People v. Bettistea

• Decision Date: 13 January 1989
• Docket Number: Docket No. 87225
• Citation: 434 N.W.2d 138,173 Mich.App. 106
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Albert BETTISTEA, Defendant-Appellant. 173 Mich.App. 106, 434 N.W.2d 138
• Court: Court of Appeal of Michigan — District of US

Page 138

434 N.W.2d 138

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Albert BETTISTEA, Defendant-Appellant.

Docket No. 87225.

173 Mich.App. 106, 434 N.W.2d 138

Court of Appeals of Michigan.

Submitted June 23, 1987.

Decided Nov. 21, 1988.

Released for Publication Jan. 13, 1989.

[173 MICHAPP 111] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William A. Forsyth, Pros. Atty., Timothy K. McMorrow, Chief Appellate Atty., and Carol Bucher, Asst. Pros. Atty., for the People.

George S. Buth, Grand Rapids, and Gary P. White, Lansing, for defendant-appellant on appeal.

Before WAHLS, P.J., and MAHER and BOYLE, ^* JJ.

BOYLE, Judge.

On January 28, 1985, following a consolidation of two cases against defendant in the Kent Circuit Court, defendant was found guilty by a jury of several offenses arising from his participation in two separate criminal episodes. In case [173 MICHAPP 112] one, defendant was found guilty of conspiracy to receive and conceal stolen property worth over $100, M.C.L. Secs. 750.157a, 750.535; M.S.A. Secs. 28.354(1), 28.803, but not guilty of receiving and concealing stolen property worth over $100. In case two, defendant was convicted of receiving and concealing stolen property worth over $100. Following a jury trial on habitual offender supplemental informations, defendant was also found guilty of being a fourth time felony offender in both cases. M.C.L. Secs. 769.12, 769.13; M.S.A. Secs. 28.1084, 28.1085. For his convictions, defendant was sentenced to 10 to 30 years in prison in case one and 7 1/2 to 30 years in prison in case two, the sentences to be served concurrently.

Defendant brings his appeal as of right.

On June 20, 1984, defendant and John Doe, an unidentified white male, sold various power tools to an undercover police officer in a "sting operation." Defendant received $155 for the items and John Doe received $125. On July 11, 1984, defendant, acting alone, sold additional items to the undercover officer, for which he received $175. Both of the sales were videotaped by the police and the items were thought to be stolen. For the June 20 sale, defendant was arrested and charged with conspiracy to receive and conceal stolen property worth over $100, and receiving and concealing stolen property worth over $100. For the July 11 sale, defendant was charged with receiving and concealing stolen property worth over $100. Supplemental informations were also filed against defendant in both cases charging him as a fourth-time felony offender.

At defendant's arraignment, he pled not guilty. He also waived his right to a preliminary examination and stated that he would hire his own counsel. Bail was set at $5,000 and defendant was [173 MICHAPP 113] released after posting that amount. The cases were assigned to two different circuit judges.

Trial in case number two was scheduled for November 5, 1984. On the morning of trial, defendant appeared without counsel and stated that he was unable to obtain funds to hire an attorney and requested that counsel be appointed. Noting that defendant had unnecessarily caused the trial to be delayed, the judge cancelled defendant's bond and reset it at $15,000. Defendant was apparently unable to raise that amount and was remanded to the Kent County Jail.

On November 7, 1984, counsel was appointed for defendant. Three weeks later, his attorney moved for, and was granted, reinstatement of the original bail. Defendant was released from the county jail.

Thereafter, pursuant to stipulated orders, both circuit judges remanded their cases for a single preliminary examination. The examination was held on December 13, 1984. The prosecution's proofs included testimony from Grand Rapids Police Detective Robert Ungrey and Russell Vander Weide, owner of a local construction company. Ungrey related the details of the police sting operation where defendant, on two different occasions, sold allegedly stolen power tools and construction equipment to Ungrey. Ungrey also indicated that the illegal sales had been videotaped by the police. Vander Weide identified several items as belonging to his company and appraised the value of those items. Defendant was bound over for trial.

On January 11, 1985, defendant moved to have the trial judge disqualify himself. The motion alleged that the judge was prejudiced against defendant because of his summary revocation of defendant's bail. By an order dated January 23, 1985, that motion was denied.

[173 MICHAPP 114] On January 11, 1985, defense counsel moved for a transcript of the audio portion of the videotapes made at the sting operation. The judge was initially inclined to grant the motion and encouraged the prosecutor to provide the transcripts. However, when the prosecutor later opposed the motion because of difficulty in transcribing the tapes, Judge Hoffius denied defendant's request. Both defendant and defense counsel had viewed the videotapes, however.

Before the jury was impaneled on January 23, 1985, defense counsel moved to dismiss case number two against defendant, alleging there was insufficient evidence at the preliminary examination to warrant a bindover.

Defense counsel then moved to (1) consolidate the two cases against defendant, (2) have the prosecutor produce transcripts of the videotapes, (3) refer the disqualification motion, which was earlier denied, to the state court administrator, and (4) adjourn the case until those matters were resolved. The motion to consolidate was granted and the other motions were denied. With regard to the disqualification motion, the judge stated that it was not timely filed and was just another means to obtain an adjournment. Thereafter, the trial began. Additional facts will be stated in the discussion of the issues raised by defendant.

I

WAS DEFENDANT DENIED A FAIR TRIAL BECAUSE OF ALLEGED

PROSECUTORIAL MISCONDUCT?

Defendant contends on appeal that the prosecutor engaged in misconduct depriving him of a fair trial on two grounds:

First, defendant contends that certain items [173 MICHAPP 115] were displayed to the jury and referred to in argument by the prosecutor as stolen even though such items were not offered or admitted as evidence in the case.

In the transaction of June 20, 1984, defendant and a second person sold to an undercover police officer a Porta Band saw, an Echo chain saw, a Skil drill, a circular saw, and a Skil 7 1/4" circular saw. These items were placed in a pile in the courtroom and only one item, the Porta Band saw, was marked, and offered and received into evidence as Exhibit 1.

The price for all objects was $280 with defendant receiving $155 and the second person receiving $125.

In the transaction of July 11, 1984, defendant, acting alone, sold to an undercover police officer a portable air compressor, a pipe holder and a beveler, a hot box pipe bender, a Milwaukee circular saw, and a belt sander.

Defendant was paid $175 for all items. The items were placed in a separate pile, and the air compressor was marked as Exhibit 2, the pipe beveler as Exhibit 3, and the pipe bender as Exhibit 4. The remaining items from the July 11 transaction were not marked.

No objection was made to the exhibition of any item in the courtroom. In addition, both sides in the trial referred to the piles of items and the individual items within each pile throughout the trial. The individual items in each pile were authenticated as having been sold on the respective dates in question. Defendant does not contest that the items were sold by him on the respective dates; to the contrary he concedes the sale of the items and offered evidence as to the source of some items.

Perhaps it would have been better procedure to [173 MICHAPP 116] have marked each item and to have moved for its admission into evidence. However, as here, where the identity and authentication of the items are not only uncontested but admitted expressly and where the evidence is clearly relevant to each transaction resulting in criminal charges, there was clearly no error in exhibiting these items in the courtroom. See People v. Rozewicz, 228 Mich. 231, 235-237, 199 N.W. 632 (1924); People v. James, 36 Mich.App. 550, 556, 194 N.W.2d 57 (1971).

Second, misconduct is alleged under People v. Buckey, 424 Mich. 1, 17, 378 N.W.2d 432 (1985), reh. den. 424 Mich. 1205 (1986), in that the prosecutor, on cross-examination of defendant, questioned him regarding whether a prosecution witness had lied in his testimony.

While it is correct that such cross-examination occurred, no error can be predicated thereon for several reasons. No objection was made to the questions, and the failure to object precludes appellate review. People v. Jancar, 140 Mich.App. 222, 223, 363 N.W.2d 455 (1985).

Moreover, even were the issue properly preserved, no error occurred. The questioning was brief and was limited to two areas on which defendant had testified on direct examination. On direct examination, in response to a question by defense counsel, defendant testified that the prosecution witness was a liar. Clearly, once that door was opened, cross-examination on the subject was proper. See People v. Jansson, 116 Mich.App. 674, 692-693, 323 N.W.2d 508 (1982).

There was no prosecutorial misconduct in this trial.

[173 MICHAPP 117]

II

WAS THERE SUFFICIENT EVIDENCE TO FIND DEFENDANT GUILTY OF

CONSPIRACY TO RECEIVE AND CONCEAL STOLEN PROPERTY

WORTH OVER $100?

Defendant contends that the evidence was insufficient to convict him of conspiracy to receive and conceal stolen property over the value of $100 in the June 20, 1984, transaction.

The test is whether the evidence was such that a rational factfinder could infer guilt beyond a reasonable doubt as to each element of the offense. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); People v. Hampton, 407 Mich. 354, 368, 285 N.W.2d 284 (1979), cert. den. 449 U.S. 885, 101 S.Ct. 239, 66 L.Ed.2d 110 (1980).

Defendant argues that the jury...