People v. Leverette

*275Bashara, J.

(dissenting). Defendant appeals his conviction by a jury for possession of heroin, MCL 335.341; MSA 18.1070(41). He was arrested when police, pursuant to a search warrant, entered an apartment to execute the warrant.

As a result of the search, the police seized a quantity of powder, which later analysis disclosed as containing heroin, two guns, a photograph, a key, and other items allegedly used to prepare heroin for illicit sale. A pretrial motion to suppress the evidence and quash the information was made by defendant and denied.

Defendant contends that the warrant lacked a sufficiently particular description of the items to be seized, making the search violative of the fourth and fourteenth amendments to the United States Constitution. This claim stems from the concluding phrase in the description, which stated, "to include items to prove residency”.

We do not find that the foregoing phrase made the warrant general in nature, remitting the extent of the search to the discretion of the executing officers. Rather, the officers were restrained in the scope of their search to locating and seizing such items as rent receipts, a lease or rental agreement, mail envelopes showing the address of the premises and name of the addressee. These articles were necessary to establish the identity of the person maintaining possession of the contraband. Consequently, we conclude that the warrant did not authorize a general, exploratory examination of the defendant’s personal belongings so as to come within the proscription of the fourth amendment. See generally Andresen v Maryland, 427 US 463; 96 S Ct 2737; 49 L Ed 2d 627 (1976), Coolidge v New Hampshire, 403 US 443; 91 S Ct 2022; 29 L Ed 2d 564 (1971).

*276The other occupant of the apartment in which defendant was found was not indorsed or produced as a witness at trial by the prosecution. The trial court held that the witness was a res gestae witness and that the prosecution did not exercise due diligence in making the witness available at trial. At the conclusion of the case the trial court included in its jury instructions an instruction that the jury may infer that the witness’s testimony would be unfavorable to the prosecution. Defendant claims that this was an inadequate remedy for the loss of such valuable defense testimony.

The instruction given was substantially identical to that suggested in the Michigan Criminal Jury Instructions, modified to reflect a finding by the trial court as to the lack of due diligence. See CJI 5:2:14, People v Stephen, 31 Mich App 604; 188 NW2d 105 (1971), lv den, 384 Mich 843 (1971). That instruction adequately protects the defendant from false accusation by permitting the jury to surmise that the witness’s testimony would have been favorable to the defendant. See People v Bennett, 68 Mich App 446; 243 NW2d 15 (1976).

The photograph seized incident to the search depicted defendant holding a container and a card upon which was a powdery substance. It was held by the trial court to be inadmissible in the prosecutor’s case in chief, because the nature of the items shown in the picture could not be established. When the defendant testified, the prosecutor was allowed to use the photograph in his cross-examination and have it admitted into evidence. Defendant maintains that this was reversible error, since it permitted the prosecutor to adduce evidence that defendant was participating in the sale of narcotics, a crime other than that for which he was being tried.

*277In defendant’s testimony, he identified the time and place where the photograph was taken. He also stated that the substance shown in the picture was lactose, and that he prepared the lactose for mixing with heroin, prefatory to its sale.

We conclude that the trial court did not abuse its discretion in admitting the photograph into evidence. See People v Olsson, 56 Mich App 500; 224 NW2d 691 (1974), lv denied, 394 Mich 772 (1975), People v Midgyett, 49 Mich App 663; 212 NW2d 754 (1973). Further, since defendant’s intent to possess the heroin found in the apartment was a material, disputed issue at trial, evidence that he was selling heroin was relevant to that intent and, therefore, admissible. MCL 768.27; MSA 28.1050, People v Peck, 39 Mich App 150; 197 NW2d 346 (1972).

Defendant also contends that he was denied his sixth amendment right to a speedy trial. The record discloses that approximately 23 months elapsed between the date of arrest and date of trial. However, the record also indicates that the defendant failed to appear when the docket conference was called and when the case was first called for trial. On both occasions it was necessary to issue a capias for defendant’s arrest. Under these circumstances, we conclude that the defendant’s claim is without merit. Cf. People v Chism, 390 Mich 104; 211 NW2d 193 (1973).

At trial, the prosecutor was permitted to use defendant’s two prior larceny convictions to impeach his credibility. The contention of defendant that this constituted reversible error is belied by reference to the record and the case of People v Jackson, 391 Mich 323; 217 NW2d 22 (1974).

Defendant further maintains that the prosecutor, in his closing argument, impermissibly refer*278red to defendant’s unemployment to establish guilt. Although defendant’s objections to the statements were sustained and were interjected before the prosecutor could complete the statements, defendant urges that reversible error resulted because the trial court failed to give a cautionary instruction.

On direct examination, defendant stated that he was unemployed. However, in his cross examination testimony defendant admitted that by processing lactose he assisted in the preparation of heroin for subsequent sale.

Aside from the fact that the prosecutor was precluded by defendant’s objection from completing the statements concerning defendant’s connection with drug sales, I find that the tenor of the prosecutor’s argument was not such as to ascribe to defendant a proclivity for crime because of his unemployment. Compare People v Johnson, 393 Mich 488; 227 NW2d 523 (1975). Rather, the prosecutor was arguing in summation on the basis of testimony elicited from the defendant. Accordingly, I perceive no prejudicial error under the circumstances presented.

I would affirm defendant’s conviction.