People v. Simon, Docket No. 122023

• Decision Date: 03 June 1991
• Docket Number: Docket No. 122023
• Citation: 189 Mich.App. 565,473 N.W.2d 785
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth SIMON, Defendant-Appellant. 189 Mich.App. 565, 473 N.W.2d 785
• Court: Court of Appeal of Michigan — District of US

Page 785

473 N.W.2d 785

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kenneth SIMON, Defendant-Appellant.

Docket No. 122023.

189 Mich.App. 565, 473 N.W.2d 785

Court of Appeals of Michigan.

Submitted Feb. 19, 1991, at Detroit.

Decided June 3, 1991, at 9:05 a.m.

Released for Publication Sept. 19, 1991.

[189 MICHAPP 565] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jeffrey Caminsky, Asst. Pros. Atty., for the People.

State Appellate Defender, by Chari K. Grove, Detroit, for defendant-appellant on appeal.

Before REILLY, P.J., and SHEPHERD and MARILYN J. KELLY, JJ.

MARILYN J. KELLY, Judge.

Following a bench trial, defendant was convicted of possession with intent to deliver less than fifty grams of cocaine and possession of a firearm during the commission of a [189 MICHAPP 566] felony. M.C.L. Sec. 333.7401(2)(a)(iv); M.S.A. Sec. 14.15(7401)(2)(a)(iv); M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). The trial judge sentenced him to a prison term of one to five years for the drug conviction and to a consecutive two-year term for the firearm conviction.

Defendant appeals as of right, arguing that the trial judge improperly relied on his own specialized knowledge of how drug raids are conducted when rendering his verdict. In addition, defendant claims that the trial court's findings of fact were inadequate. We remand for further findings of fact.

The testimony at trial revealed that defendant was arrested in the back bedroom of a suspected drug house during a police raid. Although the police officers' testimony was contradictory in some respects, two officers agreed that when they entered the bedroom, they found defendant holding a rifle. One of the officers testified that he searched defendant and found 111 bags of cocaine in his pants. There was evidence that another suspect had gotten out through the bedroom window.

Defendant testified that he and a friend had visited the house to drink beer and smoke marijuana with another friend. There were approximately eleven other people in the house. Defendant stated that when he heard the police enter the house, he came out of the bedroom and ran about ten steps towards the front door. However, when he saw the police officers, he returned and hid in the bedroom closet. Eventually, an officer found him in the closet. Defendant denied that he had either a gun or cocaine.

During closing argument, defense counsel contended that the gun and the cocaine that the officers had found in the room belonged to the person who left through the bedroom window. He [189 MICHAPP 567] suggested that the officers were attempting to transfer another's criminal acts to defendant.

The judge acknowledged that there were several inconsistencies in the officers' testimony and opined that the police sometimes "shade the truth" in order to obtain convictions in drug cases. However, he stated that, based on his experience when he was a prosecutor, he did not believe defendant's testimony. The judge informed defendant:

I want you to know I used to be a prosecutor. And, I know something about the way the police perform raids.

The judge proceeded to explain that the raiding of a drug house occurs at a very fast pace. He indicated that there would have been insufficient time for defendant to run from the bedroom, return and hide in the closet without being apprehended, as defendant had testified.

I don't see how, in light of what I know about raids. You see, that would be impossible. I would say that would be impossible.

The judge then stated that he had no doubt that the house where defendant was arrested was a drug house where crack cocaine was sold. He also believed that the gun "was there for protection as it usually is." Based on these findings, the judge concluded that defendant was guilty of both the cocaine and felony-firearm charges.

The trial court erred by relying on its own specialized knowledge in finding defendant guilty. It is well known that factfinders may and should use their own common sense and everyday experience in evaluating evidence. CJI2d 2.6(2). They [189 MICHAPP 568] may also refer to "general knowledge upon matters notorious and unquestioned." 9 Wigmore, Evidence (Chadbourn rev), Sec. 2570, p 726 (emphasis in original). However, the scope of the doctrine is limited strictly to a few matters of elemental experience in human nature, commercial affairs and everyday life. Id., p 728.

It is also well established in Michigan that a judge in a bench trial must arrive at his or her decision based upon the evidence in the case. The judge may not go outside the record in determining guilt. 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), Sec. 630, p 285. When the factfinder relies on extraneous evidence, the defendant is denied his constitutional right to confront all the witnesses against him and to get all the evidence on the record. People v. Ramsey, 385 Mich. 221, 224-225, 187 N.W.2d 887 (1971); U.S. Const. Am. VI; Const. 1963, art. 1, Sec. 20; see also Hughes v. Borg, 898 F.2d 695, 700 (CA 9, 1990).

In this case, the trial court convicted defendant based in part on specialized knowledge not in evidence. He specifically stated that, because of what he had learned about drug raids while a prosecutor, he found defendant's story of what occurred...