People v. McCracken

• Decision Date: 05 February 1979
• Docket Number: Docket Nos. 77-367,77-1545
• Citation: 88 Mich.App. 286,276 N.W.2d 609
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Lee McCRACKEN and James D. O'Connell, Defendants-Appellants. 88 Mich.App. 286, 276 N.W.2d 609
• Court: Court of Appeal of Michigan — District of US

Page 609

276 N.W.2d 609

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Lee McCRACKEN and James D. O'Connell Defendants-Appellants.

Docket Nos. 77-367, 77-1545.

88 Mich.App. 286, 276 N.W.2d 609

Court of Appeals of Michigan.

Feb. 5, 1979.

Released for Publication March 29, 1979.

[88 MICHAPP 290] Carl Ziemba, Detroit, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, App. Chief Asst. Pros. Atty., Timothy Baughman, Timothy Scallen, Asst. Pros. Attys., for plaintiff-appellee.

Before BASHARA, P. J., and BRONSON and SIMON, ^* JJ.

BASHARA, Presiding Judge.

Defendants raise 14 issues in their appeals from jury convictions of conspiracy to break and enter a dwelling house with intent to commit larceny therein, M.C.L. §§ 750.157a, 750.110; M.S.A. §§ 28.354(1), 28.305, and of receiving and concealing stolen property over the value of $100, M.C.L. § 750.535; M.S.A. § 28.803.

The charges in this case arose from the burglary of the home of a Ferndale coin collector. At trial, the three participants in the burglary, Michael Thomas, Ron Oesterling, and Joel Reed, testified pursuant to a grant of transactional immunity. In brief, their testimony indicated that defendant McCracken became involved in the planning of the [88 MICHAPP 291] burglary and that he indicated he could get rid of any coins stolen through defendant O'Connell.

After the burglary, the coins were put into a brief case and taken at a later date by McCracken to O'Connell's office and left there.

Both defendants denied any involvement in the burglary or with the stolen coins.

At the outset, we wish to observe that this was a lengthy and complex trial, fraught with difficulties. The trial judge is to be commended for his excellent demeanor and control of the unusual circumstances, at times exacerbated by the actions of perhaps overly zealous counsel.

Defendants initially claim that the jury instruction on intent impermissibly shifted the burden of proof from the prosecution to the defense. The trial judge instructed the jury as follows:

"The question of intent is one that is hard to establish directly because grown persons do not always disclose the object they have in view in any acts in which they may indulge, and you have to gather the intent from the character of the act, the circumstances surrounding it and from conduct of a like character which may appear as tending to aid you in finding and discovering it. But in connection with all this, unless the testimony satisfied you of something else you are warranted in holding a party responsible for the natural, probable and legitimate consequences of his acts. The intent may be presumed from the doing of a wrongful, fraudulent or illegal act. But this inference or presumption is not necessarily conclusive. The law presumes that every man intends the legitimate consequences of his own acts. Wrongful acts, knowingly or intentionally committed can neither be justified nor excused on the ground of innocent intent."

This instruction has been considered by the Court many times. A similar instruction was approved in [88 MICHAPP 292] People v. Ross, 69 Mich.App. 705, 245 N.W.2d 335 (1976), and in People v. Adams, 48 Mich.App. 595, 210 N.W.2d 888 (1973).

Defendants rely on People v. Wright, 78 Mich.App. 246, 259 N.W.2d 443 (1977), which relied on People v. Smith, 67 Mich.App. 145, 240 N.W.2d 475 (1976), to proscribe a like instruction. However, it is the opinion of this panel that Wright's reliance on Smith was misplaced. Reversal in Smith was predicated on an error in the self-defense instruction. In fact, the intent instruction was approved by two of the three judges on the Smith panel.

Defendants objected to the instruction as given. Nonetheless, under any standard, when reviewed as a whole, we find no reversible error in this regard. People v. Townes, 391 Mich. 578, 218 N.W.2d 136 (1974); People v. Ross, supra.

The other claims of error in jury instructions are raised here for the first time. Our review reveals no manifest injustice or prejudicial error.

Defendants also argue that they were deprived of fundamental fairness by rulings of the trial court, and prosecutorial misconduct during cross-examination and closing argument.

We find that sustaining an objection to a question as to whether a witness was aware of the maximum prison term he could have received if he had not been granted immunity does not constitute reversible error. It is only required that the court make known to the jury that a grant of immunity has been made. People v. Love, 43 Mich.App. 608, 204 N.W.2d 714 (1972).

Just as jury instructions are to be read as a whole, so must the remarks of the prosecutor. Failure to object bars appellate review unless the prejudice is so egregious that it cannot be cured by [88 MICHAPP 293] judicial instruction. People v. Hernandez, 80 Mich.App. 465, 264 N.W.2d 343 (1978).

Our review of the record convinces us that no manifest injustice or reversible error result from prosecutorial conduct. People v. Robinson, 386 Mich. 551, 563, 194 N.W.2d 709 (1972); People v. Ellis, 62 Mich.App. 109, 113, 233 N.W.2d 205 (1975); People v. Foster, 77 Mich.App. 604, 611, 259 N.W.2d 153 (1977).

The fact that the prosecutor misstated a fact regarding one of the witnesses does not, in light of this record, constitute reversible error. We are mindful of the oft-quoted wisdom of Justice North in People v. Burnstein,261 Mich. 534, 538, 246 N.W. 217, 218 (1933), wherein it was stated:

" * * * in the haste and heat of a trial it is humanly impossible to obtain absolute perfection, and of necessity some allowance must be made in determining whether impromptu remarks are to be held prejudicial. Statements should not be held prejudicial if they are made in good faith, and, when fairly construed, they do not appear to have been such as influenced the jury adversely to the rights of the accused."

Defendant McCracken next argues that it was reversible error for the prosecution to fail to provide him with a full transcript of grand jury proceedings used to impeach him. The record reveals that the prosecutor referred to only a page and a half of the transcript of the grand jury proceedings on cross-examination. Defense counsel was provided with that portion of the transcript actually used, and was permitted to view the transcript in its entirety.

Defendant relies on People v. Karoll, 315 Mich. 423, 24 N.W.2d 167 (1946), and People v. Bellanca, 386 Mich. 708, 194 N.W.2d 863 (1972), in support of [88 MICHAPP 294] his position. However, both of those cases are distinguishable from the facts of the case at bar in that the cases involved arose from grand jury proceedings. In the instant case, the grand jury proceeding pertained to a collateral matter. The few pages of transcript were used strictly for impeachment purposes. In view of these circumstances, we find no reversible error.

Defendant McCracken also argues the interval of 540 days from the alleged commission of the offense until arrest was a delay sufficient to deprive him of due process. Defendant relies on People v. Hernandez, 15 Mich.App. 141, 170 N.W.2d 851 (1968). However, People v. Noble, 18 Mich.App. 300, 170 N.W.2d 916 (1969), held there was no constitutional right to be arrested.

We need not dwell unduly on this contention. Suffice it to say that even were we to accept the reasoning of Hernandez, supra, a denial of due process was not evident in the matter before us as we find no prejudice to the defendant. See People v. McNeal, 72 Mich.App. 507, 250 N.W.2d 110 (1976).

The final issue, raised by defendant O'Connell, is whether the evidence was sufficient to prove beyond a reasonable doubt his guilt of the crimes charged.

In examining such a claim, the evidence must be viewed in the light most favorable to the prosecution. A jury verdict will not be overturned unless there is an absence of any direct or circumstantial evidence to prove an essential element of the crime charged. People v. Flinnon, 78 Mich.App. 380, 384, 260 N.W.2d 106 (1977); People v. Milton, 81 Mich.App. 515, 517, 265 N.W.2d 397 (1978).

Defendant O'Connell was charged with conspiracy to break and enter and with receiving and [88 MICHAPP 295] concealing stolen property. The gist of conspiracy is an unlawful agreement. There must be a showing of an intent to conspire and an intent to commit the substantive offense. People v. Atley, 392 Mich. 298, 220 N.W.2d 465 (1974).

However, even if the facts are circumstantial in nature, they must warrant at least a fair inference of the elements to be established. People v. Miller, 49 Mich.App. 53, 59, 211 N.W.2d 242 (1973). Charges of conspiracy cannot be made out by piling inference upon inference. People v. Atley, supra.

Defendant need not be a party to the original agreement, know all the co-conspirators, or participate in the full scope of the conspiracy. If he joins after the formation, or aids with an understanding of its purpose, he becomes a party to the conspiracy, E. g., People v. Scotts, 80 Mich.App. 1, 263 N.W.2d 272 (1977).

We have examined in detail the voluminous record in this case. The only evidence which even remotely touches upon knowledge or an agreement between defendant O'Connell and others to perpetrate the burglary was the conversation between defendants O'Connell and McCracken allegedly overheard by witness Thomas. His testimony related a conversation between O'Connell and McCracken which consisted only of a general discussion of coins and their value. He testified that there was no discourse about the planned burglary, nor was the origin of any coins discussed. We cannot...