Rick was desperate

and in trouble. Defendant said that

although he was a cocaine addict, and

knew people who “turn dope," he was not a

drug dealer.

Defendant’s sister corroborated

defendant’s testimony, claiming that Rick

.

- 8a -

called approximately seventy times during

the last two weeks in November 1987. She

Said Rick called one time "hollerin’"

that his people were upset because

defendant had not shown up with two

ounces of cocaine. He told her that

defendant "better come through or else."

In rebuttal, the prosecution called

Rick as a witness. At the prosecutor’s

request, and over defendant’s objection,

Rick was permitted to testify while

wearing a mask, and defense counsel was

instructed that he could not ask any

identifying questions of Rick. The

court, however, did allow admission of

Rick’s ecriminai recorded, BUt wita

identifying information struck therefrom.

The justification for these procedures

was that either defendant or one of his

codefendants had allegedly offered

someone a quarter pound of cocaine to

kilt Rick.2

According to Rick, beginning in

October 1987, he and a friend made

- 9a -

several trips from Bay City to Detroit

where they bought drugs from defendant’s

younger brother and then defendant. In

mid-November, after Rick’s fifth trip to

Detroit, the police searched Rick’s house

and discovered cocaine. Although Rick

was not arrested, he was given a card

with a phone number to call at the police

department if he wanted help with his

"situation. ”* Consequently, Rick

contacted the police and volunteered to

assist them in catching his suppliers.

Rick said he called both defendant and

another source, identified as "Jim,"

about arranging a delivery of two ounces

of cocaine to Bay City. Although Rick

thought defendant and Jim were working

together, Jim delivered the drugs in late

November without defendant. Rick then

called defendant to arrange for a sale of

one pound of cocaine. Rick said he made

numerous telephone calls tg arrange the

deal.

a a ene

- 10a -

According to Rick, there was never

any resistance by defendant to the sale,

and he never put any pressure on

defendant, whether by threats or appeals

for his own safety. Rick said he was in

constant contact with the police and

discussed each phone call with them.

Officer Buczek testified that Rick was

closely supervised through the use of

in-person meetings and phone

consultations. Although Rick testified

that he was not promised anything for his

cooperation, the prosecutor eventually

Stipulated that Rick was told that the

police would inform the prosecutor of his

cooperation, and that the more help he

provided, the more they "could talk."

At the conclusion of the entrapment

hearing, the trial court made extensive

findings, reflecting acceptance of the

testimony of Rick and the police. The

court found that defendant had sold drugs

to Rick before Rick’s involvement with

the police, that defendant had indicated

- lla -

a willingness to deliver drugs to Bay

City, that there was no improper

inducement of Rick’s cooperation and no

improper pressuring of defendant, and

that Rick had been adequately supervised.

Thus, the court concluded that there had

been no entrapment.

B

Defendant now argues, as he dia

below, that his Sixth Amendment right of

confrontation was violated through the

use of the mask because he was prevented

from confronting his accuser face-to-face

and because the trial judge, as the trier

of fact, was prevented from adequately

assessing the witness’ credibility, a

major issue in the entrapment hearing.

Defendant also argues that his right of

confrontation was violated when the trial

court precluded cross-examination

regarding identifying information.

The prosecution clatms that the

masking of its chief witness and the

withholding of identifying information

|

- 12a -

did not violate the Confrontation Clause

because an entrapment hearing is not a

trial involving the ultimate issue of

guilt or innocence.

In Michigan, the issue of

entrapment is decided by the trial court,

after a separate evidentiary hearing,

rather than by a jury.3 People v

Jamieson, 436 Mich 61, 80; 461 NW2d 884

(1990); People v D’Angelo, 401 Mich 167,

176-177; 257 NW2d 655 (1977).

In D’Angelo, at 176, our Supreme

Court explained that such a procedure :

does not violate a defendant’s Sixth _

Amendment right to a jury trial:

A court determination of

entrapment does not deprive the

defendant of the Sixth Amendment

right to trial by jury. The focus

of the entrapment inquiry under

the objective test is upon the

ature of the police conduct. The

guilt or innocence of the

defendant is irrelevant to that

- 13a -

determination. A decision whether

entrapment has occurred will

involve the court’s evaluation of

the government conduct which

resulted in the charges against

the defendant. Should the court

determine that the government did

not engage in impermissible

conduct, the guilt or innocence of

the defendant will be decided by

the jury. |

Moreover, because a defendant who asserts

an entrapment claim occupies an

accusatorial posture, the burden of

proving the charge properly may be placed

on the defendant. Jd. at 180.

However, in Kentucky v Stincer, 482

US 730; 107 S Ct 2658; 96 L Ed 2d 631

(1987), the United States Supreme Court

considered a prosecutor’s contention that

the protections afforded by the

Confrontation Clause could ,not extend to

a pretrial hearing. In that case, the

defendant argued that his exclusion from

- 14a -

the hearing to determine the competency

of child witnesses violated his Sixth

Amendment confrontation rights. Noting

that the defendant was permitted under

Kentucky law to move for reconsideration

of the competency determination after the

child witnesses testified at trial, the

Supreme Court found that the defendant’s

rights under the Confrontation Clause had

not been violated, given the opportunity

for full and effective cross-examination

during trial as a means of establishing

non-competency to testify, as well as

undermining credibility. Id. at 743-744.

We do not believe that the

irrelevance of a defendant’s guilt or

innocence in resolving an entrapment

claim renders the protections afforded by

the Confrontation Clause inapplicable to

an entrapment hearing. As we have

already noted, the central concern of the

Cormfrontation Clause is to ensure the

reliability of evidence by subjecting it

to rigorous testing in the context of an

- 15a -

adversary proceeding before the trier of

fact. Craig, supra. While an entrapment

hearing may not be a criminal prosecution

involving the assessment of guilt or

innocence, it remains, like a criminal

trial, adversarial in nature and requires

the resolution of factual issues by a

trier of fact. Like at a trial, evidence

is presented and testimony given.

We believe the interests involved

in ensuring the reliability of evidence

at a trial also apply to an entrapment

hearing. Indeed, a defendant who claims

entrapment, because he essentially

concedes commission of the offense

charged, is likely to view resolution of

the entrapment issue more critically than

he views atrial of his guilt or

innocence. Further, unlike the situation

in Stincer, a defendant in Michigan may

not renew the entrapment issue at trial.

Thus, to deny the protectioms afforded by

the Confrontation Clause to a defendant

at an entrapment hearing would be to deny

eT

- 16a -

him the opportunity to ensure that the

evidence presented against him, which may

defeat his claim of entrapment and remove

any impediment to a subsequent trial and

conviction, "is reliable and subject to

the rigorous adversarial testing that is

the norm of Anglo-American criminal

proceedings." Craig, i114. Ed 2d

678-679. Finally, we believe it would be

fundamentally unfair, and contrary to

principles of due process, to allow the

State to present evidence designed to

defeat a defendant’s claim of entrapment

and at the same time restrict the

defendant’s ability to effectively

examine the reliability of such evidence.

Accordingly, for the foregoing

reasons, we conclude that the protections

afforded by the Confrontation Clause were

available to defendant at the entrapment

hearing as a means of ensuring the

relfTability of evidence submitted against

him.

Cc

We must now decide whether

defendant’s confrontation rights were

violated by the procedures employed at

the entrapment hearing.

The United States Supreme Court has

emphasized a defendant’s right under the

Confrontation Clause to a face-to-face

meeting with witnesses appearing before

the trier of fact. Coy v Jowa, 487 US

1012, 1016; 108 S Ct 2798; 101 L Ed 2a

857 (1988). The symbolic Purposes served

by such an encounter are explained in

Coy, at 1017-1019:

(T]here is something deep in

human nature that regards

face-to-face confrontation between

accused and accuser as "essential

to a fair trial in a criminal

‘prosecution.* ...

- A witness "may feel quite

differently when he has-to repeat

his story looking at the man whom

he will harm greatly by distorting

- 18a -

or mistaking the facts." ... It

is always more difficult to tell a

lie about a person "to his face"

than “behind his back." In the

former context, even if the lie is

told, it will often be told less

convincingly. [Citations omitted.)

Thus, in Coy, the Supreme Court held that

a defendant’s right to a face-to-face

confrontation was violated where a large

screen was placed between the testifying

witness and the defendant.

In Craig, however, decided after

Coy, the Supreme Court reaffirmed the

importance of face-to-face confrontation,

but held that it was not an indispensable

element of the right to confront one’s

accusers. Craig, 1111L Ed 2d 681. The

Court held that the “preference” for

face-to-face confrontation must

occasionally give way to considerations

of public policy and the necessities of

the case. Id. Therefore, when necessary

to further an important state interest,

EDI SS Ln ecotaitenoeet me aalaled

SAD Pe tae ARO

St be ee ee

- 19a -

"the Confrontation Clause does not

prohibit use of a procedure that, despite

the absence of face-to-face

confrontation, ensures the reliability of

the evidence by subjecting it to rigorous

adversarial testing and thereby preserves

the essence of effective confrontation."

id. at 686.

Thus, in Craig, the Supreme Court

held that the defendant’s confrontation

rights were not violated in a child

sexual abuse case where the child victim

was permitted to testify outside the

defendant’s physical presence by one-way

closed circuit television. The Court

found that an important state interest

was involved (protection of a child

witness from trauma caused by testifying

in the physical presence of the

defendant), while also noting that the

procedure employed preserved other

important elements of the “confrontation

right, i.e., oath, cross-examination, and

observance of the witness’ demeanor. Id.

at 682.

aaa aaasamaaaaaiaaaraea cae

- 20a -

In the present case, the

prosecution’s chief witness was permitted

to testify while wearing a mask that

covered both his face and head.4 Like

the presence of a screen in Coy, a

full-face mask tends to diminish the

aspect of personalization associated with

testifying about a defendant "to his

face." Thus, it may very well make a

witness "feel quite differently” than

when he has to repeat his story while

looking at the defendant. Moreover, to

the extent that facts are distorted, they

may be discerned more easily in a

face-to-face confrontation.

It is suggested that the presence

of threats against the witness justified

the masking procedure in order to further

an important state interest in promoting

the safety of witnesses. We do not doubt

that a state has a valid interest in

promoting the safety of witnesses at

Criminal proceedings. Further, we agree

that a trial court generally would be

A. % e % 7

ehh cise RTA etal IS BSG LIE RGR EVEN ERIE RE ed a Ee

- 2la -

justified in taking certain protective

measures where evidence of threats or

other reasonable concerns for a witness’

safety are present. However, as Craig

instructs us, the Confrontation Clause

requires that any procedures devised to

protect a witness must be tailored to

preserve the essence of effective

confrontation by ensuring the reliability

of evidence in the face of rigorous

adversarial testing.

As noted above, the procedure used

in Craig (testimony by closed circuit

television) was found to be adequate even

though the witness did not have to

testify while facing the accused, because

it preserved other important elements of

confrontation, an Oata,

cross-examination, and observance of the

witness’ demeanor. In this case,

however, while the presence of the mask

appears to have allowed the witness to-

observe the defendant, it foreclosed the

opportunity for the trier of fact to

- 22a -

adequately asses the witness’ credibility

through observation of demeanor.

In one of its earliest cases

interpreting the Confrontation Clause,

the Supreme Court noted that a primary

object of the Confrontation Clause was to

compel the witness "to stand face to face

with the jury in order that they may look

at him, and judge by his demeanor upon

the stand and the manner in which he

gives his testimony whether he is worthy

of belief." Mattox v United States, 156

US 237, 242-243; 15 S Ct 337; 39 L Ed 409

(1895).

Indeed, our own Supreme Court also

has recognized the importance of demeanor

evidence:

Demeanor is of the utmost

importance in the determination of

the credibility of a witness. The

innumerable telltale indications

which fall from a witness during

the course of his examination are

often much more of an indication

——————<—_—_e

- 23a -

to judge or jury of his

credibility and the reliability of

his evidence than is the literal

meaning of his words. [People v

Dye, 431 Mich 58, 65; 427 NW2d 501

(1988) .]

Moreover, as observed in United States v

Walker, 772 F2d 1172, 1179 (CA 5, 1985),

"The facial expressions of a witness may

convey much more to the trier of facts

than do the spoken words."

Here, there is no doubt that

credibility was the major issue at the

entrapment hearing. The defendant’s

testimony tended to show that he agreed

to the drug sale oniy after being

repeatedly pressured with persistent

telephone calls, threats, and appeals to

his sympathy and friendship. Such

allegations, standing alone, were

sufficient to establish entrapment. See

Jamieson, supra at 89. Through its

masked witness, however, the prosecution

was able torfrefute each of the

~ 24a -

defendant’s allegations. Ultimately, the

trial judge accepted the testimony of the

masked witness over that of defendant in

concluding that there had been no

entrapment.

Because the masking of the

prosecution’s chief witness precluded the

trial judge from adequately observing the

witness’ demeanor when testifying, we are

constrained to find that the procedure of

masking denied defendant a critical

aspect of his confrontation rights.

D

We also find that it was a

violation of defendant’s confrontation

rights to completely preclude disclosure

of identifying information.

The ability to identify and "place"

one’s accusers has been recognized as an

important aspect of confrontation. In

Smith v Illinois, 390 US 129; 88 S Ct

748; 19 L Ed 2d 956 (1968), the United

States Supreme Court reversed the

|

conviction of a defendant accused of

illegally selling narcotics when he was

prevented from cross-examining the

principal prosecution witness regarding

his

- 25a -

name or where he lived. The Supreme

Court stated:

(W]hen the credibility of a

witness is in issue, the very

Starting point in "exposing

falsehood and bringing out the

truth” through cross-examination

must necessarily be to ask the

witness who he is and where he

lives. The witness’ name and

address open countless avenues of

in-court examination and

Out-of-court investigation. To

forbid this most rudimentary

inquiry at the threshold is

‘effectively to emasculate the

Also see Alford v United States,

687;

right of cross-examination itself.

fae. #6 131.3

91 S Ct 218; 75 L Ed 624 (1931).

282 US

- 26a -

Trial courts do, however, have

discretion to place limits on

cross-examination where questions are

intended merely to harass, annoy, or

humiliate the witness, or where inquiries

would tend to endanger the personal

safety of the witness. See People v

Paduchoski, 50 Mich App 434, 438; 213

NW2d 602 (1973).

In People v Pleasant, 69 Mich App

322; 244 NW2d 464 (1976), this Court

discussed the underlying concerns

relative to limiting cross-examination

regarding identifying information,

including the extent to which limitations

can be imposed. Adopting the reasoning

of the United States Court of Appeals for

the Fifth Circuit in United States v

Alston, 460 F2d 48 (CA 5, 1972), this

Court held that the prejudice to be

protected against is the prejudice

reSulting from adenial of the

opportunity for the defendant to "place

the witness in his proper setting."

= Sh, Bea

-2a-

Pleasant, supra at 327. Accordingly,

reversal for failure to disclose certain

identifying information will not be

required under Smith or Alford, supra,

where there is both sufficient reason for

nondisclosure and the defendant is

possessed of sufficient other information

with which to place the witness in his

Proper setting, thus testing his

credibility. Pleasant, supra at 327-328.

Here, while we agree that the trial

court would have been justified in

limiting cross-examination regarding

identifying information in light of the

alleged threats, it instead precluded all

such cross-examination altogether.

Moreover, while we note that defendant’s

testimony does suggest some familiarity

with the witness’ background, the trial

court failed to make any findings

regarding what information defendant

possessed or whether defendant possessed

Sufficient information with which to

"place the witness in his proper setting”

- 28a -

so as to enable further testing of

credibility. Pleasant, supra. Absent

such findings, the trial court’s total

foreclosure of identifying information

"effectively emasculated" defendant’s

right of cross-examination. Smith,

Supra.

We reject the prosecution’s claim

that it was entitled to withhold the

identity of its chief witness under the

so called "“informer’s privilege." As

explained in Roviaro v United States, 353

US 53, S593 77 S$ Ce G237 1 & BG 26 Gas

(1957), this privilege entitles the

Government to preserve the anonymity of

citizens who have furnished information

concerning violations of the law to law

enforcement officers, thus encouraging

them to communicate such knowledge to the

police. Even then, however, the

privilege is not absolute:

The scope of this privilege is

limited by its underlying purpose.

at A cel Mian. ° Steg at gins til ici

- 29a -

- + «+ Where the disclosure of

an informer’s identity, or of the

contents of his communication, is

relevant and helpful to the

defense of an accused, or is

essential to a fair determination

of a cause, the privilege must

give way. In these situations the

trial court may require disclosure

and, if the Government withholds

the information, dismiss the

action. [Id. at 60-61.]

In the present case, the

Prosecution’s witness was an actual

Participant inthe underlying

transaction, rather than a mere supplier

of information. Moreover, his testimony

was essential to a fair determination of

the issue of entrapment. Thus, the

informer’s privilege does not apply.

E

In sum, we conclude that the

masking of the prosecution’s chief

witness, as well as the complete

- 30a -

prohibition of disclosure of identifying

information, violated the defendant’s

rights of confrontation. Accordingly, we

hold that defendant is entitled to a new

entrapment hearing, consistent with this

opinion.

Despite our resolution of the

entrapment issue, we still find it

necessary to review the defendant’s

remaining issues on appeal.

il

Defendant argues that the trial

court abused its discretion when it

refused to accept his pretrial offer to

plead nolo contendere to the charge of

possession with intent to deliver 225

grams or more, but less than 650 grams,

of cocaine. We disagree.

On June 23, 1988, defendant

appeared before the trial court in

connection with the prosecutor’s offer to

dismiss the conspiracy charge in exchange

for a plea of guilty of the charge of

possession with intent to deliver 225

- 3la -

grams or more, but less than 650 grams,

of cocaine. Contrary to the prosecutor’s

offer, however, defendant insisted on

pleading nolo contendere rather than

guilty. When the prosecutor would not

agree to such a plea, defendant elected

to go to trial on both charges.5

Acceptance of a nolo contendere

plea is a matter of grace, not of right.

People v Lakin, 52 Mich App 437, 440; 217

NW2d 452 (1974). A defendant may enter a

plea of nolo contendere only with the

court’s consent. MCR 6.301(B), formerly

MCR 6.101(F). In this case, while the

trial court had the discretion to accept

a plea of nolo contendere to the charged

offense of possession with intent to

deliver 225 grams or more, but less than

650 grams of cocaine, Genesee Prosecutor

v Genesee Circuit Judge, 391 Mich 115;

215 NW2d 145 (1974), it did not have the

authority to accept such a plea, over the

prosecutor’s objection, in exchange for

the dismissal of the conspiracy charge.

- 32a -

People v Heiler, 79 Mich App 714, 718;

262 NW2d 890 (1977). Accordingly, we

find no error.

iil

We now turn to consideration of

defendant’s trial-related issues.

First, with regard to the charge of

possession with intent to deliver

cocaine, the jury was instructed that it

could find defendant guilty either as a

principal or as an aider and abettor.

Defendant contends that the evidence was

insufficient to support a finding of

guilt under one or both of these theories

and argues, therefore, that the jury’s

failure to specify on which of the two

theories its decision was based requires

reversal. See People v Acosta, 153 Mich

App 504, 510; 396 NW2d 463 (1986), citing

People v Gilbert, 55 Mich App 168, 174;

222 NW2d 305 (1974).

In reviewing a claim of

insufficient evidence, this Court views

the evidence in a light most favorable to

- 33a -

the prosecution and determines whether a

rational trier of fact could have found

that the essential elements of the crime

were proven beyond a reasonable doubt.

People v Petrella, 424 Mich 221, 268-270;

380 NW2d 11 (1985).

In this case, defendant arques that

the evidence was insufficient to prove

the element of possession, i.e., that he

either possessed the cocaine or aided and

abetted in its possession. We disagree.

Possession may be either actual or

constructive, and may be joint as well as

exclusive. People v Hill, 433 Mich 464,

470; 446 NW2d 140 (1989); People v

Richardson, 139 Mich App 622, 625; 362

NW2d 853 (1984). Constructive possession

may be found where a defendant knowingly

has the power and intention to exercise

dominion or control over a substance,

either directly or through another, or if

there is proximity to the substance

together with indicia of control. Hill,

Supra. Circumstantial evidence and

- 34a -

reasonable inferences arising from the

evidence are sufficient to establish

possession. Richardson, supra.

The -evidence presented at trial

showed that defendant provided Officer

Buczek with a sample of cocaine,

participated in discussions regarding

future sales, expressed interest in the

denomination of the bills used to

purchase the drugs, and told Officer

Buczek that “we"™ do not like to keep the

drugs and money in the room at the same

time. When viewed in a light most

favorable to the prosecution, there was

sufficient evidence of both knowledge and

indicia of control to enable the jury to

find that defendant directly committed

the crime of possession with intent to

deliver 225 grams or more, but less than

650 grams, of cocaine.

We also find that the evidence was

sufficient to convict defendant under an

aiding and abetting theory. To aid and

abet possession, there must be criminal

- 35a -

intent and direct or indirect acts or

encouragement which aid that perpetration

of the crime. People v Doemer, 35 Mich

App 149, 152; 192 NW2d 330 (1971). The

act or encouragement must be done

knowingly with the intent to aid the

possessor in obtaining or retaining

possession. Id. In this case, although

Stone was described as the "money man"

and Wallace the person who left to get

the drugs, defendant was the one who met

Officer Buczek at the door, told the

informant that the drugs were in the

bathroom when they were not, and told

Officer Buczek that they did not like to

have the drugs and money in the room-at

the same time. A jury properly could

infer from this evidence that defendant

was acting to protect the possession of

the drugs by his confederates and that

his actions aided and assisted in the

commission of the crime.

Accordingly, because the evidence

was sufficient to support a finding of

- 36a -

guilt under each of the alternative

theories, reversal is not required.

Acosta, supra at 513.

Next, defendant argues that he was

denied a fair trial because of

instructional error. We disagree.

Aitnhough the triai COusSt’ s

instruction regarding reasonable doubt

omitted the "moral certainty" language

contained in former CJI 3:1:04 and CJI

3:1:05, the instruction was virtually

identical to CJI2d 3.2(3), which no

longer requires the “moral certainty”

language. Read in its entirety, the

instruction adequately presented the

concept of reasonable doubt to the jury.

See People v Jackson, 167 Mich App 388,

390-391; 421 NW2d 697 (1988).

Defendant also contends that

instructional error occurred because the

trial court failed to define the term

"pdéssession" for the jury. However,

defendant did not request such an

instruction at trial, and the absence of

Sie aT dare

—

- 37a -

such an instruction did not result in

manifest injustice. Therefore, this

issue has not been preserved for appeal.

People v Kelly, 423 Mich 261, 272; 378

NW2d 365 (1985). Further, we find that

the failure to request an instruction

defining possession did not constitute

ineffective assistance of counsel.

People v Tommolino, 187 Mich App 14, 17;

466 NW2d 315 (1991).

Finally, the fact that defendant

was not permitted to present his

entrapment defense to the jury does not

entitle him to reversal] of his

convictions. As noted previously, the

issue of entrapment is decided in

Michigan by the trial court in the jury’s

absence; a defendant is not then entitled

to a “second bite at the apple" enabling

the jury to second-guess the trial

court’s determination. D’Angelo, Supra

at 178.

- 38a -

iv

Next, defendant contends that the

imposition of consecutive sentences for

convictions of possession with intent to

deliver cocaine and conspiracy to deliver

the same cocaine violates the

constitutional prohibitions against

double jeopardy® and is contrary to the

intent of the Legislature. Defendant

further argues that his statutorily

mandated twenty- to thirty-year prison

terms constitute cruel and unusual

punishment.

Among the protections afforded by

the Fifth Amendment guarantee against

double jeopardy is the protection against

multiple punishment for the “same

offense." People v Sturgis, 427 Mich

392, 398; 397 NW2d 783 (1986). This

protection is designed to ensure that

courts confine their sentences within the

limsts established by the Legislature.

Id. at 399. While the term "same

offense" applies to overlapping conduct

- 39a -

that violates more than one statute, the

scope of double jeopardy protection

against imposed multiple punishment for

the same offense is confined to a

determination of legislative intent. Id.

at 399-400.

In People v Robideau, 419 Mich 458,

487; 355 NW2d 592 (1984), our Supreme

Court identified some of the

considerations relevant to a

determination of legislative intent:

Statutes prohibiting conduct

that is violative of distinct

social norms can generally be

viewed as separate and amenable to

permitting multiple punishments.

A court must identify the type of

harm the Legislature intended to

prevent

A further source of legislative

intent can be found in the amount

of punishment expressly authorized

by the Legislature. Our criminal

Statutes often build upon one

- 40a -

another. Where one statute

incorporates most of the elements

of a base statute and then

increases the penalty as compared

to the base statute, it is

evidence that the Legislature did

not intend punishment under both

statutes.

While the controlled substance

provisions of the Public Health Code are

designed to protect society from the

"patently harmful" effects of drug

trafficking, see People v Gorgon, 121

Mich App 203, 206-207; 328 NW2d 619

(1982), the purpose of the conspiracy

statute is to protect society from the

"increased and special danger to society

presented by group as opposed to

individual activity." Peovle v Carter,

415 Mich 558, 569-570; 330 NW2d 314

(1982). Thus, distinct social norms are

invdlved. Further, the conspiracy

Statute, MCL 750.157a; MSA 28.354(1),

provides for punishment equal to the

substantive crime;

Additionally,

- 4la -

hierarchical, harsher penalty based upon

the presence of aggravating factors.

in Carter, supra at 569,

Our Supreme Court stated:

It is a settled Principle of

black-letter law that conspiracy

is a crime that is separate and

distinct from the substantive

crime that is its object. LaFave

& Scott, Criminal Law, Section 62,

P 494; People v Tinskey, 394 Mich

108; 228 NW2d 782 (1975); People v

Chambers, 279 Mich 73; 271 NW 556

(1937). The guilt or innocence of

a conspirator does not depend upon

the accomplishment of the goals of

the conspiracy ...., Thus, a

defendant may be convicted and

‘punished for both the conspiracy

and the substantive crime.

Pinkerton v United States, 328 US

640; 66 S Ct 1180; 90 L Ed 1489

(1946).

it does not impose a

- 42a -

In light of the foregoing, we

conclude that separate convictions and

punishment for possession with intent to

deliver cocaine and conspiracy to deliver

cocaine do not violate double jeopardy

protections. See also People v

Velasquez, 125 Mich App 1, 3-4; 335 NW2d

705 (1983).

We also disagree with defendant’s

claim that the Legislature did not intend

for separate punishments to be imposed

consecutively. The express language of

MCL 333.7401(3); MSA 14.15(7401) (3),

pursuant to which consecutive sentencing

was ordered, provides that "[a] term of

imprisonment imposed pursuant to

subsection (2) (a) . . . shall be imposed

,toO run consecutively with any term of

imprisonment imposed for the commission

of another felony." We reject

defendant’s contention that this statute

is ambiguous. See People v Mamon, 190

Mich App 124; _ NW2d _ (1991). Rather,

pursuant to the plain language of the

a =

Statute, defendant’s sentence for the

separate and distinct felony offense of

conspiracy was required to be

consecutive.

Finally, defendant argues that the

mandatory twenty- to thirty-year

sentences required by MCL

333.7401(2) (a) (ii); MSA

14.15(7401) (2) (a) (ii), in effect at the

time defendant committed the instant

offenses, constitute cruel and unusual

punishment. While we reject defendant’s

cruel and unusual punishment argument,

People v Marji, 180 Mich App 525,

942-543; 447 NW2d 835 (1989), we

nevertheless vacate defendant’s

sentences, and in the event his

convictions are affirmed on remand, we

direct that he be resentenced under the

amended sentencing provisions of the

Public Health Code pursuant to People v

Schultz, 435 Mich 517; 60 NW2d 505

(1990) .?

- 44a -

Vv

In conclusion, we hold that

defendant is entitled to a new entrapment

hearing consistent with this opinion. We

remand for this purpose. However,

because defendant’s jury convictions were

properly obtained, these convictions

shall be affirmed on remand if, after a

new entrapment hearing, the trial court

determines that defendant was not

entrapped. In this event, defendant

shall be resentenced in accordance with

Schultz, supra. If, however, a new

entrapment hearing is not held, or if the

trial court determines after a hearing

that defendant was entrapped, his

convictions shall be reversed and the

charges dismissed.

Remanded for proceedings consistent

with this opinion. We do not retain

jurisdiction.

/s/ Maureen Pulte Reilly

/s/ Barbara B. MacKenzie

/s/ Michael J. Connor

ee

- 45a -

lcodefendant Stone also was charged with

possession of less than fifty grams of

cocaine. Additional charges of

possession of less than fifty grams of

cocaine, Carrying a concealed weapon, and

possession of a firearm during the

commission of a felony also were filed

against codefendant Wallace.

2A second confidential informant, who

also was permitted to testify while

wearing a mask, testified regarding the

alleged threat. The witness claimed that

while he was in jail with codefendant

Wallace, he -told Wallace that he knew

Rick. After Wallace contacted

codefendant Stone with this information,

Wallace told the witness he would give

him a quarter pound of cocaine if he had

Rick “taken care of" and brought him a

body part. The witness then contacted

Stone to verify this information, and

Stone told him, "You bring me his dick,

you got a QP. I got it right here."

- 46a -

3This is contrary to the p:rocedure of the

federal system which, unlike Michigan,

adheres to the subjective theory of

entrapment, and allows the issue to be

raised at trial and presented to the

jury.

4 Defense Counsel: I ask the record to

reflect also that the witness is wearing

a ski mask or some type of mask where his

face and head are not visible.

The Prosecutor: That’s correct.

The Court: It may so show.

5° Defendant: Yes, I wanta plea [sic]

nolo contendere.

The Court: Or else you’d rather go to

trial.

Defendant: Trial, yes.

The Court: All right, then the

prosecution doesn’t wish to make that

offer, so then we’re left with no other

choice than but to go to trial. Is that

your desire.

- 478 -

Defendant: Yes. Yes.

6uS Const Ams V, XIV; Const 1963, art l,

Section 15.

7Judges REILLY and MACKENZIE do not

believe that Schultz constitutes binding

precedent, inasmuch as only three members

of the Supreme Court agreed on the basis

for decision. People v Anderson, | 389

Mich 155, 170; 205 NW2d 461 (1973).

Further, they agree with the reasoning of

the dissenters in Schultz, and thus, they

do not believe that defendant is entitled

to be resentenced pursuant to the amended

version of Section 7401. Nevertheless,

Judges REILLY and MACKENZIE acknowledge

that, since Schultz was decided, the

Supreme Court, in lieu of granting leave

to appeal, has repeatedly vacated rulings

of this Court and remanded for

resentencing in accordance with Schultz.

See People v Hamp, 437 Mich 865; 462 NW2d

- 48a -

589 (1990), and other cases reported at

437 Mich 865-867. Accordingly, in the

interests of fairness and judicial

economy, Judges REILLY and MACKENZIE

reluctantly concur in the decision to

grant resentencing in accordance with

Schultz.

- 49a -

APPENDIX B

MICHIGAN SUPREME COURT

ORDER

Entered: February 7, 1992

92641 & (63)

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

Cross~-Appellee,

Vv

SC: 92641

MARTIN SAMMONS, COA: 115051

LC: 87-1554

Defendant-Appellee,

Cross~-Appellant.

On order of the Court, the

application for leave to appeal and the

application for leave to appeal as

cross~appellant are considered, and they

are DENIED, because we are not persuaded

that the questions presented should be

reviewed by this Court.

Boyle, J., states as follows:

I dissent from the order and would

grant leave to appeal to determine

whether the masking of a witness who

testified under oath, in*defendant’s

presence and subject to cross-examination

violated defendant’s right to

confrontation where it is clear that the

TTT Me wrt

- 50a -

identity of the witness was known to the

defendant since defendant claimed

entrapment by the witness. The Court of

Appeals concluded that the Confrontation

Clause applies fully to an entrapment

hearing despite the irreducible literal

meaning of the clause: "’a right to meet

face to face all those who appear and

give evidence at trial,’" Coy v Jowa, 487

US 1012, 1016 (1988), quoting California

v Green, 399 US 149, 175 (1970) (Harlan

J., concurring).

Moreover, it is well established

that the Confrontation Clause reflects a

preference for face-to-face

confrontation, and thus a defendant’s

right physically to face those who

testify against him is not absolute, even

when it encompasses the irreducible

literal meaning of the clause, Green,

Supra; Dutton v Evans, 400 US 74 (1970);

Bourjaily v United States, 483 US 171

(1987). As the Supreme Court observed in

Marvland v Craig, 497 US s- 340° 8 Ce

3157, 3165; 111 L Ed 2d 666 (1990):

- 5la -

"Given our hearsay cases, the word

‘confront,’ as used in the Confrontation

Clause, cannot Simply mean face-to-face

confrontation, for the Clause would then,

contrary to our cases, Prohibit the

admission of any accusatory hearsay

Statement made by an absent declarant--a

declarant who is undoubtedly as much a

‘witness against’ a defendant as one who

actually testifies at trial."

To be sure, the elements of

face-to-face confrontation encompass

oath, cross-examination, and observation

of the witnesses’ demeanor. The Court in

Craig, however, upheld a procedure which

preserved all of the other elements of

the right, but prevented a child witness

from seeing the defendant as the witness

testified at trial. The test is whether

the’ procedure employed "adequately

ensures that the testimony is both

reliable and subject to rigorous

adversarial testing in amanner

functionally equivalent to that accorded

yy

- 52a -

live, in-person testimony." Marvland v

Craig, supra, 110 S Ct 3166.

In the instant case, assuming that

the entrapment hearing was a trial for

purposes of confrontation analysis, see

Kentucky v Stincer, 482 US 730 (1987),

the only element of Confrontation Clause

analysis that the procedure had an effect

on was the trial court’s ability to see

the face of the witness. Defendant was

present, the witness was subjected to

cross-examination under oath, and there

was confrontation in the literal sense.

The opinion of the Court of Appeals is

published and may have significant

consequences for the protection of

informant witnesses, as well as for the

development of other innovative

procedures which the state is able to

demonstrate are necessary to further an

important state interest.

Brickley and Riley, JJ., would

Grant leave to appeal.

a

- $3a -

I, CORBIN R, DAVIS, Clerk of the

Michigan Supreme Court, certify that the

foregoing is a true and complete copy of

the order entered at the direction of

Court.

February 7, 1992 /s/ Corbin R. Davis

Clerk

- 54a -

APPENDIX C

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF

MICHIGAN,

October 3, 1991

Plaintiff-Appellee,

Vv No. 111978

ALAN MICHAEL STONE,

Defendant-Appellant.

Before: MacKenzie, P.J., and Reilly and

Connor, JJ.

PER CURIAM.

Defendant pled guilty to possession

with intent to deliver between 225 and

650 grams of cocaine.

MCL 333.7401 (2) (a) (ii);

MSA 14.15(7401) (2) (a) (ii). Defendant

tendered his plea pursuant to a plea

bargain arrangement wherein additional

counts of conspiracy to deliver cocaine,

and possession of less than fifty grams

of cocaine were dismissed. In addition,

defendant preserved his right to appeal

an adverse trial court ruling on his

claim of entrapment. Defendant was

- 55a -

sentenced to a mandatory term of twenty

to thirty years of imprisonment.

Defendant appeals as of right. We remand

for proceedings consistent with this

opinion.

Defendant’s conviction resulted

from his Participation, along with

codefendants Martin Sammons and James

Wallace, in the same December 4, 1987,

drug transaction reported in People v

Sammons, __ Mich App ___; _.. NW2d_ (Docket

No. 115051, rel’d _/__/91).

Defendant, Sammons, and Wallace all

Participated in a joint entrapment

hearing in connection with their

individual claims of entrapment. Like

the defendant in sammons, defendant Stone

testified that a police agent informant,

identified merely as "Rick," repeatedly

contacted him, trying to persuade him to

sell cocaine. Defendant said he declined

several times, but that Rick kept calling

both him and Sammons anyway. According

to defendant, he finally agreed to help

- 56a -

Rick because of the persistent pressure

from Rick and Sammons, and because of

Rick’s threat to "come down on all of us"

if he did not cooperate. Rick was called

as a witness by the prosecution. He

denied pressuring or threatening either

defendant or Sammons.

Consistent with our holding in

Sammons, supra, we find that defendant’s

constitutional rights to confrontation

were violated when “Rick," the

prosecution’s chief witness, was

permitted to testify while wearing a

mask, and without having to disclose his

true identity. Moreover, because we find

that defendant’s allegations, in the

absence of competent testimony to the

contrary, were sufficient to establish

entrapment, we conclude that defendant is

entitled to a new entrarment hearing.

Sammons, supra. Accordingly, we remand

for’this purpose.

If, following a new entrapment

hearing, the trial court determines the

- 378 >

defendant was not entrapped, defendant’s

plea-based conviction shall be affirmed.

If, however, a new entrapment hearing is

not held, or if the trial court

determines after a hearing that defendant

was entrapped, his conviction shall be

reversed and all charges dismissed.

We also vacate defendant’s

sentence, and, in the event defendant’s

conviction is affirmed on remand, he

shall be resentenced pursuant to People v

schultz, 435 Mich 517; 460 NW2d 505

(1990).1 We reject, however,

defendant’s claim that a mandatory term

of twenty to thirty years of imprisonment

for possession with intent to deliver

between 225 and 650 grams of cocaine

constitutes cruel and unusual punishment.

Peopnple v Mariji, 180 Mich App 525,

942-543; 447 NW2d 835 (1989). See also

Harmelin v Michigan, 501 US _; 111 § ct

2680; 115 L Ed 2d 836 (1991)-.

Remanded for proceedings consistent

- 58a -

with this opinion. We do not retain

jurisdiction.

/s/ Barabara B. MacKenzie

/s/ Maureen Pulte Reilly

/s/ Michael J. Connor

1 Judges Reilly and MacKenzie do not

believe that Schultz constitutes binding

precedent, inasmuch as only three members

of the Supreme Court agreed on the basis

for decision. People v Anderson, 389

Mich 155, 170; 205 NW2d 461 (1973).

Further, they agree with the reasoning of

the dissenters in Schultz, and thus, do

not believe that defendant is entitled to

be resentenced pursuant to the amended

version of Section 7401. Nevertheless,

Judges Reilly and MacKenzie acknowledge

that, since Schultz was decided, the

Supreme Court, in lieu of granting leave

to appeal, has repeatedly vacated rulings

of this Court and remanded for

resentencing in accordance with Schultz.

See People v Hamp, 437 Mich 865 (1990),

and other cases reported at 437 Mich

865-867 (1990). Accordingly, in the

- 59a -

interests of fairness and judicial

economy, Judges Reilly and MacKenzie

reluctantly concur in the decision to

grant resentencing in accordance with

Schultz.

- 60a -

APPENDIX D

MICHIGAN SUPREME COURT

ORDER

Entered: January 29, 1992

92636 & (77)

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

SC: 92636

Vv COA: 111978

LC: 87-001555-FH

ALAN MICHAEL STONE,

Defendant-Appellee.

On order of the Court, the delayed

application for leave to appeal is

considered, and it is DENIED, because we

are not persuaded that the questions

presented should be reviewed by this

Court. The motion for bond also is

considered, and it is DENIED.

Brickley, Boyle and Riley, JJ.,

would grant leave to appeal.

I, CORBIN R. DAVIS, Clerk of the

Michigan Supreme Court, certify that the

foregoing is a true and complete copy of

the order entered at the direction of

Court.

January 29, 1992 /s/ Corbin R. Davis

Clerk