People v. Gallagher

• Decision Date: 03 January 1979
• Docket Number: Docket No. 58506,N,No. 5,5
• Citation: 404 Mich. 429,273 N.W.2d 440
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Raymond GALLAGHER, Defendant-Appellant. Calendarov. Term 1977.
• Court: Michigan Supreme Court

Page 440

273 N.W.2d 440

404 Mich. 429

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Raymond GALLAGHER, Defendant-Appellant.

Docket No. 58506.

Calendar No. 5, Nov. Term 1977.

Supreme Court of Michigan.

Argued Nov. 1, 1977.

Decided Jan. 3, 1979.

William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Research, Training & Appeals, Timothy A. Baughman, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Faintuck, Shwedel, Roether, Wolfram, McDonald & Zipser by William G. Wolfram, Farmington Hills, for defendant-appellant.

PER CURIAM.

The defendant challenges the constitutionality of M.C.L.A. § 750.535; M.S.A. § 28.803, on the grounds that it violates the privilege against self-incrimination, the presumption of innocence and due process.

That statute makes receiving or concealing stolen property a crime and provides that:

"Any person being a dealer in or collector of any merchandise or personal property, or the agent, employee, or representative of a dealer or collector who fails to make reasonable inquiry that the person selling or delivering any stolen, embezzled, or converted property to him has a legal right to do so Or who buys or receives any such property which has a registration, serial, or other identifying number altered or obliterated on any external surface thereof, shall be presumed to have bought or received such property knowing it to have been stolen, embezzled, or converted. This presumption may be rebutted by proof." M.C.L.A. § 750.535(2); M.S.A. § 28.803(2). (Emphasis added.)

The defendant was in the business of salvaging and rebuilding automobiles. He was arrested for receiving or concealing stolen property after police observed that the vehicle identification number had been removed from the late model Cadillac he was towing. The defendant produced no proof of ownership or bill of sale. It was shown at trial that the Cadillac had been stolen approximately two weeks before his arrest. No witnesses were offered by the defense. The defendant was convicted by a jury of receiving or concealing stolen property and sentenced to one to five years imprisonment. The Court of Appeals affirmed the conviction. 68 Mich.App. 63, 241 N.W.2d 759 (1976).

We agree with the Court of Appeals conclusion that the statute does not violate the defendant's privilege against self-incrimination. Under the challenged provision, knowledge that the property was stolen is inferred from evidence that identifying numbers on the property were altered or removed. The situation is like the one in which the prosecutor produces direct evidence establishing a prima facie case. The introduction of any evidence which tends to implicate the defendant increases the pressure on him to testify but this pressure does not violate his privilege against self-incrimination. Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); People v. Kayne, 286 Mich. 571, 282 N.W. 248 (1938); Yee Hem v. United States, 268 U.S. 178, 45 S.Ct. 470, 69 L.Ed. 904 (1925). We disapprove the distinction drawn in People v. Serra, 55 Mich.App. 514, 223 N.W.2d 28 (1974), between "state of mind" presumptions and other presumptions for the reasons discussed by the Court of Appeals in this case. 68 Mich.App. 63, 67-73, 241 N.W.2d 759.

The statutory presumption does not violate the presumption of innocence or the requirement that the defendant be proven guilty beyond a reasonable doubt. These principles do not prohibit the use of statutory rules of evidence which place upon a defendant the burden of going forward with the evidence after the "prima facie evidence" is introduced. People v. Kayne, supra, 286 Mich. 578-579, 282 N.W. 248. The presumption of innocence may be overcome by the additional weight of a countervailing legislative presumption as well as by direct proof alone. Yee Hem v. United States, supra, 268 U.S. 184-185, 45 S.Ct. 470. The statute in People v. Licavoli, 264 Mich. 643, 250 N.W. 520 (1933), made proof of Reputation for engaging in an illegal business prima facie evidence of being engaged in an illegal business. Although it was noted in that case that the statute deprived a defendant of the presumption of innocence, the statutory presumption was held to be irrational and arbitrary. People v. Licavoli, supra, 264 Mich. 645, 250 N.W. 520.

Here, there is a rational connection between the proven facts and the fact presumed. Common experience tells one that a dealer who receives a car with altered or obliterated identifying numbers likely knows that the car was stolen. The presumption thus meets the due-process test as stated in Tot v. United States, 319 U.S. 463, 467-468, 63 S.Ct. 1241, 1245, 87 L.Ed. 1519 (1943):

"(A) statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience."

As required by Leary v. United States, 395 U.S. 6, 36, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), it can be said with substantial assurance that the presumed fact is more likely than not to flow from the proven fact. The defendant urges adoption of a test requiring proof beyond reasonable doubt that the presumed fact follows from the proven fact. The United States Supreme Court has not yet addressed this issue and we decline to adopt the suggested standard.

A clearer instruction on the presumption than that provided by a reading of the statute should have been given. By itself, an instruction that one who received stolen property with altered identifying numbers is presumed to have known the property was stolen could lead a jury to conclude that an essential element of the crime had been proven as a matter of law. It is reversible error for a judge to instruct that an essential element of the crime exists as a matter of law. People v. Allensworth, 401 Mich. 67, 257 N.W.2d 81 (1977). The jury should be instructed that it may, but need not, infer the existence of the presumed fact from the proven fact. MRE 302(b). Here, the reading of the statute did not constitute reversible error because the judge subsequently instructed the jury at length on the prosecutor's burden of proof, the presumption of innocence and the jury's duty to acquit if the elements of the offense had not been proven beyond a reasonable doubt. The jury was also instructed that:

"Circumstances are never presumed. Each thought making up the chain of circumstances must be proven beyond a reasonable doubt, and if the prosecution fails to prove any one link making up the chain of circumstances, the defendant must not be convicted".

The defendant's final claim is that he is entitled to credit for time served in Federal prison against his sentence in this case. He was sentenced to one to five years imprisonment for the conviction in this case on August 30, 1974 and was released after posting an appeal bond. While his appeal bond was in effect, he served from January 20, 1975 to June 4, 1975 in the Detroit House of Correction on a sentence imposed in an unrelated case and from June 25, 1975 to February 11, 1976 in Federal prison for Federal income tax violations. The defendant moved to amend the mittimus and the judge ordered that the defendant receive credit for time served on the other state conviction but denied credit for time served on the Federal conviction.

The rule in Michigan is that a sentence may not be imposed to commence at the completion of another sentence in the absence of statutory authority. In re Carey, 372 Mich. 378, 126 N.W.2d 727 (1964). In that case, the defendant had been sentenced to 5 years imprisonment for a Federal offense four days before he was sentenced to serve 3 to 14 years on a state conviction. After noting that two State prison terms would run concurrently, it was held that the defendant should receive credit for the time served in Federal prison:

"A defendant who is sentenced in a state court after receiving sentence in a federal court is subject to the same 'undefined and uncertain contingencies' about when state sentence begins, as he is in the case of two or more state sentences. The reason for the rule aptly applies in both types of cases. Therefore, we hold that where a defendant has been sentenced in federal court, and is subsequently sentenced in a state court or courts, sentence may not be imposed to commence at the completion or expiration of federal sentence, in the absence of statutory authority." In re Carey, supra, 372 Mich. 381, 126 N.W.2d 729.

The people contend that Carey is distinguishable because the sentencing for the Federal offense occurred before the state sentencing. Here, the defendant was sentenced on the Federal offense after the state sentencing.

We do not find these differences in the order of sentencing to be controlling when the actual imprisonment on the Federal conviction began before imprisonment on the state conviction. In such a case, a defendant is subject to the same uncertain contingencies about when the state sentence will begin. The defendant is entitled to credit for time served on the Federal conviction. Pursuant to GCR 1963, 865.1(7), the defendant's sentence is amended to grant him credit for the time served in Federal prison.

The defendant's conviction is affirmed.

MOODY, COLEMAN, WILLIAMS, FITZGERALD and RYAN, JJ., concur.

LEVIN, Justice (dissenting).

Raymond Gallagher was convicted of receiving or concealing stolen property. ¹ The issue is the constitutionality of a presumption in the receiving or concealing stolen property statute that a dealer in personal property who buys property with an altered or obliterated identifying number on an external surface shall be presumed to have bought it knowing it to have been stolen. ² We would hold that the people have failed to prove that the statutory presumption is constitutional as applied to Gallagher.

I

Gallagher was in the...