Motion to preclude defendant’s use of a “Good Samaritan” defense at trial; People v Morrison; Statutes criminalizing possession (MCL 333.7403) & use (MCL 333.7404) of controlled substances; Whether the issue was ripe for determination; Principle that evidence of an affirmative defense need not be presented at a preliminary exam; People v Waltonen; Delivery charges; United States v Swiderski (2d Cir); People v Schultz

Holding that the issue of whether defendant should be able to present a “Good Samaritan” defense at trial was not ripe for determination, the court reversed the trial court’s order granting the prosecution’s motion to preclude him from doing so, and remanded. The case arose after an individual (C) died of a drug overdose. Defendant was charged with delivery of fentanyl causing death of another person, possession with intent to deliver meth, delivery of less than 50 grams of fentanyl, and delivery of meth causing death of another person. The prosecution’s motion was primarily based on preliminary exam testimony. But evidence of an affirmative defense does not have to be offered at a preliminary exam; the court held in Waltonen that “affirmative defenses in criminal cases should typically be presented and considered at trial and that a preliminary examination is not a trial.” Further, the prosecution did not cite any case law requiring a “defendant to present evidence in support of an affirmative defense before trial. Indeed, in the cases relied on by the prosecution, it was the defendant moving to dismiss the charges based on an affirmative defense.” The court found that those cases could not “be read as requiring the defendant to present the necessary proofs before trial.” In addition, it disagreed with the prosecution that the preliminary exam proofs established “no reasonable jury could conclude that defendant is entitled to the Good Samaritan defense.” The prosecution relied in part on a witness’s testimony that C “was unresponsive for approximately 30 minutes before 911 was called. However, it is the jury’s role to determine witness credibility, . . . and what constitutes ‘good faith.’” The court concluded defendant had not been given “a meaningful opportunity to present evidence in support of his affirmative defense, which typically occurs at trial.” Thus, it determined “that it was premature for the trial court to decide whether [he] is entitled to an instruction on the Good Samaritan defense.” The defense only applies to charges for possession, not delivery. The court found that “the competing theories as to whether ‘delivery’ occurred presents factual questions.” And as with “the Good Samaritan defense, whether defendant is entitled to an instruction on possession is for the trial court to determine based on whether evidence is introduced at trial that would support” it.