Opinion
Docket No. 78-833.
Decided February 21, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for the people.
Domnick J. Sorise, Assistant State Appellate Defender, for defendant on appeal.
Before: T.M. BURNS, P.J., and BASHARA and N.J. KAUFMAN, JJ.
Defendant was jury convicted of the delivery of a controlled substance, to-wit: phencyclidine, MCL 335.341(1)(b); MSA 18.1070(41)(1)(b), in a joint trial held before the Wayne County Circuit Court. Defendant Frazier was sentenced to one year and three months to seven years in prison. His codefendant, Larry Thomason, was also convicted and given the same sentence. Defendant Frazier appeals as of right under GCR 1963, 806.1. Codefendant Thomason does not join in this appeal.
On April 20, 1977, two undercover Wayne County deputies bought a large quantity of phencyclidine from the defendant. The prosecutor's case in chief consisted mainly of the testimony of these and other officers who observed defendant's activities on the night in question. Defendant raises three challenges to his conviction, which we shall address seriatim.
Defendant contends that he was denied a fair trial since, on three separate occasions, highly prejudicial evidentiary matters were heard by the jury. The first such incident occurred when several prosecution witnesses repeatedly referred to phencyclidine as a "narcotic" despite numerous objections by defense counsel and continuing instructions by the trial court to avoid the word "narcotic" when referring to phencyclidine. This Court has independently reviewed the lower court transcript and does not believe that the defendant's right to a fair trial was prejudiced. We do not believe that the use of the word "narcotic" during the course of a controlled substance trial is overly prejudicial, even if not perfectly accurate. Any error arising therefrom would be harmless at best. People v Swan, 56 Mich. App. 22; 223 N.W.2d 346 (1974).
The second instance occurred when two prosecution witnesses discussed the physical characteristics of phencyclidine before the jury thereby allegedly prejudicing defendant's right to a fair trial. This Court finds that there existed sufficient reason to admit this type of testimony. As the previous discussion makes clear, a controversial issue in defendant's trial was whether phencyclidine was a narcotic. The jury may well have been confused. The testimony that defendant complains of served to clarify this point by explaining that phencyclidine was an animal tranquilizer which produces hallucinations in humans, that the drug was not approved for human use by the FDA, and that physical contact with the drug may produce a "contact high".
The last instance occurred with the testimony of one of the undercover deputies who purchased the phencyclidine from the defendant. When asked upon direct examination what the defendant was doing while the deputy was weighing the phencyclidine, the deputy responded, "He was sitting at the kitchen table explaining that this was the same stuff that I had purchased before, just telling me that the weights were good and it would be thirty-seven hundred dollars". The defendant contends that this testimony wrongfully placed before the court a prior sale by the defendant of phencyclidine to this deputy. We disagree. The testimony elicited from the deputy is quite ambiguous. Moreover, this Court notes that the defense counsel failed to make an objection when the testimony was given and it is likely that a cautionary instruction could have cured any error.
Defendant's second principal challenge concerns the impeachment of a defense witness through extrinsic testimony. Tonnie Chavis was called as a defense witness. His direct testimony was that codefendant Thomason did not leave the Chavis residence with a quantity of phencyclidine on the date in question. During cross-examination, the prosecuting attorney asked witness Chavis if he was a seller of phencyclidine. Defense counsel objected, the witness volunteered to answer, and the trial court decided to take the answer. Witness Chavis did not directly respond to the question but stated that, in the search of his home made shortly after the arrest of both defendants on the day of the purchase, no phencyclidine was found. The trial court then allowed the prosecution, over defense counsel's objections, to call several rebuttal witnesses who testified that phencyclidine was indeed found in the subsequent search of the Chavis residence.
Defendant contends that this was impeachment on a collateral matter with extrinsic evidence and/or improper rebuttal. We disagree.
It bears note that the prosecutor did not first elicit a response to a question, then seek to rebut it by the use of extrinsic evidence. Contrast, People v Bennett, 393 Mich. 445; 224 N.W.2d 840 (1975), People v Roeder, 79 Mich. App. 595; 262 N.W.2d 872 (1977). Rather, the witness volunteered the assertion that no phencyclidine was found in the subsequent search.
Moreover, this impeachment was on a material matter. The existence of phencyclidine in the Chavis residence shortly after defendant's arrest was probative of the issue of defendant's guilt of delivery of phencyclidine. Thus, the trial court did not violate the rule that a witness cannot be impeached on a collateral matter with extrinsic evidence. See People v McGillen #1, 392 Mich. 251; 220 N.W.2d 677 (1974).
Defendant's last challenge concerns the prosecutor's failure to produce an endorsed witness, one Patricia Cowie. Ms. Cowie admitted the undercover deputies into defendant's residence on the date of the phencyclidine purchase. When Patricia Cowie could not be produced for trial, the trial court heard testimony of several witnesses as to the efforts that had been made to locate her, then excused her absence by finding due diligence had been exercised thereby.
This Court reverses a trial court's finding of due diligence only when a clear abuse of discretion is found. People v Castaneda, 81 Mich. App. 453; 265 N.W.2d 367 (1978), People v Fournier, 86 Mich. App. 768; 273 N.W.2d 555 (1978), People v Carter, 87 Mich. App. 778; 276 N.W.2d 493 (1979). The defendant has failed to establish such an abuse. The efforts to secure witness Cowie both before and during trial included: (1) issuance of a warrant, (2) several attempts to serve the warrant at the witness's known and previous address, (3) questioning of neighbors at the witness's known address as to the witness's whereabouts, (4) attempting to talk to the witness's mother, (5) a driver's license LEIN check, (6) a post office change of address check, (7) a check with Social Services, (8) a check of listed phone numbers with the same last name, and (9) a general inquiry made to the neighborhood hospitals, clinics and nursing homes. This Court has defined due diligence as "doing everything reasonable, not everything possible". People v Fournier, supra, at 778.
Under these circumstances, this Court is not inclined to find that the trial court abused its discretion.
For the foregoing reasons, the judgment of the lower court is affirmed.