People v. White

R. B. Burns, P. J.

(dissenting). Defendant appeals her jury conviction of unlawful sale of narcotics. MCLA § 335.152 (Stat Ann 1971 Rev § 18.-1122).

The complaint and warrant were not filed and the arrest was not made until approximately five months subsequent to the date on which the offense was alleged to have occurred.

This five-month delay between the alleged offense and issuance of the complaint and warrant is urged by defendant as a denial of due process. As was made clear in People v Hernandez (1968), 15 Mich App 141, 146, evidence of prejudice and not *659the mere fact of delay is the relevant factor in determining whether constitutional rights of due process were violated.1 Although the prosecution has not offered any reason for the delay, we find no evidence that the pre-arrest delay impaired defendant’s capacity to prepare her defense. The burden of bringing forth such evidence rests with the defendant.2 United States v Capaldo (CA2,1968), 402 F2d 821; United States v. Scully (CA2, 1969), 415 F2d 680.

Michigan’s Criminal Statute of Limitations serves as protection against long nonprejudicial delays. MCLA § 767.24 (Stat Ann 1954 Rev § 28.964).3

Defendant’s defense at trial level was alibi; she claims to have been at a party at the time the prosecution claims she sold an undercover agent and a police informer a package of marijuana. The prearrest delay, it is claimed, dulled the memories of the defendant’s alibi witnesses as to the time she left the party. The time factor is a crucial issue since prosecution witnesses claim the sale was made before 11 p.m. The alibi witnesses clearly made out defendant’s alibi defense. Although they were not positive of the exact time defendant left the party, they were all sure it was after 11 p.m. The jury simply chose to disbelieve their testimony.

Defendant’s bare assertion that the delay rendered inaccessible, testimony of an unidentified person present in defendant’s home when the sale occurred does not' prove any “specific prejudicial effect”. People v. Albert White (1970), 27 Mich App 432, 435.

In an attempt to corroborate the testimony pertaining to her presence at the party, defendant at*660tempted to introduce into evidence certain photographs depicting the defendant at a party. The trial judge refused their admission on the ground that they were not relevant to any material point in issue. In his decision on the admissibility of evidence, the trial judge possesses a great deal of discretion. People v. Becker (1942), 300 Mich 562. If the proffered evidence is helpful in throwing light upon a material point in issue, then it may be admitted. People v. Cybulski (1968), 11 Mich App 244. The photographs would not have been particularly useful in this case. The prosecution did not contest her presence at .the party and the photographs did not shed any light upon the crucial issue of time.4

Defendant’s objection to the trial court’s failure to permit her to examine alleged statements made to a police officer is without merit since the record on appeal does not reveal the use or existence of any such written statements. The trial court properly refused defense counsel’s motion by saying:

“There was no statement read into the record. He [the prosecutor] had a pencil and paper in his hand. He [the prosecutor] asked this witness if she made certain oral statements to the man that visited her.”

At trial the prosecution submitted a certificate from the Michigan Department of Licensing and Regulation. This certificate proved defendant’s lack of license to sell narcotics and, according to defendant, denied to her the constitutional right to confront and cross-examine witnesses. Such a certificate has been statutorily declared “prima facie proof of the facts stated therein”5, and does not deprive *661defendant of her constitutional rights. If defendant would have been licensed it would have been a simple matter for her counsel to prove this by affirmative action. In People v. Braswell (1968), 12 Mich App 685, introduction of a certificate to prove lack of license to carry a concealed weapon was upheld against the identical constitutional attack presented by defendant. For the reasons stated in Braswell, we find defendant’s constitutional attack on the certificate’s evidentiary introduction invalid.

Defendant next objects to the testimony of the informer and the undercover agent which included statements made by defendant during the illegal sale. The defendant voluntarily admitted both men into her home and then sold them a quantity of marijuana. The record clearly indicates the absence of any coercion. The trial judge properly found defendant’s statements related to the sale and thus part of the res gestae. People v. Henderson (1970), 25 Mich App 28, 32.

Next defendant objects to the unsubstantiated testimony concerning smack and the prosecutor’s explanation of this slang expression for heroin.

The prosecutor did not solicit nor dwell on the point; he simply clarified the expression for the jury. The defendant was not prejudiced, and in any event her failure to request a curative instruction precludes objection on appeal. People v. Walsh (1970), 27 Mich App 100.

Defendant next objects to the use of a nonexpert to prove the substance sold was marijuana. The testifying technician was extensively examined as to his qualifications as an expert witness. We find no abuse in the trial court’s decision to allow the testimony and thus do not reverse it. See People v. Hawthorne (1940), 293 Mich 15.

*662Defendant’s final objection, as to the weight of the evidence, will not be considered because of her failure to move for a new trial. See People v. Mattison (1970) , 26 Mich 453.

See, also People v. Iaconis (1971), 29 Mich App 443.

See People v. Albert White (1970), 27 Mich App 432.

See United States v. Ewell (1966), 383 US 116 (86 S Ct 773, 15 L Ed 2d 627).

Testimony established that the photographs were being taken “all evening”.

MCLA § 335.54a (Stat Ann 1971 Cum Supp § 18.1074[1]).