People v. McCarver , 403 Mich. 376 ( 1978 )

Per Curiam.

The defendant was convicted by a jury of the charge of possession of a controlled substance, namely amphetamines, contrary to MCLA 335.341(4)(b); MSA 18.1070(41)(4)(b). He was sentenced to a term of 16 to 24 months in prison. The Court of Appeals reversed the defendant’s conviction and remanded for a new trial because the majority of that Court was convinced that evidence of other criminal activity which had been admitted at defendant’s trial deprived him of a fair trial. 72 Mich App 311; 249 NW2d 403 (1976).

On November 26, 1974, Federal and Berrien County authorities, acting pursuant to a search warrant, seized, inter alia, a quantity of pills and some marijuana from the defendant’s residence. The instant prosecution for possession of amphetamines resulted. At trial defendant admitted possessing the pills in question, but he maintained that at the time he possessed them he believed they were diet pills. Guilty knowledge is unquestionably an element of the offense charged.¹

In an attempt to prove that the defendant was not mistaken as to the nature of these pills, the prosecutor offered evidence at trial that marijuana, another controlled substance, was also seized during the search of defendant’s residence. The evidence was offered pursuant to MCLA 768.27; MSA 28.1050,² based upon the prosecutor’s contention that defendant’s contemporaneous possession of marijuana was a "like act”. Defense counsel initially objected to the introduction of this evidence, then withdrew the objection after the trial court gave the jury an instruction on the limited purpose for which the evidence was introduced.

The majority of the Court of Appeals, while acknowledging that scienter is an element of the crime, was unconvinced that proof of contemporaneous possession of marijuana was a "like act” so as to justify demonstration at trial. The majority reasoned:

"Defendant was charged with the felony of possession of amphetamines. The proffered evidence indicated that defendant may have been guilty of the misdemeanor of possession of marijuana. A long discourse at this point on the difference in the degree of evil society associates with the possession of marijuana as opposed to the possession of amphetamines is not necessary. The law treats the two crimes in significantly different ways. MCLA 335.341(4)(b); MSA 18.1070(41)(4)(b), MCLA 335.341(4)(d); MSA 18.1070(41)(4)(d). Obviously, both offenses consist of possession of a controlled substance, but they are not sufficiently alike to permit evidence of one to be admissible under the statute in a prosecution for the other. Significantly accentuating the error in this case is the fact that the trial judge twice erroneously instructed the jury that possession of marijuana was an offense punishable to the same extent as possession of amphetamines.” 72 Mich App 318-319.

In dissent, Judge Holbrook observed:

"Defendant was in possession of two illegal drugs at the same time and place. Defendant denied knowledge of the illegal nature of the amphetamines, possession of which is a felony. Defendant was not charged with the misdemeanor offense, possession of marijuana. Nevertheless, where defendant possessed both drugs at the same time and denies knowledge of the illegal character of the drugs, possession of the marijuana is highly relevant to prove defendant’s knowledge of the amphetamines’ illegality.” 72 Mich App 324.

In People v Duncan, 402 Mich 1; 260 NW2d 58 (1977), in construing MCLA 768.27; MSA 28.1050, we noted:

"The statute requires 'like acts’, not identical acts.” 402 Mich 12.

We believe that evidence concerning the simultaneous possession of marijuana by the defendant was admissible pursuant to this statute. That evidence tends to show the absence of mistake on the part of defendant with regard to his possession of amphetamines. Both marijuana and amphetamines are presently controlled substances, possession of which is illegal. Proof that the defendant possessed, at the same time, a controlled substance other than the one for possession of which he is being prosecuted is a sufficiently similar act to warrant admission pursuant to the statute to show absence of mistake.

Furthermore, we note that the trial court gave a cautionary instruction to the jury in this case which informed them of the limited purpose for which evidence concerning the defendant’s contemporaneous possession of marijuana was introduced. The jury was thus adequately advised in this regard and indeed, defense counsel, who had initially objected to such evidence, was so satisfied by the limiting instruction that he indicated on the record that he was withdrawing his objection to this evidence.

In People v Duncan, supra, we said:

"It is well settled that the determination of whether the probative value of similar acts testimony is substantially outweighed by its unfairly prejudicial effect is within the sound discretion of the trial judge. See People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973), and authority cited therein.” 402 Mich 14.

The Court of Appeals majority felt that even if the evidence concerning possession of marijuana was considered to be a "like act” its probative value was clearly outweighed by the prejudice to the defendant. We disagree. To the extent that the introduction of evidence of this type tends to further prove the prosecutor’s case, it will always be of some prejudice to the defendant. However, we are unconvinced that in this particular case the introduction of the "like act” evidence was of such an inflammatory nature as to cause the members of the jury to render a finding of guilt which they might otherwise not have been disposed to do. Whatever "prejudice” might have emanated from the introduction of this evidence was certainly tempered by the cautionary instruction given by the trial court to the jury. Indeed, as noted supra, this cautionary instruction prompted defense counsel to withdraw his previously proffered objection to this evidence. Accordingly, we believe that the Court of Appeals conclusion that this evidence should have been excluded to be error.

In reversing, the Court of Appeals also concluded that the defendant had been prejudiced at trial because a Federal agent who was testifying for the prosecution indicated that the defendant was a convicted felon. The majority was also troubled by an answer given on cross-examination by a state police detective as to whether he had tried to get someone to entrap the defendant. The witness answered:

"I recall talking to several different persons, and they advised me that, yes, they were aware of people who were in criminal activities; they were interested in assisting me and the name A1 McCarver was brought into the picture.”

The prosecutor pursued this point during redirect examination of this witness:

”Q. You said the name A1 McCarver came up in various conversations that you had with various people in the year you have been here; is that correct?

"A That’s correct.

”Q. Did you bring up his name?

"A No, ma’am.

”Q. Was his name brought up to you?

"A Yes it was.

"Q. Was it brought up in connection with alleged criminal activity?”

Finally, at this point defense counsel interposed an objection claiming that this line of inquiry was irrelevant and that it involved hearsay. The trial judge indicated that in his opinion these matters were irrelevant to the case at bar and sustained the objection.

The Court of Appeals concluded that the testimony of the Federal agent and the testimony of the state police detective when combined with the evidence concerning defendant’s simultaneous possession of marijuana united to deprive the defendant of a fair trial. Since we have concluded that the evidence concerning defendant’s possession of marijuana was properly admitted by the trial judge, we remand the case to the Court of Appeals for consideration of the question of whether the testimony of the Federal agent and the state police detective, standing alone, or when combined with other issues raised by the defendant in the Court of Appeals but not discussed by that Court, served to deny the defendant a fair trial.

Accordingly, pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we reverse the judgment of the Court of Appeals and remand the case to that Court for further proceedings consistent with this opinion.

Williams, Coleman, Fitzgerald, Ryan, and Blair Moody, Jr., JJ., concurred.

1 MCLA 335.341(4)(b); MSA 18.1070(41)(4)(b):

"(4) It is unlawful for any person knowingly or intentionally to possess a controlled substance unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of his professional practice, or except as otherwise authorized by this act. Any person who violates this subsection with respect to:

"(b) A controlled substance classified in schedules 1, 2, 3 or 4 except a controlled substance classified in schedule 1 for which a penalty is prescribed in subdivisions (a), (c) or (d), is guilty of a felony punishable by imprisonment for not more than 2 years or by a fine of not more than $2,000.00, or both.”

2 MCLA 768.27; MSA 28.1050:

“In any criminal case where the defendant’s motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing an act, is material, any like acts or other acts of the defendant which may tend to show his motive, intent, the absence of, mistake or accident on his part, or the defendant’s scheme, plan or system in doing the act, in question, may be proved, whether they are contemporaneous with or prior or subsequent thereto; notwithstanding that such proof may show or tend to show the commission of another or prior or subsequent crime by the defendant.”