People v. Kyllonen

• Decision Date: 23 January 1978
• Docket Number: 4,Nos. 3,O,s. 3
• Citation: 402 Mich. 135,262 N.W.2d 2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David KYLLONEN, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Vance FRUM, Defendant-Appellant. ct. Term 1977. 402 Mich. 135, 262 N.W.2d 2
• Court: Michigan Supreme Court

Page 2

262 N.W.2d 2

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David KYLLONEN, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Vance FRUM, Defendant-Appellant.

Nos. 3, 4, Oct. Term 1977.

402 Mich. 135, 262 N.W.2d 2

Supreme Court of Michigan.

Jan. 23, 1978.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Torger Omdahl, Pros. Atty., Mark I. Leach, Asst. Atty. Gen., Lansing, for the People in No. 3.

State Appellate Defender Office by Barbara R. Levine, Asst. Defender, for David Kyllonen; Kim R. Fawcett, Michael E. Turner, Detroit, of counsel.

L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Counsel by James L. McCarthy, Asst. Appellate Counsel, Pontiac, for the People in No. 4.

Smith, Magnusson & Chartrand by Herbert O. Magnusson, Pontiac, for Charles V. Frum.

COLEMAN, Justice.

These separate criminal cases present a single narrow and unique question of statutory interpretation: When the Legislature enacted M.C.L.A. § 750.535; M.S.A. § 28.803, ¹ which proscribes, inter alia, "aid(ing) in the concealment of * * * stolen * * * property", did it intend to provide an alternate statute under which thieves could be convicted; or did it only intend to cast a net of criminal liability over persons who assist thieves or others in the concealment of stolen property?

I

Defendant Kyllonen was charged in a one count information with buying, receiving or aiding in the concealment of stolen property. The evidence at his trial showed that he worked as a maintenance man at a Lansing automobile dealership. He did not appear for work on January 28, 1974. Later that day, the dealership discovered that a 1974 pickup truck was missing from its inventory. Two weeks later, Kyllonen was seen driving the truck in Iron River, Michigan. He was arrested and the truck was seized. He admitted in a signed confession that he had taken the truck from the dealership without permission and that he had parked the truck on a friend's farm in Iron River, knew that the friend was stripping parts off the truck and was present when the friend made a telephone call to Chicago in an attempt to arrange a sale of the truck. At trial he testified that he had taken the truck and during the ensuing two weeks he had driven to Florida and back to Michigan. He parked the vehicle at the Iron River farm. He had discussed "getting rid of the truck" with his friend. In the meanwhile, he used it for his own purposes. His defense was insanity stemming from extensive physical and psychological trauma that he had suffered during two tours of combat duty in South Vietnam. The prosecutor emphasized the fact that defendant was not charged with the taking, but was charged with concealing the truck. The jury returned a verdict of guilty as charged.

Defendant Frum also was charged in a one count information with buying, receiving or aiding in the concealment of stolen property. The evidence at his trial showed that he met the complainant at a bar and arranged to take her out the following evening. When he arrived to pick her up, she told him she had changed her mind and no longer wished to go out. He then indicated that he had left his wallet in her car the night before and asked if he could go retrieve it. She said "yes" and gave him her keys. When, after twenty minutes, he had not returned, she went to the parking lot and discovered that both he and her car were gone. Approximately two weeks later Frum was arrested in the car after a high speed chase following a hit and run accident. He gave the arresting officer a false name and said that he had purchased the car from the complainant. The car's original license plates had been removed and replaced with plates that were stolen. At trial the complainant testified that she had not given Frum permission to take the car. The jury returned a verdict of guilty as charged.

On appeal each defendant argued that M.C.L.A. § 750.535; M.S.A. § 28.803 does not apply to thieves who conceal the property they have stolen. Instead, its coverage is limited to persons who assist thieves or others in the concealment of stolen property.

The Court of Appeals panel which heard defendant Kyllonen's case unanimously rejected this argument and affirmed his conviction. ² The panel recognized that under prior decisions of this Court, the defendant could not be convicted of both larceny and buying, receiving or aiding in the concealment of stolen property. ³ However, the panel reasoned, so long as the defendant had not been convicted of larceny, he could be convicted of buying, receiving or aiding in the concealment of stolen property. The panel cited two prior Court of Appeals decisions in support of this conclusion. ⁴

A different Court of Appeals panel unanimously affirmed defendant Frum's conviction. ⁵ It reasoned that Frum had not been proven to be the thief beyond a reasonable doubt and that although larceny and buying, receiving or aiding in the concealment of stolen property are mutually exclusive crimes, prosecutors can exercise their discretion and charge either one.

Leave to appeal was granted in each case to determine the scope of criminal liability under M.C.L.A. § 750.535; M.S.A. § 28.803 and to clarify the procedures to be followed in cases involving possible charges of both larceny ⁶ and buying, receiving or aiding in the concealment of stolen property.

II

The history leading to the enactment of M.C.L.A. § 750.535; M.S.A. § 28.803 is an appropriate place to being the determination of the statute's scope. ⁷

At common law, thieves could be prosecuted for larceny but persons who assisted thieves in disposing of stolen property could only be convicted of misprision of felony ⁸ or compounding a felony. ⁹ The two crimes were misdemeanors and the paltry penalties prescribed did little to deter persons from engaging in the societally harmful business of providing a marketplace for stolen goods. There were no separate substantive felony offenses proscribing such conduct. Persons helping to provide the channel to such a marketplace or providing the marketplace itself could not usually even be convicted as accessories after the fact to the larceny. To be guilty of that crime, one had to harbor the thief, not just his stolen goods.

In response to this situation, Parliament tried to close the loophole in the common law by enacting a statute providing that a person who bought or received stolen property could be convicted as an accessory after the fact to the larceny. ¹⁰ However, this statute was difficult to enforce because accessories could only be convicted after the principal felon (here, the thief) had been apprehended, tried and convicted. To remedy the problem, Parliament enacted another statute abolishing this procedural requirement. ¹¹ Finally, Parliament completely severed the umbilical cord between larceny and buying or receiving stolen property by enacting a statute making the latter a separate and distinct substantive felony offense. ¹²

This early history reveals that the statutory crime of buying or receiving stolen property was originally designed and intended to proscribe conduct by persons who helped thieves dispose of their illegal booty. It was born out of a need to change the common law which permitted these persons to escape serious criminal liability. The statutory development was marked by a series of refinements directed towards prosecution and conviction of these offenders. Nowhere is there an indication that the statute also was intended to be an alternate provision under which thieves could be convicted.

The English statute proscribing buying or receiving stolen property crossed the Atlantic and became a fixture of American jurisprudence. In Michigan, it retained its basic form but its scope was somewhat broadened. The Revised Statutes of 1846, Title 30, Chapter 154, § 20 stated:

"Every person who shall buy, receive or aid in the concealment of any stolen money, goods or property, knowing the same to have been stolen, shall be punished by * * *." (Emphasis added.)

Likewise, Rev. stat. 1846, title 30, ch. 154, § 23 stated:

"In any prosecution of the offense of buying, receiving or aiding in the concealment of stolen money or other property, it shall not be necessary to aver, nor on the trial thereof to prove, that the person who stole such property has been convicted." (Emphasis added.)

Although legislative intent often is elusive, the thrust of the statutory wording is clear on its face and consistent with its historical development. It is directed towards those who assist the thief or others in the disposition or concealment of stolen property. The everyday understanding of the language employed excludes the person who committed the larceny.

To interpret the words "buys", "receives" or "aids in the concealment" of stolen property to mean buying or receiving from one's self or aiding one's self in concealment is needlessly to corrupt a forthright and harmonious statute. ¹³ Other statutes proscribe larcenous activities.

Early Michigan caselaw confirms the fact that it was the gap in the English statute which provided the stimulus to add the words "or aids in the concealment" to the Michigan statute. In People v. Reynolds, 2 Mich. 422 (1852), after describing the development of the English statute, the Court said:

"Our statute has enlarged this * * * offense, by making persons who shall aid the principal felon in the concealment of the property stolen, equally guilty with him who shall receive such property.

"This was the object of the statute, and was intended to embrace a class of offenses which could not (otherwise) have been reached * * *; for important aid and assistance could have been rendered to the principal felon in enabling him to conceal the stolen property, without having been the receiver, so as to have subjected him to a prosecution on that account * * *.

"The evil intended to be guarded...