People v. Lauzon

• Decision Date: 19 June 1978
• Docket Number: Docket No. 77-784
• Citation: 269 N.W.2d 524,84 Mich.App. 201
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wade LAUZON, Defendant-Appellant. 84 Mich.App. 201, 269 N.W.2d 524
• Court: Court of Appeal of Michigan — District of US

Page 524

269 N.W.2d 524

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wade LAUZON, Defendant-Appellant.

Docket No. 77-784.

84 Mich.App. 201, 269 N.W.2d 524

Court of Appeals of Michigan.

June 19, 1978.

Released for Publication Sept. 18, 1978.

State Appellate Defender, James R. Neuhard by Domnick J. Sorise, Asst. State Appellate Defender, for defendant-appellant.

[84 MICHAPP 202] Frank J. Kelley, Atty. Gen., Robert A. [84 MICHAPP 203] Derengoski, Sol. Gen., Eugene C. Penzien, Pros. Atty., for plaintiff-appellee.

Before CAVANAGH, P. J., and D. E. HOLBROOK and BEASLEY, JJ.

D. E. HOLBROOK, Judge.

On August 6, 1976, defendant was found guilty by a jury of receiving or concealing stolen property which exceeded the value of $100, contrary to M.C.L. § 750.535; M.S.A. § 28.803. On November 29, 1976, defendant was sentenced from two and one-half to five years in prison. Defendant appeals as of right.

A review of the lower court records, including the transcript, discloses the facts of the instant case to be as follows:

On July 1, 1975, Ronald VanTol discovered that the screen on his bathroom window had been removed and several items were missing from his home. He identified prosecution exhibits 1 and 2 as the stereo speakers which were stolen from his home. Mrs. VanTol corroborated her husband's testimony.

In early August of 1975, Patrick Wilson discovered that his stereo was missing. He identified prosecution exhibit 3 as the stereo component taken from his home.

Donald Sylvester testified that he purchased prosecution exhibits 1, 2 and 3 from defendant. Sylvester was told by defendant that the stereo system would cost him $150. Sylvester received the stereo and made two $20 payments to defendant before the police confiscated the stereo system.

Detective Haustein testified that he found the stereo components, exhibits 1, 2 and 3, in the [84 MICHAPP 204] vicinity of Sylvester's girlfriend's home. The detective contacted defendant and put him into a police car in which the stereo system was located. Responding to questions posed by the detective, defendant stated that he knew the stereo system was stolen when he sold it to Sylvester. He told the detective that he had gotten the stereo from two men.

The defendant did not take the stand and rested on the presumption of innocence.

The first issue raised on appeal is whether the defendant is denied a fair trial, in a case where the defendant is charged with receiving and concealing stolen property, when the trial judge permitted the prosecution to show that a witness told a police officer that the defendant said he was "going to rip off a house that had a lot of guns".

At trial, the prosecutor established that guns had been taken in both the VanTol and Wilson burglaries. During the prosecutor's questioning of Sylvester, Sylvester was asked whether the defendant made any statements about guns or a breaking and entering. Sylvester said, "No". The prosecutor then attempted to contradict this by suggesting that Sylvester told Detective Haustein that defendant said something about guns and a breaking and entering. Sylvester testified that he could not remember making any such statement to the detective.

Subsequently, Detective Haustein testified that Sylvester said that defendant said, that he was "going to rip off a house that had a lot of guns in it". The trial judge ruled that the detective's testimony had some indication, however remote, of guilty knowledge. We hold that the admission of this testimony in evidence was error.

The theft of the guns was collateral to the [84 MICHAPP 205] charge of receiving and concealing the stolen stereo system and involved another criminal offense. Subject to certain exceptions not applicable to the instant case, evidence of other crimes is inadmissible in a unitary criminal prosecution. People v. Pinkerton, 79 Mich. 110, 44 N.W. 180 (1889). A party who raises a collateral matter during examination of a witness is bound by the answer of the witness. People v. Williams, 159 Mich. 518, 521, 124 N.W. 555 (1910), People v. Ellerhorst, 12 Mich.App. 661, 671, 163 N.W.2d 465 (1968). Here, the prosecutor tried to impeach its own witness after that witness testified that he could not recall a conversation with the defendant regarding stolen guns.

Although the trial court committed error in admitting the testimony, we must determine whether or not the error was harmless. Where it is claimed that error is harmless, two inquiries are pertinent. First, is the error so offensive to the maintenance of a sound judicial process that it never can be regarded as harmless? Second, if not so basic, can we declare a belief that the error was harmless beyond a reasonable doubt? People v. Wichman, 15 Mich.App. 110, 116, 166 N.W.2d 298 (1968).

First, we do not feel that the error was so offensive to the maintenance of a sound judicial system that it cannot be regarded as harmless. The prosecutor did not deliberately inject this statement into the case relying on the harmless error rule. The prosecutor in good faith was attempting to impeach his witness for what he thought was a legitimate purpose.

Second, the error was harmless beyond a reasonable doubt. The evidence against the defendant was overwhelming. The defendant admitted to the [84 MICHAPP 206] detective that he knew the stereo was stolen. Sylvester testified that when he told defendant that he was looking for a stereo, the defendant stated that he could get one for him. Shortly thereafter, the defendant sold a stereo system to Sylvester for $150 and Sylvester then made two $20 payments to defendant towards the price. Additionally, the stereo system defendant sold Sylvester was identified as having been stolen from the homes of VanTol and Wilson. Thus, the error in the instant case was harmless and does not require reversal.

The next issue raised on appeal is whether the trial court erred in instructing the jury that they might infer knowledge by defendant that property was stolen from defendant's possession of stolen property.

The trial court in its instructions to the jury instructed as follows:

"It's up to you to determine beyond a reasonable doubt if the defendant was in exclusive and conscious possession of the property in question here or aided in the concealment, and that the property was stolen. These facts, if not explained, are ordinarily circumstances from which you may reasonably infer that the defendant had knowledge the property was stolen. However, you need not make this inference. It's the exclusive province of the jury to determine whether the facts and circumstances shown by the evidence in this case warrant an inference that the defendant had knowledge that the property was stolen.

"In this regard, you may consider the circumstances surrounding the alleged taking, defendant's conduct, his statement with reference to the property, the price that was...