*1 1976] 63 v
PEOPLE GALLAGHER Opinion op the Court Appeal Support 1. and Error —Failure to an Issue —Abandon- op ment an Issue. Appeals The Court of party will not discuss an issue where a brief, present authority, present failed policy or reasons in issue; support substantiation of the failure to an issue raised on appeal constitutes abandonment of that issue. 2. Criminal Law —Constitutional Law —Statutes—Rebuttable Presumptions op Privilege Against —State Mind — Self-In- crimination. statutory any A any rebuttable dealer in mer- personal property, chandise or who fails to make a reasonable inquiry person selling delivering whether stolen legal right him buys has a to do so or who or receives such property with altered or obliterated identification numbers on surface, buys external property knowing or receives such stolen, to have been is not a violation of the defendant’s privilege against self-incrimination since there are means of rebutting presumptions by such state-of-mind other than taking stand, although
defendant the witness the other means may effective; not be as different constitutional treatment for presumptions state-of-mind based on the distinction that state- presumptions effectively of-mind only by can be rebutted testimony defendant’s own presumptions whilé fact can be effectively types rebutted of evidence is unwarranted. op Appeals- Supreme 3. Courts —Court — Court. Appeals appellate The Court of is an intermediate court and as pronouncements such it is bound Court. [5] [6] [1] [2, [3] 21 Am Jur 5 Am Jur 75 Am Jur Am Jur 21 Am Jur 2d, Appeal 2d, Appeal 2d, 2d, References 2d, Trial Criminal Law 96.§ Criminal Law §§ and Error §3 et and Error 686. 211-314. por Points §§ § 349, in Headnotes seq. 353. Privilege Against 4. Criminal Law — Self- Law —Constitutional Presumption Jury Incrimination —Rebuttable — Instruc- tions. privilege against A defendant’s self-incrimination was not vio- *2 jury given reading lated instructions to the which included a containing presumption of a criminal a rebuttable statute as to knowing, circumstances, the defendant’s under certain stolen, although property certain was trial court should given regarding presumptions, have clearer instructions where presumption and statute its contained have been found inadequacies constitutional and where contained in the language sufficiently of the statute were remedied the trial subsequent concerning court’s detailed instructions the burden proof, of of innocence and the defendant’s right testify not to in his own behalf. Closing Arguments 5. Criminal Law — —Uncontradicted Facts— Presumptions. Rebuttable prosecutor may, arguments, closing A jury in his comment to the uncontradicted, to the effect that the facts shown were and a prosecutor’s reference to a does not constitute stand; unfair comment on the defendant’s failure to take the complain jury defendant cannot if the is made of aware presumption. of a existence by Bashara,
Concurrence J. Differing 6. Criminal Law —Case Precedent — Facts. prior clearly applied only A case which stressed to the precedent facts of that case should not be used as for a case where the facts are different. Appeal from Wayne, George Wicklund, J. Sub- 14, (Docket mitted January 1976, at Detroit. No. 22006.) 23, Decided March 1976. appeal Leave to applied for. of
Defendant was convicted receiving and con- cealing property. stolen Defendant Af- appeals. firmed. Kelley, Attorney General,
Frank J. A. Robert Derengoski, Cahalan, General, William L. Solicitor Prosecuting Attorney, Patricia J. Boyle, Principal People v Court Research, Training Appeals
Attorney, and and Timothy Baughman, A. Assistant Prosecuting At- torney, people. for the McNamara, Rosin,
Towner, York & for defend- ant. J., McGregor,
Before: P. and and Bashara Al- len, JJ. Defendant, Raymond P. J.
McGregor, Gal- lagher, aby jury was convicted of the offense of (MCLA receiving concealing and stolen 750.535; 28.803), MSA subsequently and sentenced to a term years prison. He now appeals right. as a matter 3, 1973,
On Southgate police June two officers stopped the defendant he towing while was a late *3 model Cadillac on southbound 1-75. The Cadillac initially attracted officers’ because, attention although appeared good condition, be in most of its exterior sheet metal had been removed. defendant, After stopping the the officers further observed that the vehicle identification number had been removed from dash assembly. The officers asked then the defendant produce proof sale, of ownership or a bill of but he was unable to result, do so. As was arrested and defendant charged receiving concealing with and stolen prop- erty. trial,
At prosecution presented evidence which showed the Cadillac had been stolen on 19, 1973, May approximately two weeks before the defendant’s arrest. people’s The evidence also tended to show that the defendant was in the salvaging automobiles, business of and rebuilding and that he had so been at employed for least prior several years to the offense. App 63
66 Mich 68 op The first contends defendant MCLA 750.535; 28.803, the statute under which MSA he convicted, in that was is unconstitutional it vio- against lates privilege defendant’s self-incrimina- tion.1 provides: Section 2 of that act
"(2) person Any being a dealer in or any collector of personal property, merchandise or agent, or the em- ployee, representative or of a dealer or collector who person fails to inquiry selling make that the reasonable stolen, embezzled, delivering any or prop- or converted so, or who buys or erty legal right to him has a to do any property registration, receives such which has a serial, or identifying number altered or obliter- thereof, ated on presumed external surface shall be bought to have or knowing received such it to stolen, embezzled, have been or pre- converted. This ” added.) sumption may by proof. (Emphasis be rebutted defendant, arguing The this section vio- privilege self-incrimination, lates his against relies upon our Court’s decision in People v primarily Serra, (1974). 514; 55 Mich 223 NW2d 28 In Serra, the Court stated:
"But the unique in this case is in that the actual state of mind of the accused is involved. presumptions
"Most
have been considered
courts have involved inferences from one fact about a
object
another,
remote,
certain
or relation to
fact
more
object
about
that same
relation. For
example,
People Kayne,
(1938),
NW
argues
Defendant also
that the statute is unconstitutional
14th
on
*4
grounds. However,
argue
Amendment
defendant fails to
at
issue
body
present any authority.
all in of his brief or to
It is well
party
this
settled
Court will not discuss an issue where a
brief, present authority,
present policy
failed to
in
reasons
substan
support
tiation of the issue. Failure to
the issue raised constitutes
People
Onge,
abandonment. See
v St.
tion tuted parked illegally on a motor vehicle consti- prima that the owner of facie evidence the vehicle presumption it. held that such a The Court did privilege against not violate the defendant’s self-incrim- presumption Kayne ination. The in involved an infer- (that ence from one fact about the car it had a certain number) (that registration to another fact about car parked its owner illegally). Significantly, pre- sumption Kayne did not involve an inference from a fact about the car to a fact about the owner’s intent (e.g., that park he intended to it illegally). "It is presumption this question feature requires
which give it us to different treatment. It involves an possession inference from the fact of to the possessors’ intent, fact of the which can rather than some fact independent
be shown of the defendants’ state of only mind. The evidence which can effectively inference, supported rebut such an and enhanced by the presumption, is the defendants’ own testimony as to evidence, their intent. Any other expert even testimony, speculation is mere established about intent. Probabilities by expert suggestions. an only are persuaded "We are argument defendants can choose not to take the testify. stand to The choice offered hqs empty defendants is an one. It been nullified the heavy Legislature hand of a imposes penalty, in the form statutory of a presump- tion on those who decide to exercise their constitutional right to remain silent.”
Although specifically the Serra court limited its holding to the facts before it and declined to analysis presumptions, extend the above to similar upon we cannot conceive of rational basis present which the in the case can be meaningfully distinguished from the present in Serra. Both involve an inference from possession the fact of to the accused’s state of *5 68 op
mind,2 and both have the inevitably same effect on the defendant’s to remain decision silent and on the jury’s verdict when defendant does not take the stand. much,
The plaintiff as argues concedes but that the self-incrimination issue raised in Serra was wrongly decided and that its rationale should be abandoned. are Reluctantly, we constrained agree.3
While we can see the distinction between those presumptions infer an actor’s state of mind and those which merely fact, infer some other we cannot, however, perceive any difference which would make the former unconstitutional but not the latter. The Serra distinguished court "state of mind” presumptions from other presumptions on the basis that a mental state can be effectively rebutted only by the defendant’s own testimony, while the presumptions other can be effectively rebutted by types of evidence. Different con- stitutional treatment of presumptions based on distinction, believe, this we is unwarranted. all,
First of there are essentially two ways to rebut any presumption, be a "state of mind” or a "fact” presumption. The most effective way is to offer evidence which undermines the basic facts upon which the presumption Thus, is based. under us, the statute before could, a defendant even without taking stand, offer evidence which (1) showed either that he was not a dealer or 2Although Serra was concerned with the accused’s intent while the present sumptions knowledge, case is concerned with pre the accused’s both directly proving requisite deal with mental state that possess the accused must such, in order to be convicted of the crime. As distinguishable ground. Serra should not be on this quarrel analysis Plaintiff does not with the Serra court’s process result, due upset therein issue raised. Neither do we. As a we do not holding the Serra Court’s the 2-ounce was grounds. unconstitutional on 14th Amendment Opinion op the Court (2) in question, property
collector (3) was property property, not stolen he did (4) or buy property, not receive such in question no serial number on any (5) surface, external or the serial number was altered If presented evidence is obliterated. *6 by the any defendant which would show above, the presumption could be effectively rebut- ted.
The other rebutting method of the presumption is to although show that the basic facts necessary for its application present, are the jury should nevertheless not make the inference that the pre- sumption Thus, allows in the case them. before case, under the in present statute the instant the show, defendant could also again taking without (1) stand, the that the in property question does (2) number, a normally have serial that the in property question bought is usually and sold second-hand, with the serial numbers or altered (3) obliterated, there were other serial num- plainly bers on the visible external surfaces which (4) obliterated, were not altered the defend- ant interposed a valid defense such as intoxi- (5) cation or incapacity, or the defendant had no knowledge that the in question was marked with a serial number or that the serial number was altered or Again, obliterated. if of shown, the above were the presumption would be effectively rebutted.
Although methods, several these par- rebuttal last, ticularly certainly could be pre- better sented if the defendant stand, himself took the all nevertheless are susceptible to being shown of evidence. In types respect, this "state mind” presumptions do not significantly differ presumptions. from "fact” For example, pre- App 63 68 Mich 571; Kayne, sumption registra- of a display (1938), makes NW parked illegally vehicle plate a motor tion on owner of vehicle prima facie evidence rebutted effectively more it, clearly can be parked the stand and takes if the owner of a vehicle presump- to rebut attempts testifies than if he proof. Consequently, on other by relying solely tion pressure put on kind of the same there would be with a "fact” faced testify when the defendant a when he is faced with as there is difference, Since the presumption. of mind” "state how degree, we cannot see only if is one of any, holding for furnish the basis this distinction can not the other. one unconstitutional but assumes the Serra Furthermore, opinion "fact” can the defendant faced with and therefore of evidence types offer other always himself to rebut the stand having to take avoid cases, However, such a many presumption. *7 types other of evi- not have the defendant will and, consequently, he will to him available dence rebut effectively the stand to have to take usually Kayne pre- Again, using the presumption. the in it is evident some example, as an sumption cases, have no the defendant will not most if him other than to of evidence available method that he denying himself and taking the stand illegal spot. Under these in the his vehicle parked be circumstances, compulsion testify to would the had if the defendant greater, if not than great, as presumption. of mind” a "state faced with been This the defend- the case where certainly be would to him evidence available types of ant has mind” the "state of tend to rebut would which illus- these further Factors such as presumption. be cannot constitutionality test of the trate Opinion of the Court upon of predicated the "state mind —fact” distinc- Serra. tion in advanced Moreover, the States United Court has on several held that "state of occasions mind” presumptions do on an infringe privi- not accused’s In Yee Hem v lege against self-incrimination. States, United 470; 268 US 45 S Ct 69 L Ed (1925), the statutory provi- Court held that a sion, provided possession opium of is presumptive of an intention evidence unlawfully to knowledge conceal it with of its unlawful impor- tation, require does not unconstitutionally the de- There, fendant to against be witness himself. it was stated: point practical "The effect of the statute creating compel to is the accused person against put may be a witness himself be aside slight compels
with nothing. discussion. The statute It does no more than possession prohibited to make prima guilt. article It facie evidence of leaves the ac- entirely testify cused accused free to he as chooses. If the happens only repository to be the of the facts necessary possession, negative arising from his is a misfortune which the statute under review does not case. The but create which is in inherent might present same situation itself if there statutory presumption were no prima and a facie case knowledge importation concealment with of unlawful were made by the evidence. necessity expla- The of an quite nation that case the accused would compelling be as this; upon give as but the constraint him to testimony there, here, would arise as arises simply from force and circumstances not from form compulsion forbidden Constitution.” 268 US at 185. States,
In Turner v United
398;
396 US
90 S Ct
(1970),
642;
in
nation. The Court has twice
his
argument,
rejected this
States,
Turner v
While stricter constitutional standards than does Court, our analysis United States above us that the "state of mind —fact” distinc- convinces logical in Serra provide tion set forth does not upon impose basis stricter standards fact, against only self-incrimination. In ra- provide method can see which tional we would complete standards be the such stricter would of all method has presumptions. elimination This *9 People 73 v Opinion op the Court suggested serious consideration. and deserves been States, supra, Turner v United (dissenting See However, an intermediate opinion). being appel- court, by pronouncements the late we are bound Supreme our Court our Court. Since Kayne, supra, held, presumptions that against privilege do not violate a defendant’s self- incrimination, We, we cannot hold otherwise. therefore, reject contention defendant’s 750.535(2), being MCLA is unconstitutional as vio- against lative of privilege defendant’s self-incrimi- nation.
The remaining assignments defendant’s two error are but of the first. He extensions claims reading the trial of the quoted court’s above prosecutor’s statute to the and the jury reference in closing argument presumption to the contained therein operated deprive both to him of the effec- implementation privilege against tive of his self- disagree. incrimination. We While the trial court should more have properly given jury concerning the a clearer instruction presumption reading than that which a hold, provided, previous statute we based on our discussion, reading the of the statute did not result in reversible error. Since we have held the constitutional, statute to be the defendant cannot complain jury if the is made aware of the pre- Furthermore, sumption contained therein. ina- dequacies language contained the of the statute were sufficiently remedied the trial court’s subsequent detailed concerning instructions the innocence, proof, presumption burden of and right to testify defendant’s on his own Thus, behalf. we conclude the instruction given did not violate privilege defendant’s against self-incrimination. Mich Bashara, Concurrence J.
Likewise, we
prosecutor’s
also hold
reference
did not constitute
unfair comment on the defendant’s
failure to take
the stand.
prosecutor
arguing
The
was
basically
that,
since there
presented
was no evidence
rebut
the presumption,
should
jury
apply the
in determining
the defendant’s guilt.
above,
As noted
the defendant
cannot complain if
the jury is made aware of the existence of the
*10
presumption. Moreover, a prosecutor
can in his
closing argument comment
to the
jury
the effect
the facts
shown were uncontradicted.
See
Jacoboni,
84;
34 Mich App
Affirmed.
Allen, J., concurred. McGregor
Bashara,
J. (concurring). Judge
written an excellent opinion
panel
for this
with
which I
However,
concur.
I feel constrained
special
make
comment because of having joined in
Serra,
the opinion
in People v
Mich App
(1974).
Upon reflection the self-incrimination analysis in Serra may have been an improper standard. However, it should be pointed out that I consider the Serra decision to be primarily based on the "rational relationship” test in the light of common experience. The test is whether in common experi- possession ence the of two ounces of marijuana is rationally related to the intent to deliver.
It should be further stressed that Serra very clearly applied only to the facts of that case.