Opinion
Docket No. 78-3073.
Decided December 18, 1979. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Jerome S. O'Connor, Assistant Prosecuting Attorney, for the people.
Michael S. Surnow, for defendant on appeal.
Before: DANHOF, C.J., and N.J. KAUFMAN and D.C. RILEY, JJ.
We agree with and adopt the facts presented in the dissenting opinion, but do not agree with the conviction of receiving or concealing stolen property over the value of $100, MCL 750.535; MSA 28.803, for the reasons stated in People v Ritchie, 85 Mich. App. 463; 271 N.W.2d 276 (1978).
The two cases are almost identical with the exception that, in the case at hand, defendant's reference to the stolen automobile was a strategic move to explain why he fled the scene of the alleged robbery. Thus, he entered no objection to the addition of the receiving or concealing count, as he undoubtedly was hoping that the jury would find him guilty of receiving or concealing, and not guilty of robbery armed. Despite defendant's failure to object, it must be noted that the two offenses occurred on different days and had no connection with each other. They should not have been joined, especially after the trial was in progress. See People v Ormsby, 310 Mich. 291, 303; 17 N.W.2d 187 (1945), where it is stated:
"`* * * But when the object and purpose is apparent[ly] to prosecute the respondent * * * for separate felonies by means of one information or indictment, the court will not permit it to be done. * * *'" (Emphasis in original.)
Although this issue was not raised on appeal, since the function of this Court is to dispense justice it has limited power to raise questions on its own. People v Noel, 88 Mich. App. 752, 754; 279 N.W.2d 305 (1979).
In Ormsby, supra, a general verdict of guilty was entered upon an indictment charging distinct and separate offenses in separate counts. The Supreme Court reversed the conviction, finding the verdict invalid. That problem does not exist in this case, however, as the jury came in with separate verdicts of guilty of (1) robbery armed, (2) felony-firearm, and (3) receiving or concealing. Nevertheless, the instant verdicts are still infirm due to the improper joinder.
Although we agree with the general legal propositions the dissent raises, we must note that it was the prosecution who created the error by making the motion to add the receiving or concealing count. Thus, even though the defendant utilized the addition of this count as part of his defense strategy, it cannot be said that he created the error.
Accordingly, we affirm defendant's robbery armed and felony-firearm convictions, but reverse his receiving or concealing conviction. In view of this decision, the question of corpus delicti in the receiving count need not be decided.
Affirmed in part; reversed in part.
D.C. RILEY, J., concurred.
The defendant was charged with armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). Upon the defendant's direct examination testimony that he had knowingly received the stolen vehicle he allegedly used in the robbery, a count of receiving or concealing stolen property of a value greater than $100 was added without defense objection. The jury found the defendant guilty of all three offenses.
The defendant's claim that the "felony firearm" statute is unconstitutional has been rejected in Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 N.W.2d 793 (1979).
The complaining witness testified that he had lost his legs in the Viet Nam war and that after leaving military service he had pursued his education and taken up a career as a social worker or youth counsellor. In closing argument the prosecutor referred to the witness's "agony and suffering" while recuperating from his wounds and argued that the witness's subsequent career achievements showed him to be trustworthy. The defendant claims that this argument improperly enlisted the sympathy of the jury in the prosecutor's cause.
We cannot agree with the defendant's contention. This argument, while more dramatic than it needed to be, was related to the evidence and relevant to the witness's credibility, a very important issue at trial. A prosecutor may properly argue that the evidence that has been presented in the trial justifies an inference about the reliability of a witness. See People v Roberson, 90 Mich. App. 196; 282 N.W.2d 280 (1979). In any event, the evidence of the defendant's guilt was overwhelming and therefore renders any impropriety in this argument harmless. See People v Christensen, 64 Mich. App. 23; 235 N.W.2d 50 (1975).
The evidence showed that the robber fled in an automobile and the complainant gave chase, enlisting along the way the assistance of the police officers who eventually stopped the defendant and made the arrest. A handgun and the complainant's property were found in the automobile the defendant was driving. One of the arresting officers testified, perhaps unresponsively, that the automobile in which the defendant was captured had been stolen at some earlier date. Sua sponte, the trial judge immediately instructed the jury to disregard this remark. However, in his own testimony the defendant freely admitted knowingly receiving the stolen vehicle, denying the robbery and asserting that this lesser crime was the reason he had led the police on the high speed chase. That this was to be the defendant's major defense strategy was made clear when he did not object to the prosecutor's motion to add a count charging the defendant with receiving the stolen car.
The only objection that the defendant brings to this Court regarding his conviction of receiving or concealing stolen property is an assertion that the conviction is infirm because "the prosecution failed to establish the corpus delicti [of the offense by evidence] aliunde the appellant's in-court admission". In this assertion the defendant seriously misapprehends the purposes and scope of the corpus delicti rule. The rule has evolved as a guard against impulsive or intemperate confessions and unreliable reports by confessors of questionable intention. The rule has never been thought to apply to confessions freely made from the witness stand; such a statement is in the nature of a plea of guilty. See People v Kirby, 223 Mich. 440; 194 N.W. 142 (1923), and 7 Wigmore, Evidence (Chadbourn ed), § 2071, p 524.
It is clear that the receiving or concealing offense to which the defendant confessed in court was sufficiently removed in time and nature from the robbery and firearm charges to warrant a separate trial. The question is whether the conviction of that crime should be reversed under the circumstances of this case, in which the three offenses were tried together.
In People v Tobey, 401 Mich. 141, 153; 257 N.W.2d 537 (1977), the Court wrote:
"[A] judge must sever two or more offenses when the offenses have been joined for trial solely on the ground that they are of the `same or similar character' and the defendant files a timely motion for severance objecting to the joinder." (Emphasis added.)
In People v Ormsby, 310 Mich. 291; 17 N.W.2d 187 (1945), cited by the majority, the defendant had sought relief from a general verdict of guilty of an improperly-joined assortment of charges before coming to the appellate court. The passage quoted by the majority is from a discussion in People v Aiken, 66 Mich. 460; 33 N.W. 821 (1887), which relied upon People v McKinney, 10 Mich. 54, 94, 95 (1862), wherein the Court concluded:
"But I think it very questionable, at least, whether the prosecutor ought to have been compelled to elect as between any of the sums received from the railway company, had the [trial] court been called upon for that purpose. But the court was not called upon to order an election, and no such question arises [in this appeal]." (Emphasis added.) 10 Mich at 96.
Unexplained failures to object to misjoinder of offenses for trial have been said to preclude appellate review in People v Dexter, 6 Mich. App. 247, 252; 148 N.W.2d 915 (1967), People v Carey, 36 Mich. App. 640; 194 N.W.2d 93 (1971), and People v Smith, 90 Mich. App. 20; 282 N.W.2d 227 (1979).
In the case at bar, the defendant's failure to object to the joinder of the receiving or concealing charge was not unexplained. It was, as the majority acknowledges, a "strategic move" designed to induce the jury to convict him of receiving or concealing stolen property and acquit him of the robbery and firearm offenses. It was, as the majority must agree, a deliberate and informed choice. Despite the fact that the defendant has shown no dissatisfaction with the joinder in his brief in this Court, the majority has elected to relieve him of the "error" he sought to create. In circumstances such as these, I cannot hold that the defendant may seek the benefit of his tactic in the trial court and be relieved of its liabilities on appeal. "Counsel cannot sit back and harbor error to be used as an appellate parachute in the event of jury failure." People v Brocato, 17 Mich. App. 277, 305; 169 N.W.2d 483 (1969).
I would affirm all three convictions.