# Petition for Writ of Certiorari — Michigan v. Sammons

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1992
- **Citation:** 505 U.S. 1213

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0566%3A1. Public record. Not legal advice.