text:
    PEOPLE v CASTILLO
    Docket No. 77-2584.
    Submitted December 21, 1977, at Detroit.
    Decided March 10, 1978.
    Modesto Castillo was convicted in the Recorder’s Court for the City of Detroit, Geraldine Bledsoe Ford, J., of knowingly or intentionally possessing heroin. Defendant appeals. Held:

    1. The trial court did not err: in admitting a gun into evidence which a police officer had observed the defendant throw from a window; by refusing to allow defense counsel to inquire on cross-examination of a police officer regarding the manner of entry into the premises where the defendant was arrested; and by allowing a forensic chemist to testify regarding the chemical make-up of the substance confiscated by the police and the percentage of heroin contained therein.
    2. The trial court did abuse its discretion by allowing the impeachment of the defendant with a prior conviction under a law declared unconstitutional prior to the time of impeachment; however, it was harmless error not requiring reversal.
    Affirmed.
    1. Criminal Law — Evidence—Other Offenses — Admissibility—Relevance — Material Issues — Probative Value — Prejudice— Court’s Discretion.
    The general rule is that evidence tending to show the commission of other criminal offenses by a defendant is inadmissible on the issue of his guilt or innocence of the offense charged; if the evidence is legally relevant to a material issue, it is admissible if its proper probative value outweighs its improper prejudicial effect; the determination of whether or not the probative value of logically relevant evidence is substantially outweighed by its unfairly prejudicial effect rests within the discretion of the trial judge and will not be disturbed absent a clear abuse of discretion.
    References for Points in Headnotes
    [1, 2] 29 Am Jur 2d, Evidence §§ 320, 321.

       29 Am Jur 2d, Evidence § 708.

       81 Am Jur 2d, Witnesses § 475.

       81 Am Jur 2d, Witnesses § 569.

      2. Criminal Law — Evidence—Other Offenses — Admissibility— Common Law — Res Gestae.
    Evidence tending to show the commission of other criminal offenses by a defendant is admissible under a common law exception to the general rule barring proof of other crimes where such evidence is part of the res gestae, including the acts, conduct and demeanor of the defendant at the time of, or shortly before or after the offense claimed to have been committed.
    3. Criminal Law — Evidence—Res Gestae — Definition.
    Res gestae are the circumstances, facts and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character; included are the facts which so illustrate and characterize the principal fact as to constitute the whole one transaction, and render the latter necessary to exhibit the former in its proper effect.
    4. Criminal Law — Evidence—Court’s Discretion — Collateral Matters — Cross-Examination—Clear Error — Appeal and Error.
    The discretion of a trial judge controls the nature and extent of the introduction of collateral matters upon cross-examination and such discretion will not be reviewed except in cases of clear error.
    5. Criminal Law — Evidence—Trial—Court’s Discretion — Prior Convictions.
    The use of a defendant’s prior felony conviction for impeachment purposes is within the discretion of the trial court; the trial judge need not expressly state that he is exercising his discretion, so long as it appears on the record that he is aware that he had discretion to allow the evidence of prior conviction and that he does in fact exercise it.
    6. Appeal and Error — Criminal Law — Erroneous Impeachment— Prior Convictions — Harmless Error — Minimal Impact— Prejudice.
    The erroneous impeachment of a defendant’s testimony in a trial for possession of heroin with a prior conviction for attempted possession of, marijuana under a law which had been declared unconstitutional prior to the time of impeachment was harmless error not requiring reversal, where the erroneous impeachment had a minimal impact on the jury verdict of guilty and resulted in little or no prejudice to the defendant; since the possession of heroin and marijuana are two very distinct crimes the defendant was not unfairly prejudiced by a similarity of the conviction used for impeachment purposes and the crime charged.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Stephen B. Foley, Assistant Prosecuting Attorney, for the people.

      Robert E. Slameka, for defendant.
    Before: Bashara, P. J., and Beasley and D. E. Holbrook, Jr., JJ.
   Per Curiam.

Defendant was convicted of knowingly or intentionally possessing heroin, contrary to MCLA 335.341(4)(a); MSA 18.1070(41)(4)(a). He was sentenced to 30 to 48 months imprisonment and appeals as of right.

The evidence showed that on October 24, 1972, the police came to the house where the defendant was located pursuant to information that two suspects, neither of whom was the defendant, could be found there. While positioned outside the premises, one officer observed the defendant throw a gun and green garbage bag from a second story window of the house. The officer opened the garbage bag, observed what appeared to him to be suspected narcotics and alerted the other officers that a man upstairs had just thrown a gun and suspected narcotics from the window. The officer then confiscated the gun and garbage bag.

Another officer, after entering the premises, proceeded to the second floor where he encountered the defendant in a bedroom with a broken window, a pushed out screen and powder on the defendant’s clothing. At that time, the officer observed the defendant drop a bottle to the floor. The officer scraped some of the powder from the floor and placed it along with the plastic bottle into evidence.

On appeal, defendant first claims that the gun was erroneously admitted into evidence over defendant’s trial objection that the evidence was irrelevant, immaterial and prejudicial.

The general rule is that evidence tending to show the commission of other criminal offenses by the defendant is inadmissible on the issue of his guilt or innocence of the offense charged, because whatever probative value such evidence has is outweighed by the disadvantage of diverting the trier of fact from the objective appraisal of the defendant’s guilt or innocence. People v Der-Martzex, 390 Mich 410, 413; 213 NW2d 97 (1973). However, such evidence is admissible under the common law exception to the general rule barring proof of other crimes. In People v Savage, 225 Mich 84, 86; 195 NW 669 (1923), the Court stated:

"It is elementary that the acts, conduct and demeanor of a person charged with crime at the time of, or shortly before or after the offense is claimed to have been committed, may be shown as a part of the res gestae. Proof of such acts is not rendered inadmissible by the fact that they may tend to show the commission of another crime. ” (Emphasis supplied.)

Accord, People v Scott, 61 Mich App 91, 95; 232 NW2d 315 (1975).

With respect to what is part of the res gestae, in People v Kayne, 268 Mich 186, 191-192; 255 NW 758 (1934), the Michigan Supreme Court stated:

" ’Res gestae are the circumstances, facts and declarations which grow out of the main fact, are contemporaneous with it, and serve to illustrate its character.
" 'No inflexible rule has ever been and probably never can be adopted as to what is a part of the res gestae. It must be determined largely in each case by the peculiar facts and circumstances incident thereto; but it may be stated as a fixed rule that, included in the res gestae are the facts which so illustrate and characterize the principal fact as to constitute the whole one transaction, and render the latter necessary to exhibit the former in its proper effect.’ ” (Citations omitted.) (Emphasis supplied.)

Accord, People v Eisenberg, 72 Mich App 106, 118; 249 NW2d 313 (1976).

Here the defendant simultaneously threw the gun and the heroin from the window. Defendant’s actions invoked the police entry into the apartment and the defendant’s arrest. Defendant’s throwing of the gun was part of the police discovery that he was in possession of heroin, and served to illustrate the latter. Accordingly, the throwing of the gun and heroin constituted one transaction and, therefore, the trial court did not err in allowing evidence of the gun on the basis that it was part of the res gestae. People v Gould, 61 Mich App 614; 233 NW2d 109 (1975).

Next, the defendant claims that the trial court reversibly erred by refusing to allow defense counsel to inquire during cross-examination into the officer’s prior testimony concerning the police entry into the premises and whether the apartment door had been forced open.

While the manner of the police entry was probative of the pretrial issue of the propriety of the defendant’s arrest, it had no relevancy to the issue at trial, namely the defendant’s possession of heroin. Thus it was a collateral matter. It is established law in Michigan that the discretion of the trial judge controls the nature and extent of the introduction of collateral matters upon cross-examination and will not be reviewed except in cases of clear abuse. People v MacCullough, 281 Mich 15, 24-25; 274 NW 693 (1937), People v Joseph Barbara, Jr., 23 Mich App 540, 548; 179 NW2d 105 (1970), People v Eisenberg, supra, at 119. We find no abuse of discretion in the trial court’s ruling and no improper restriction of defense counsel’s scope of cross-examination. People v Lindsey, 56 Mich App 458, 461; 224 NW2d 273 (1974).

At trial, the forensic chemist was permitted to testify over defendant’s objection as to the chemical make-up of the substance confiscated by the police and the percentage of heroin contained therein. The witness testified that the substance contained a higher percent of heroin than normally found in "street type” heroin. The prejudicial potential of such testimony was that it raised by implication the possibility that the defendant distributed and/or delivered heroin, a criminal offense different from the one with which he was charged. Cf. People v Mumford, 60 Mich App 279; 230 NW2d 395 (1975), People v Gould, supra.

In People v Morris, 69 Mich App 545, 550; 245 NW2d 126 (1976), the Court said:

"Evidence of other crimes is usually excluded because it is irrelevant to the issue of the defendant’s guilt but increases the chances of conviction because it tends to depict the defendant as an habitual criminal. But if the evidence is legally relevant to a material issue, it is admissible if its proper probative value outweighs its improper prejudicial effect.”

The expert testimony explaining the percentage of diluents usually present in street type heroin, the fact that a much lesser percentage of diluents was found in the substance seized from the defendant’s possession, and that such substance would have to be further "cut” to render it street type heroin provided the jury with a lay person’s context for understanding the quantity of heroin the defendant was charged with knowingly possessing. Thus, such testimony was helpful in throwing light upon a material point in issue and was therefore probative and logically relevant. The determination of whether or not the probative value of logically relevant evidence is substantially outweighed by its unfairly prejudicial effect rests within the discretion of the trial judge, and will not be disturbed on appeal absent a clear abuse of discretion. People v Rimson, 63 Mich App 1, 4; 233 NW2d 867 (1975), People v Becker, 300 Mich 562, 565; 2 NW2d 503 (1942). Reviewing the record, we cannot conclude that the probative value of the expert testimony was so minimal and the prejudicial effect so great that the trial court clearly abused its discretion by allowing the testimony.

Finally, the defendant argues that the trial court erred in permitting the prosecutor to impeach the defendant by use of defendant’s prior conviction for attempted possession of marijuana. Use of a defendant’s prior felony conviction for impeachment purposes is within the discretion of the trial court. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). The trial court must positively indicate its exercise of discretion. People v Cherry, 393 Mich 261; 224 NW2d 286 (1974). This Court has held that in order to meet the Jackson-Cherry requirements a trial judge need not expressly state that he is exercising his discretion, so long as it appears on the record that he is aware that he had discretion to disallow the evidence of prior conviction and that he does in fact exercise it. People v Burse, 62 Mich App 204; 233 NW2d 232 (1975), People v Pleasant, 69 Mich App 322; 244 NW2d 464 (1976). The record shows that the trial court was aware of its discretion, knew the nature and date of the defendant’s prior conviction, and determined that the admission of the conviction would shed light on the defendant’s credibility as a witness. Thus, there was a sufficient showing on the record that the trial court did in fact exercise its discretion.

Subsequent to the defendant’s conviction, a majority of the Supreme Court in People v Sinclair, 387 Mich 91; 194 NW2d 878 (1972), though for different reasons, held that the statute under which defendant was convicted was unconstitutional. See People v Bercheny, 387 Mich 431, 435; 196. NW2d 767 (1972) (T. G. Kavanagh, dissenting). The central holding of Sinclair, supra, was that the inclusion of marijuana within the definition of narcotics contained in MCLA 335.151; MSA 18.1121 is unconstitutional. People v Elwell, 54 Mich App 306; 220 NW2d 770 (1974). Though a majority of the Court could not agree as to why the inclusion was unconstitutional, they agreed that the holding of the Sinclair opinion was binding precedent on the lower courts (People v Waxman, 388 Mich 774; 200 NW2d 322 [1972]), and was to be applied retroactively. Accordingly, the convictions and sentences of all defendants convicted under the statute prior to the Sinclair decision were reversed and vacated, either on appeal or by the trial judges. See People v Doane, 387 Mich 608; 198 NW2d 292 (1972), People v Albert White #1, 387 Mich 774; 196 NW2d 313 (1972), People v Griffin, 39 Mich App 464; 198 NW2d 21 (1972), People v D'Argis, 44 Mich App 186; 205 NW2d 19 (1972), People v Goins, 54 Mich App 456; 221 NW2d 187 (1974), People v Atley, 392 Mich 298; 220 NW2d 465 (1974). Furthermore, on March 7, 1972, the Supreme Court entered a writ of habeas corpus, ordering the release of 128 persons whose names were attached to the petition for the writ,

"for the reason that the restraint of these 128 persons pursuant to convictions for possession or attempted possession of marijuana is unlawful in light of this Court’s decision in People v Sinclair, 387 Mich 91 [194 NW2d 878] (1972), by which a majority of this Court held unconstitutional the possession provisions of MCLA 335.153; MSA 18.1123.” See People v Cannon, 41 Mich App 85, 87; 199 NW2d 657 (1972).

Accordingly, if the present defendant had petitioned to have his conviction and sentence for attempted possession of marijuana vacated, his petition would have no doubt been granted. See People v Cannon, supra, at 88. Defendant made no attempt to have his earlier conviction vacated. The issue raised by this appeal is whether the trial court abused its discretion by allowing the prosecutor to impeach the defendant with a conviction under a law which had been declared unconstitutional prior to the time of impeachment.

Under the facts of this case, we agree that the trial court’s ruling was probably an abuse of discretion. The record indicates that the trial court reached its ruling at least in part on an erroneous interpretation of the Sinclair opinion.

However, we conclude that the erroneous impeachment of the defendant’s testimony was harmless error and therefore does not require reversal. The verdict in this case was obviously based not only on the jury’s belief of the police officers’ testimony and the substantial evidence against the defendant presented therein, but also on the jury’s disbelief of the testimony of the four res gestae witnesses as well as that of the defendant. Therefore, the fact that the defendant’s testimony was erroneously impeached had a minimal impact on the jury verdict of guilt and resulted in little or no prejudice to the defendant.

Further, possession of marijuana and possession of heroin are two very distinct crimes. Cf. People v McCarver, 72 Mich App 311, 318; 249 NW2d 403 (1976). Therefore, we cannot say that the defendant was unfairly prejudiced by the similarity of the conviction used for impeachment purposes and the crime charged. As it does not appear that the trial court’s erroneous admission of the defendant’s prior conviction resulted in a miscarriage of justice, we conclude that defendant’s conviction should be affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v JOHN ALEXANDER
    Criminal Law — Concealed Weapons — Dwelling Houses — Prisons —Statutes—Exceptions.
    A prison inmate does not have a possessory interest in any area of the prison which he has a right to defend with a weapon; the dwelling house exception to the statute proscribing the carrying of concealed weapons does not apply to inmates in prisons (MCLA 750.227; MSA 28.424).
    Appeal from Jackson, James G. Fleming, J.
    Submitted February 7, 1978, at Lansing.
    (Docket No. 77-1136.)
    Decided March 23, 1978.
    John Alexander, Jr., was convicted, on his plea of guilty, of carrying a concealed weapon. Defendant appeals.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward J. Grant, Prosecuting Attorney, and John L. Wildeboer, Assistant Prosecuting Attorney, for the people.
    State Appellate Defender Office (by Daniel J. Wright), for defendant on appeal.
    Before: N. J. Kaufman, P. J., and D. E. Holbrook, Jr. and D. F. Walsh, JJ._
    References for Points in Headnote
    79 Am Jur 2d, Weapons and Firearms §§ 18, 24-28.
    Offense of carrying concealed weapon as affected by manner of carrying or place of concealment. 43 ALR2d 492.
    Scope and effect of exception, in statute forbidding carrying of weapons as to person on his own premises or at his place of business. 57 ALR3d 938.
   Per Curiam.

Defendant, John Alexander, Jr., entered a plea of guilty to the charge of carrying a concealed weapon. MCLA 750.227; MSA 28.424. At the time of the offense defendant was an inmate at the Jackson State Prison.

At the plea taking proceeding the prosecutor informed the court that, if the plea of guilty were accepted, no habitual criminal proceedings would be instituted against the defendant. Defendant now argues that his plea was involuntary because the prosecutor threatened to charge him as an habitual offender if he exercised his right to trial and was convicted.

We have carefully reviewed the record. It contains no evidence whatsoever that the prosecutor ever made such a threat. Even if the prosecutor had no intention of supplementing the defendant, it would be prudent, from the defendant’s point of view, to have the prosecutor make a statement to that effect on the record before a plea of guilty was offered. There is nothing in the record which persuades us that anything other than that occurred in this case. We find no error.

Next the defendant contends that he could not be convicted of carrying a concealed weapon because Jackson State Prison where the incident occurred was "his dwelling house”. We disagree.

The concealed weapons statute, MCLA 750.227; MSA 28.424, provides:

"Sec. 227. Any person who shall carry a * * * dangerous weapon * * * concealed on or about his person * * * except in his dwelling house or place of business or on other land possessed by him * * * shall be guilty of a felony * * * .” (Emphasis added.)

In People v Clark, 21 Mich App 712, 716; 176 NW2d 427 (1970), this Court discussed the purpose of the "dwelling house” exception.

"The purpose of the exemptions was to allow persons to defend those areas in which they have a possessory interest. This is the clear import of the phrase 'possessed by him’ which modifies the three areas set forth in the statute.”

A prison inmate does not have, in any area of the prison, a possessory interest which he has a right to defend with a weapon. Accordingly, we hold that the "dwelling house” exception to the concealed weapons statute does not apply under the circumstances of this case. The defendant was properly convicted on his plea of guilty. His conviction is affirmed.


text:
    PEOPLE v NEWBY
    1. Criminal Law — Larceny—Concealing Stolen Goods — Exclusive Crimes — Trial.
    The object of the statute proscribing the receiving or aiding in the concealment of stolen property is not to punish the thief but to convict those who aid him in converting the property to his own use; a defendant may not be convicted of the crime of breaking and entering with intent to commit larceny and the crime of receiving and concealing the property which he stole in that burglary, although he may be tried on both charges to prevent a failure of proof in the event that the proofs indicate that he was not the thief.
    2. Criminal Law — Trial—Improper Remarks — Prosecutors—Responses — Appeal and Error.
    Improper remarks by a prosecutor do not necessarily result in a reversible error where they are in direct response to improper statements of defense counsel.
    Appeal from Recorder’s Court of Detroit, Joseph A. Gillis, J.
    Submitted November 7, 1977, at Detroit.
    (Docket No. 77-1161.)
    Decided March 23, 1978.
    Richard Newby was convicted of breaking and entering with intent to commit larceny and of receiving and concealing stolen property valued in excess of $100. Defendant appeals.

      References for Points in Headnotes

       13 Am Jur 2d, Burglary §§ 46, 73.
    50 Am Jur 2d, Larceny §§ 80-82.
    66 Am Jur 2d, Receiving and Transporting Stolen Property §§ 1, 4, 11, 16, 34.

       4 Am Jur 2d, Appeal and Error § 541.
    5 Am Jur 2d, Appeal and Error §§ 624, 722.
    75 Am Jur 2d, Trial §§ 192-194, 233, 307-314.

      Affirmed in part, reversed in part.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cabalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people.

      Carl Ziemba, for defendant on appeal.
    Before: D. C. Riley, P. J., and D. F. Walsh and A. C. Miller, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Per Curiam.

Defendant was convicted by a jury of one count of breaking and entering an occupied dwelling with intent to commit larceny therein, MCLA 750.110; MSA 28.305, and one count of receiving or concealing stolen property valued in excess of $100. MCLA 750.535; MSA 28.803. The trial court imposed concurrent sentences of 6 to 15 years and 3 to 5 years on the respective counts. Defendant appeals raising two issues:

(1) Was conviction on both counts permissible?

(2) Did the prosecutor commit reversible error in telling the jury during closing argument that another party involved in the charged offense had pleaded guilty?

The relevant facts are these. The trial testimony established that the defendant and an accomplice broke into and entered the victim’s apartment. Although the eyewitness was uncertain as to who actually removed the stolen property — a television —from the house, he did observe the defendant handing the television to his accomplice, who then carried it to an upstairs apartment in the same building. Pursuant to a search warrant a police officer searched the accomplice’s apartment, found the television hidden in a closet and arrested those present, including the defendant. The only evidence to prove defendant’s intent to commit larceny was the testimony that he participated in the taking of the television from the victim’s apartment.

On these facts we address the question whether conviction on both counts was proper. We observe at the outset that the evidence was sufficient to convict the defendant of breaking and entering with intent to commit larceny. Thus, the question is whether under the circumstances of this case it was also legally permissible to convict the defendant of receiving and concealing the property stolen in the commission of the breaking and entering.

The receiving and concealing statute under discussion reads in pertinent part:

"Any person who shall buy, receive or aid in the concealment of any stolen, embezzled or converted money, goods or property knowing the same to have been stolen, embezzled or converted, if the property purchased, received or concealed exceed the value of $100.00, shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or by a fine of not more than $2,500.00.” MCLA 750.535; MSA 28.803.

From the earliest days of our jurisprudence the Supreme Court has consistently held that the object of this statute is not to punish the thief, but to convict those who aid him in converting the property to his own use.

In People v Reynolds, 2 Mich 422 (1852), the Supreme Court in the course of construing the term "concealment” stated the purpose of the statute’s predecessor.

"At common law it was a misdemeanor only to receive stolen property, knowing the same to have been stolen. By the 7 and 8 Geo. 4, Ch. 29, § 2, it was made felony, when the original taking was felony. 2 Russ, on Cr., 237. Our statute has enlarged this common law 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 have been reached by the common law; 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, or without having rendered such aid or assistance to the felon himself, as to have made him an accessory after the fact
"The evil intended to be guarded against by the enactment of that law was, to prevent persons from rendering important, efficient services to a felon, in aiding him in the concealment of stolen property.” (Emphasis added.) 2 Mich at 423-424.

In Brown v People, 39 Mich 37 (1878), the Court permitted adding a count of receiving and concealing stolen property to a charge of larceny not as a distinct offense, but to prevent a failure of proof in the event that the proofs indicated that the defendant was not the thief The Court reiterated this construction of the statute in In re Franklin, 77 Mich 615; 43 NW 997 (1889):

"It needs no discussion to show that under our statutes concerning receivers it is not contemplated that the same person can be both thief and receiver.” 77 Mich at 618.

See also, People v Allen, 252 Mich 553; 233 NW 412 (1930), People v Hunter, 77 Mich App 759; 259 NW2d 216 (1977).

In the instant case the defendant’s conviction on the charge of breaking and entering with intent to commit larceny was directly premised on evidence establishing that he was the thief. The only evidence presented concerning his intent to commit larceny was testimony that he in fact did commit the larceny. Under these circumstances we find error in convicting the defendant of receiving or concealing stolen property. People v Kyllonen, 402 Mich 135; 262 NW2d 2 (1978). Accordingly, we vacate the conviction for receiving and concealing stolen property.

Defendant’s second claim of error is that the prosecutor committed prejudicial error in telling the jury during closing argument that another party involved in the offense had pleaded guilty. The record reveals that the prosecutor’s remark was made in response to the following statement made in defense counsel’s closing argument:

"It’s odd that we have heard so much about how many people were around there, and only young Richard Newby is on trial.”

After the prosecutor responded by giving the outcome of proceedings against two of the others, defense counsel objected because the fate of another of those arrested had not been revealed. The prosecutor promptly complied.

Improper remarks by a prosecutor do not amount to reversible error where they are in such direct response to improper statements of defense counsel. People v Pomranky, 62 Mich App 304; 233 NW2d 263 (1975).

The conviction for receiving stolen property is vacated; the conviction for breaking and entering with intent to commit larceny is affirmed.

       Rev Stat 1846, ch 154, § 20.

       We do not intend by this decision to criticize the practice of charging in the alternative.


text:
    ASSOCIATES FINANCIAL SERVICES COMPANY, INC. v FIRST NATIONAL BANK OF SOUTH CENTRAL MICHIGAN
    Docket No. 77-953.
    Submitted December 8, 1977, at Grand Rapids.—
    Decided April 6, 1978.
    A bulldozer was sold in Michigan to the Henion Development Corporation and delivered to them at a job site in Indiana. The seller’s security interest was thereafter assigned to the plaintiff Associates Financial Services Company, Inc., which filed a financing statement with the Indiana Secretary of State. At a later time the defendant First National Bank of South Central Michigan made a loan to Duane Henion individually and took a security agreement purportedly giving the bank a security • interest in the bulldozer. The bank then filed a financing statement with the Michigan Secretary of State. The defendant thereafter also filed a financing statement with the Michigan Secretary of State. Upon default of the loan, the bank repossessed the bulldozer and sold it at public auction. The plaintiff then sued the defendant in the Branch County District Court claiming conversion and seeking the net proceeds from the sale. Judgment for defendant. Plaintiff appealed to the Branch County Circuit Court, Harold J. Smith, J., which reversed. Defendant appeals by leave granted. Held:

    Indiana was the chief place of business of Henion Development Corporation and, therefore, filing with the Indiana Secretary of State was required. The plaintiff was the first to perfect its security interest in Indiana and, therefore, it has priority.
    Affirmed.
    1. Secured Transactions — Security Interests — Perfection—Construction Equipment — Chief Place of Business — Uniform Commercial Code — Priority in Filing.
    A security interest in construction equipment may be perfected by filing a financial statement in the state where the equipment’s owner has its chief place of business; under the Uniform Commercial Code the first financial statement filed in the correct state has priority (MCLA 440.9103; MSA 19.9103).

      References for Points in Headnotes

       69 Am Jur 2d, Secured Transactions §§ 351, 359.

       68 Am Jur 2d, Secured Transactions § 147.

      2. Secured Transactions — Construction Equipment — Uniform Commercial Code — Corporations—Chief Place of Business— Security Interest — Multiple Filings — Statutes.
    The Uniform Commercial Code provides that the chief place of business of a corporation determines the state law applicable to the filing of a security interest regarding construction equipment owned by the corporation; however, there is no prohibition in the code against filing in more than one state in cases of doubt as to the chief place of business (MCLA 440.9103; MSA 19.9103).

      VanHattum, Hickman, Timmers & Kozera (by Walter L. Harrison), for plaintiff.

      Dresser, Marks & Svendsen, for defendant.
    Before: Danhof, C. J., and M. J. Kelly and T. M. Burns, JJ.
   Per Curiam.

This case involves a dispute between holders of security agreements covering a bulldozer. The First National Bank of South Central Michigan (hereafter the bank) seized the bulldozer and sold it after a default in the loan given by it. Upon learning of the sale, Associates Financial Services Company, Inc. (hereafter Associates) sued in the district court for conversion, claiming that it had a valid prior security interest and was therefore entitled to the proceeds of the sale.

The bulldozer in question was sold to the Henion Development Corporation, a Michigan corporation, by D-P Equipment Co., in Michigan and delivered to a job site in Indiana. D-P Equipment received a security agreement as part of the sale which it assigned to Associates. Associates then filed a financing statement with the Indiana Secretary of State. At the time of the sale, Henion Development Corporation was involved in the development of two projects in Indiana and doing only "odd jobs” with a backhoe in Michigan.

The bank bases its claim on a loan made to Duane Henion, individually, at some later time when the bulldozer had returned to Michigan. In exchange for the loan, Duane Henion executed a security agreement which purported to give an interest in the bulldozer to the bank. The bank attempted to perfect a security interest by filing a financing statement with the Secretary of State. Associates also filed with the Michigan Secretary of State subsequent to the bank’s filing.

The parties agree that the bulldozer is the type of goods covered by UCC 9-103(2) and that this section is identical in both Michigan, MCLA 440.9103; MSA 19.9103, and Indiana, Burn’s Indiana Statutes Annotated, § 19-9-103; IC 26-1-9-103, at least insofar as it applies to this case. The parties also agree that the security interest can be perfected by filing a financing statement, UCC 9-303, and that the first to file in the correct state has priority, UCC 9-312(5)(a). •

The chief inquiry below was therefore narrowed to determining where Henion Development Corporation had its "chief place of business”. Under UCC 9-103(2), this factor determines the applicable state law and therefore, where filing is required (Michigan or Indiana).

The district court found that Michigan was the principal place of business and on review, the circuit court determined that Indiana was the correct state. We agree with the circuit court. At the time the sale was made, the purchaser gave an Indiana address and the bulldozer was delivered in Indiana. The corporation was authorized to do business in Indiana, and from the testimony at trial, it appears that its primary concern was development of Indiana property. Since only Associates had a perfected security interest in Indiana, the circuit court properly ordered the district court to enter judgment in favor of Associates.

It should be noted that there is no prohibition in the code against filing in more than one state in cases of doubt as to the chief place of business. Associates could have avoided this suit by filing originally in Michigan and Indiana and the bank, knowing of Henion Development Corporation’s interest in Indiana, could have protected itself by checking with the Indiana Secretary of State before granting this loan.

Affirmed. Costs to appellee.

       Although the circuit court judge does not explicitly state what standard of review he was applying in reviewing the findings of the district court judge, the proper standard should have been the "clearly erroneous” rule. The case was appealed under GCR 1963, 701.1 and 705.1 as amended in 1969 (see 381 Mich xliii-xlv). The proceeding is designated as an appeal and it is on the record. No testimony or evidence is received by the circuit court. The same functional administrative considerations which necessitate the application of the clearly erroneous rule to appeals to the Court of Appeals also apply to appeals to the circuit court from district court decisions. Special regard should be given to the opportunity of the trial judge to observe the credibility and demeanor of the witnesses. See, GCR 1963, 517.1, DCR 517.1. The rules were amended in 1977 (see, 400 Mich lxix) and GCR 1963, 701 now controls the scope of review. These amendments did not diminish or change the importance of the considerations which underlie the clearly erroneous rule. Also, the repeal of old GCR 1963, 705.18 is consistent with applying the clearly erroneous rule as the proper scope of review. Even though the circuit court did not use the words "clearly erroneous”, his opinion indicates that he thought the facts clearly directed him to the conclusion that Indiana was the principal place of business.

       The bank did not claim (and does not claim on appeal) that the principal place of business was once Indiana and later became Michigan and, therefore, Associates was required to refile in Michigan to protect its security interest. See, White & Summers, Handbook of the Law Under the Uniform Commercial Code (West Publishing Co, 1972), § 23-19, pp 852-853. The bank has only contended that Michigan was the chief place of business.


text:
    PEOPLE v McDIARMID
    Docket No. 25726.
    Submitted January 13, 1977, at Lansing.
    Decided February 24, 1977.
    Mark A. McDiarmid was convicted of delivery of heroin and sentenced to a prison term of 13 to 20 years. The defendant’s motion for resentencing was denied, Genesee County Circuit Court, Donald R. Freeman, J. Defendant appeals. Held:

    Denial of the defendant’s motion for resentencing was proper because the supporting affidavit was based upon hearsay.
    Affirmed.
    1. Criminal Law — Sentencing—Inaccurate Information — Motion to Vacate Sentence.
    Claims that a trial judge considered inaccurate information in sentencing should, before appeal, be presented to the trial court by a motion to vacate sentence supported by appropriate affidavits and, after hearing defendant’s claims, the sentencing court shall make such disposition as may be warranted.
    2. Criminal Law — Motions—Rules of Civil Procedure — Resentencing — Affidavits—Hearsay—Court Rules.
    Affidavits in support of a motion to amend judgment must contain competent legal evidence; therefore, because affidavits based upon hearsay are incompetent evidence to support a motion to amend a judgment the trial court was not in error by denying a defendant’s motion for resentencing where the supporting affidavit was based on hearsay because rules of civil procedure will obtain in criminal cases where neither court rules nor statute provide otherwise (GCR 1963, 527.3, 785.1[1]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard,
      Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law § 569.

       3 Am Jur 2d, Affidavits §§ 28, 29.
    29 Am Jur 2d, Evidence § 493.

      Edward P. Joseph, for defendant on appeal.
    Before: D. E. Holbrook, Jr., P. J., and V. J. Brennan and Bronson, JJ.
   Per Curiam.

On May 5, 1975, defendant Mark Alan McDiarmid pled guilty in Genesee County Circuit Court to delivering heroin contrary to MCLA 335.341(l)(a); MSA 18.1070(41)(l)(a). He was sentenced on August 21, 1975, to a prison term of 13 to 20 years. Subsequently, defendant filed a motion requesting resentencing upon the basis of an affidavit alleging use by the trial court of improper and inaccurate information in the original sentencing decision. The court denied defendant’s request for a hearing. Defendant appeals as of right.

On appeal, defendant alleges that the trial court erred reversibly by denying him a hearing on the strength of the affidavit submitted in support of his motion for resentencing. We do not agree.

The Michigan Supreme Court has recently held that where defendant asserts that the trial court has considered inaccurate information in its sentencing and timely moves the court to vacate the sentence prior to appeal, including with his motion appropriate supporting affidavits, the trial court shall hear defendant’s claims and make a proper disposition. Guilty Plea Cases, 395 Mich 96, 137; 235 NW2d 132 (1975).

No special rule or statute applies to measure the appropriateness of the supporting affidavit. Therefore, we turn to GCR 1963, 785.1(1), which states that rules of civil procedure will obtain in criminal cases where neither court rule nor statute provide otherwise. GCR 1963, 527.3 requires that affidavits in support of a motion to amend judgment must contain competent legal evidence. Consequently, as Michigan courts have held affidavits based upon hearsay incompetent evidence to support a motion such as the present, we conclude the trial court was not in error by denying defendant’s motion. See Sylvester v Grabowski, 370 Mich 503, 506-507; 122 NW2d 707 (1963), Crowley v Upleger, 273 Mich 541, 542-543; 263 NW 737 (1935).

Affirmed.

       According to the affidavit secured from defendant’s brother, James L. McDiarmid, information was provided him by a third party to the effect that the sentencing judge believed defendant had perjured himself while testifying in another criminal matter, thereby implying that the judge had relied on this belief in sentencing defendant here.


text:
    PEOPLE v SOLOMON
    Docket No. 29169.
    Submitted December 19, 1977, at Detroit.
    Decided February 24, 1978.
    Willie R. Solomon was convicted of carnal knowledge of a female over the age of 16, under the old rape statute in Recorder’s Court of Detroit, Justin C. Ravitz, J. Defendant appeals. Held:

    1. The trial court properly admitted into evidence at trial over the defendant’s objection evidence of a photographic show-up and of a corporeal lineup where a review of the record of the trial and the record of the preliminary examination shows that the evidence had not been suppressed by the examining magistrate as argued by defense counsel.
    2. There was no abuse of discretion in the trial court’s refusing to read to the jury, after they had begun deliberations, a portion of the transcript of the complaining witness’s testimony where the request was ambiguous and asked for too much.
    Affirmed.
    1. Criminal Law — Evidence—Photographic Show-Up — Preliminary Examination — Magistrate—Suppression of Evidence.
    Admission of evidence of a pretrial photographic show-up over a defendant’s objection which claimed that that evidence had been suppressed by a magistrate at the defendant’s preliminary examination was not error where a careful reading of the preliminary examination transcript shows that neither did the examining magistrate intend nor did defense counsel believe that the photographic show-up evidence had been suppressed and no objection was raised at the preliminary examination to that evidence.
    2. Criminal Law — Evidence—Corporeal Lineup — Preliminary Examination — Magistrate—Suppression of Evidence.
    Admission of evidence of a corporeal lineup over a defendant’s objection which claimed that that evidence had been suppressed by a magistrate at the defendant’s preliminary examination was not error where the admissibility of the corporeal lineup evidence was not fully and fairly presented for determination at the preliminary examination.

      References for Points in Headnotes

       21 Am Jur 2d, Criminal Law §§ 225, 449.

       17 Am Jur 2d, Continuance §§ 2, 32.

       76 Am Jur 2d, Trial §§ 1041-1043.

      3. Criminal Law — Adjournment—Alibi Defense — Sua Sponte Adjournment.
    A trial court was not required sua sponte to grant an adjournment so that a notice of alibi defense could be given where the defendant was offered an opportunity to request an adjournment and failed to do so.
    4. Trial — Reading Testimony to Jury — Discretion of Trial Court.
    As a general rule, both the reading of testimony to a deliberating jury in response to its request and the extent of the reading are matters within the discretion of the trial court; however, the trial court must exercise its discretion to assure fairness, refusing only unreasonable requests, and the trial court cannot refuse to grant a jury’s request simply for fear of unduly emphasizing the testimony of one witness.
    5. Criminal Law — Trial—Reading Testimony to Jury — Discretion of Trial Court — Ambiguous Request.
    It was not an abuse of a trial court’s discretion to refuse a deliberating jury’s request for a rereading of a portion of the transcript where the trial court found that the request was ambiguous and asked for too much and was, therefore, unreasonable, and where the judge indicated to the jury that they could raise the issue again if they were unable to resolve the problem among themselves.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Craig L. John, Assistant Prosecuting Attorney, for the people.

      Norris J. Thomas, Jr., Assistant State Appellate Defender, for defendant on appeal.
    Before: Bashara, P. J., and Beasley and D. E. Holbrook, Jr., JJ.
   Per Curiam.

Defendant was convicted by a jury of carnal knowledge of a female over the age of 16 under the old rape statute, MCLA 750.520; MSA 28.788. The offense involved the alleged rape of a downtown Detroit motel lifeguard on February 2, 1975. Defendant was sentenced to a term of not less than 24 nor more than 30 years in prison. He appeals as of right.

Defendant first claims that where, at preliminary examination, the magistrate suppresses a pretrial photographic show-up and a corporeal lineup, that it is error for the trial court to admit such evidence at trial.

The record indicates that the trial court ruled fully on the objection when it was raised by defendant at trial, as follows:

"The Court is satisfied that a full reading of the Examination transcript makes it plain that Judge Heading was asking each side whether they wanted it suppressed or not on the motion of Mr. Feinberg. And that his words, when he first inquired was, 'Do you want that testimony suppressed now or not?’ And the Defense indicated that it did. The prosecution originally objected. The Court indicated, 'Well, now the testimony is in Court. She pointed him out. There is the man.’ The Court went on to say that she identified him in Court without the show-up. He asked the Prosecutor, 'Do you want the show-up in or out?’ The Prosecutor said, 'It doesn’t matter.’ The Court said to Mr. Feinberg, 'Do you want it suppressed?’ Mr. Feinberg said, 'Yes.’ The Court said, 'All right. It is suppressed.’ And went on to bind the Defendant over based upon the in-court identification.
"I think that what’s clear from the examination transcript is that Judge Heading suppressed it for purposes of his decision and that he did not rely upon it. I think that it is more than foolish for anyone to think that the somewhat cavalier manner in which it was handled at the Examination is in any way an order to suppress the line-up identification for purposes of trial. I think that Michigan law is clear that a motion to suppress has to be brought prior to trial. There’s been no motion before me. There’s no order in the file indicating that the line-up is suppressed for purposes of trial. And I think for counsel to have relied upon that rather spur of the moment decision by the Examining Magistrate is misguided to say the least. And certainly this Court is not bound by that there having been no further motions or hearings or orders. The objection is overruled.”

Careful reading of the preliminary examination transcript indicates that defendant is wrong in claiming suppression of the photographic show-up; no objection was raised at preliminary examination to the photographic show-up evidence. It seems clear that neither did the examining magistrate intend nor did defense counsel believe that the photographic show-up evidence had been suppressed.

With respect to the corporeal lineup, careful review of the preliminary examination transcript does not indicate that the question of admissibility of the corporeal lineup evidence was fully and fairly presented. As the trial court noted, treatment of that question was rather cavalier. The admissibility of the corporeal lineup evidence was not fully and fairly presented for determination at the preliminary examination. Consequently, we find no error in admission of this evidence by the trial court.

Further support for denying defendant’s claim for reversal in this connection is the fact that there was no motion before trial to suppress the lineup evidence. Although at trial, defense counsel claimed that he was unfairly surprised and prejudiced by the refusal of the trial court to apply the alleged ruling of the magistrate, the record indicates that he did not seek an adjournment to afford additional time to prepare this defense, even though earlier in the proceedings the trial court had indicated a willingness to adjourn the trial for some three weeks so that notice of an alleged alibi defense could be given. We conclude that the trial court did not err in finding that it was not bound by the alleged decision of the magistrate.

Defendant also claims that he was improperly denied assistance of counsel at both the pretrial photographic show-up and the corporeal lineup and that the procedures followed in both instances were so impermissibly suggestive as to taint the in-court identification of defendant and to make admission of such evidence reversible error. Review of the record does not indicate any challenge to the photo show-up previous to the preliminary examination, during preliminary examination, nor any pretrial motion to suppress the photo show-up identification. In fact, the first challenge to the photo show-up is raised on appeal. Therefore, the issue has not been preserved for appeal. Furthermore, the record indicates that attempts were made by the police to contact defendant for the purpose of having him appear for a corporeal lineup. When no response was made, the photo show-up was held instead. This was at a time when defendant was not in custody. Under these circumstances, he had no right to be represented by counsel at that show-up procedure and, further, there has been no showing that the procedure followed at the photo show-up was impermissibly suggestive. His claim of error as to the photo show-up is without merit.

As to defendant’s claim that he was denied assistance of counsel at the corporeal lineup, that claim is not supported by the record. The claim was first raised following trial. Trial counsel for defendant at no time, during preliminary examination or at trial, claimed that he had been excluded from the lineup. Furthermore, there is in the court file a voucher for expenses which indicates a charge for an appearance by appointed counsel at the lineup.

We also hold, considering the totality of the circumstances, that defendant’s claim that the lineup procedure was improper, where defendant was the only participant in the lineup whose photo had been included in a previous photo show-up, is without merit.

Defendant also claims that the trial court erred in not sua sponte granting an adjournment so that a notice of alibi defense could be given.

The record indicates clearly that the trial court recognized his discretion to grant an adjournment. It does not indicate that an adjournment was requested. We hold that the trial court was not required sua sponte to grant an adjournment where defendant was offered the opportunity to request an adjournment and failed to do so.

Defendant next contends that it was an abuse of the trial court’s discretion to refuse to grant a jury request to rehear certain portions of testimony.

The jury requested: "Original testimony from Plaintiff [complaining witness] on the description of the accused.” The trial court was uncertain what the jury wanted. He noted that the complaining witness’s testimony had included at "a minimal number” probably "four or five references” pertaining to descriptions.

Both counsel concurred in the trial court’s feeling that the request should be denied at that time, with the understanding that if the jury could not resolve the matter among themselves, they could repeat the request later. The trial court told the jury:

"Members of the jury, you’ve requested that some testimony be repeated for you. At this time I’m denying your request and asking that you try to resolve the matter among yourselves. And I’m doing so because I don’t wish to highlight part of the testimony to the exclusion of other testimony. So, I’ll ask that you please do your best.”

As a general rule, both the reading of testimony to a deliberating jury in response to its request and the extent of the reading are matters within the discretion of the trial court. However, that discretion is limited somewhat by People v Howe, 392 Mich 670; 221 NW2d 350 (1974), in which it was held that a trial court must exercise its discretion to assure fairness, refusing only unreasonable requests, and that the trial court cannot refuse to grant a jury’s request simply for fear of unduly emphasizing the testimony of one witness. The Howe Court also held that the jury must be informed that their request would again be considered if they continued to find it necessary to rehear the testimony.

It appears from the record in the instant case that the trial court found that the jury’s request was ambiguous and asked for too much and was, therefore, unreasonable. For that reason he denied it. That he did not intend to foreclose a repeat of the request is evidenced by his remarks to trial counsel that: "If they come back with a like request at a later point my inclination at this juncture would be to then seek to have them pinpoint what they’re asking for and see if I think we can fairly respond or not.” We note also that trial counsel for defendant agreed to this approach.

The trial court told the jury that "at this time” he was denying their request and that they should "try to resolve the matter” among themselves. This was an indication to the jury that they could again raise the matter if they were unable to resolve the problem among themselves.

Finally, defendant claims that certain conduct of the prosecutor deprived defendant of a fair trial and resulted in reversible error. We do not agree.

Affirmed.

       In People v Gray, 393 Mich 1; 222 NW2d 515 (1974), the Supreme Court said that where a Walker hearing was held, no good purpose is served by relitigating the question of voluntariness if that matter has been fully and fairly presented for determination.

        People v Palmer, 47 Mich App 512, 515-516; 209 NW2d 710 (1973).

        People v Morton, 77 Mich App 240; 258 NW2d 193 (1977).

         Klein v Waggenheim, 379 Mich 558; 153 NW2d 663 (1967), People v Walker, 371 Mich 599; 124 NW2d 761 (1963).

        Kelin v Waggenheim, supra, fn 4.


author: D. C. Riley, J. Bashara, J.

text:
    PEOPLE v THEODORE JONES
    Docket Nos. 27999, 28000, 28001.
    Submitted February 22, 1978, at Detroit.
    Decided April 17, 1978.
    Theodore R. Jones was convicted of one count of assault with intent to do great bodily harm less than murder and with two counts of felonious assault in Sanilac County Circuit Court, Arthur M. Bach, J. Defendant appeals. Held:

    A new trial is mandated in a criminal trial where the prosecution’s cross-examination of two defense witnesses created a potential for prejudice in regard to the religious practices and beliefs of the defendant and his witnesses.
    Reversed and remanded.
    Bashara, J., dissented:
    The prosecution’s cross-examination of two defense witnesses regarding their religious beliefs and those of the defendant was not improper where the scope of the cross-examination was confined only to the nature of the testimony elicited on direct examination.
    Opinion op the Court
    1. Witnesses — Criminal Law — Cross-Examination—Religious Beliefs — Statutes.
    The prosecution’s cross-examination of a defendant regarding the defendant’s qualifications as an ordained lay minister in his church was not erroneous under the statute which prohibits examining a witness as to his religious opinions where the defendant himself testified that he was an ordained lay minister and the questions regarding his qualifications for that position did not extend into any prejudicial area concerning his belief on the specific practices of the religion (MCLA 600.1436; MSA 27A.1436).

      References for Points in Headnotes
    [1-3, 5] 81 Am Jur 2d, Witnesses §§ 471, 478, 484, 497, 533. Impeaching witness: propriety and prejudicial effect of impeaching witness by reference to religious belief or lack of it. 76 ALR3d 539.

       6 Am Jur 2d, Assault and Battery §§ 56-58.

       81 Am Jur 2d, Witnesses § 618.

      2. Witnesses — Criminal Law — Cross-Examination—Religious Beliefs — Church Attendance.
    A question of a defendant, on cross-examination, regarding his attendance record at church, while arguably directed at the defendant’s religious practice, reasonably falls within acceptable limits of cross-examination on a claim of church membership.
    3. Witnesses — Criminal Law — Cross-Examination—Religious Beliefs — Statutes.
    A defendant’s conviction should be reversed and a new trial granted where the prosecution’s cross-examination of two defense witnesses created a potential for prejudice in regard to the religious practices and beliefs of the defendant and his witnesses (MCLA 600.1436; MSA 27A.1436).
    4. Criminal Law — Assault—Different Degrees op Assault — Single Act.
    A defendant may be convicted of different degrees of assault resulting from a single act if the facts support the verdicts.
    Dissent by Bashara, J.
    5. Witnesses — Criminal Law — Cf.oss-Examination—Religious Beliefs — Statutes.

      Cross-examination of a defense witness which sought to disprove the defendant’s claim of religious, moral and God-fearing qualities did not violate the statute which prohibits examining a witness as to his religious opinions where the scope of the cross-examination was confined only to the nature of the testimony elicited on direct examination which was designed to show the defendant’s truthfulness and his adherence to the practice of abstinence from alcohol and the cross-examination directed attention on that testimony to show its inconsistency with the defendant’s own trial testimony (MCLA 600.1436; MSA 27A.1436).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and J. Anthony Sykora, Prosecuting Attorney, for the people.

      Cummings, Monaghan, Thomas & McColl (by
      Michael McNamee) and Gromek & Bendure, for defendant on appeal.
    Before: Beasley, P. J., and Bashara and D. C. Riley, JJ.
   D. C. Riley, J.

Defendant Theodore Roosevelt Jones appeals his jury conviction of one count of assault with intent to do great bodily harm less than murder, MCLA 750.84; MSA 28.279, and two counts of felonious assault, MCLA 750.82; MSA 28.277, for which he was sentenced to concurrent terms of two-to-four and five-to-ten years in prison.

Defendant’s first argument on appeal presents this Court with the sensitive issue of cross-examination of witnesses regarding their religious opinions and practices. Defendant asserted the defenses of insanity and diminished capacity due to consumption of alcohol. The questions posed regarding religious beliefs related to the claim that defendant was so intoxicated that he lacked the requisite specific intent.

On direct examination defendant testified that he had experienced a religious conversion in 1953 and, as a result, had abstained from all drinking for a period of some 22 years. Following his conversion he was ordained a lay preacher in his church. Jones testified that he began to drink some two or three months prior to the date of the offense because he was depressed over a continuing illness. He testified further that he drank heavily during the day of the incident and that he had no memory of shooting anyone. His last recollection was of passing out in a bar and then awaking in jail the next morning.

On cross-examination defendant was asked how often he attended church, what the qualifications were to be ordained in his church, and about his religious training and study.

Defendant’s son, Phil Jones, called as a defense witness, testified that he had never seen his father drink prior to the night in question, but he did not give any testimony concerning defendant’s religious opinion on drinking. On cross-examination, the following question and answer occurred:

"Q. [Prosecutor] I take it that you say you had been in the Applegate Bar, that you don’t share your father’s religious views on drinking?
"A. [Phil Jones] No.”

Defendant called several witnesses to testify as to his character and reputation. One such witness was Raymond Riggs, the pastor of defendant’s church. On direct examination the pastor related the history of the church, his personal background and training, and his acquaintance with defendant and knowledge of defendant’s church work. He stated that although defendant did not attend church services on a regular basis, he was a full member of the church. Reverend Riggs testified that under the tenets of the church, members were required to totally abstain from alcohol. As far as he was aware, defendant had lived up to that requirement.

On cross-examination the prosecutor asked if church members were required, on a regular basis, to reaffirm their belief in and adherence to the rule forbidding drinking. Reverend Riggs responded that such a requirement existed. The witness was then asked if he could reconcile defendant’s trial testimony that he had begun to drink some two or three months prior to the date of the offense with his church testimony that he was abiding by the abstinence rule:

"Q. [Prosecutor] Is a person required on a periodic basis to profess their belief in this particular penitence?
"A. [Raymond Riggs] Yes, sir.
"Q. Are they required to declare they follow this particular penitence?
"A. Yes, sir.
"Q. Were you present when Mr. Jones testified today?
"A. Yes, sir.
"Q. Did you hear Mr. Jones testify from the stand that two to three months prior to this incident on the 24th of February, 1974 he commenced drinking?
"A. Yes, sir.
"Q. Did you hear him testify also that he has continued to drink on a periodic basis subsequent to this incident right up to the present time?
"A. Yes, sir.
"Q. Does that knowledge affect your opinion on his truthfulness and veracity?
"A. Yes, to the extent that it would be an exception to his mode of conduct and living, in deed [sic] so.
"Q. Can you reconcile his testimony that he continued to drink that he gave under oath here this morning, with his speaking in church that he was following total abstinence?
"A. No, no, not that particular point, no, sir.
"Q. How can you say that his reputation is good?
"A. Because up to this point the question asked of me was was he still in official fellowship with our church and I said yes and I said if this was continued he would be dealt with, you can rest assured.
"Q. The church would deal with this deviation from the faith?
"A. In deed [sic] so.

Defendant contends that the prosecution’s cross-examination of himself and these defense witnesses violated MCLA 600.1436; MSA 27A.1436, which reads:

"No person may be deemed incompetent as a witness in any court, matter or proceeding, on account of his opinions on the subject of religion. No witness may be questioned in relation to his opinions on religion, either before or after he is sworn.”

We will deal with the allegations as to each witness in order.

We do not find the cross-examination of defendant erroneous under the statute. Defendant himself testified that he was ordained a lay preacher in his church. The prosecutor’s questions regarding his qualifications for that position did not extend into any prejudicial area concerning his beliefs on the specific practices of the religion. While the question regarding his attendance record at church was arguably directed at defendant’s religious practice, it reasonably falls within acceptable limits of cross-examination on a claim of church membership. People v Bouchee, 400 Mich 253, 262; 253 NW2d 626 (1977).

The question asked of defendant’s son, Phil Jones, was facially violative of the statute. While defendant introduced testimony as to his own religious views on drinking, the religious opinion of this witness was not at issue in the trial. We might hesitate, however, to premise reversible error solely on this isolated question.

It is the cross-examination of Reverend Riggs which gives us the greatest concern. The prosecution brought out that defendant was required by the rules of his church to periodically reaffirm before the church his compliance with its tenets, including abstention from alcohol. The witness was then asked whether his opinion on defendant’s credibility and reputation was affected by the disparity between his trial testimony, in which he admitted drinking, and his church testimony.

The relevancy of this cross-examination on the issue of defendant’s reputation for honesty and truthfulness is not disputed. Our concern is not with the relevance of the questions, but with the method.

The statute expressly states that questions as to religious opinions are not permissible. The purpose of the statute is to strictly avoid any possibility that jurors will be prejudiced against a certain witness because of personal disagreement with the religious views of that witness. This object recognizes the deep personal feelings many people hold on religion, feelings that may unavoidably conflict with a juror’s sworn duty to decide solely on the evidence presented, without injection of personal prejudices.

The recent cases applying the statute are quite strict where any possibility of prejudice exists. In People v Hall, 391 Mich 175; 215 NW2d 166 (1974), the Supreme Court reversed where the defendant was asked, and answered, an inquiry as to whether he believed in God, even though the question was intended to remind the defendant that he was under oath. In People v Burton, 401 Mich 415; 258 NW2d 58 (1977), the Supreme Court, distinguishing Hall, supra, did not reverse where the question of whether the witness believed in God was asked, but only because the trial court’s quick action in preventing an answer, striking the question, and cautioning the jury “obviated the necessity for appellate speculation” as to possible prejudice. 401 Mich at 418.

In People v Bouchee, supra, the facts were more closely akin to those in the case at bar. The defendant on direct examination had spoken of his church membership and his belief in the Bible to demonstrate his character. The trial court asked defendant questions concerning whether his stated belief in the Bible was consistent with his claimed defense to the charged offense. The Court found, such inquiry reversible error, stating:

"The prosecutor was fully entitled to challenge the defendant’s claim of good character, either upon cross-examination or through extrinsic evidence in rebuttal. Such challenge might have taken the form inter alia of evidence of prior convictions, testimony contradicting the claimed church membership and attendance, or reputation evidence tending to disprove the claim of religious, moral and God-fearing qualities, if indeed such evidence existed. It would not have been competent, however, for the prosecutor to inquire of the defendant concerning the nature, substance and content of his religious beliefs in order to show that such beliefs were inconsistent with the qualities of good character claimed. Nor was it competent for the ,court to conduct such an inquiry. Aside from the debatable relevance of such an inquiry to rebut the claim of a moral, God-fearing and religious character, such questioning is expressly forbidden by the statute and our holding in Hall, supra. ” 400 Mich at 262-263.

In addition, the Bouchee Court found error in the cross-examination of the defendant’s character witness, who was his church pastor.

"Reverend Williams was called by counsel for the defendant as a character witness. The direct examination was carefully confined to an inquiry concerning the defendant’s reputation in the community for veracity. Upon cross-examination, however, in an effort to explain and justify his claimed knowledge of the defendant’s reputation for veracity, Reverend Williams stated, 'People who are connected with our church often says that Bouchee is a good man.’ The expression 'good man’ which was employed by the witness in an effort to explain the basis for his testimony concerning Bouchee’s reputation for veracity did not offer justification for the prosecuting attorney to conduct a general inquiry concerning the defendant’s entire character and specifically did not warrant any 'clarifying inquiry’ concerning the defendant’s religious beliefs and practices.” 400 Mich at 265.

While the questions asked of Reverend Riggs in the present case were not concerned with religious beliefs as specifically as those found objectionable in Bouchee, nevertheless, the course of the cross-examination gave rise to the possibility of prejudice. Whatever the impact on defendant’s credibility resulting from the testimony that he had lied about his resumption of drinking, an even stronger impact on his character may have been perceived by the jury since he had lied while participating in the periodic ritual affirming the tenets and practices of the church. It is not inconceivable that some of the jurors may have been more affected by his failure to confess his actions to the church than by the actions themselves. Even though defendant admitted to violating the church tenet on drinking, we read Bouchee as limiting cross-examination to exclude any reference to additional breaches of church doctrine.

We hold that the combined effect of the cross-examinations of Phil Jones and Reverend Riggs created a potential for prejudice in regard to the religious practices and beliefs of defendant and his witnesses. Reading the statute strictly, such potential mandates a new trial. People v Hall, supra.

We should make two further statements in the event of a new trial. If the facts support the verdicts, a defendant may be convicted of different degrees of assault resulting from a single act. See People v Fields, 66 Mich App 347; 239 NW2d 372 (1976). Second, the trial court should take care to instruct on the defense of intoxication as set forth in People v Crittle, 390 Mich 367; 212 NW2d 196 (1973).

Reversed and remanded.

Beasley, P. J., concurred.

Bashara, J.

(dissenting). I must respectfully dissent.

The majority finds no error in the cross-examination of defendant and, apparently, would not reverse solely on the single question addressed by the prosecution to defendant’s son. Reversal is based on the cross-examination of defendant’s character witness, Reverend Riggs. My evaluation of that testimony differs from the characterization ascribed to it by the majority.

Stringent proscriptions have been placed upon inquiry into the religious beliefs, practices, and opinions of witnesses. People v Hall, 391 Mich 175; 215 NW2d 166 (1974), People v Bouchee, 400 Mich 253; 253 NW2d 626 (1977). However, the entire theory of the defense in this case was founded upon a particular aspect of defendant’s religious practice, his abstinence from the consumption of alcohol. Defendant’s contention was that his long abstinence resulted in a markedly accentuated deleterious effect from its consumption on the night of the crime, negating any possibility that he formed the requisite criminal intent.

The direct examination of Rev. Riggs encompassed testimony regarding the organization of the church, the qualifications that defendant had to exhibit as an ordained minister, required church attendance, the practice of total abstinence from alcohol, defendant’s adherence to that practice, and defendant’s reputation for truthfulness. The latter three aspects were focused upon by the prosecutor in his cross-examination. I believe that examination was properly conducted in accordance with the authority quoted by the majority. Its scope was confined only to the nature of the testimony elicited on direct examination, People v Bouchee, supra, and elicited evidence "tending to disprove the claim of religious, moral and God-fearing qualities”. People v Bouchee, 400 Mich at 262.

In the final analysis, Rev. Riggs’ direct examination testimony was designed to show the defendant’s reputation for truthfulness and his adherence to the practice of abstinence from alcohol. The cross-examination directed attention on that testimony to show its inconsistency with the defendant’s own trial testimony, and thereby give the jury a basis for evaluating the defendant’s reputation testimony theory of defense. To reverse on the basis of such a record would be tantamount to an absolute proscription on cross-examination where the subject matter in the direct examination testimony of a witness specifies certain religious practices and beliefs that form the primary basis of the defendant’s theory of defense.

I would affirm the conviction.


author: D. E. Holbrook, J.

text:
    COLIN v IANCU
    Docket No. 28430.
    Submitted December 13, 1977, at Detroit.
    Decided April 17, 1978.
    Leave to appeal applied for.
    A majority of the members of St. Simon Romanian Orthodox Church voted to become independent from the Romanian Orthodox Episcopate of America. The vote split the parish membership into two groups and presented the issue as to which group was entitled to the use and control of the church buildings and assets. The plaintiffs, Laura Colin, Pavel Lupsa, and Harold Zorlen, representing the minority who remained faithful to the Episcopate, and the Episcopate filed suit seeking to recover the church property and assets held by the majority and to enjoin Father Mihai Iancu, leader of the majority group, from functioning as a priest. The St. Simon Independent Romanian Orthodox Church was allowed to intervene as a party defendant. The Wayne County Circuit Court, Irwin H. Burdick, J., held for the plaintiffs. Defendants appeal. Held:

    Father Iancu and his followers could leave the Episcopate and establish an independent church, however, since they have established an independent church under the jurisdiction of another authority they have no right to keep the property and it should go to the minority faithful to the Episcopate in accordance with the constitution and by-laws of the Romanian Orthodox Episcopate of America as provided in the articles of incorporation of the St. Simon Romanian Orthodox Church.
    Affirmed.
    1. Appeal and Error — Religious Societies — Schisms—Faithful Minority — Diversion of Property by Majority.
    A trial court did not err in granting the property of a church to the minority of the parishioners who had remained faithful to the church when a schism arose and a majority of the parishioners voted to establish an independent church where the articles of incorporation of the church provided that the church was bound by by-laws and a constitution providing that in the event of a schism the church property should go to those parishioners who remained faithful to the church.

      References for Points in Headnotes

       66 Am Jur 2d, Religious Societies §§ 41, 42, 47, 51-56.
    Change of denominational relations or fundamental doctrines by majority faction of independent or congregational church as ground for award of property to minority. 15 ALR3d 297.

      2. Religious Societies — Schisms—Property—Faithful Members.
    While members of a church possess the right to withdraw from it, with or without reason, they cannot take with them, for their own purposes, or transfer to any other religious body, the property dedicated to and conveyed for the worship of God under the discipline of the religious association to which said church belongs; nor can they prevent its use by those who choose to remain in the church, and who represent the regular church organization.
    3. Religious Societies — Diversion of Property of Majority.
    A majority faction of a local congregation or religious society, being one part of a large church unit, however regular its action or procedure in other respects, may not, as against a faithful minority, divert the property of the society to another denomination or to the support of doctrines fundamentally opposed to the characteristic doctrines of the society, although the property is subject to no expressed trust.

      Richard C. Tripp, for plaintiffs.

      Frank A. Clancy, for defendants.
    Before: N. J. Kaufman, P. J., and Bronson and D. E. Holbrook, JJ.
   D. E. Holbrook, J.

This case involves a dispute between two factions of the St. Simon Romanian Orthodox Church. The plaintiffs represent the Romanian Orthodox Episcopate of America (hereafter called Episcopate) headed by Bishop Valerian Trifa. The defendants are represented by Father Mihai Iancu who is the leader of the St. Simon Independent Romanian Orthodox Church which separated from the Episcopate. Originally, the Articles of Association of St. Simon Romanian Orthodox Church provided that the church membership would worship and labor together according to the discipline, rules and. usage of the Romanian Orthodox Church in the United States of America as from time to time authorized and declared by the Romanian Orthodox Episcopate. On March 25, 1973, the majority of the parish voted to become independent from the Episcopate due to their discontent with Bishop Trifa and this resulted in a splitting of the parish membership into two groups.

As a result of this division, the issue arose as to which group was entitled to the use and control of the church buildings and assets. On January 17, 1974, plaintiffs filed a suit in Wayne County Circuit Court to recover the church property and restrain Father Iancu, who had been defrocked by Bishop Trifa, from functioning as a priest or using the church assets. After a bench trial, the trial judge held that the church was hierarchal and not congregational in nature and that a schism had developed within the church. As the constitution and by-laws of the Episcopate provided that the group which recognized the jurisdiction of the Episcopate was entitled to the church property, the trial judge held that plaintiffs were entitled to the property as it existed on March 25, 1973.

A better understanding of this case is possible by reviewing the historical background of the church.

In 1941, when the parish was incorporated as an ecclesiastical corporation, the Mother Church in Romania did not have a bishop in America and formal recognition was not granted for that reason.

The Romanian Orthodox Missionary Episcopate of America came into existence in 1929. The Bishop of the Episcopate was Bishop Morusco who was kept in forced domicile in Romania and was not allowed to return to the United States to join his diocese. The Romanian Patriarch appointed one Nica to replace Bishop Morusco in 1948, however, he remained in Paris, when he did not get the authorization to come to the United States.

In 1950, an American citizen named Moldovan was called to Romania and ordained as a bishop by the Romanian Patriarch and the Synod of Bishops.. He was sent back to the United States to head the Romanian Orthodox Missionary Episcopate of America. When he attempted to take charge of the Episcopate, its members contested the authority of the Holy Synod. They believed that they were autonomous and could elect their own bishop. In Romanian Orthodox Missionary Episcopate of America v Trutza, 205 F2d 107 (CA 6, 1953), cert den, 346 US 915; 74 S Ct 274; 98 L Ed 410 (1953), the Court determined that the Episcopate, in fact, was autonomous and the Episcopate changed its name to the Romanian Orthodox Episcopate of America. All the parishes, including St. Simon, voluntarily submitted themselves to this autonomy. By submitting to this autonomy, to its constitution and by-laws, they established a hierarchal church with canonical and administrative jurisdiction. The Court also determined that the existing Episcopate had full authority to control its property without interference from the Romanian Patriarch.,

Valerian Trifa was born in Romania where he studied theology. He was a lay missionary for many years in his native country and left Romania in 1941. In 1952, he went through the steps necessary for becoming a bishop. He was ordained a deacon, a priest and then a bishop during a three-week period. This rapid rise is very rare and Bishop Trifa stated that he only remembers it happening once before. This was in Romania during the 1930’s.

Father Iancu also studied in Romania and was ordained a priest there in 1958. He came to America in 1970 as a political refugee and went to the St. Simon Church to fill a vacancy after meeting with Bishop Trifa. He was appointed the administrator of the church and was under the supervision of Bishop Trifa. He was subject to the constitution and by-laws of the Episcopate. Father Iancu was very popular with the parish and the church’s membership grew considerably. Also, substantial improvements were made to the church building which had been in need of repair.

A dispute arose between Bishop Trifa and Father Iancu. It appeared that Father Iancu might be relieved of his position by Bishop Trifa. At the annual membership meeting of St. Simon Church held on January 28, 1973, Father Iancu was appointed permanent priest for the parish. This apparently was an effort to prevent Bishop Trifa from removing him. The membership also approved a resolution that in the event the Episcopate should replace Father Iancu, the parish would withdraw from the Episcopate and become independent. When Bishop Trifa was notified of these proceedings, he relieved Father Iancu as administrator of St. Simon Church. A general meeting of the membership of St. Simon was called for March 25, 1973, and they voted to leave the jurisdiction of Bishop Trifa and establish an independent church.

Subsequently, Bishop Trifa had Father Iancu defrocked. However, Father Iancu and his followers remained in control of the church properties and assets.

The defendant raises two issues on appeal. However, there is only one issue to be decided by this Court — did the trial court err in granting the property of St. Simon parish to those parishioners who remained faithful to the Romanian Orthodox Episcopate of America? The defendant asserts that this Court cannot determine whether or not there was a schism in the St. Simon Church and cannot award the property based upon the by-laws of the Episcopate since to do this involves this Court in ecclesiastical matters. The plaintiffs maintain that since a schism has arisen in the parish, under the by-laws of the Episcopate, those members who are faithful to the Episcopate are entitled to the church’s property.

On February 21, 1971, when Father Iancu was appointed parish administrator by Bishop Trifa, he took the following oath:

"Upon being entrusted with the administration of the parish, I voluntarily declare to recognize and submit to the canonical and administrative jurisdiction of the Romanian Orthodox Episcopate of America and to its Bishop Valerian D. Trifa and to his legal and canonic successor, and that I will not recognize the authority of any other church organization or person and I will not permit the parish to which I am entrusted to submit itself under any other jurisdiction. In fulfilling my mission, I will work in accordance with the Constitution and By-laws of the Romanian Orthodox Episcopate of America and will abide totally to the decision of the Episcopate Congress and to the Episcopal Council, so help me God. ” (Emphasis supplied.)

Father Iancu clearly violated this oath. He declared that he would submit to the jurisdiction of the Episcopate and Bishop Trifa and would not recognize any other church organization. In addition, he declared that he would not permit the parish to submit itself under any other jurisdiction. However, Father Iancu participated with members of the parish in getting the parish of St. Simon to split with the Episcopate and had himself elected priest for life. This group called itself the St. Simon Independent Romanian Orthodox Church and claims to be no longer under the jurisdiction of the Episcopate but under the jurisdiction of the Romanian Orthodox Church of Western Europe. Thus, the group of parishioners led by Father Iancu have established a new church under a different jurisdiction. The defendants assert that because the Romanian Orthodox Church of Western Europe is under the jurisdiction of the Romanian Holy Synod, they have not split from the Mother Church and have a right of control over St. Simon’s property. Defendants claim that this is not a case where the majority members of a church change orthodoxy and try to take the church property from the minority. We do not agree. The United States Court of Appeals held that the Romanian Orthodox Episcopate of America was autonomous from the Romanian Orthodox Church. When the St. Simon Church adopted the constitution and by-laws of the Romanian Orthodox Episcopate of America, St. Simon and the Romanian Orthodox Episcopate of America were autonomous of the Romanian Orthodox Church and, therefore, this is a case where the rule of the faithful minority is applicable. The Articles of Incorporation of the St. Simon Church state as follows:

" 'St. Simon’ Romanian Orthodox Church.
"We, the undersigned, desiring to become incorporated under the provisions of Art No. 327 P.A. 1931, do hereby make, execute and adopt the following articles of association, to-wit:
"First, The name assumed by this corporation and by which is [sic] shall be known in law, is 'St. Simon’ Romanian Orthodox Church.
"Second, The location of said church shall be in the City of Highland Park, county of Wayne and state of Michigan; Post office address-John R,--
"Third, The time for which said corporation shall be created shall be perpetual.
"Fourth, The members of said church or society shall worship and labor together according to the discipline, rules and usage of the Romanian Orthodox Church in the United States of America as from time to time authorized and declared by the Romanian Orthodox Episcopate. ” (Emphasis supplied.)

Thus, the St. Simon parish was incorporated and entered into an association with the Episcopate with full knowledge of its discipline, rules and usage and agreed to be bound thereby.

Although Father Iancu declared in his oath that he would work in accordance with the constitution and by-laws of the Romanian Orthodox Episcopate of America, his refusal to give up the St. Simon Church property indicates that he did not follow his oath. A review of the constitution and by-laws of the Romanian Orthodox Episcopate of America clearly states what is to be done with church property in the case of a schism. Article IX of the by-laws provide in part as follows:

"Section 1.
"The parish is the community of the faithful in a specified geographical area under the jurisdiction of the Romanian Orthodox Episcopate, having a priest as spiritual leader, and being administered by a parish council duly elected by its general assembly.
"Section 6.
"The assets of the parish shall be administered by the parish council in accordance with the Episcopate ByLaws and the laws of the state in which the parish is located.
"Section 10.
"In the event of the dissolution of a parish, title to all of its properties, real and personal, including documents, religious objects, vestments, works of art, and any other articles used in conjunction with and for the purposes of the parish shall pass to the patrimony of the Episcopate.
"Section 11.
"In case of a schism within the parish, or departure from the Orthodox faith, the party or group recognizing the jurisdiction of the Episcopate shall be entitled to complete control of all parish property of every kind, nature and description. ” (Emphasis supplied.)

No one disputes the fact that Father Iancu and his followers could leave the Episcopate and establish an independent church. However, where they have created an independent church under the jurisdiction of another authority, then they have no right to keep the property and it should go to the "faithful minority”.

The right of the "faithful minority” has been recognized in Michigan. In Fuchs v Meisel, 102 Mich 357, 373-374; 60 NW 773 (1894), the Michigan Supreme Court stated:

"In the freedom of conscience and the right to worship allowed in this country, the defendants and the members of this church undoubtedly possessed the right to withdraw from it, with or without reason. But they could not take with them, for their own purposes, or transfer to any other religious body, the property dedicated to and conveyed for the worship of God under the discipline of this religious association; nor could they prevent its use by those who chose to remain in the church, and who represent the regular church organization. ” (Emphasis supplied.)

See also, Immanuel Evangelical Lutheran Church v Fromm, 367 Mich 575, 588; 116 NW2d 766 (1962), Macedono-Bulgarian Orthodox Church St. Clement Ohridski v Macedonian Patriotic Organization Fatherland, 27 Mich App 713, 725; 184 NW2d 233 (1970), Holwerda v Hoeksema, 232 Mich 648, 655; 206 NW 564 (1925), Davis v Scher, 356 Mich 291; 97 NW2d 137 (1959).

In Davis, supra, at 298, the Court said:

"The weight of authority in Michigan is to the effect that the majority faction of a local congregation or society, being one part of a large church unit, however regular its action or procedure in other respects, may not, as against a faithful minority, divert the property of the society to another denomination or to the support of doctrines fundamentally opposed to the characteristic doctrines of the society, although the property is subject to no expressed trust.”

Affirmed, costs to plaintiffs.