People v. Haney

• Decision Date: 03 October 1978
• Docket Number: Docket No. 77-1770
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rebecca Lee HANEY, Defendant-Appellant. 86 Mich.App. 311, 272 N.W.2d 640
• Court: Court of Appeal of Michigan — District of US

Page 640

272 N.W.2d 640

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rebecca Lee HANEY, Defendant-Appellant.

Docket No. 77-1770.

86 Mich.App. 311, 272 N.W.2d 640

Court of Appeals of Michigan.

Oct. 3, 1978.

Released for Publication Jan. 3, 1979.

[86 MICHAPP 313] James R. Neuhard, State App. Defender, Barbara R. Levine, Deputy App. Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Michael LaBeau, Pros. Atty., William P. Godfroy, Asst. Pros. Atty., for plaintiff-appellee.

Before CYNAR, P. J., and T. M. BURNS and RILEY, JJ.

PER CURIAM.

Defendant appeals as of right from her February 1, 1977, conviction by a Monroe County jury of buying, receiving or aiding in the concealment of stolen property worth over $100, knowing the same to have been stolen. M.C.L. § 750.535; M.S.A. § 28.803. On March 10, 1977, she was sentenced to a term of two to five years imprisonment.

Defendant was a passenger in a 1971 Lincoln driven by Arthur Thomas when it was stopped for speeding on June 11, 1976. After defendant produced a registration slip bearing her name, the officer ran a check on the car's license plates. This revealed that the plates were registered to Arthur Thomas for a 1968 Ford Mustang. Other discrepancies in the registration led the officer to run a vehicle identification number check on the car. These discrepancies included the absence of a validation stamp, extraneous letters in the identification number and an imprecise description of the make of the car. Furthermore, it was pointed out at trial that the fees listed on the registration were too high and that it was incorrectly marked "tax exempt". The vehicle identification number [86 MICHAPP 314] check indicated that the car was reported stolen on June 1, 1976. On the basis of this evidence, defendant was arrested.

At trial the owner of the car, Joseph Brooks, testified that the car was stolen from the parking lot of an Ann Arbor shopping center on June 1, 1976. He also testified that when the car was returned to him he noted that his key no longer fit the ignition.

The prosecution also called Joseph Giljum, a used car sales manager, to testify. He appraised the Lincoln at $3400 wholesale and $4200 retail. He also stated that there was a lot of flexibility in car prices and that $1500 was not much of a variance for a car such as that involved herein. In response to a prosecution question as to whether $1500 was a fair market price for the car, he replied that it was "more than fair, it's very cheap."

Defendant took the stand in her own defense and gave the same explanation that was given to the arresting officers. She testified that she and Mr. Thomas saw the automobile in a Highland Park parking lot with a "For Sale" sign on it. They stopped and talked to the purported owner, Rufus Williams. On June 4, 1976, she paid $1500 for the car. She testified that the transfer took place in the Secretary of State's Office in Highland Park. There, she claimed to have paid Williams the money, signed some papers and received the registration and a handwritten receipt. She also testified that she was told by Williams that the title would come in the mail. She added that after the purchase Williams removed the license plates from the car; so she took a plate from Thomas's car and placed it on the Lincoln. The whereabouts of Rufus Williams is unknown, as defendant never obtained his address or phone number.

[86 MICHAPP 315] Defendant claims that the trial court erred in sustaining prosecution objections to the introduction of evidence of defendant's conversations with the alleged seller of the car. These conversations, which apparently involved price negotiations and matters relating to the transfer of the automobile, were excluded on the basis of hearsay. Each of these objections followed a statement by defendant as to what Williams had allegedly told her. ¹

[86 MICHAPP 316] Hearsay is testimony of an out-of-court statement used to prove the truth of the matters asserted therein. People v. Hallaway, 389 Mich. 265, 275, 205 N.W.2d 451 (1973) (opinion of T. E. Brennan, J.). See also MRE 801(c). On their face, statements of what another person said at some prior point in time would appear to be hearsay, absent any applicable exception to the hearsay rule. The crucial question, of course, is the Purpose for which the statements offered. Defendant contends that the statements here were offered to show her lack of knowledge of whether the car was stolen. She contends that evidence of price negotiations would show the reason for the car's low price, that evidence of her conversations with Williams would explain why she was ignorant of the discrepancies in the registration and that evidence of her conversations with Williams after the transaction would shed light on the matter of the license plates.

We agree with defendant's contention that evidence of statements made by others may have some bearing upon the question of knowledge or lack thereof. Obviously, one's knowledge is affected [86 MICHAPP 317] by the statements of others. In such situations the utterance is used to show the effect on the hearer, not to prove its truth. McCormick, Evidence (2d ed.), § 249, pp. 589-590, People v. Cameron, 52 Mich.App. 463, 466, 217 N.W.2d 401 (1974). It was thus error for the trial judge to exclude these statements.

Defendant further contends that this error violated her right to present a defense citing Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). That case involved a confession by another which was excluded on the basis of hearsay. There, the excluded evidence, if believed, would have provided a complete defense to the crime. Such is not the case here. Even accepting as true defendant's allegations as to the substance of the excluded testimony, there was ample evidence from which the jury could infer the requisite guilty knowledge.

Moreover, this Court fails to see what could have been added by defendant which would not have been cumulative of the evidence placed before the jury. Defendant explained that her companion's license plates had been put on the car because Williams had removed his. Her ignorance of the false validation or the registration was explained by her failing to accompany Williams to the counter in the crowded Secretary of State's Office. Any inference to be drawn from the prosecution's expert witness's characterization of the purchase price as "cheap" were substantially rebutted by his own testimony, indicating that a $1500 variance from $3400 wholesale price was not that much. Therefore, on the basis of the above, we hold that the exclusion of the statements constituted harmless error and that defendant's right to bring a defense was not violated.

[86 MICHAPP 318] Defendant also contends that certain portions of the jury instructions constituted reversible error. However, no objections were made to any of the instructions. Thus, this issue was not preserved for review. GCR 1963, 516.2; People v. Hall, 77 Mich.App. 456, 462, 258 N.W.2d 517 (1977).

There is an exception to the "no objection, no review" rule when a miscarriage of justice would otherwise result Hall, supra, 462, 258 N.W.2d 517. However such is not the case here. Contrary to defendant's contention, the trial judge has no duty to Sua sponte instruct the jury that when a case is based on circumstantial evidence, the state must refute every theory consistent with innocence. People v. Blackwell, 61 Mich.App. 236, 243, 232 N.W.2d 368 (1975). Furthermore, we agree that such an instruction does not accurately reflect the state of the law. See People v. Edgar, 75 Mich.App. 467, 472-474, 255 N.W.2d 648 (1977). Nor do we find authority in support of defendant's contention that the instructions for this offense must reflect a theory of either "buying", "receiving" or "aiding in concealment". Assuming Arguendo that such a choice must be made, the instruction on "aiding in concealment" was proper, since the information listed the date of the arrest, not the date of the alleged purchase, as the date of the offense. Finally, the trial judge's review of the evidence was not so biased as to warrant reversal....