People v. Wilbert

• Decision Date: 22 April 1981
• Docket Number: Docket No. 49376
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clarence WILBERT, Defendant-Appellant. 105 Mich.App. 631, 307 N.W.2d 388
• Court: Court of Appeal of Michigan — District of US

Page 388

307 N.W.2d 388

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clarence WILBERT, Defendant-Appellant.

Docket No. 49376.

105 Mich.App. 631, 307 N.W.2d 388

Court of Appeals of Michigan.

April 22, 1981.

Released for Publication July 13, 1981.

[105 MICHAPP 633] James R. Neuhard, State Appellate Defender, Susan J. Smith, Asst. State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert L. Kaczmarek, Pros. Atty., Annette M. Olejarz, Asst. Pros. Atty., for plaintiff-appellee.

Before CYNAR, P. J., and J. H. GILLIS and ALLEN, JJ.

CYNAR, Presiding Judge.

Following a jury trial, defendant was convicted of receiving and concealing stolen property, M.C.L. § 750.535; M.S.A. § 28.803, and was sentenced to from three to five years imprisonment. Defendant appeals as of right, raising five issues for this Court to review.

Defendant first argues that the trial court erred in concluding that: (1) defendant lacked standing to challenge the search of the premises in which the stolen goods were concealed; and (2) even assuming that defendant had standing to contest the search, his voluntary consent thereto vitiated any claim of illegality relative to the search. We [105 MICHAPP 634] need not meet the former challenge, for even assuming, arguendo, that defendant had standing to challenge the legality of the search, under the totality of the circumstances extant at the time consent was given by defendant, said consent was voluntary. People v. Reed, 393 Mich. 342, 362-366, 224 N.W.2d 867 (1975), cert den. 422 U.S. 1044, 1048, 95 S.Ct. 2660, 2665, 45 L.Ed.2d 696, 701 (1975); People v. Gallagher, 55 Mich.App. 613, 616-617, 223 N.W.2d 92 (1974), lv. den. 393 Mich. 766 (1974), inter alia. Having consented to the search, defendant cannot now complain about any alleged illegality with respect thereto.

Next, defendant claims that his warrantless arrest was illegal and that, therefore, all statements which he made which were the product of that arrest should have been excluded from admission into evidence at trial. We disagree. Defendant gave the arresting officers consent to enter the premises to effect a search. Upon discovery of the stolen liquor bottles within the dwelling, defendant was advised of his Miranda ¹ rights. It was only at this point that defendant's freedom was restrained to such a significant extent that it could be said that he had been "seized" within the meaning of the Fourth Amendment. People v. Summers, 407 Mich. 432, 444-449, 286 N.W.2d 226 (1979), cert. gtd. --- U.S. ----, 101 S.Ct. 265, 66 L.Ed.2d 127. 66 L.Ed.2d 127 (1980); People v. Emanuel, 98 Mich.App. 163, 172-176, 295 N.W.2d 875 (1980). At that time, the officers clearly had probable cause to arrest defendant on the charge of which he was eventually convicted, and exigent circumstances were present which were sufficient to circumvent the warrant requirement of the Fourth Amendment. Defendant's claim that the [105 MICHAPP 635] exclusionary rule should have been employed is thus without merit.

As a third argument for reversal, defendant contends that the trial court's instruction relative to certain facts or circumstances from which the jury might infer that defendant had knowledge that the property was stolen was an impermissible burden-shifting instruction.

After instructing the jury on the elements of the crime with which defendant was charged and after defining the terms "stolen property", "receiving", and "concealing", the trial court instructed the jury as follows:

"Now, it is up to you to determine beyond a reasonable doubt that the defendant was in definite and conscious possession of the property in question here, and that said property was stolen. These facts, if not explained, are ordinarily circumstances from which you may reasonably infer that the defendant had knowledge that the property was stolen. However, you need not make that inference.

"Only the jury has the right to decide whether the facts and circumstances shown by the evidence in this case justifies (sic) an inference that the defendant had knowledge that the property was stolen." (Emphasis supplied.)

Defendant now claims that the above-quoted instructions, which were taken directly from CJI 26:1:04(1), (2), impermissibly shifted the burden of proof.

In the instant case, the jury was instructed that it must find, beyond a reasonable doubt, that: (1) defendant was in definite and conscious possession of the property; and (2) said property was stolen. Essentially, the jury was informed that, if it found those facts to be present, it could reasonably infer that another essential element of the crime, that [105 MICHAPP 636] defendant had knowledge that the property was stolen, was present. The jury was then cautioned that it "need not make that inference".

It is clear that the jury did not need to draw such an inference in order to find the essential element of knowledge because defendant made admissions to the police, after his arrest, to the effect that: (1) he knew what was "going down" before it did; (2) he knew that the liquor was stolen because he was present when the larceny took place and he was aware of what had transpired; (3) defendant admitted seeing the stolen goods in the car used in the larceny immediately after the larceny; (4) defendant and the other participants drove to the address where the liquor was seized by police, carrying the bottles in the car; (5) defendant produced some of the stolen bottles for the police from within the house upon request; and (6) defendant admitted that he and the others knew of someone who was interested in procuring the contraband and was making arrangements to consummate that transaction. The element of knowledge thus could be established unaided by any inference. However, this does not affect the nature of the assignment of error made by defendant, which relates only to the aforementioned instruction.

In People v. White, 22 Mich.App. 65, 68, 176 N.W.2d 723 (1970), the Court quoted from People v. Tantenella, 212 Mich. 614, 621, 180 N.W. 474 (1920):

"In People v. Tantenella (1920), 212 Mich. 614, the Court held that the evidence of the accused's guilty knowledge at the time he received the stolen property, or aided in its concealment, is generally to be collected from all the various circumstances of the case. The Court said:

" 'Guilty knowledge means not only actual knowledge, [105 MICHAPP 637] but constructive knowledge, through notice of facts and circumstances from which guilty knowledge may fairly be inferred. (Citations omitted.)

" 'While we have held (Durant v. People (1865), 13 Mich. 351) that mere possession cannot be used as evidence to show knowledge that the goods were stolen, we have also held that the fact of recent possession of stolen property, coupled with contradictory statements of the accused as to the possession of such property and aiding in concealing such property, was evidence of guilty knowledge. (Citations omitted.)' "

This Court also followed People v. Tantenella in People v. Martinovich, 18 Mich.App. 253, 170 N.W.2d 899 (1969), and People v. Keshishian, 45 Mich.App. 51, 205 N.W.2d 818 (1973).

Defendant claims, however, that, based on two recent Supreme Court decisions, this Court should find the instructions to be erroneous. In People v. Wright, 408 Mich. 1, 24-25, 289 N.W.2d 1 (1980), the Court held that the trial court's instruction that "unless the testimony satisfies you of something else" was improper burden-shifting language. The Court stated as follows:

"The vice of the instructions is thoroughly explained in an oft-quoted opinion in Mann v. United States, 319 F.2d 404, 409 (CA 5, 1963):

" 'When the words, "So unless the contrary appears from the evidence" were introduced, the burden of proof was thereupon shifted from the prosecution to the defendant to prove lack of intent. If an inference from a fact or set of facts must be overcome with opposing evidence, then the inference becomes a presumption and places a burden on the accused to overcome that presumption. Such a burden is especially harmful when a person is required to overcome a presumption as to anything subjective, such as intent or wilfulness, and a barrier almost impossible to hurdle results.'

"We are convinced that by instructing the jury that [105 MICHAPP 638] 'unless the testimony satisfies you of something else', the trial court created the prospect that the jury 'may have interpreted the judge's instruction as * * * a burden-shifting presumption', Sandstrom v. Montana, 442 U.S. 510, p. 524, 99 S.Ct. 2450 p. 2458; 61 L.Ed.2d 39 (1979), supra, and the instruction is therefore unconstitutional."

In People v. Richardson, 409 Mich. 126, 293 N.W.2d 332 (1980), the Court held that the trial court's instruction that "the intention to kill in the absence of evidence showing a contrary intent may be inferred by (sic) the use of a deadly weapon in such a manner that death * * * would be an inevitable consequence" was also an impermissible burden-shifting instruction. Relying on Wright and Richardson, defendant claims that the trial court's instructions that "these facts, if not explained" erroneously shifted the burden of proof.

Jury instructions must be read as a whole, not extracted piecemeal from the transcript and assailed as reversible error. People v. Choate, 88 Mich.App. 40, 45, 276 N.W.2d 862 (1979). In the case at bar, the jury was instructed that although it could infer from the circumstances that defendant knew the property was stolen, it was also specifically instructed that it need not make that inference; i. e., that the inference was merely a permissible one not rising to the level of a presumption.

The transformation of a permissible inference into a burden-shifting presumption by means of a jury instruction is the vice which Wright and Richardson sought to prevent. The above-noted sentence from the instruction in this case...