author: T. M. Burns, J. D.C. Riley, J.

text:
    PEOPLE v NESBITT PEOPLE v KENDRICK PEOPLE v WOODWARD
    Docket Nos. 30707, 77-1810, 77-2024.
    Submitted May 10, 1978, at Detroit.
    Decided October 2, 1978.
    Darrell E. Nesbitt, Isaac Kendrick, and Romelle Woodward were each convicted, on their pleas of guilty, of larceny from a person and placed on probation. Each defendant was subsequently charged with other criminal activity and had his probation revoked based on those charges, Recorder’s Court of Detroit, Joseph A. Gillis, J. The defendants appeal separately, and the appeals were consolidated by the Court of Appeals for hearing. Defendant Nesbitt challenges the validity of his original guilty plea. Defendants Kendrick and Woodward allege that holding the probation revocation hearings prior to the trials on the charges which gave rise to the revocation proceedings violated their rights to remain silent, that basing a revocation on a subsequent violation of the law before disposition of the criminal charge is contrary to statute, and that the lower court erred in not making specific written findings of fact. Woodward also claims that he was denied due process because the judge was not a neutral and detached hearing body and that the court erroneously relied on prejudicial material in his presentence report. Held:

    1. Nesbitt’s issues on appeal are not properly before the Court. The appeal of right following a probation revocation and sentencing is limited to matters relating to the probation violation and the hearing thereon.
    2. Defendants Kendrick and Woodward were not deprived of their right to remain silent by the holding of the probation revocation hearings prior to the trials on the charges which gave rise to the revocation proceedings. Both defendants testified at the revocation hearings in their own behalf and were not, therefore, deterred by the possible threat of the use of their testimony in the subsequent trials. Also, neither defendant claimed the privilege to remain silent, therefore the Court of Appeals has no occasion to determine whether there was a valid waiver of the privilege.

      References for Points in Headnotes
    [1, 2, 4-7, 9, 10] 21 Am Jur 2d, Criminal Law §§ 567, 568.
    Right to notice and hearing before revocation of suspension of sentence, parole, conditional pardon, or probation. 29 ALR2d 1074.
    [3] 21 Am Jur 2d, Criminal Law § 219.
    [8] 21 Am Jur 2d, Criminal Law § 527.

      3. It is not necessary, to satisfy the statute relating to revocation of probation, to dispose of the charges of a subsequent violation of law before revoking probation based on those charges. The standard of proof at a probation revocation proceeding is lower than that in a criminal trial.
    4. Although the lower court did not make specific written findings of fact, the entire probation revocation hearing is transcribed, and from the record it is clear that the judge resolved the factual question of the defendants’ participation in the subsequent offenses.
    5. The mere fact that the same court which has placed a defendant on probation also conducts a hearing on a petition to revoke that probation does not deprive the defendant of a "neutral and detached hearing body” in violation of due process of law.
    6. The lower court did not err in considering the material in defendant Woodward’s presentence report. The defendant did not deny the report of his involvement in a prior similar criminal incident, but attempted to explain it, thus the court was presented with the defendant’s side of the story.
    Affirmed.
    D. C. Riley, J., concurred separately. She agreed that the question of whether a defendant’s right to remain silent is violated by holding a probation revocation hearing prior to disposition of the charges giving rise to the revocation proceedings should wait for a more appropriate case. Judge Riley agrees with the result reached by the majority only because the standard of proof in a probation violation hearing is lower than that in a trial. She would not, however, agree with language of the majority which may appear to foreclose the consideration of the issue relating to the sequence of the proceedings.
    Opinion of the Court
    1. Appeal and Error — Criminal Law — Appeal of Right — Probation Violation.
    An appeal as of right following a determination of probation violation and sentencing must necessarily be limited to those matters relating to the probation violation and the hearing thereon.
    2. Criminal Law — Probation Revocation — Right to Remain Silent —Sequence of Proceedings.
    A defendant’s right to remain silent was not violated by holding a probation revocation hearing prior to the trial on the offense which was the basis for revoking probation where the defendant took the stand at the revocation hearing and testified in his own behalf; the defendant was not deterred by the possible threat of the use of that testimony in the subsequent trial.
    3. Appeal and Error — Criminal Law — Right to Remain Silent— Waiver.
    The Court of Appeals will not determine whether or not a defendant voluntarily waived his right to remain silent where the privilege was not claimed in the trial court.
    4. Criminal Law — Probation Revocation — Subsequent Offense— Sequence of Proceedings.
    A proceeding to revoke probation is not a new criminal prosecution, but merely a hearing to determine whether a defendant is entitled to continue on probation; where revocation of probation is sought because the defendant has been charged with commission of an offense subsequent to being placed on probation it is not necessary to delay the revocation hearing until after disposition of the charges on the subsequent offense.
    5. Criminal Law — Probation Revocation — Sequence of Proceedings — Burden of Proof — Preponderance of Evidence — Reasonable Doubt.
    A probation revocation hearing which is held prior to trial on a criminal offense which is the basis for the revocation is not rendered invalid by being held before the trial on the new charges, even if the defendant is subsequently acquitted of the charges, because the burden of proof at the revocation hearing is only that of a preponderance of the evidence, not proof beyond a reasonable doubt.
    6. Criminal Law — Probation Revocation — Findings of Fact — Due Process — Court Rules.
    A trial court satisfied the requirements of due process and court rules regarding findings of fact in a probation revocation hearing where, although no written findings of fact were made, the entire hearing was transcribed and where it is clear from the record that the court resolved the factual question of the defendant’s participation in an offense which was the basis for the revocation (GCR 1963, 517.1).
    7. Criminal Law — Probation Revocation — Court.
    A trial court which has placed a defendant on probation is not precluded, simply by that fact, from conducting the hearing on a petition to revoke probation.
    8. Criminal Law — Sentencing—Presentence Report — Prejudice.
    A trial court did not erroneously rely on material in a presentence report when sentencing a defendant where, in rebuttal to defense counsel’s assertion that defendant had no previous trouble with the law, the court pointed out a previous criminal incident from the presentence report, and the defendant did not further object to this matter, but attempted to explain it.
    Concurrence by D. C. Riley, J.
    9. Criminal Law — Constitutional Law — Probation Revocation— Right to Remain Silent.

      It is not necessary to reach the question of whether a defendant’s right to remain silent was violated when his probation revocation hearing was held prior to trial on the charge which gave rise to the revocation proceedings where the defendant did not assert a Fifth Amendment claim either at the revocation hearing or at the subsequent trial, but instead chose to testify (US Const, Am V).

    10. Criminal Law — Appeal and Error — Probation Revocation— Right to Remain Silent.

      The Court of Appeals, in holding that on the facts of a particular case a defendant’s right to remain silent was not violated by the holding of a probation violation hearing prior to the trial on the charge which gave rise to the revocation proceedings, should not extend the holding by including language which may appear to foreclose the consideration of the issue relating to the sequence of the two proceedings in a proper case.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Brian Marzec, Assistant Prosecuting Attorney (in Kendrick), and Robert A. Reuther, Assistant Prosecuting Attorney (in Woodward), for the people.

      George Stone, for defendant Nesbitt on appeal.

      Thomas A. Law, for defendant Kendrick on appeal.

      Gerald S. Surowiec, for defendant Woodward on appeal.
    Before: Cynar, P.J., and T. M. Burns and D. C. Riley, JJ.
   T. M. Burns, J.

This appeal involves three cases consolidated by the Court for purposes of review. Each of the defendants pled guilty to a charge of larceny from a person, MCL 750.357; MSA 28.589, in 1974 and was placed on three years probation. In each case probation was revoked because subsequent criminal charges were brought against the defendant. Each defendant now appeals by right from the revocation of probation based on subsequent criminal activity.

Appeal of Nesbitt

No. 30707

Nesbitt was served with a notice of violation of probation after he was arrested for a breaking and entering in August of 1976. A hearing on the petition to revoke probation was held on September 1 and 21 of 1976. At the conclusion of the hearing, the court determined that a violation of one of the conditions of probation had occurred and probation was revoked. Defendant was subsequently sentenced to a term of nine months to ten years.

The only issues raised in this appeal relate to the validity of the original guilty plea in 1974. In People v Pickett, 391 Mich 305, 316-317; 215 NW2d 695 (1974), the Court held:

" * * * that the appeal as of right following determination of probation violation and sentence must necessarily be limited to those matters relating to the probation violation and the hearing thereon. We have given defendant the opportunity to raise any questions concerning his trial on his first appeal as of right. To allow him to raise trial related matters on this second appeal would, in effect, be granting two rights of appeal to the same final determination and make the 60-day requirement of GCR 1963, 803.1 in taking an appeal as of right meaningless. See, People v Nordstrom, 73 Ill App 2d 168; 219 NE2d 151 (1966); Gossett v State, 282 SW2d 59 (Tex Crim App, 1955).”

The issues that defendant attempts to raise are not properly before the Court. The revocation of probation is affirmed.

Appeals of Kendrick and Woodward

Nos. 77-1810 and 77-2024

The appeals of Kendrick and Woodward are factually related and may be considered together. In each of these cases the alleged violation of probation involves several charges of criminal sexual conduct. Defendants were served with notice of the violation and a petition to revoke after the preliminary exam on the criminal sexual conduct charges. Defendants raised several objections to proceeding with the revocation hearing before the trial on the criminal sexual conduct charges and before the judge who had placed them on probation. The objections were denied and a hearing scheduled.

Before the hearing began the objections to proceeding at that time and before that judge were renewed and again denied. The only evidence of a violation of a condition of probation was provided by the complaining witness in the criminal sexual conduct case. She testified about the events surrounding those offenses and identified each of these defendants as a participant.

Each of the defendants was then allowed to present his case. Each took the stand and denied any involvement in the offense. Each claimed to have been somewhere else.

At the conclusion of the testimony, the trial court did not make specific findings of fact. However, he did announce his intention to revoke probation. Probation was then revoked and each defendant was subsequently sentenced to serve six to ten years in prison.

I

Kendrick and Woodward both claim that it is a violation of their right to remain silent to proceed with the revocation hearing before the trial on the underlying offense and that they did not properly waive that right at the hearing in this case.

We resolve the first point in the same manner as the panel did in People v Baines, 82 Mich App 438; 266 NW2d 839 (1978). The basis of the argument is that defendant will be deterred from testifying at the revocation proceeding because anything he says in that proceeding could be used at the subsequent trial. We recognize that a problem can exist when defendant is forced to make a "double defense” by holding the revocation proceeding first. However, in this case each defendant did take the stand and testify in his own behalf. They were not deterred by the possible threat of the use of that testimony in their subsequent trial. If the defendants’ revocation hearing testimony is used at the subsequent trial, that would be the appropriate proceeding at which to consider this question.

The defendants’ second point in this issue must also be rejected. Both defendants were represented by counsel at the revocation proceeding and both testified without claiming that to do so would violate their privilege. Since the privilege was not claimed, we have no occasion to determine if it was voluntarily waived. People v Hunley, 63 Mich App 97; 234 NW2d 169 (1975).

II

Both defendants also contend that it is contrary to the statute regulating revocation of probation, MCL 771.4; MSA 28.1134, to base revocation of probation on a subsequent violation of the law before the criminal charge is disposed of by trial or plea.

We decline to accept defendants’ construction of the statute. The proceeding to revoke probation is not a new criminal prosecution, but merely a hearing to determine whether defendant is entitled to continue on probation. One or the other proceeding must come first, and as another panel of this Court has noted, there is no reason why it cannot be the revocation hearing. People v Eric Baines, 83 Mich App 570; 269 NW2d 228 (1978). Indeed, the substantial weight of authority holds that it is not necessary to delay a probation or parole revocation hearing merely because criminal proceedings are pending against the probationer arising out of the acts for which revocation is sought. See cases collected in Anno: 36 L Ed 2d 1077, § 18(a), 1105-1106.

The record in this case shows that defendant Kendrick was subsequently convicted of the charged offenses. The record does not show the disposition of the charges against Woodward. But, even if he was acquitted, because of the different burden of proof (preponderance of the evidence, not beyond a reasonable doubt, People v Miller, 77 Mich App 381; 258 NW2d 235 [1977]), the prior revocation proceeding would not be invalidated. People v Baines, supra. See also, Anno: 76 ALR3d 564, § 2.

The statute requires the revocation hearing to be "summary and informal and not subject to the rules of evidence or of pleadings applicable in criminal trials”. MCL 771.4; MSA 28.1134. It would be inconsistent with the expressed terms of the statute to require the prosecution to show defendant’s guilt beyond a reasonable doubt on the new offense in a separate trial before proceeding to revoke defendant’s probation based on that conduct. There was no error in holding defendants’ revocation hearing before disposing of the new criminal charges.

Ill

Both defendants also challenge the fact that the trial court did not make written findings of fact, as required by the due process clause, or a specific finding of fact as required by GCR 1963, 517.1.

We first examine the constitutional claim. In Gagnon v Scarpelli, 411 US 778; 93 S Ct 1756; 36 L Ed 2d 656 (1973), the Court adopted certain minimum due process standards for probation revocation proceedings. Among the stated requirements is "a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation or] parole”. 411 US at 786.

However, the Court did not intend to establish an inflexible structure for probation revocation proceedings. People v Blakely, 62 Mich App 250, 254; 233 NW2d 523 (1975). The purpose of the written statement is to allow a reviewing court to determine whether there was a factual basis for revocation and provide the probationer with a record of the proceeding so that a second revocation proceeding could not be based on the same conduct. Kartman v Parratt, 535 F2d 450 (CA 8, 1976). In Michigan the entire probation revocation hearing is transcribed. Therefore, we conclude that if the court adequately complies with GCR 1963, 517.1 the due process standard will have been met. See, State v Fry, 15 Wash App 499; 550 P2d 697 (1976).

In People v Jackson, 390 Mich 621; 212 NW2d 918 (1973), the Court held that GCR 1963, 517.1 is applicable to criminal as well as civil proceedings and that where the trial court does not comply with the rule the appropriate remedy is to remand for further factfinding, not reversal. We hold the rule is also applicable to revocation proceedings, although they are not, strictly speaking, criminal prosecutions.

The limitations on remand are also applicable. In Jackson, the Court stated:

"A judge’s failure to find the facts does not require remand where it is manifest that he was aware of the factual issue, that he resolved it and it would not facilitate appellate review to require further explication of the path he followed in reaching the result as, for example, where the only factual issue is identification. See People v Green, 32 Mich App 482; 189 NW2d 122 (1971). See, also, People v George Scott, 21 Mich App 217-218; 175 NW2d 312 (1970).” 390 Mich at 627, n 3.

Here the trial court did not make specific findings of fact, he simply announced his decision to revoke probation. But, from the record it is clear that he resolved the factual question of defendants’ participation in the subsequent offenses against them and believed the victim. A remand to further articulate this finding would not aid in our review. The reasoning which supports the requirement of making findings of fact is satisfied. There was no error on this point.

IV

Defendant Woodward claims that he was denied due process, as defined in Gagnon, because the trial court was not a neutral and detached hearing body. The claim is based on the fact that the judge who heard the revocation petition was the same judge who had originally placed defendant on probation and also the fact that Recorder’s Court was in the midst of a crash program which put pressure on the court to move the docket.

The "neutral and detached hearing body” requirement is aimed at preventing revocation by one who was directly involved in bringing the charges against the defendant, such as a probation officer, or one who has personal knowledge of an event upon which the charge is based, such as a judge who orders revocation because of a failure to appear before him. McGuire v Warden, 229 NW2d 211 (ND, 1975), Edwardsen v Gray, 352 F Supp 839 (ED Wis, 1972). See also, Louk v Haynes, — W Va —; 223 SE2d 780 (1976). As each of these courts recognized, a trial court which has placed a defendant on probation is not precluded, simply by that fact, from conducting the hearing on a petition to revoke. Cf. People v Blakely, 62 Mich App 250, 255; 233 NW2d 523 (1975) (dictum). We so hold.

There has been no allegation that the court was personally biased against defendant. Nor does defendant’s argument concerning the crash program in Recorder’s Court strike us as persuasive. A finding that defendant did not violate probation would also remove the case from the docket. The trial court’s decision to revoke probation was adequately supported by the record. We find no error in this issue.

V

The final issue involves defendant Woodward’s claim that the trial court relied on prejudicial material contained in the presentence report in setting his sentence. In rebutting defense counsel’s claim that defendant had no prior trouble with the law, other than the offense for which he was placed on probation, the trial court pointed out an incident which was strikingly similar to the event which led to probation being revoked. The defendant did not deny that the incident occurred, but attempted to explain it. No further objection to consideration of this matter was raised by defendant or his attorney. The court was presented with defendant’s side of the story. We can find no error. People v McIntosh, 62 Mich App 422; 234 NW2d 157 (1975), aff'd in part, rev’d in part on other grounds, 400 Mich 1; 252 NW2d 779 (1977).

The judgment in each case is affirmed.

Cynar, P.J., concurred.

D.C. Riley, J.

(concurring). Although I concur in the result reached in the majority opinion, I cannot endorse the majority’s discussion of Issue II of the appeals of Kendrick and Woodward.

In Issue I the majority, citing People v Baines, 82 Mich App 438; 266 NW2d 839 (1978), holds that the question, being whether the defendants’ Fifth Amendment rights were violated when their probation revocation hearings were held prior to their trials, should be deferred until a more appropriate case is presented. I agree with this result, which does comport with the decision in Baines, supra, since defendants did not assert their Fifth Amendment claim at the revocation hearing or raise the issue at the subsequent trial, choosing instead to testify.

In Issue II, the majority initially holds that the probation revocation statute, MCL 771.4; MSA 28.1134, is not violated when the revocation hearing precedes the trial. I agree with this result only for the precise reason that the statute is satisfied by a lower standard of proof than applicable in a trial.

My reluctance to fully concur in the majority’s opinion is based upon the additional language in Issue II, where the majority states that since one proceeding must occur first "there is no reason why it cannot be the revocation hearing”. The majority then cites Baines, supra, for this conclusion. I feel that this language is both unnecessary to the decision and too broad in scope.

In Issue I the majority clearly implied that there may be Fifth Amendment problems relating to the sequence of the two proceedings. See 74 Mich L Rev 525 (1976). This question was deferred only because of the factual context of the instant case. However, the cited language in Issue II can be reasonably read to hold that no problems, either Fifth Amendment or otherwise, prevent the revocation hearing from occurring first. While such a reading may be arguably out of context, I do not think our opinion should even appear to foreclose the decision we deliberately left open in Issue I. In addition, I do not read Baines, supra, to hold that a revocation hearing can always predate the trial.

I therefore concur in the result reached on the facts of the present case, while emphasizing that the Fifth Amendment issue raised was decided limited to those facts.

       The charges against each of the defendants were based on a single incident. After a mistrial each defendant pled guilty to the offense noted. Kendrick pled guilty at the same time as the other defendants, but his plea was not accepted until January 16, 1975, so that a term of probation for still another offense could expire before a conviction in this case was entered.

       US Const, Am V; Const 1963, art 1, § 17.

       Kendrick’s attorney states the problem in these terms: "During the hearing, the defendant was forced to testify in his own behalf in order to defend himself against the charges, and consequently, had to relinquish his constitutional right to remain silent at the trial on the new charges." (Emphasis added.)

        Woodward’s attorney argues: "The defendant is forced to relinquish this right prior to his trial and/or conviction to defend himself in the probation hearing. If he does not testify, without question he would be violated and remanded.”

       By statute, each order placing a defendant on probation requires as a Condition for continued probation that the probationer not violate any criminal law of the state or ordinance of any municipality in the state. MCL 771.3; MSA 28.1133.

       The ABA Standards Relating to Probation (Approved Draft, 1970), § 5.3 suggests that revocation based solely on new criminal conduct should be postponed until the new charge is disposed of. Neither our Supreme Court or any panel of this Court has adopted this standard.

       It is unclear whether this incident was the basis of the charge for which defendant earlier pled guilty and was placed on probation. The prosecutor claims that it was.


source: Caselaw Access Project

author:
Allen, P.J.
      Cynar, J.

license: Public Domain

text:
    PEOPLE v GREEN
    Docket No. 30813.
    Submitted June 6, 1978, at Lansing.
    Decided October 2, 1978.
    Defendant Richard L. Green and John Denny were jointly tried for first-degree criminal sexual conduct (CSC I) consisting of sexual penetration of another while aided and abetted by one or more others and by the use of force or coercion and for armed robbery. The Washtenaw Circuit Court, Patrick J. Conlin, J., over defendant’s objection, admitted evidence of defendant’s previous two convictions for first-degree criminal sexual conduct. The court instructed the jury on CSC I, third-degree criminal sexual conduct (CSC III), armed robbery, unarmed robbery and larceny from the person. Defendant requested additional instructions on second-degree criminal sexual conduct (CSC II), fourth-degree criminal sexual conduct (CSC IV), attempt instructions on all four degrees of criminal sexual conduct, and attempt instructions on the three theft offenses. The trial court denied defendant’s request and defendant was convicted of first-degree criminal sexual conduct and armed robbery. Defendant appeals. Held:

    1. Impeachment of a defendant by evidence of prior convictions should be allowed only with caution and the more similar the prior convictions are to the crime charged, the greater the amount of caution required and, in this case, the error cannot be considered harmless.
    2. A necessarily lesser included offense is one which must be committed whenever the greater offense is committed and it is error for a trial court to refuse a requested instruction on such an offense.
    3. Attempt is always a necessarily lesser included offense of the crime attempted and, where requested, a jury instruction on attempt must be given.

      References for Points in Headnotes
    [1] 29 Am Jur 2d, Evidence §§ 320, 321, 333.
    [2-4] 75 Am Jur 2d, Trial §§ 876-882.
    [4] 21 Am Jur 2d, Criminal Law §§ 110-112
    [5] 21 Am Jur 2d, Criminal Law § 18 et seq.

    65 Am Jur 2d, Rape §§ 1-3,110.

      4. CSC II is a necessarily lesser included offense of CSC I since the difference between them is that CSC I requires sexual penetration and CSC II requires only sexual contact and since sexual penetration necessitates sexual contact.
    5. The aider and abettor sections of the CSC I and II statutes have no counterpart in the CSC III and IV statutes; CSC III and IV are not lesser included offenses of the aider and abettor section of CSC I and II.
    Reversed and remanded.
    Cynar, J., concurred in part and dissented in part. He agreed with the majority except that he would hold CSC III and IV are necessarily lesser included offenses of the aider and abettor section of CSC I and II.
    Opinion op the Court
    1. Criminal Law — Evidence—Impeachment—Prior Convictions.
    Impeachment of a criminal defendant by evidence of prior convictions for similar crimes should be allowed with caution and the more similar the prior conviction to the offense charged, the greater the amount of caution required.
    2. Criminal Law — Lesser Included Offenses — Necessarily Lesser Included Offenses — Instructions to Jury.
    A necessarily lesser included offense is one which must be committed whenever the greater offense is committed and it is error for a trial court to refuse a requested instruction on such a lesser offense.
    3. Criminal Law — Lesser Included Offenses — Cognate Lesser Included Offenses — Instructions to Jury.
    A cognate lesser included offense is of the same class and category as the greater offense although it may contain some elements not found in the greater and the charge of the greater offense provides fair notice to the defendant that he will have to defend against the lesser offense; an instruction on a cognate lesser included offense must be given where it is requested and where the evidence presented at trial would support conviction of the cognate offense.
    4. Criminal Law — Lesser Included Offenses — Attempt—Instructions to Jury.
    An attempt is a necessarily lesser included offense of the crime attempted and, where requested, a jury instruction on attempt must be given.
    5. Criminal Law — Statutes—Criminal Sexual Conduct — First and Second-Degree Criminal Sexual Conduct — Lesser Included Offenses.
    Second-degree criminal sexual conduct accomplished by force or coercion and aided or abetted by another is a necessarily lesser included offense of first-degree criminal sexual conduct accomplished by the same means since the only difference between the two degrees is that sexual penetration is necessary for first-degree while only sexual contact is necessary for second-degree (MCL 750.520b[l][d][ii], 750.520c[l][d][ii]; MSA 28.788[2][l][d][ii], 28.788[3][l][d][ii]).
    6. Criminal Law — Statutes—Criminal Sexual Conduct — Multiple Assailant Provisions — Lesser Included Offenses — First, Second, Third and Fourth Degree Criminal Sexual Conduct.
    First- and second-degree criminal sexual conduct aided and abetted by another and accomplished by force or coercion do not have sexual conduct of the third- or fourth-degree as lesser included offenses because the third- and fourth-degree offenses do not have any multiple assailant provisions (MCL 750.520b[l][d][ii], 750.520c[l][d][ii]; MSA 28.788[2][l][d][ii], 28.788[3][l][d][ii],
    Concurrence in Part, Dissent in Part by Cynar, J.
    7. Criminal Law — Statutes—Criminal Sexual Conduct — Lesser Included Offenses — Necessarily Lesser Included Offenses.

      Third-degree criminal sexual conduct accomplished by force or coercion and fourth-degree criminal sexual conduct accomplished by force or coercion are necessarily lesser included offenses of £rst-degree criminal sexual conduct accomplished by force or coercion and aided or abetted by one or more other persons since sexual contact is necessarily included in sexual penetration and the greater offense requires proof of an additional element, an aider or abettor, that the lesser included offenses do not require (MCL 750.520d[l][b], 750.520e[l][a], 750.520b[l ][d][ii]; MSA 28.788[4][l][b], 28.788[5][l][a], 28.788[2][1][d][ii]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey,
      Prosecuting Attorney and John J. Hensel, Senior Assistant Prosecuting Attorney, for the people.

      Marc L. Goldman, for defendant on appeal.
    Before: Allen, P.J., and Cynar and D. R. Freeman, JJ.

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

   Allen, P.J.

Defendant was charged with and convicted of criminal sexual conduct in the first degree — sexual penetration of another while aided or abetted by one or more other persons and by the use of force or coercion to accomplish the sexual penetration, MCL 750.520b(l)(d)(ii); MSA 28.788(2)(l)(d)(ii), and armed robbery, MCL 750.529; MSA 28.797. Defendant was jointly tried before a jury with his accomplice and codefendant, John Denny, who was also found guilty and whose appeal is pending in this Court. Sentenced to 50-75 years in prison on the criminal sexual conduct conviction and life imprisonment on the armed robbery conviction on July 8, 1976, defendant appeals of right.

The complaining witness and victim was picked up by defendant and his accomplice while she was hitchhiking. She was taken to a building where she was forced to participate in acts of sexual intercourse and fellatio with both defendants. In the course of her abduction and the assault upon her, the victim was struck and injured. Prior to releasing the victim the defendants took, at knife-point, what money she had. The victim also believed that at least one of her assailants was armed. At trial defendant did not deny sexual activity with the complaining witness, but claimed that she consented.

On appeal, defendant claims the trial court erred reversibly by admitting into evidence two prior similar convictions. Defendant also claims reversible error in the trial court’s failure to give requested jury instructions on nine necessarily included lesser offenses as mandated by the decision in People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975).

I. Impeachment by Prior Similar Convictions

Prior to trial, defense counsel moved that the court issue a protective order prohibiting cross-examination of defendant regarding prior convictions for first-degree criminal sexual conduct. The motion was denied for the same reason the court denied an identical motion made on behalf of codefendant Denny. Defendant took the stand and on cross-examination by the assistant prosecutor was asked whether just three months prior to trial he had pled guilty to two counts of criminal sexual conduct in the first degree. Defendant answered yes. In instructing the jury the trial court instructed that defendant’s admission of his prior convictions was to be considered only as it affected his credibility and not as evidence of guilt of the offense charged.

The trial court properly recognized it had discretion to admit or exclude the prior convictions under the standards set forth in People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). The problem is that the trial court then applied the standards upside down. In other words, the court made the same error it made in People v Cash, 80 Mich App 623; 264 NW2d 78 (1978). Impeachment by evidence of convictions for similar crimes should be admitted with caution. Id. at 627. The more similar the prior conviction to the offense charges, the greater is the amount of caution required. People v Crawford, 83 Mich App 35; 268 NW2d 275 (1978). Unlike Cash, the error cannot be considered harmless in the present case. There, the defendant denied being convicted of the similar crime and consequently the jury did not know, as was admitted here, that the defendant had committed the act before.

Accordingly, we reverse defendant’s convictions and remand for a new trial. Upon retrial the court should weigh the prejudicial effect versus the probative value of the prior conviction as set forth in Jackson, supra, and as further explained in Cash and Crawford, supra. See also, MRE 609. Since upon retrial defendant may again request lesser included offense instructions, we proceed to discuss this exceedingly complex issue.

II. Attempt Instructions

The trial court instructed the jury on first-degree criminal sexual conduct, MCL 750.520b(1)(d)(ii); MSA 28.788(2)(l)(d)(ii), third-degree sexual conduct (penetration accomplished by force or coercion), MCL 750.520d(l)(b); MSA 28.788(4)(l)(b), armed robbery, MCL 750.529; MSA 28.797, unarmed robbery, MCL 750.530; MSA 28.798, and larceny from a person, MCL 750.357; MSA 28.589. Defendant’s counsel requested additional instructions on criminal sexual conduct in degrees II and IV, attempt instructions on all four degrees of criminal sexual conduct, and attempt instructions for each of the three theft offenses. The trial court refused to give the instructions on criminal sexual conduct II and IV because sexual penetration as opposed to sexual contact was admitted by the defendant and therefore, according to the court, there was no factual basis to give the instructions. The court also ruled that there was no factual basis upon which to give any of the requested attempt instructions.

Two classes of lesser included offenses are recognized in Michigan — necessarily included lesser offenses and cognate lesser offenses. People v Ora Jones, supra. The Supreme Court in Ora Jones described a necessarily included lesser offense as one which must be committed whenever the greater offense is committed. Under Ora Jones, the evidence will always support conviction of a necessarily included lesser offense if it supports conviction of the greater offense, and refusal to give a requested instruction on such an offense is error. In Ora Jones, a cognate lesser offense was described as sharing several elements with and as being of the same class or category as the greater offense, but it may contain some elements not found in the greater offense. In order to be a lesser included cognate offense, the charged offense must provide fair notice to the defendant that he will have to defend against the lesser offense. A cognate offense has a common statutory purpose and protects the same societal interests as the greater offense. If evidence is presented at trial which would support conviction of the cognate offense, then an instruction on that offense must be given if requested.

In the case at bar the trial court instructed on unarmed robbery and larceny from a person which are necessarily included lesser offenses, and such a requested instruction must be given. People v Lovett, 396 Mich 101; 238 NW2d 44 (1976). Since an attempt to commit an offense is simply a failure in the perpetration of the offense, MCL 750.92; MSA 28.287, it is readily apparent why an attempt is also necessarily included in the greater offense. All of the elements of the attempt are the same as those of the greater offense except some act which is not completed. Under the Ora Jones reasoning, the fact that all of the evidence produced at trial indicated a completed armed robbery is an insufficient reason for not instructing on necessarily included lesser offenses, since the jury is the sole judge of all of the facts and can choose, without any apparent logical basis, what to believe and what to disbelieve. People v Chamblis, 395 Mich 408, 420; 236 NW2d 473 (1975).

The same logic supporting the decision in Lovett should apply to a requested attempt instruction to unarmed robbery and larceny from a person. Hence, we conclude that the attempts to unarmed robbery and larceny from a person are necessarily included lesser offenses to their greater, completed offenses. Since the offenses of unarmed robbery and larceny from a person are necessarily included lesser offenses of armed robbery, the lesser attempt offenses of these two theft offenses are also necessarily included lesser offenses of armed robbery. It was consequently error to refuse to give the requested instruction to attempted unarmed robbery, attempted larceny from a person, and attempted armed robbery.

III. Criminal Sexual Conduct Instructions

We further find that the lower court erred in refusing to instruct on the necessarily included lesser offenses of second-degree criminal sexual conduct (CSC) and attempted first- and second-degree CSC. Defendant was charged under subsection (d) of criminal sexual conduct in the first degree, that is, an actor and aider or abettor used force or coercion to accomplish sexual penetration. MCL 750.520b(l)(d)(ii); MSA 28.788(2)(l)(d)(ii). This subsection, along with all of the other types of first-degree criminal sexual conduct, is carried through to second-degree criminal sexual conduct. The only difference between the two degrees is that sexual penetration must be accomplished for first-degree CSC, whereas only sexual contact need be engaged in for second-degree CSC. Since all of the elements of CSC II are the same as those of CSC I except for penetration, and there cannot be penetration without contact, second-degree CSC is a necessarily included lesser offense of CSC I. People v Secreto, 81 Mich App 1; 264 NW2d 99 (1978), People v Thompson, 76 Mich App 705; 257 NW2d 268 (1977).

There is no category of third- or fourth-degree criminal sexual conduct which corresponds to subsection (d) of first- and second-degree criminal sexual conduct. This is also true for several of the other types of first- and second-degree sexual conduct. For these types of CSC I and II, including subsection (d), neither CSC III nor CSC IV are lesser included offenses, necessarily included or otherwise. People v Secreto, supra. Consequently, there was no error in refusing to instruct on CSC IV and attempted CSC III or IV since these offenses are not lesser included offenses of CSC I and II subsection (d).

The CSC statute represents the results of considerable legislative debate. The Legislature did not provide a multiple assailant provision in CSC III or IV. Neither CSC III nor IV was designed to provide a penalty for this type of criminal sexual conduct. A defendant charged under the multiple assailant provisions of the CSC statute would not receive fair notice of possible prosecution under CSC III and IV. CSC III and IV do not protect the interests of society against subsection (d) type offenses. We have considered and rejected the argument that the "force or coercion” provisions of CSC III and IV automatically make them lesser included offenses of subsection (d) of CSC I and II. These provisions are better considered as the intended, lesser included offenses subsection (f) of CSC I and II, for they are basically the same offense minus the element of injury and they protect the same societal interests. This construction maintains the integrity of the legislative scheme.

Upon retrial, a CSC II instruction if requested should be given. Since there must be contact to have penetration, People v Thompson, supra, and this is the only distinguishing factor between first- and second-degree CSC, second-degree criminal sexual conduct is a necessarily lesser included offense of first-degree criminal sexual conduct. We also hold that upon retrial, attempt instructions to CSC I and II, if requested, should be given. As noted earlier, an attempt is necessarily included in the completed offense.

In summary, we reluctantly conclude that the Supreme Court’s holding in Ora Jones and Lovett requires this Court to hold that in the present case the trial court erred by refusing to give six of the nine requested instructions. Our reluctance to so hold stems from what we perceive will be the confusion resulting from requiring the jury to rule on a multitude of added charges. In the instant case the jury will be required to pass on the four charges given by the trial court plus the six additional charges required under this opinion. Since defendant was tried jointly with an accomplice the jury, if properly instructed, is asked to pass on 20 charges. In Ora Jones, only one lesser included offense was involved. Conceivably, the Supreme Court did not foresee the practical problems flowing from strict adherence to the majority opinion in Ora Jones.

Reversed and remanded for new trial.

D. R. Freeman, J., concurred.

Cynar, J.

(concurring in part, dissenting in part). I concur in the majority’s disposition of issue I. The trial judge’s improper exercise of discretion in ruling upon the admissibility of the prior convictions requires a new trial.

I also concur in the analysis of issue II which relates to the attempt instructions.

However I disagree with the analysis of issue III, to the extent that it holds that CSC III subsection (b) and CSC IV subsection (a) are not lesser-included offenses of CSC I subsection (d)(ii). I find no support for the majority’s proposition that a defendant charged with CSC I subsection (d)(ii) would not receive fair notice of possible prosecution for CSC III or CSC IV.

Moreover, an examination of the elements of the offenses indicates that this is a situation of necessarily lesser-included offenses. CSC IV subsection (a) requires proof of:

1) sexual contact and
2) force or coercion.

CSC III subsection (b) requires proof of:

1) sexual penetration and
2) force or coercion.

Since there can be no penetration without contact, People v Thompson, 76 Mich App 705, 708; 257 NW2d 268 (1977), CSC IV subsection (a) is a necessarily lesser-included offense of CSC III subsection (b) .

CSC I subsection (d)(ii) requires proof of:

1) sexual penetration,
2) force or coercion, and
3) one or more aiders and abettors.

Thus, CSC I subsection (d)(ii) consists of all the elements of CSC III subsection (b), plus the additional element of an aider and abettor. Since proof of CSC I subsection (d)(ii) necessarily proves all the elements of CSC III subsection (b) and CSC IV subsection (a), these latter offenses are necessarily included offenses of CSC I subsection (d)(ii). People v Ora Jones, 395 Mich 379, 387; 236 NW2d 461 (1975).

Although disagreeing with the majority’s analysis of issue III, I am in complete agreement with their apparent goal of cutting back on the requirements of Ora Jones. The requirement that the jury be instructed on all requested lesser-included offenses creates jury confusion and confounds both the bench and the bar. This is especially true in a case such as this where Ora Jones requires the jury to be instructed on 14 separate charges. Hopefully, the Supreme Court will save us from the confusion engendered by Ora Jones. However, since we are still bound by Ora Jones and its progeny, I must conclude that the trial judge at the new trial must, upon request, instruct the jury on CSC III, CSC IV and attempts to commit the same.

        People v Denny, 86 Mich App 40; 272 NW2d 332 (1978).

       Responding to the motion of codefendant Denny, the Court stated: "The motion is denied. He is charged at this time with criminal sexual conduct, and any charge that is similar, the prosecution may go into it for the question of credibility.” (Emphasis supplied.) Responding further to the motion of defendant Green the court stated: "But anyway, the jury is entitled to know this. The law is very clear. If he takes the stand, the prosecution can go into his past record — not regarding any dissimilar crimes, which I never allow — but of similar crimes of a similar nature, the jury can hear them. The motion is denied.” (Emphasis supplied.)

       Further guidelines for the admissibility of prior convictions will be found in the recently adopted Michigan Court Rules — 1978 Evidence Rules. See Supplemental Pamphlet, Proposed Rules of Evidence with Committee Notes, West Publishing Co. (1977), pp 40-44.

         "MR. SALLADE [Defendant’s Attorney]: * * * I also would indicate that we would like instructions as to the attempted commissions of all these offenses, not just the commission but the attempted as to all of them, and also all of the included offenses under the statute dealing with criminal sexual conduct.
      "THE COURT: Tell me what they are, that I didn’t give?
      "MR. SALLADE: The second and the fourth.
      "THE COURT: So you want the second and the fourth?
      "MR. SALLADE: I want them in regardless of the testimony, and also we want in attempted armed robbery, attempted unarmed robbery, attempted larceny from a person, and attempted on all four of those categories of the sexual conduct statute as well.”

       The trial court did instruct on CSC III. Since this was not a charged offense or lesser included offense it was not necessary to instruct on attempted CSC III.

       There may be some discussion whether the statutory scheme for criminal sexual conduct contains its own attempt provisions. See People v Denmark, 74 Mich App 402, 416; 254 NW2d 61 (1977). We believe that there may be a criminal effort to sexually penetrate or to sexually contact which falls short of the completed act of penetration or contact. Thus, we find there can be attempts to any degree of criminal sexual conduct. This would be consistent with the reasoning prior to the enactment of the CSC statutes. See People v Terry, 80 Mich App 299; 263 NW2d 352 (1977) (attempted statutory rape), People v Herbert Ross, 73 Mich App 588; 252 NW2d 526 (1977) (attempted rape).

       In a similar fashion the majority points out that these offenses are lesser-included offenses of CSC I subsection (f), which requires proof of 1) sexual penetration, 2) force or coercion, and 3) injury to the victim. What the majority fails to see is that CSC III subsection (b) and CSC IV subsection (a) are necessarily included offenses of both CSC I subsection (d)(ii) and subsection (f).


author: D. R. Freeman, J.

text:
    PEOPLE v WALKER
    Docket No. 77-1350.
    Submitted June 9, 1978, at Lansing.
    Decided October 2, 1978.
    Henry L. Walker was convicted of breaking and entering an occupied dwelling, Jackson Circuit Court, Russell E. Noble, J. Defendant appeals, claiming that the prosecutor’s continued questioning of the defendant, who took the stand in his own behalf, about drug use by the defendant deprived him of a fair trial. Held:

    This line of questioning did deny the defendant his right to a fair trial where it was continued despite the defendant’s insistence that he did not use drugs and where there was no other evidence introduced to show that the defendant used drugs.
    Reversed and remanded.
    1. Criminal Law — Evidence—Heroin Addiction — Prejudice to Defendant.
    The prosecution has a right to attempt to elicit evidence of heroin addiction from a defendant charged with other than a narcotics offense should he elect to testify; however, evidence of heroin addiction has a strong tendency to inflame a jury and the prosecution must proceed in this area with discretion and make every reasonable effort to avoid undue prejudice to the defendant.
    2. Criminal Law — Evidence—Defendant’s Drug Usage — Denial of Pair Trial — Prosecutor’s Line of Questioning.
    A defendant was denied his right to a fair trial and his conviction for breaking and entering an occupied dwelling should be reversed where the prosecutor attempted, but failed, to elicit from the defendant evidence of heroin addiction, and, by the way he framed his questions and through pointless repetition of questions about drug usage, underscored his personal disbelief of the defendant’s testimony and encouraged the jury to draw an inference contrary to the unrebutted evidence.
    Reference for Points in Headnotes
    [1, 2] 29 Am Jur 2d, Evidence §§ 252, 253, 260.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Edward Grant, Prosecuting Attorney, and John L. Wildeboer, Assistant Prosecuting Attorney, for the people.

      Kim R. Fawcett, Assistant State Appellate Defender, for defendant on appeal.
    Before: Allen, P.J., and Cynar and D. R. Freeman, JJ.

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

   D. R. Freeman, J.

Defendant Henry Lewis Walker was convicted by a jury of breaking and entering an occupied dwelling, MCL 750.110; MSA 28.305. He was sentenced to 3 to 15 years imprisonment and appeals as of right.

In the early morning of November 22, 1975, Barbara Walker (no relation to defendant) was awakened by her barking dog. She looked out the window of her house on North Dwight Street in Jackson, Michigan, and observed three men approach the back door of the house next to hers, that of Pamela Matthes, and look in the window. She called the police. She then saw the three men go around to the front of the house. At that point they were no longer in view. She heard glass breaking. Pamela Matthes was not home at the time.

Officers Michael Brunk and Moses Lewis of the Jackson Police Department arrived at the scene at the same time. Officer Brunk heard a door open and close quickly in the front of the house. Officer Lewis positioned himself in front of the house at the southwest corner. Officer Brunk went around back, to the northwest corner of the house where he saw a rear door open. He ordered whoever was in the house to come out. No one came out; the door closed.

Meanwhile, a third policeman, Officer Roger Ramirez, arrived. Officer Ramirez checked the garage and the southeast basement window. He noted that the window was secure. He stationed himself near the northeast corner of the house. He observed a second door in the rear of the house open and the silhouette of a person inside. Then Officer Brunk again ordered whoever was inside the house to come out. No one came out.

Officer Ramirez then heard noises coming from the southeast side of the house. He saw defendant walking down the driveway toward the street and arrested him. He noted that the southeast basement window, which had been secure when he arrived, was now broken at the hinges. There was access from the first floor of the house to the basement.

After defendant was arrested, Officer Brunk entered the house. He found that a window pane in the front door was broken and that fragments of glass had fallen into the house. It was possible to reach through the broken pane and unlock the door from the inside. The house was in disarray. Pamela Matthes testified that she did not leave the house in such a state of disorder. Officer Brunk found a television, a vacuum cleaner and a stereo amplifier and speaker stacked near the front door. A search of the house failed to turn up additional suspects.

Defendant testified in his own behalf. He stated that on the night in question he had been on his way to a motel with a girlfriend; that he had been riding in her car; that they had had an argument; and that she had ordered him out of the car on Dwight Street. While walking down the street, he had noticed the commotion around the Matthes house and walked halfway up the driveway. After he had turned around and started to leave, he was arrested.

On cross-examination, the prosecutor asked defendant whether anything was found on his person when he was searched after his arrest; defendant replied in the negative. Yet, the prosecutor persisted and, although defendant denied over and over again that anything but cigarettes and matches had been discovered, asked if a syringe had been found in defendant’s pocket; defendant replied in the negative. Still, the prosecutor doggedly pursued this line of questioning. Eventually, he asked defendant if he had been taking any drugs during November of 1975; defendant replied in the negative. Here again, the prosecutor persisted and eventually asked defendant if he had told a police detective who questioned him that he had been using heroin during this period; defendant replied in the negative. Defense counsel finally objected on the ground of relevancy and asked that the testimony be stricken. The prosecutor argued that drug usage went to the issue of motive. The trial court overruled the objection. The prosecutor continued, finally asking defendant if he hadn’t stated to the police detective that he had used a drug four days before the offense; defendant replied in the negative. Defendant asserts that this line of questioning denied him a fair trial. We agree.

In affirming a defendant’s conviction for armed robbery, this Court held in People v Talaga, 37 Mich App 100, 103; 194 NW2d 462 (1971):

"Whether the defendant was a heroin addict at or near the time of the offense was relevant and material to the establishment of a motive for defendant’s commission of the crime charged. Motive, if established, would tend to rebut defendant’s contention that he was at home and knew nothing of the charge made against him.” (Emphasis added.)

We accept this statement as a general proposition of law applicable in cases involving larceny and recognize that other acts of the defendant which tend to show his motive may be proved notwithstanding that such proof may show or tend to show the commission of another crime by the defendant. MCL 768.27; MSA 28.1050; People v Wilkins, 82 Mich App 260; 266 NW2d 781 (1978). Cf. People v Mullins, 79 Mich App 515; 261 NW2d 67 (1977). However, this does not dispose of the case before us.

The people did not introduce one shred of evidence in their case in chief that defendant was a heroin addict at the time of the offense. Although Officer Lewis, who searched defendant at the police station, testified, he was not asked whether he found a syringe. Further, the police detective to whom defendant allegedly made the statement that he had used a drug four days before the offense was not endorsed and called to testify.

We acknowledge the people’s right to attempt to elicit evidence of heroin addiction from a defendant should he elect to testify and we in no way impugn this prosecutor’s good faith in broaching the subject on cross-examination here. Cf. People v Ball, 33 Mich App 288; 189 NW2d 816 (1971). However, evidence of heroin addiction has a strong tendency to inflame the jury. The people must, therefore, proceed in this area with discretion and make every reasonable effort to avoid undue prejudice to a defendant. Here, the prosecutor’s attempt to elicit evidence of heroin addiction from defendant failed utterly. Defendant categorically denied that the police had found a syringe when they searched his person, and denied that he had, or had stated to the police that he had, used a drug during the period preceding the offense. Although the record is, therefore, devoid of such evidence, the prosecutor, by the way he framed his questions and through pointless repetition of the questions, underscored his personal disbelief of defendant’s testimony and encouraged the jury to draw an inference contrary to the unrebutted evidence. We can not condone such a practice. The tactic is all the more intolerable because motive, strictly speaking, is not an element of the crime that the people must prove; and ”[t]he motive for a theft offense seldom requires explanation”. People v Henderson, 80 Mich App 447, 454; 264 NW2d 22 (1978). We hold that defendant was denied a fair trial and reverse his conviction.

Our disposition, of the case renders unnecessary a discussion of defendant’s other two allegations of error.

Reversed and remanded.

APPENDIX

"Q [by Mr. Wildeboer, Assistant Prosecuting Attorney] And were you searched at the station?

"A I was searched before I was put in the car, and then I was searched at the station again.

"Q You were searched at the station a second time?

"A (Nods head)

"Q Before you were locked up?

"A Yes.

"Q Okay. Was this job you had in interior decorating, were you supporting yourself on that job?

"A Well, I was doing okay.

"Q Well, what do you mean by 'doing okay’?

"A Well—

"Q Is that enough money for your needs?

"A Yes.

"Q Was anything found on your person when you were searched at the station the second time?

"A No.

"Q Nothing was found on your person?

"A No.

"Q What about on the first time you were searched?

"A No.

"Q Was nothing ever found on your person?

"A No.

"Q Were you — What were you wearing at this time?

"A Bluejean jacket, some green pants, a green cap, brown shoes, and, I think, I had on a beige sweater.

"Q Now, okay, this was a bluejean jacket, some kind of coat you had on?

''A Bluejean jacket.

"Q I see, and when you were searched at the station, was anything found in this bluejean jacket?

"A Not to my knowledge.

"Q Not to your knowledge. You were never shown anything?

"A No.

"Q What kind of search were you given at the station?

"A Strip search.

"Q Were you carrying anything in this bluejean jacket?

"A Nope.

"Q There is nothing in this jacket?

"A Nothing but cigarettes.

"Q Nothing but cigarettes?

"A Cigarettes and matches.

"Q If something had been found in the pocket of this coat outside of cigarettes and matches, you wouldn’t know about it?

"A No.

"Q It wasn’t there?

"A (Shakes head).

"Q Was anything resembling a syringe found in your coat?

"A Not to my knowledge.

"Q Were you carrying any such thing?

"A No.

"Q Wasn’t in your pocket?

"A No.

"Q Was it Officer Lewis who searched you at the station?

"A Yes, it was.

"Q I see, and he checked your bluejean jacket?

"A Yes, he searched me completely.

"Q And there was no such thing as a syringe in your jacket?

"A Nope, not that I know of there was, there wasn’t.

"Q Not that you know of. Well, it was your jacket?

"A Yes, it was.

"Q You didn’t borrow it?

"A What I am saying, like I didn’t have a syringe in it.

"Q Well, the jacket you had on was your jacket?

"A Right.

"Q You hadn’t loaned it to anybody recently, had you?

"A No.

"Q This was yours and you hadn’t borrowed it, either?

"A No.

"Q Were you taking any drugs during this period in November of ’75?

"A No.

"Q You weren’t spending any money for drugs during this period?

"A No, nope.

"Q And you weren’t using any kind of drugs during this period of November of ’75?

"A Nope.

"Q Did you ever tell anybody after your arrest that you were?

"Q (Shakes head)

"A Did you discuss this with Detective Conant of the City .police?

"A He questioned me about the incident before I came to court.

"Q I see. This would have been around . . . sometime after the incident, before you were arraigned?

"A Before I was arraigned, yeah.

"Q This is sometime in the morning, say around ten-thirty of the twenty-second?

"A The next morning, yeah.

"Q And this was a detective from the City Police that interviewed you?

"A Yes.

"Q And did you . . . did you say anything to him about using any kind of drugs during this period.

"A That I was using drugs?

"Q Yes.

"A No, I didn’t.

"Q You told him you weren’t using drugs?

"A Yes.

"Q Did you make a statement to Detective Conant in this interview that sometimes you were using heroin during this period?

"A No.

"Q You didn’t?

"A I told him that I had used heroin before, but at the time I was not using.

"Q Did you make a statement to Detective Conant about the last time you had used heroin?

"A Yes, I did.

"Q When did you tell Mr. Conant the last time you had used heroin before you got arrested?

"MR. OLK [defense counsel]: Your Honor, I am going to object to this instance, I don’t like to object in these situations, but I see that this has absolutely nothing to do with this case. He has testified repeatedly that he had no affiliation with drugs.

"Detective Conant is not endorsed on the information as a witness; he’s not here. I don’t know what we’re talking about, and I think it should be stricken.

"THE COURT: Mr. Wildeboer?

"MR. WILDEBOER: Your Honor, it would be my contention it would to to the motives, since this is a special intent offense, of intent to commit a larceny and that whatever drug usage here would go to the motive of the defendant to commit this offense, and I believe the Defendant, Mr. Walker, did answer, as far as Mr. Oik saying there was no connection between him and any drug usage, I believe Mr. Walker did answer in the affirmative to one of my questions concerning this.

"MR. OLK: But not at this time, your Honor.

"THE COURT: Well, I will permit you to go ahead. Overruled.

"Q (by Mr. Wildeboer) Now, Mr. Walker, did you make any statement to Detective Conant about the last time you had used a drug prior to your being arrested.

"A Yes, I think I did.

"Q And when did you tell him was the last time you had used any kind of drug?

"A About five or six months, I think.

"Q Five or six months?

"A I think that is what it was.

"Q You didn’t make any statement about the last time using a drug was about four days before this date?

"A No.

"Q You did not make any such statement?

"A No.

"MR. WILBEBOER: I’d have no further questions of this witness.”

       This testimony, including defense counsel’s objection, is set forth in full in the appendix to this opinion. While the objection might have been framed with greater precision, on this record we deem it sufficient to preserve the question for appellate review.

         The legal relevance of such evidence to motive for a theft offense would seem to depend upon proof of three factors: (1) that defendant not merely used a drug, but that he used a drug which is addictive and that he actually was, in some substantial measure, addicted, and thus, compelled to obtain the drug; (2) that he used the drug in such quantity that maintenance of his habit was expensive; (3) that he lacked sufficient income from legal sources to sustain his habit. See United States v Mullings, 364 F2d 173, 175-176 (CA 2, 1966).
      The fact that a witness is a heroin addict, alone, may be relevant to the question of his credibility, Talaga, supra, but, as discussed below, the people produced no evidence that defendant was a heroin addict.

       Here, we would note that a syringe has lawful uses. The fact that a defendant charged with breaking and entering was in possession of a syringe when arrested, alone, without Other evidence of heroin addiction has no legal relevance. See People v Lorenzo Williams, 63 Mich App 389, 391-392; 234 NW2d 537 (1975).


author: Danhof, C.J.

text:
    PEOPLE v GONZALES
    Docket No. 77-1557.
    Submitted June 6, 1978, at Grand Rapids.
    Decided October 2, 1978.
    Leave to appeal applied for.
    Carlos Gonzales was convicted in a bench trial of delivery of heroin and conspiracy to deliver heroin, Bay Circuit Court, John X. Theiler, J. Defendant appeals, raising several allegations of error. Held:

    1. The trial court’s mistaken interpretation of the mens rea requirement for aiding and abetting, which was relied on as an alternative theory of liability on the delivery charge, was not reversible error because the defendant was specifically found guilty both as a principal and as an accomplice and it is certain that the judgment was based on a valid alternative.
    2. The defendant’s convictions of both delivery and conspiracy to deliver based on a single act of delivery do not constitute double jeopardy.
    3. It will not be presumed that the trial court in a bench trial considered evidence that failed to meet the court’s own conditions for admissibility of evidence.
    4. Defendant’s allegation that the evidence was insufficient to show that he knew the substance he delivered was heroin or that he agreed with anyone to deliver it is not persuasive. The record provides ample support for the court’s findings of guilt.
    5. The judge considered the proper factors in sentencing the defendant, and did not abuse his discretion in setting the sentence. The Court of Appeals may not stray from the case before it and review in general the sentencing policy of the entire circuit court.
    Affirmed.
    References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 123.
    [2] 21 Am Jur 2d, Criminal Law § 182 et seq.

    [3] 5 Am Jur 2d, Appeal and Error § 839 et seq.

    [4, 5] 30 Am Jur 2d, Evidence §§ 1091,1125,1170-1172.
    [5] 5 Am Jur 2d, Appeal and Error §§ 820, 821, 883.
    [6] 21 Am Jur 2d, Criminal Law § 576 et seq.

    [7] 4 Am Jur 2d, Appeal and Error § 17.

      1. Criminal Law — Aiding and Abetting — Mens Rea — Bench Trial —Specific Finding of Guilt.
    A trial court’s mistaken interpretation of the mens rea requirement for aiding and abetting, which was relied on as an alternative theory of liability on a charge of delivery of heroin, is not reversible error where the court, in a bench trial, specifically found the defendant guilty both as a principal and as an accomplice.
    2. Criminal Law — Conspiracy—Object of Conspiracy — Double Jeopardy.
    Conspiracy to commit a crime and the crime which is the object of the conspiracy are distinct offenses, and a defendant’s convictions of conspiracy to deliver heroin and of delivery of heroin, both arising from a single act of delivery, do not constitute double jeopardy.
    3. Appeal and Error — Criminal Law — Evidence—Admissibility.
    The Court of Appeals will not presume that a trial court, sitting without a jury, considered evidence that failed to meet the court’s own conditions for admissibility of evidence.
    4. Criminal Law — Burden of Proof — Circumstantial Evidence.
    The prosecution must prove at trial all elements of the offense charged beyond a reasonable doubt; when the people’s case is based on circumstantial evidence, the prosecution must negate every reasonable theory consistent with the defendant’s innocence of the crime charged.
    5. Criminal Law — Questions of Fact — Appeal and Error — Scope of Review.
    The prosecution’s proof of its case beyond a reasonable doubt and whether there are any inferences of guilt from circumstantial evidence which follow as a certainty are questions for the trier of fact; upon review of a conviction, the Court of Appeals is limited to a determination of whether there was evidence to sustain the charge made against the defendant.
    6. Criminal Law — Sentencing—Factors Considered.
    Factors to be considered in determining an appropriate sentence for a criminal defendant include (1) the reformation of the offender, (2) the protection of society, (3) the disciplining of the offender, and (4) the deterrence of others from committing like offenses.

      7. Appeal and Error — Criminal Law — Sentencing.
    The Court of Appeals may not stray from review of the case before it to review in general the sentencing policy of an entire circuit court.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Eugene C. Penzian, Prosecuting Attorney, and Nancy L. Goodale, Assistant Prosecuting Attorney, for the people.

      Janet Tooley, Assistant State Appellate Defender, for defendant on appeal.
    Before: Danhof, C.J., and V.J. Brennan and R.H. Campbell, JJ.

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

   Danhof, C.J.

Defendant was convicted after a bench trial of delivery of heroin under MCL 335.341(l)(a); MSA 18.1070(41)(l)(a) and conspiracy to deliver heroin under MCL 750.157a(a); MSA 28.354(l)(a). He was sentenced to two concurrent 5 to 20 year terms and appeals as of right.

On March 16, 1976, narcotics undercover officer Clifford DeFeyter, with police informant Tom Cadieux, visited the Bay City home of Raymond Barrientes, from whom Cadieux had bought heroin before. There with Raymond Barrientes were his brothers, Rudy and Joe, and the defendant. Officer DeFeyter discussed a heroin transaction with Raymond Barrientes in the living room of the Barrientes home, while defendant sat in an adjacent dining room through an open archway some 15 to 20 feet away. After an agreement had been reached as to price and quantity, Raymond Barrientes instructed Officer DeFeyter to place his money on a shelf in the living room and to go to an alley behind the house where he could pick up the dope and where someone would meet him. DeFeyter put $350 on the shelf and walked out of the house with Cadieux. As he approached his car, he saw defendant exit the Barrientes home with Joe and Rudy. Fearing at that point he would lose his money without obtaining the drugs, DeFeyter sought to call off the deal. Joe and Raymond reassured him the deal would be carried out as planned. Raymond pointed to the car in which defendant and Rudy were sitting and said, "They got the dope”. For insurance, Joe agreed to ride with DeFeyter. DeFeyter drove to the back alley where defendant’s car was standing and pulled along side. Defendant rolled down his window. DeFeyter walked to defendant’s car. Defendant had a metal foil package in his hand in his lap which he handed to DeFeyter. DeFeyter told defendant to stay there while he checked the package. After DeFeyter okayed the contents, Joe returned to defendant’s car and defendant drove off.

Because the investigation into drug traffic was continuing, defendant was not arrested immediately. Officers executed a warrant for his arrest the next month during a raid on another home where drugs were being sold.

To the foregoing statement of facts defendant would add that the conversation between DeFeyter and Raymond Barrientes while defendant was sitting in the dining room was in a low tone, at the time others may have been conversing in the dining room, and a record player may have been on. The state would also point out that defendant was within hearing distance of two other conversations which may have been relevant to defendant’s state of mind: one in the house between Joe Barrientes and DeFeyter, wherein Joe asked whether defendant was "coping dope” and how bad his "jones” was, and a second outside when Joe reassured DeFeyter that "everything is cool. * * * What’s the matter? * * * Let’s go back in the house and talk to Raymond * * * ”. Evidence of the discussion between Joe and DeFeyter in the Barrientes home was received over defendant’s hearsay objection, but the trial judge doubted its relevancy.

I

On appeal defendant alleges five errors by the trial judge. Three of his arguments can be dismissed summarily.

First, defendant contends his conviction should be reversed because the trial judge misconstrued the mens rea requirement for aiding and abetting, which the trial judge relied on as an alternative theory of liability on the delivery charge. Any error in the trial judge’s instructions on this point is nonreversible since he specifically found defendant guilty, both as a principal and as an accomplice. Unlike in the situation presented by a general jury verdict, see e.g., People v Gilbert, 55 Mich App 168; 222 NW2d 305 (1974), we "can say for sure” that the judgment was based on a valid alternative.

Second, defendant claims his convictions for conspiracy to deliver heroin and delivery were inferred from his single act of delivery and, therefore, constitute double punishment. A simple answer is that the double jeopardy clause does not forbid two inferences from the same evidence; it is a rule against double punishment for single acts and double prosecutions for separate acts done in a single transaction. There is ample authority that conspiracy and the crime which is the object of the conspiracy are distinct offenses. People v Tinskey, 394 Mich 108; 228 NW2d 782 (1975), People v Ormsby, 310 Mich 291; 17 NW2d 187 (1945). Even under a transactional approach to double punishment, cf., People v White, 390 Mich 245; 212 NW2d 222 (1973), which we do not now adopt, it cannot be said that a prior agreement with a third person to deliver heroin is incidental to any delivery of heroin. Finally, on the facts of this case, the inference of an agreement to deliver is supported by more than the delivery itself. It is supported as well by testimony that the seller told Officer De-Feyter to pick up his dope in an alley behind the seller’s home where someone would meet him, that defendant drove there and handed over the heroin.

Third, defendant claims it was error to admit prejudicial testimony about the circumstances of defendant’s arrest several weeks after the present offense, during an unrelated drug raid. The trial judge properly admitted this evidence on the condition that the state connect it up with the present transaction. See 8A Michigan Law & Practice, Criminal Law, § 451, p 99. The state failed to comply. If the case had been tried before a jury, it would have been the court’s duty to strike that evidence, id. p 100, and our duty to determine whether its failure to strike constituted reversible error. In reviewing a bench trial, however, we will not presume that the court considered evidence that failed to meet the court’s own conditions for admissibility. Nothing in the record affirmatively shows that evidence of the circumstances surrounding defendant’s arrest affected the court’s findings.

II

The more discussable issues raised by this appeal concern the sufficiency of evidence to support the conspiracy and delivery convictions and the factors that determined defendant’s sentence.

A. Defendant specifically objects that there was insufficient evidence that he knew the substance he delivered was heroin and that he agreed with anyone to deliver it. He argues that the prosecutor failed to negate all theories of innocence, including the plausible theory that defendant was an innocent conduit for the delivery of heroin. Further, he maintains that the inferences of knowledge and agreement were impermissibly based on other inferences, namely, the inference that he overheard the negotiations between Raymond Barrientes and Officer DeFeyter and the inference that either defendant or Rudy intended to deliver the heroin.

At trial the prosecution must prove all elements of the offense beyond a reasonable doubt. That proof may be circumstantial, but when "the people’s case is based on circumstantial evidence, the prosecution must negate every reasonable theory consistent with the defendant’s innocence of the crime charged”. People v Davenport, 39 Mich App 252, 257-258; 197 NW2d 521, 523 (1972).

Whether the state has proved its case beyond a reasonable doubt and whether the inferences of guilt from its circumstantial evidence follow as an "impelling certainty” are questions for the trier of fact. People v Howard, 50 Mich 239; 15 NW 101 (1883), People v Fuller, 395 Mich 451; 236 NW2d 58 (1975). Our role in the fact-finding process is limited:

"As to whether the evidence introduced was sufficient to sustain the charge made, we need but say that, if there was evidence tending to sustain the charge made in either of the counts, then this Court will not attempt to weigh the same and say whether the jury ought or not to have considered it sufficient. In testing this case we are not required to take that which respondent relies upon and that which would tend against him, and from a comparison thereof determine which was the stronger and better, or, deducting the one from the other, say what, if anything, was left. This would be but a weighing of the evidence and was entirely within the province of the jury. Nor are we to take the evidence in the order, question and answer, in which it was given, but finding it where we may, and putting what was most favorable to the prosecution together, and discarding all other, can this Court say it fairly tended to establish the charge made? If so, then the verdict of the jury in this Court must be considered as final. If, however, we find a total want of evidence upon any essential point, then it becomes a clear duty to sustain the exceptions taken.” People v Howard, supra, at 242-243; 15 NW at 101-102, quoted with approval in People v Palmer, 392 Mich 370, 376; 220 NW2d 393 (1974), and most recently reaffirmed by People v Dupie, 395 Mich 483; 236 NW2d 494 (1975).

Bearing on defendant’s knowledge about the substance he delivered in the instant case was testimony that he was in a position to overhear the drug deal between Raymond Barrientes and Officer DeFeyter, that he had been seen at the Barrientes home before, that the heroin was delivered in a foil package, and that heroin is usually delivered in a foil package. Also in evidence was testimony, not challenged on appeal, that defendant was in a position to overhear two other conversations between Joe Barrientes and Officer De-Feyter which circumstantially referred to the drug deal. In support of the court’s finding of an agreement was the foregoing plus testimony that defendant delivered the heroin in accord with the plan told by Raymond Barrientes to DeFeyter. Finally, in evidence were all reasonable inferences that could be drawn from this testimony.

Thus, the record provides some support for the court’s findings. Given our limited role in the factfinding process, we find that it provides "ample” support. Accord, People v Palmer, supra. To the extent that the "no inference on an inference rule” in any way increases our role in the factfinding process, see People v Atley, 392 Mich 298; 220 NW2d 465 (1974), but see People v Orsie, 83 Mich App 42; 268 NW2d 278 (1978), we find it inapplicable. The inferences of knowledge and agreement fairly and closely followed from the direct evidence as well as from other inferences.

B. Defendant lastly complains that he was illegally sentenced according to a county program of mandatory and stiff prison sentences for heroin dealers. By failing to consider his personal qualifications for probation or a lighter sentence, he reasons, the court violated the spirit of our state’s indeterminate sentencing laws and the constitutional separation of powers. To factually support his claim, he relies on sentencing transcripts from two cases tried in Saginaw County which evidence the policy there. He also cites portions of three sentencing transcripts from cases tried in Bay County, which acknowledge the Saginaw program and the obligation of Bay County judges to sentence in accordance with it, to prevent Bay County from becoming a dumping ground for heroin dealers.

Although we recognize that trial judges do have an obligation to individualize punishment, see People v Lorentzen, 387 Mich 167; 194 NW2d 827 (1972), we would have to take a very lopsided view of the present record to void defendant’s sentence on that basis. The record affirmatively shows that the sentencing judge considered that defendant did not have to be imprisoned for rehabilitation purposes, that defendant had a good job, good criminal record, no history of drug use, was married, and had children. "Rehabilitation [, however,] is not the only criterion to be used in determining the punishment to be meted out to a particular offender.” People v Van Epps, 59 Mich App 277, 286; 229 NW2d 414, 419 (1975). In People v Snow, 386 Mich 586; 194 NW2d 314 (1972), the Michigan Supreme Court approved the use of four factors in determining an appropriate sentence: "(a) the reformation of the offender, (b) protection of society, (c) the disciplining of the wrongdoer, and (d) the deterrence of others from committing like offenses.” Id. at 592; 194 NW2d at 317. The sentencing judge in this case stated that a 5 to 20 year prison term was necessary to assure the community that the criminal justice system was concerned with and was the answer to their serious crime problems, including the trafficking of heroin. He also felt that the sentence was necessary to satisfy the community’s interest in vesting vengence and retribution on those who violate the law and in warning others active in criminal participation of the seriousness and consequences of their involvement. These considerations were clearly permissible under Snow. The judge also spoke of a need to avoid sentencing disparity within the circuit and between the immediate community and other areas of the state, especially the immediately adjacent communities. His apparent thought was either that sentencing disparity based on locality would be unjust or that sentencing disparity based on locality would encourage an influx of criminals into the light sentencing community. These goals would also seem to be appropriate to the sentencing decision under Snow. See also, People v Yennior, 72 Mich App 35; 248 NW2d 680 (1976) , rev’d on other grounds, 399 Mich 892 (1977), People v Rodriguez, 61 Mich App 42; 232 NW2d 293 (1975); People v Shively, 45 Mich App 658; 206 NW2d 808 (1973). Upon reviewing all of the criteria approved by Snow, the sentencing judge found "in this case” that the community factors "overweighted] the impact on the Defendant”. On the record, therefore, we find no abuse of the judge’s sentencing discretion.

Defendant urges us to look outside the record to find a sentencing "program” in Bay County which undermines the facial balancing that took place in this case, which shows, in other words, that "individualization of sentencing [in Bay County] is a rule honored more in the breach than the observance”. People v Yennior, supra, at 49, 248 NW2d at 686 (D.C. Riley, J. dissenting). We are precluded by Michigan Supreme Court precedent from making such an investigation. In People v Snow, supra, the Court held that it was error for the Court of Appeals to roam afield from review of the case before it and to review in general the sentencing policy of an entire circuit court. 386 Mich at 594; 194 NW2d at 318.

Affirmed.