People v. Kochan
| Citation | 55 Mich.App. 326,222 N.W.2d 317 |
| Decision Date | 29 August 1974 |
| Docket Number | No. 2,Docket No. 18123,2 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stephen T. KOCHAN, Defendant-Appellant |
| Court | Court of Appeal of Michigan (US) |
Anthony Renne, Renne & Welter, Bloomfield Hills, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., for plaintiff-appellee.
Before McGREGOR, P.J., and R. B. BURNS BURNS and O'HARA,* JJ.
The defendant was jury-convicted on a charge of breaking and entering an occupied dwelling with intent to commit larceny. M.C.L.A. § 750.110; M.S.A. § 28.305. This appeal as of right followed.
There are 10 assignments of error. We have examined them all. Those to which we do not specifically advert have not been disregarded. Rather we consider them to have raised issues not preserved on appeal or to have been of insufficient substance to merit decisional discussion.
Defendant first argues that the trial judge erred in denying defendant's motion for change of venue prior to trial. We do not agree with this contention. While a trial judge may grant either party a change of venue 'upon good cause shown', M.C.L.A. § 762.7; M.S.A. § 28.850, the denial of such motions rests in the circuit judge's discretion. To set aside such a decision there must be a clear showing of abuse on the part of the court. People v. Shugar, 29 Mich.App. 139, 185 N.W.2d 178 (1970). There was no abuse of discretion in the instant case.
The next contention pertains to a claim that the prosecution did not adequately establish at the preliminary examination that the charged crime had been committed and probable cause to believe that defendant had committed it. More particularly, he asserts there was a failure of proof on one of the key elements of the charge, I.e. the intent to permanently deprive the owner of his goods. This assertion is based upon the fact that the chattels were found in a field sometime subsequent to the taking and that such action allegedly indicates an intention on his part to abandon them.
Intent can be inferred from the totality of facts and circumstances present in a case. People v. Butler, 27 Mich.App. 404, 183 N.W.2d 595 (1970). If defendant had the requisite intent at the time of the breaking and entering, an abandonment of the goods does not render him less culpable. See generally, People v. Curley, 99 Mich. 238, 58 N.W. 68 (1894). In any event, our examination of the record made at the preliminary examination amply justifies the finding of the magistrate that the prosecutor had established all the elements of the charged crime.
The next issue presented is whether the prosecutor deliberately suppressed evidence vital to the defendant's case. Defendant contends that he was denied due process of law because the people suppressed evidence which was material to his defense. Per contra the prosecutor contends that there was no deception involved and that defendant was not entitled to discovery prior to the preliminary examination. The people further claim that defendant should have moved for the production of the materials in circuit court and that his failure to do so should preclude any claim of error.
A screwdriver was found in the defendant's car and the authorities were apparently trying to determine if the markings on the door of the burglarized premises had been made by this particular tool. The defendant sought discovery of the scientific information prior to the preliminary examination. The prosecutor responded to the defendant's request by stating that comparison tests with the screwdriver were incomplete. Nothing of record suggests the contrary. The defendant did make a discovery motion at trial but this motion did not cover results of the scientific tests. Nor could the police witness, who testified as an expert at trial, state unequivocally that the defendant's screwdriver made the entry marks on the home of the victim. Additionally, defense counsel was afforded the opportunity for a full and searching cross-examination of the people's expert. We conclude that there was no prejudice to defendant's substantial rights and that the constitutional guarantee of due process was not interdicted.
Defendant now claims that he was denied due process when the prosecutor elicited testimony from the victim of the crime, knowing that it was false as compared with an earlier taped statement of this witness and that the people immeasurably added to the prejudice by suppressing evidence containing the earlier inconsistent statement.
In his testimony at trial, the victim made no reference to the fact he had previously described one of the burglars in an initial phone call to the police as having a Beard. The defendant had been apprehended shortly after this report was called in and was beardless at the time. The defense was then allowed to impeach the witness's testimony by playing the police tape recording in which he described the culprit as having a beard. The owner of the burglarized premises was then recalled as a rebuttal witness and stated that he did not recall using the word 'beard'.
This was not a case of the prosecutor using false testimony, but rather a case of shifting memory under the stress of excitement. The discrepancy in the identification testimony raised a controverted question of fact for the jury. It resolved the credibility issue adversely to defendant. That is the way our system of jurisprudence has developed to deal with such disputed factual questions.
In like manner this was not a suppression of evidence case. Manifestly, the tape was played and the witness's testimony impeached. Purely and simply it was a question for the jury under proper instructions.
The defendant filed a notice of alibi which listed four...
To continue reading
Request your trial
-
People v. Hughes
...only if this Court finds a clear abuse of such discretion. People v. Swift, 172 Mich. 473, 138 N.W. 662 (1912), People v. Kochan, 55 Mich.App. 326, 222 N.W.2d 317 (1974). In reliance on Swift, supra, the trial court delayed decision on this matter pending voir dire examination of prospectiv......
-
People v. Tilliard
...to commit larceny, an element that must exist at the [98 MICHAPP 19] time of the breaking and entering. See People v. Kochan, 55 Mich.App. 326, 329, 222 N.W.2d 317 (1974). A judge may accept a plea if, after careful examination, he concludes, from the defendant's recitation of the facts, th......
-
People v. Maliskey
...trial court's determination will not be disturbed. People v. Ranes, 58 Mich.App. 268, 274, 227 N.W.2d 312 (1975); People v. Kochan, 55 Mich.App. 326, 328, 222 N.W.2d 317 (1974). Given the evidence presented, we find no abuse of discretion Further, the jury had the opportunity to hear and de......
-
People v. Ranes
...To set aside such a decision, a clear showing of abuse on the part of the trial court must be demonstrated. People v. Kochan, 55 Mich.App. 326, 222 N.W.2d 317 (1974), People v. Shugar, 29 Mich.App. 139, 185 N.W.2d 178 (1970), People v. Ranes, 58 Mich.App. 268, 227 N.W.2d 312 A showing that ......