*1 PEOPLE v LAUZON 7, 1978, Rapids. No. 77-784. Docket Submitted March at Grand 19, 1978. Decided June Court, Bay Wade Lauzon was convicted in Circuit Leon R. Dar- das, J., concealing sentencing, $100. exceeded the value of At considered appeals raising certain inaccurate informatiоn. Defendant sev- eral issues. Held: impeach 1. While it was error to allow the his matter, own witness on a collateral the error was harmless where it was not so offensive to the maintenance of a sound judicial process that it cannot be considered harmless and Appeals where the Court of can declare a belief that the error was harmless a reasonable doubt. is, itself, possession 2. Mere of stolen insufficient guilty knowledge question to show had been stolen, accompanying рosses- but the circumstances may justify guilty knowledge. sion the inference of resentencing 3. Due entitles a defendant to a where sentencing judge considered inaccurate information. resentencing. Affirmed but remanded for J., M. F. separately express P. сoncurred his language dissatisfaction with the of the criminal instruc- regarding guilty knowledge tion the inference of from the fact goods. of stolen Opinion of the Court Impeachment—Collat- 1. Witnesses —Evidence—Criminal Law — eral Matters. party during
A who raises a collateral matter examination of a [1] [2] [3] [4] [5] 81 Am Jur 5 Am Jur 66 Am Jur Witnesses 21 Am Jur 81 Am Jur 66 Am Jur 32, 33. 2d, Appeal 2d, 2d, 2d, 2d, 2d, Receiving References Witnesses § Criminal Law Receiving for Points in Headnotes §§ Error 433. §§ Transporting Transporting §§ 797, 571. 613. 803. Stolen Stolen Property Property §§ §§ 3, 9. witness; thus, the answer of witness is bound impeachment allow a error to introduce evidence party of a сonversation between the defendant and a third after party people’s the third who was the witness that he *2 could recall such a with the conversation defendant. Appeal 2. and Error —Harmless Error. (1) testimony Error in the admission of is harmless: where it is judicial рrocess not so of a offensive to maintenance sound (2) harmless; where, regarded that it can never be review, reviewing court can declare a belief that the error was harmless a reasonable doubt. Receiving Knowledge—Evidencе 3. Stolen Goods —Mens of Rea — Guilty Knowledge.
Guilty knowledge goods that stolen is an receiving goods, guilty element of the crime stolen but such knowledge may constructive; be actual or mere property guilty stolen is insufficient in itself to show knowl- edge, accоmpanying possession may but the circumstances justify guilty knowledge. the inference of Sentencing—Due 4. Criminal Law — Process —Sentence Based on Misinformation. requires Due of law a defendant be resentenced where his placed sentence is based on inaccurate information court. Cavanagh, Concurrence M. F. P. J. Receiving
5. Stolen Goods —Criminal Law —Mens Rea —Instruc- Jury. tions jury receiving
The criminal instruction on property instructs the fact was stolen posses- and that the defendant was in exclusive and conscious [which], explained, sion of the are "facts if not ordinarily you may reasonably circumstances from which knowledge the defendant had was sto- confusing, dangerously indicating len” is comes close possession, can be inferred from mere and can be shifting proof impinging upon read as the burden of and as a silent; right language to remain of the instruc- (CJI 26:1:04). unsatisfactory tion is Kelley, Attorney General, Frank J. A. Robert C. Pen- General, Eugene Solicitor Derengoski, zien, Prosecuting people. for the Attornеy, Sorise, Appellate
Dominick J. Assistant State Defender, appeal. for defendant on J.,P. and D. E. Hol- M. F.
Before: JJ. Beasley, brook 6, 1976, defendant August J. Holbrook, D. E. On or conceal- guilty by found the value of which exceeded ing $100, 750.535; MCL MSA 28.803. On contrary defendant was sentenced November Defendant years prison. one-half to five two and right. appeals as records, including the lower court
A review of of the instant discloses the facts transcript, *3 case to be as follows: discovered Ronald VanTol July
On window had been on his bathroom the screen from his missing items were and severаl removed 2 exhibits prosecution identified home. He his which were stolen speakers the stereo her husband’s Mrs. VanTol corroborated home. testimony. 1975, discov- of Patrick Wilson August
In early identified missing. He that his stereo was ered component exhibit 3 as the stereo prosecution his home. taken from purchased that he
Donald testified Sylvester 3 from defendant. 2 and exhibits prosecution the stereo defendant by was told Sylvester received him Sylvester would cost system $150. to defendant payments and made two $20 stеreo system. the stereo police confiscated he found Haustein Detective 1, 2 and exhibits components, stereo Court vicinity Sylvester’s girlfriend’s home. detec- put police into a tive contacted defendant him system in car sponding locаted. which the stereo Re- posed questions detective, de- system fendant stated that knew the stereo Sylvester. he sold it to when He told gotten detective that he had the stereo from two men.
The defendant did not take the stand and rested presumptiоn on the of innocence. appeal
The first issue raised on is whether the trial, defendant the defendant cealing is denied a fair in a case where charged and con- property, judge per- when the trial prosecution mitted the to show that a witness told police officer that the defendant said he was "going rip guns”. off a house that had a lot of guns trial,
At established that had been taken both the VanTol and Wilson burglaries. During prosecutor’s questioning Sylvester, Sylvester was asked whether the defend- any guns breaking ant made statements about or a entering. Sylvester said, "No”. The attempted by suggesting then that ant said to contradict Sylvester told Detective Haustein that defend-
something guns breaking about and a entering. Sylvester testified that he could not re- making any membеr such statement to the detec- tive.
Subsequently, Detective Haustein testified that Sylvester said, said that "going rip guns off a house that had a lot *4 it”. The trial ruled testi- that the detective’s mony indication, remote, had some however guilty knowledge. We hold that the admission of testimony this in evidence was error. guns
The theft of the
collateral
People
Opinion op the Court
charge
concealing
the stolen
system
stereo
and involved another criminal of-
Subject
exceptions
applicable
fense.
to certain
case,
instant
evidence of other
crimes
unitary
prosecution.
inadmissible in a
criminal
People
Pinkerton,
v
Mich
Although the trial court committed error admitting testimony, we must determine whether оr not the error was harmless. Where it is inquiries harmless, claimed that error is two pertinent. First, is the error so offensive to the judicial process maintenance of a sound regarded can Second, never be as harmless? if not basic, so can we deсlare a belief that the error was beyond harmless a reasonable doubt? Wichman, 15 Mich 116; 166 NW2d 298 First, we do not feel that the error was so judicial offensive to the maintenance of a sound system regarded it cannot be as harmless. deliberately inject did nоt relying statement into the case on the harmless good error rule. The faith at- tempting impeach his witness for what he thought legitimate purpose. was a
Second, the error was harmless a reason- against able doubt. The evidence the defendаnt overwhelming. The defendant admitted to the *5 84 stolen. was knew the stereo detective Sylvester told defendant that when he looking stereo, the for a defendant that he was Shortly get for him. stated that he could thereafter, one system to defendant sold a stereo the Sylvester Sylvester then two and made for $150 price. payments the to defendant towards $20 Additionally, system defendant sold the stereo having Sylvester been stolen was identified as Thus, the the of VanTol and Wilson. from homes harmless does case and еrror not instant was require reversal. appeal is whether the raised on
The next issue they instructing jury that in trial court erred might the property knowledge by defendant infer possession of stolen defendant’s stolen from property. in its the
The trial court instructions as follows: instructed beyond a reasonable up you to determine
"It’s was in exclusive and conscious if the defendant doubt possession in here aided property question or the concealment, property stolen. the facts, explained, ordinarily if circum- These stances from which defendant ever, not you may reasonably infer that How- knowledge had was stolen. It’s the exclu- you need not make inference. the facts province to determine whether sive in this case shown the evidencе and circumstances had an inference that defendant warrant was stolen. regard, may the circumstances you "In this consider conduct, his surrounding alleged taking, defendant’s price property, statement with reference that has property, length of time paid for the taking found elapsed between the could you possession, any other facts from knowledge. "However, a reason- you if the evidence have from all People v Lauzon Opinion op the Court able doubt whether he knew the was so obtained, you
or must find he did know it was so or obtained find the not guilty.” court’s The trial instructions virtually verba- tim the Michigan Jury Instructions, Criminal III, 26-11, p Vol CJI 26:1:04.
The defendant that asserts this instruction was it erroneous because would allow an individual on solely convicted the fact thаt possessed that had words, been stolen. In other defendant maintains that the alleged instruction that suggests possession of stolen can guilty establish knowledge. knowledge of the fact
Guilty
goods
that
were
stolen is an essential
element
the
crime
and cоncealing
goods.
Martinovich,
People
v
253;
18 Mich App
170
(1969).
NW2d 899
Guilty knowledge may be actual
Martinovich,
supra, at 257. Mere
or constructive.
possession alone is not
sufficient
itself to
Grandahl,
show guilty knowledge. People v
16
Mich App
223;
that the jury trial twice told court tional fact complies inference, not it need make this supra; Martinovich, Black- law. with established supra. judge Finally, well, instructed the the trial weigh jury evidence, if, had all weighing had a after all evidence knowledge, regarding the trial doubt reasonable they find thе defend- should instructed guilty. ant pre- undermine the does not
This instruction sumption innocence, nor it shift burden does proof. to draw is entitled inferences of from circumstantial at trial.
evidence adduced Reading particu- whole, the instructions as *7 larly with the other instructions in connection gave jury, was not which the court by case. the instruction in the instant misled The is whether last issue raised judge resentencing trial is entitled to where the sentenc- inaccurate information when considered ing the defendant. sentencing judge
Thе
erred at
because
trial
thought
a bur-
that the defendant had committed
glary
while out on bond for
offense
in his
admitted
brief
instant case.
that
Due
law
was mistaken.
requires
where
that a
resentenced
defendant be
information
his sentence
based
inacсurate
People v Lauzon
Cavanagh,
by M.
Concurrence
J.
P. J.
Malkowski,
court.
placed
Beasley, J., concurred.
F.M. P. J. (concurring). I agree that given, charge when read in its ade- entirety, quately advised this I jury. concur separately my voice dissatisfaction wording CJI 26:1:04, upon which chargе here given was I refer sentence, based. specifically "These facts, if not explained, are ordinarily circum- you stances from may reasonably infer that the defendant had knowledge the property I stolen”. find that this instruction is confus- ing. It comes dangerously indicating close to knowledge can be inferred mere possession. It can also be read shifting proof burden of and as impinging upon right to remain silent.