People v. Flansburgh, Docket No. 6798

• Decision Date: 23 June 1970
• Docket Number: Docket No. 6798,No. 2,2
• Citation: 24 Mich.App. 470,180 N.W.2d 373
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard C. FLANSBURGH, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 373

180 N.W.2d 373

24 Mich.App. 470

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard C. FLANSBURGH, Defendant-Appellant.

Docket No. 6798.

Court of Appeals of Michigan, Division No. 2.

June 23, 1970.

Released for Publication Oct. 26, 1970.

James D. O'Connell, Highland Park, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George N. Parris, Pros. Atty., Thaddeus F. Hamera, Chief Appellate Lawyer, Stephen F. Osinski, Asst. Pros. Atty., for plaintiff-appellee.

Before McGREGOR, P.J., and DANHOF and LARNARD, ^* JJ.

LARNARD, Judge.

While apprehending Defendant on another matter, a detective of the Michigan State Police observed a 1967 Pontiac Grand Prix authomobile, and a 1968 Pontiac GTO automobile parked in back of Defendant's premises. A routine check revealed that both these vehicles were stolen.

Defendant was convicted following a jury trial of the crime of unlawful possession of a motor vehicle, a violation of M.C.L.A. § 257.254 (Stat.Ann.1968 Rev. § 9.1954), and was sentenced. This appeal is brought as of right.

Margaret Ann Dunn, who was living with Defendant at the time of his arrest, testified against the Defendant, both at the preliminary examination and at trial relative to the Defendant giving her the stolen 1968 GTO. This testimony was admitted by the trial court under the 'scheme plan or system' statute, as was the testimony of Leonard Peklo who testified that the 1968 GTO had been stolen from Ace Wilson's Royal Pontiac in Royal Oak.

In showing that the Defendant had altered the registration of the 1967 Pontiac, the People introduced the testimony of a detective from the Michigan State Police, and a certification from the Michigan Secretary of State relative to Defendant's automobile title history concerning his 1961 Pontiac. Prior to these two events, the trial court had stated that the detective was '* * * one of the best police officers they have in the Michigan State Police'.

The first claim of error raised by Defendant was the admission into evidence of the testimony of Margaret Ann Dunn and Leonard Peklo relative to Defendant's possession of the 1968 GTO.

Under the Michigan Statute, C.L.1948, § 768.27 (Stat.Ann.1960 Rev. § 28.1050), the prosecution is not allowed to introduce evidence of another and distinct offense by the accused unless the question of intent is at issue, whereby such evidence is admissible for the limited purpose of establishing a 'scheme, plan or system'. If the trial judge, in his discretion, finds the evidence to be relevant and that its probative value outweighs its potential prejudicial effect, he is free to admit such evidence subject to an instruction advising the jury as to its limited use. People v. Shaw (1968) 9 Mich.App. 558, 566, 157 N.W.2d 811. This requirement was complied with and we will not interfere with the trial judge's discretion.

Secondly, defendant claims it was error to admit the certification of the secretary of state regarding the title history of defendant's 1961 Pontiac, we find no merit in such a contention.

The Michigan Motor Vehicle Code, M.C.L.A. § 257.1 et seq. (Stat.Ann.1968 Rev. § 9.1801 et seq.) requires the secretary of state to keep title records. Certified copies thereof are made admissible in the same manner as the original documents. M.C.L.A. § 600.2107 (Stat.Ann.1962 Rev. § 27A.2107); M.C.L.A. 1970 Cum.Supp. § 257.207 (Stat.Ann.1970 Cum.Supp. § 9.1907).

A 1968 amendment to § 257.207 provides that such certified records are 'prima facie proof of the facts stated therein'. The facts stated in the certification do not directly tend to prove defendant's possession of the 1967 Pontiac, while the hospital records in People v. Lewis (1940), 294 Mich. 684, 293 N.W. 907, relied on by defendant, directly tended to prove that the defendant was practicing medicine without a license which was held to violate his constitutional right to confront his accuser. Defendant's reliance on Lewis, supra, is also misplaced because the exception to the hearsay rule relied on in that case was the 'shop book rule' and because the governing statute construed in that case has since been amended by M.C.L.A. § 600.2146 (Stat.Ann. 1962 Rev. § 27 A.2146). We therefore find no error in the admission of the certification of the Secretary of State.

The third defect claimed by defendant is that the court committed prejudicial error by characterizing the detective as 'one of the best...