Summary
In Green, this Court concluded that the pertinent statutory language indicated a legislative determination that criminal liability for drug possession should "turn on the consideration of two separate factors," the amount and the kind of controlled substance possessed.
Summary of this case from People v. KaneOpinion
Docket No. 133442.
Decided November 2, 1992, at 9:35 A.M. Leave to appeal sought.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jeffrey Caminsky, Assistant Prosecuting Attorney, for the people.
David N. Smokler, for the defendant on appeal.
Before: CORRIGAN, P.J., and MICHAEL J. KELLY and GRIFFIN. JJ.
Following a jury trial, defendant was convicted of possession of less than twenty-five grams of cocaine and possession of less than twenty-five grams of heroin, MCL 333.7403(2) (a)(v); MSA 14.15(7403)(2)(a)(v). He was sentenced to concurrent terms of one to four years' imprisonment and now appeals as of right.
Defendant's first claim is an issue of first impression in Michigan. He argues that his conviction of two counts of possession of a controlled substance arising out of a "single act" of possessing trace amounts of cocaine and heroin violates the constitutional guarantee of double jeopardy. We hold that because defendant committed two separate criminal offenses, possession of less than twenty-five grams of cocaine and possession of less than twenty-five grams of heroin, his right not to be placed twice in jeopardy was not violated by his multiple drug convictions.
Both the United States and Michigan Constitutions prohibit placing a defendant twice in jeopardy for a single offense. US Const, Am V; Const 1963, art 1, § 15; People v Sturgis, 427 Mich. 392, 398-399; 397 N.W.2d 783 (1986); People v Shipe, 190 Mich. App. 629, 631; 476 N.W.2d 490 (1991). Not only do these guarantees protect a defendant against successive prosecutions for the same offense, but also they protect a defendant against multiple punishments for the same offense. Sturgis, supra at 398; Shipe, supra at 631.
The dispositive question in this case is whether the Legislature intended that two convictions might result under § 7403(2)(a)(v) for the simultaneous possession of two prohibited substances. People v Wakeford, 418 Mich. 95, 111; 341 N.W.2d 68 (1983); Shipe, supra at 631. The relevant statutory provision, MCL 333.7403; MSA 14.15(7403), provides in pertinent part:
(1) A person shall not knowingly or intentionally possess a controlled substance . . . unless the controlled substance . . . was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice, or except as otherwise authorized by this article.
(2) A person who violates this section as to:
(a) A controlled substance classified in schedule 1 or 2 which is either a narcotic drug or described in section 7214(a)(iv), and:
* * *
(v) Which is in an amount less than 25 grams of any mixture containing that controlled substance is guilty of a felony, punishable by imprisonment for not more than four years or a fine of not more than $25,000, or both.
We believe that the above statutory language supports multiple punishments where a defendant simultaneously possesses more than one type of controlled substance proscribed by the statute. It is clear from the language employed in § 7403 that the Legislature intended the imposition of criminal liability to turn on the consideration of two separate factors. The first factor is the amount of a controlled substance possessed, as evidenced by the punishment provisions that authorize the imposition of increasingly severe punishments as the amount of controlled substance possessed increases. MCL 333.7403(2)(a)(i-v); MSA 14.15(7403) (2)(a)(i-v). The second factor is the type of controlled substance possessed. Like the armed robbery statute construed in Wakeford, the present statutory provisions consistently refer to the contraband in a singular form: "a controlled substance," "the controlled substance," "a narcotic drug," "that controlled substance." Additionally, the Legislature's use of the phrase "any mixture containing that controlled substance" suggests to us that the Legislature intended that punishment be imposed on the basis of the amount of a specific controlled substance possessed, with the implication being that possession of different types of controlled substances warrants punishment for each particular controlled substance possessed.
In light of the foregoing, we hold that the statute permits multiple charges and convictions under the circumstances of this case. Accordingly, defendant's convictions for possession of cocaine and for possession of heroin do not violate defendant's right not to be placed twice in jeopardy.
Defendant next argues that the trial court erred in instructing the jury that the amount of the controlled substance seized was irrelevant to the jury's determination of guilt or innocence. Defendant's failure to object to the jury instruction waives appellate review absent manifest injustice. People v Johnson, 187 Mich. App. 621, 628; 468 N.W.2d 307 (1991). We believe that manifest injustice will not result from our failure to review this issue, and, therefore, appellate review is foreclosed.
Affirmed.