Opinion
Docket No. 63907.
Decided June 6, 1983. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Gail Rodwan), for defendant.
The defendant, Carlton Brown, was convicted in a bench trial of receiving or concealing stolen property with a value over $100. MCL 750.535; MSA 28.803. He was sentenced to 18 months probation and appeals as of right.
At the defendant's preliminary examination Robert Miller testified that he called the police after recognizing his car parked on a Detroit street. His car had been stolen in November, 1980. When the police arrived, the defendant was sitting in the car. The defendant told the police that he had owned the car for three years and produced an automobile registration with a Vehicle Identification Number (VIN) which matched the VIN on the car's dashboard. Miller, however, gave the officers a description of certain repairs he had made, pointed out certain identification marks on the car, and opened the trunk with his own key. Because of these conflicting stories, the car was impounded.
A police officer from the Detroit Police Special Auto Theft Unit testified that, while the car was impounded, he made ink impressions of the VIN taken from four different locations on the car: the dashboard, transmission, engine, and an undisclosed location. He stated that normally the same VIN should appear at these four locations on a car which has no replacement parts. The VIN taken from the dashboard matched the number on the defendant's title, while the numbers found on the engine, transmission, and hidden location matched the number on Miller's title. After these impressions were taken, but prior to trial, the car was stolen from the police parking lot.
Following the preliminary examination, the defendant was bound over on the charge of receiving and concealing stolen property with a value over $100.
At trial the defendant testified as the only witness on his behalf. He stated that he had purchased the car from a man two or three years earlier but did not transfer title until November 1980, because the car had not been used on the street prior to that time. He had used the car for drag strip racing only, and a license was not required for that purpose. The defendant further testified that he had replaced the car's hood, seats, engine and transmission during the period he owned the car in 1979 and 1980. The receipts for these repairs, however, were dated 1981. The defendant attempted to explain this discrepancy by stating that his mechanic had inadvertently written the year 1981 when copying the receipts for the repairs done in 1979 and 1980. Nevertheless, the trial court sustained the prosecution's objection to admission of the receipts into evidence as hearsay because of the inconsistency in the date on the receipts, the defendant's testimony, and the fact that the receipts did not designate the car repaired. The court also overruled the defendant's objection to the nondisclosure of the location on the car of the hidden VIN, holding that such information was privileged.
On appeal, the defendant challenges the sufficiency of the evidence to support the magistrate's finding of probable cause to bind him over for trial. The defendant's failure to file a motion to quash the information prior to or during trial precludes appellate review of this issue. People v O'Brien, 113 Mich. App. 183, 201-202; 317 N.W.2d 570 (1982).
The defendant further argues that the evidence was insufficient to support his conviction of receiving or concealing stolen property, since the prosecutor failed to prove beyond a reasonable doubt that the defendant had guilty knowledge that the car was stolen.
In People v Wolak, 110 Mich. App. 628, 631-632; 313 N.W.2d 174 (1981), the elements of receiving and concealing stolen property were set forth as follows:
"`(1) that the property was stolen; (2) the value of the property; (3) the receiving, possession or concealment of such property by the defendant with the knowledge of the defendant that the property had been stolen; (4) the identity of the property as being that previously stolen; and (5) the guilty constructive or actual knowledge of the defendant that the property received or concealed had been stolen. People v Matuja, 77 Mich. App. 291, 295; 258 N.W.2d 79 (1977).'"
In Wolak, the defendant claimed, as in the case at bar, that the evidence was insufficient to establish guilty knowledge. This Court rejected the defendant's argument and stated:
"We also find the evidence sufficient. Guilty knowledge may be actual or constructive. People v Martinovich, 18 Mich. App. 253, 257; 170 N.W.2d 899 (1969). While mere possession is not sufficient in and of itself to show guilty knowledge, People v Grandahl, 16 Mich. App. 221; 167 N.W.2d 802 (1969), the circumstances accompanying the transaction may justify the inference by the jury that the defendant received the goods on belief that they were stolen. People v Lauzon, 84 Mich. App. 201, 207; 269 N.W.2d 524 (1978)." 110 Mich. App. 632.
In the instant case, the facts and circumstances were sufficient for the trial court sitting as trier of fact to reasonably infer the guilty knowledge of the defendant. There was testimony from two police officers that the defendant was found in the driver's seat. While the defendant had keys and a registration to the car with a VIN matching that on the dashboard, the complainant had a key to the car's trunk and the numbers found on the engine, transmission and from a hidden part of the car revealed a number indicating that the car was the complainant's. The defendant did not take title to the car until November 1980 (the same month the complainant's car was stolen), although he allegedly purchased the car two or three years earlier and there was a discrepancy in the dates of repairs the defendant supposedly had done.
We also reject the defendant's contention that the trial court's findings of fact were inadequate by not mentioning two elements of the crime, i.e., value and guilty knowledge.
GCR 1963, 517.1, provides, in pertinent part:
".1 Effect. In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the fact specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment. It will be sufficient if the court makes brief, definite, and pertinent findings and conclusions upon the contested matters without over elaboration of detail or particularization of facts."
While the trial court did not specifically mention the car's value in reciting its findings of fact, the record shows that the court was well aware of the car's value. The record also reveals that the trial court was aware of the issue of guilty knowledge. The court specifically noted that the defendant would not be guilty if he did not know the car was stolen. The Supreme Court has held that remand is not necessary "where it is manifest that [the trial judge] 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". People v Jackson, 390 Mich. 621, 627, fn 3; 212 N.W.2d 918 (1973).
The defendant next claims that the trial court's consideration of the defendant's failure to produce witnesses on his own behalf constitutes reversible error by impermissibly shifting the burden of proof onto the defendant. Where a defendant testifies at trial, as here, comments by a prosecutor or trial judge regarding the defendant's failure to produce corroborating witnesses merely point out the weaknesses in the defendant's case and do not improperly shift the burden of proof onto the defendant. People v Jackson, 108 Mich. App. 346, 351-352; 310 N.W.2d 238 (1981).
We further find that the trial court's reference to the inconsistency in the dates of the receipts, which were ruled inadmissible exhibits, was nonetheless permissible as supported by the defendant's own trial testimony, and, thus, there is no reversible error.
Finally, the defendant contends that the loss of the car prior to trial deprived him of due process of law and the opportunity to effectively cross-examine the prosecution's witnesses. The officer in charge of the case testified at trial that he had requested the car be left in the garage but his lieutenant refused and instead removed the coil wire from the car to prevent theft. Despite these precautions, the car was stolen from the police parking lot. Since the police conduct in this case was merely negligent and there has been no evidence presented of intentional wrongdoing or bad faith on the part of the police, the loss of the automobile does not require reversal. People v Amison, 70 Mich. App. 70; 245 N.W.2d 405 (1976), lv den 402 Mich. 815 (1977).
The defendant argues that at the very least there should have been disclosure of the location on the car of the hidden VIN. In Gurleski v United States, 405 F.2d 253, 266 (CA 5, 1968), cert den 395 U.S. 981; 89 S Ct 2140; 23 L Ed 2d 769 (1969), the Fifth Circuit upheld the trial court's ruling prohibiting defendant from cross-examining a police agent as to the location of a car's secret identification numbers:
"Just as the prosecution need not generally divulge the name of an informer unless some materiality is shown, they need not reveal the location of these marks, which are a highly valuable tool to law enforcement officers in discovering and solving car thefts. In addition, this court has already answered this question contrary to appellant's contention in Williamson v United States, 272 F.2d 495 (CA 5, 1959), cert den 362 U.S. 920; 80 S Ct 672; 4 L Ed 2d 740 (1960). The trial judge's ruling did not deprive defendant of his right of cross-examination."
See, also, United States v Crumley, 565 F.2d 945, 950-951 (CA 5, 1978). Secret VIN's are important to effective law enforcement. Disclosure of their locations would greatly harm the strong public policy mandating confidentiality. The policy considerations in "confidential informer" cases are applicable here:
"We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors." Roviaro v United States, 353 U.S. 53, 62; 77 S Ct 623; 1 L Ed 2d 639 (1957), quoted in People v Stander, 73 Mich. App. 617, 622; 251 N.W.2d 258 (1976). See, also, People v Laird, 102 Mich. 135, 138-140; 60 N.W. 457 (1894).
It is not enough to allege that this evidence "might seriously have weakened the prosecution's case" as the defendant alleges. This generalization is true of all evidence, including that relating to confidential information. We do not believe a blanket rule of exclusion is warranted, but we also do not believe the defendant's right to cross-examine witnesses requires a blanket rule of admissibility. A defendant must show actual materiality; a pro forma allegation of possible usefulness is inadequate to compel disclosure of the secret location of vehicle identification numbers, considering their use in solving car thefts.
As noted in Stander, the best procedure is to conduct an in camera hearing to determine whether disclosure is required. 73 Mich. App. 622-623. The trial judge in the case at bar conducted an in camera hearing at which a police officer disclosed the location of the hidden VIN.
The defendant's theory at trial was that he had replaced several parts on the allegedly stolen vehicle and that these parts — not the entire automobile — were stolen. We have reviewed the transcript of the in camera hearing. The testimony at that hearing shows that the hidden VIN was not on any of the replacement parts. The location, therefore, was not material to the defense raised. The trial court balanced the minimal interest of the defendant in this case against the significant policy reasons for nondisclosure and properly suppressed disclosure of the location of the hidden VIN.
Affirmed.