People v. McFarlin

• Decision Date: 26 May 1972
• Docket Number: No. 2,Docket No. 12359,2
• Citation: 41 Mich.App. 116,199 N.W.2d 684
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary Maurice McFARLIN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 684

199 N.W.2d 684

41 Mich.App. 116

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary Maurice McFARLIN, Defendant-Appellant.

Docket No. 12359.

Court of Appeals of Michigan, Division No. 2.

May 26, 1972.

Released for Publication Aug. 18, 1972.

Leave to Appeal Granted Aug. 8, 1972.

Arthur J. Tarnow, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and BRONSON and TARGONSKI, ^* JJ.

LESINSKI, Chief Judge.

Defendant Gary Maurice McFarlin was convicted, upon a plea of guilty, of committing larceny in a building. M.C.L.A. § 750.360; M.S.A. § 28.592. He appeals as of right.

Defendant contends that the trial court erred when it stated that it took into consideration his prior juvenile court record in imposing sentence.

M.C.L.A. § 712A.23; M.S.A. § 27.3178(598.23) states:

'A disposition of any child under this chapter, or any evidence given in such case, shall not in any civil, criminal or any other cause or proceeding whatever in any court, be lawful or proper evidence against such child for any purpose whatever, except in subsequent cases against the same child under this chapter.'

It would appear that when this statute enunciated a prohibition against the use of juvenile records as evidence in any court outside the juvenile court system for any purpose whatever, it meant 'for any purpose whatever.' The basic thrust of this statute would seem designed to build a barrier between juvenile and adult proceedings, which prohibits entry from the former into the latter.

This interpretation, after all, would find itself buoyed by the very underpinnings of the juvenile court system as a noncriminal rehabilitative proceeding. See Mack, The Juvenile Court, 23 Harv.L.Rev. 104 (1909). Instead, we have until now chosen to interpret the statute's intended purpose in a way which allowed the use of juvenile records at sentencing. This has been accomplished by myopically focusing our attention on the word 'evidence' in the statute to the utter disregard of its contextual setting. The result of our actions has been a semantic extraction of the raison d'etre from the heart of the juvenile court process. Having now realized this, we believe a reexamination of our prior decisions on this question is in order.

People v. Coleman, 19 Mich.App. 250, 256, 172 N.W.2d 512 (1969), was the first Michigan case to present the issue of whether juvenile records could be used at sentencing. In order to uphold their use, this Court found itself constrained to engage in a two-step process designed to whittle away at the statutory prohibition embodied in § 23 of chapter 12A of the probate code (M.C.L.A. § 712A.23; M.S.A. § 27.3178(598.23)). The Court first relied on M.C.L.A. § 771.14; M.S.A. § 28.1144, which requires a probation officer prior to sentencing to 'inquire into the antecedents, character and circumstances of such person or persons, and shall report thereon in writing to such court or magistrate.' After defining the terms 'antecedents' and 'character', the Court concluded:

'To be true and complete, the required inquiry must include whatever reasonably obtainable juvenile record an accused may have.'

Having expansively read M.C.L.A. § 771.14; M.S.A. § 28.1144, the Court was forced to limit the express prohibitions of M.C.L.A. § 712A.23; M.S.A. § 27.3178(598.23), in order to reconcile the two statutes. The Court stated at 256, 172 N.W.2d at 515:

'Nor does section 23 preclude examination of juvenile records for the purpose of sentencing. The express terms of the statutory prohibition bar only the use of prior juvenile dispositions as 'evidence'. Read in the light of its generally accepted meaning, 'evidence' connotes testimony and matters actually presented at trial. The post-conviction examination of juvenile records in order to impose a fair and just sentence is not a use of such records as 'evidence'. Cf. Commonwealth ex rel. Hendrickson v. Myers (1958), 393 Pa. 224, 144 A.2d 367; State v. Jones (1966), 91 N.J.Super. 67, 219 A.2d 193.' ¹

Webster's Third New International Dictionary Unabridged (1965), defines 'evidence' as:

'(S)omething that furnishs or tends to furnish proof: means of making proof: * * * something legally submitted to a competent tribunal as a means of ascertaining the truth of any alleged matter of fact under investigation before it.'

Black's Law Dictionary, 4th Ed (1951), recognizes such varied types of 'evidence' as 'legal evidence,' 'moral evidence,' 'parol evidence,' 'cumulative evidence,' 'circumstantial evidence,' Etc.

No one can read the penumbral definitions given to the word 'evidence' without concluding that it encompasses far more than simply testimony and matters presented at trial. Contrary to our interpretation in Coleman, supra, the word 'evidence' when modified by the phrase 'for any purpose whatever' connotes an expansive rather than narrow reading of the term. The Coleman decision, consequently, appears to have unduly limited the prohibitions of M.C.L.A. § 712A.23; M.S.A. § 27.3178(598.23).

In People v. Williams, 19 Mich.App. 544, 545--546, 172 N.W.2d 897 (1969), a Per curiam opinion in which this writer took part, we again upheld the used of a defendant's prior juvenile record at sentencing. In addition to relying on the rationale of Coleman, supra, this Court justified its decision by stating:

'That the trial judge may consider additional factors in determining sentence is well settled. People v. Williams (1923), 225 Mich. 133, 195 N.W. 818; People v. Losinger (1951), 331 Mich. 490, 50 N.W.2d 137; People v. Guillett (1955), 342 Mich. 1, 69 N.W.2d 140; People v. Camak (1967) 5 Mich.App. 655, 147 N.W.2d 746.'

The Court's opinions thus made it appear that the use of a juvenile record at sentencing was simply a concomitant of the 'additional factors' already allowed in the determination of a sentence. A close examination of the cases cited in Williams shows, however, that the 'additional factors' at issue in those cases were never in direct conflict with a statutory prohibition such as we have in M.C.L.A. § 712A.23; M.S.A. § 27.3178(598.23). In People v. Williams, the additional factor was nothing more than an investigation of defendant's character. In People v. Losinger, the Court held that there was no error in considering public records in sentencing. The question of the use of juvenile records at sentencing and its possible conflict with M.C.L.A. § 712A.23; M.S.A. § 27.3178(598.23), was never raised or considered. Neither was it raised or considered in Guillett or Camak. The precedential value of these cases was, therefore, dubious at best.

The Supreme Court denied defendant Charles Williams' request for leave to appeal. People v. Williams, 384 Mich. 753 (1970), Justices Adams, T. M. Kavanagh and T. G. Kavanagh dissenting. In their dissent, Chief Justice T. M. Kavanagh and Justice T. G. Kavanagh stated their unequivocal opposition to the Coleman and Williams court interpretation of M.C.L.A. § 712A.23; M.S.A. § 27.3178(598.23):

'We dissent from the order denying leave to appeal in this case for the reason that the express language of M.C.L.A. 712A.23; M.S.A. 27.3178(598.23), forbids the use of petitioner's juvenile record in any proceeding in any court for any purpose whatever.

'The contrary holding by the Court of Appeals' panel in People v. Coleman, 19 Mich.App. 250, 172 N.W.2d 512 (1969), is patently erroneous. The statutory proscription of the use of the child's 'disposition' as well as 'any evidence given in such case' as not 'lawful or proper evidence against such child for any purpose whatever' precludes the use of the word 'evidence' as suggested by the Court of Appeals.'

We are today in accord with Chief Justice T. M. Kavanagh and Justice T. G. Kavanagh's interpretation of this statute. As our own reexamination of Coleman and Williams has indicated, we were in error in excluding the prohibitions of M.C.L.A. § 712A.23; M.S.A. § 27.3178(598.23), from the sentencing process. To do anything but confess error in Coleman and Williams and their prodigy, ² would be to leave this Court's decisions in irreconcilable conflict with the purpose of the statute as stated in People v. Smallwood, 306 Mich. 49, 53, 10 N.W.2d 303, 304--305 (1943):

'Its aim is to 'to hide youthful errors from the full gaze of the public and bury them in the graveyard of the forgotten past.' State v. Guerrero, 58 Ariz. 421, 120 P.2d 798, 802 (1942). It prohibits the use of juvenile court proceedings or evidence obtained therein against a child in any other court to discredit him as one possessing a criminal history.'

In McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), the United States Supreme Court held that there was no constitutional right to a trial by jury in a juvenile court proceeding. In doing so the majority per Justice Blackmun recognized that there were basic and controlling differences between the juvenile court process and a criminal trial, and that those differences should be maintained.

'Finally, the arguments advanced by the juveniles here are, of course, the identical arguments that underlie the demand for the jury trial for criminal proceedings. The arguments necessarily equate the juvenile proceeding--or at least the adjudicative phase of it--with the criminal trial. Whether they should be so equated is our issue. Concern about the inapplicability of exclusionary and other rules of evidence, about the juvenile court judge's possible awareness of the juvenile's prior record and of the contents of the social file; about repeated appearances of the same familiar witnesses in the persons of juvenile and probation officers and social workers--all to the effect that this will create the likelihood of pre-judgment--chooses to ignore it seems to us, every...