People v. Hanna , 85 Mich. App. 516 ( 1978 )

85 Mich. App. 516 (1978) 271 N.W.2d 299

PEOPLE
v.
HANNA

Docket No. 77-2981.

Michigan Court of Appeals.

Decided September 5, 1978.

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

Michael F. Sapala, for defendant on appeal.

Before: N.J. KAUFMAN, P.J., and BEASLEY and P.R. MAHINSKE,^[*] JJ.

PER CURIAM.

Defendant was convicted by a jury of burning real property or its contents,^[1] conspiracy to burn real property or its contents,^[2] burning insured property,^[3] and conspiracy to burn insured property.^[4] All four convictions were related to a fire at an Inkster party store owned by defendant and his wife. Defendant was sentenced to not less than one nor more than ten years in prison on each conviction, the sentences to run concurrently. He appeals as of right.

First, defendant alleges that certain questions posed to him by the trial judge indicated to the jury that the judge doubted defendant's credibility and, thus, prejudiced the jury against him and denied him a fair trial. Objecting for the first time on appeal, defendant refers to the following exchange:^[5]

"THE COURT: I have two questions. You say you were making three thousand dollars profit a month?

"THE WITNESS: Yes.

"THE COURT: What was the total cost of the business to buy it?

"THE WITNESS: The store business, I bought it for seven thousand dollars plus inventory.

"THE COURT: You could buy a business that would make thirty six thousand dollars a year for seven thousand dollars?

"THE WITNESS: Well, at that time it was a guy who wanted to leave the store and sell it to me cheap.

"THE COURT: Any further questions?"

A trial judge has wide discretion in the conduct of a trial and may properly participate in the questioning of a witness. The judge may not, by doing so, prejudice the rights of the defendant.^[6] One proper role of questioning by the trial judge is to clarify points and to elicit additional relevant information.^[7]

Where a case is being tried before a jury, however, the judge must be specially careful that his questions or comments do not indicate partiality.^[8] It is not the number of questions asked by the court, but the content of the questions and their possible impact on the jury which is crucial to an appellate review.^[9] As noted by this Court in People v Smith:^[10]

"A new trial has been ordered where a judge's questions and comments `may well have unjustifiably aroused suspicion in the mind of the jury' as to a witness' credibility, (emphasis supplied), Simpson v Burton, supra, [328 Mich. 557; 44 NW2d 178 (1950)] at 563-564, and where partiality `quite possibly could have influenced the jury to the detriment of defendant's case', (emphasis supplied), People v Roby, 38 Mich. App. 387, 392; 196 NW2d 346 (1972)."

In the instant case, defendant's wife had testified that she and her husband had paid $6,000 for the party store and that they were making a profit of $2,500 to $3,000 per month on the business. Defendant testified that they had paid $7,000 for the store and were making about $3,000 per month profit. We do not believe that the judge's questions were such as "may well have unjustifiably aroused suspicion in the mind of the jury". To the contrary, the judge's questions could have operated to the benefit of defendant. In response to the judge's questions, defendant was able to explain why he had gotten such a bargain in the purchase of the party store, i.e., "Well, at that time it was a guy who wanted to leave the store and sell it to me cheap". We decline to hold that the trial judge's questioning of defendant denied him a fair trial.

Defendant next contends that the trial judge committed reversible error in failing sua sponte to give a cautionary instruction on accomplice testimony. We do not agree.

Generally, the failure of the trial judge to instruct on any point of law is not a ground for setting aside a defendant's conviction unless such an instruction was requested by the accused.^[11] However, the rule is not without exception. In People v McCoy,^[12] our Supreme Court stated:

"For cases tried after publication of this opinion, it will be deemed reversible error * * * (2) to fail upon request to give a cautionary instruction concerning accomplice testimony and, if the issue is closely drawn, it may be reversible error to fail to give such a cautionary instruction even in the absence of a request to charge." (Emphasis added.)

We are not convinced that the McCoy holding requires reversal in the instant case. In McCoy, error was found in the trial court's failure to balance care and caution language actually used in an instruction on alibi with similar language relating to the accomplice who testified against the defendant. There was no imbalance in the instructions given in the instant case. Therefore, we decline to hold that it was reversible error in the instant case for the trial judge to fail to sua sponte give a cautionary instruction on accomplice testimony.^[13]

It is next claimed by defendant that the trial judge committed reversible error by failing to instruct the jury on venue. Defendant did not request such an instruction, and, absent a request for the instruction, we decline to hold that the trial judge committed reversible error in not giving it.^[14]

Defendant next contends that his trial counsel was unable to properly impeach an accomplice witness with prior inconsistent testimony taken at the preliminary examination in the instant case because the examination transcript was not made available to trial counsel. There is no statutory provision requiring the unrequested furnishing of an information or transcript to defense counsel.^[15] Also, the right to a preliminary examination transcript can be waived by failure to object to its absence,^[16] therefore, it cannot be seriously argued that error is committed by not furnishing an examination transcript to a defendant where that defendant, as in the instant case, does not object to the absence of the transcript and, indeed, waives his right to the transcript by an express written waiver.

Defendant also claims that he was denied effective assistance of counsel by his trial counsel's failure to request certain instructions or object to allegedly improper instructions, by counsel's failure to demand a copy of the preliminary examination transcript and failure to conduct a rigorous voir dire. On review of such a claim, the questions posed are: Did defense counsel perform at least as well as a lawyer with ordinary training and skill in the criminal law, and did he conscientiously protect his client's interests, undeflected by conflicting considerations? If a mistake was made by defense counsel, was that mistake one but for which defendant would have had a reasonable likelihood of acquittal?^[17] A review of the record with the above questions in mind convinces us that defendant's claim that he was denied effective assistance of counsel is without merit.

Finally, defendant contends that his convictions for both burning real property or its contents and burning insured property constitute a violation of his rights against double jeopardy. He also contends that his convictions for both conspiracy to burn real property or its contents and conspiracy to burn insured property violate the same double jeopardy prohibitions.^[18]

The cases indicate that a single act may give rise to a charge under more than one criminal statute when there is clear legislative intent to do so.^[19] But where one of the two offenses charged is a necessarily lesser included offense of the other, under case law definitions adopted by the Supreme Court, recent Michigan cases involving drug violations appear to hold that convictions for both based on the same act are precluded.^[20]

But, whether the basis for these rulings is the Court's conclusion that the Legislature did not intend to permit two convictions, one for sale of heroin and one for possession of heroin, or, whether it is a new state interpretation of constitutional double jeopardy in which the judiciary interprets the words "same offense", as used in the double jeopardy clause of the Michigan Constitution, as not requiring any consideration for the Legislature's intent in enacting a particular criminal statute, is far from settled.

We say "new interpretation" because we are unable to reconcile Martin and Stewart^[21] wholly with the leading Federal decisions interpreting the double jeopardy provision of the constitution.^[22] We incline to believe that the basis for the decisions in Martin and Stewart, supra, is the Supreme Court's belief that in enacting the Controlled Substances Act of 1971,^[23] the Legislature did not intend separate sentences and separate punishments for sale of heroin and for possession of heroin where the same heroin was possessed and sold in a single, continuous transaction.

Similarly, a review of the statutes involved in the within case^[24] convinces us that the Legislature did not intend separate convictions and separate punishments for conspiracy to burn real property or its contents and conspiracy to burn insured property where there is a single conspiracy relating to the same property. Nor did the Legislature intend separate convictions and separate punishments for burning real property or its contents and burning insured property where both charges relate to a single incident of burning of the same property.

Therefore, we hold that conviction and sentencing on four separate counts under the facts in the within case was improper. Defendant's convictions for burning real property or its contents^[25] and conspiracy to burn real property or its contents^[26] are vacated. His other two convictions, conspiracy to burn insured property^[27] and burning insured property,^[28] are affirmed.

Affirmed in part; reversed in part.

NOTES

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

[1] MCL 750.73; MSA 28.268.

[2] MCL 750.73; MSA 28.268; MCL 750.157(a); MSA 28.354(1).

[3] MCL 750.75; MSA 28.270.

[4] MCL 750.75; MSA 28.270; MCL 750.157(a); MSA 28.354(1).

[5] Failure to object at trial normally precludes appellate review of an alleged error. However, failure to object has been held to be no bar to appellate review where an objection concerning the trial judge's conduct must be made to the trial judge himself. People v Eglar, 19 Mich. App. 563; 173 NW2d 5 (1969). We question the wisdom of a rule that encourages timidity on the part of trial counsel and impliedly impugns the integrity of the trial bench, by indicating that judicial impartiality is likely to melt in the heat of counsel's objections. However, we will not hold that defendant's lack of objection in the instant case is a bar to a review of his claim of error.

[6] People v Cole, 349 Mich. 175; 84 NW2d 711 (1957), People v Gray, 57 Mich. App. 289; 225 NW2d 733 (1975).

[7] People v Davison, 12 Mich. App. 429; 163 NW2d 10 (1968), People v Smith, 64 Mich. App. 263; 235 NW2d 754 (1975).

[8] People v Smith, supra, People v Young, 364 Mich. 554; 111 NW2d 870 (1961).

[9] People v Smith, supra, at 267.

[10] Id.

[11] MCL 768.29; MSA 28.1052; GCR 1963, 516.2, People v Burden, 395 Mich. 462; 236 NW2d 505 (1975).

[12] 392 Mich. 231, 240; 220 NW2d 456 (1974).

[13] People v Till, 80 Mich. App. 16, 20-23; 263 NW2d 586 (1977), People v Atkins, 397 Mich. 163; 243 NW2d 292 (1976).

[14] MCL 768.29; MSA 28.1052; GCR 1963, 516.2.

[15] People v Chambers, 25 Mich. App. 188; 181 NW2d 61 (1970).

[16] People v Bell, 26 Mich. App. 535; 182 NW2d 731 (1970), People v Zinn, 63 Mich. App. 204; 234 NW2d 452 (1975).

[17] People v Garcia, 398 Mich. 250; 247 NW2d 547 (1976).

[18] US Const Am V; Const 1963, art 1, § 15. Defendant does not challenge his convictions for conspiracy to commit the involved offenses and for actual subsequent commission of the offenses. Nor would such a challenge be successful under the facts of this case. Conspiracy may be an evil in itself, independently of any other evil it seeks to accomplish. Normally, the conspiracy to commit an offense and the subsequent commission of that offense do not merge into a single punishable act. Iannelli v United States, 420 U.S. 770, 777-778; 95 S. Ct. 1284; 43 L. Ed. 2d 616 (1975).

[19] Jeffers v United States, 432 U.S. 137; 97 S. Ct. 2207; 53 L. Ed. 2d 168, reh den, 434 U.S. 880; 98 S. Ct. 241; 54 L. Ed. 2d 164 (1977). That the intent of the Legislature is controlling was affirmed by the Court, which stated:

"The critical inquiry is whether Congress intended to punish each statutory violation separately. * * * In Iannelli v United States, [420 U.S. 770; 95 S. Ct. 1284; 43 L. Ed. 2d 616 (1975)] the Court concluded that Congress did intend to punish violations of § 1955 separately from § 371 conspiracy violations. Since the two offenses were different, there was no need to go further. * * * If some possibility exists that the two statutory offenses are the `same offense' for double jeopardy purposes, however, it is necessary to examine the problem closely, in order to avoid constitutional multiple punishment difficulties." Id. at 155; 97 S. Ct. at 2218; 53 L Ed 2d at 183 (citations omitted).

Where the legislative intent is ambiguous, then certain rules of construction become applicable to determine whether separately defined crimes constitute the same offense for double jeopardy purposes. However, it is unnecessary to apply such rules or tests where the legislative intent is clear and unambiguous.

It cannot be contended that an individual needs constitutional double jeopardy protection against the Legislature's clear exercise of its proper penological function. The constitutional prohibition against cruel and unusual punishment, US Const Am VIII, and the due process protections, US Const Am V and XIV, and state constitutional counterparts provide adequate restraints on the Legislature's exercise of its power to define offenses and prescribe punishments.

[20] People v Martin, 398 Mich. 303, 309; 247 NW2d 303 (1976), People v Stewart (On Rehearing), 400 Mich. 540; 256 NW2d 31 (1977). In Martin, the Court stated:

"A defendant may be charged and tried for each act that constitutes a separate crime. However, when tried for an act which includes lesser offenses, if the jury finds guilt of the greater, the defendant may not also be convicted separately of the lesser included offense. The prohibition against multiple punishment for the same crime cannot be avoided by the form of the charge. `The form of pleading cannot assume such importance that it will permit defendant to be convicted of both the included and greater offense.' People v Greer, 30 Cal 2d 589, 599; 184 P2d 512, 518 (1947). Accord, United States v Belt, 516 F2d 873 (CA 8, 1975), cert den 423 U.S. 1056; 96 S. Ct. 790; 46 L. Ed. 2d 646 (1976)."

See also, Comment, 65 Yale L J 339, 347, n 43 (1956):

"The lesser included offense doctrine, an exception to the same evidence test, provides that when a defendant has been placed in jeopardy of conviction of one offense, he cannot be prosecuted for another which is a lesser element of the first. * * * Sometimes prosecution for the lesser offense will bar trial for the greater. * * * It will readily be seen that the lesser included offense doctrine is often merely the same evidence test in different words. Thus if defendant is indicted for murder, and the jury on the first trial can return a verdict of manslaughter, an acquittal on the first trial acquits him of both murder and manslaughter. A second trial for manslaughter would require the same evidence that would have been necessary to sustain a conviction for that `lesser included offense' on the first trial. It has been suggested that a better reason for barring second prosecutions, whether the first trial is for the lesser or the greater offense, is that the offenses are mutually exclusive or alternative: a defendant has committed either murder or manslaughter, never both."

[21] 398 Mich. 303; 247 NW2d 303 (1976); 400 Mich. 540; 256 NW2d 31 (1977).

[22] Blockburger v United States, 284 U.S. 299; 52 S. Ct. 180; 76 L. Ed. 306 (1932), Gore v United States, 357 U.S. 386; 78 S. Ct. 1280; 2 L. Ed. 2d 1405 (1958), Brown v Ohio, 432 U.S. 161; 97 S. Ct. 2221; 53 L. Ed. 2d 187 (1977).

[23] MCL 335.301 et seq.; MSA 18.1070(1) et seq.

[24] MCL 750.73; MSA 28.268; MCL 750.75; MSA 28.270; MCL 750.157(a); MSA 28.354(1).

[25] MCL 750.73; MSA 28.268.

[26] MCL 750.73; MSA 28.268; MCL 750.157(a); MSA 28.354(1).

[27] MCL 750.75; MSA 28.270; MCL 750.157(a); MSA 28.354(1).

[28] MCL 750.75; MSA 28.270.