Goldman v. Anderson, 80-1050

• Decision Date: 25 July 1980
• Docket Number: No. 80-1050,80-1050
• Citation: 625 F.2d 135
• Parties: Robert Louis GOLDMAN, Petitioner-Appellant, v. Charles ANDERSON, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 135

625 F.2d 135

Robert Louis GOLDMAN, Petitioner-Appellant, v. Charles ANDERSON, Respondent-Appellee.

No. 80-1050.

United States Court of Appeals, Sixth Circuit.

July 25, 1980.

Carl Ziemba, Detroit, Mich., for petitioner-appellant.

Frank J. Kelley, Atty. Gen., of Michigan, Thomas L. Casey, Asst. Atty. Gen., Robert A. Derengoski, Sol. Gen., John P. Mack, Stephen F. Schuesler, Asst. Attys. Gen., Lansing, Mich., for respondent-appellee.

Before CELEBREZZE and MARTIN, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

BOYCE F. MARTIN, Jr., Circuit Judge.

Petitioner is an inmate subject to the jurisdiction of the Michigan Department of Corrections. His incarceration is the result of a 1976 Michigan conviction of breaking and entering a real estate office with intent to commit larceny therein contrary to MCLA 750.110; MSA 28.305. Upon conviction in Detroit Recorder's Court by a jury, he was sentenced to a term of five to ten years in prison. Petitioner appeals to this Court from a judgment entered November 19, 1979 by the Honorable James P. Churchill in the United States District Court for the Eastern District of Michigan which dismissed his petition for habeas corpus on the basis of Wainwright v. Sykes.

During the trial, a police officer testified that she responded at 5:00 a.m. to a call that a breaking and entering of a real estate office was in progress. When she arrived at the reported address, she saw the petitioner leaving the premises. He ran, but was later apprehended by a private citizen and returned to the scene. The officer further testified that petitioner had white plaster dust on his clothes. Another officer found a hole in the wall of the real estate office which was adjacent to a bar, and found a sledgehammer, crowbar, screwdriver, and flashlight near the hole. Nothing had been stolen from either establishment, perhaps because of the arrival of the police.

Petitioner testified that he was never in the building but that he had been arrested for running by the building near the time of the break-in; he denied ever having run from the police. However, in his signed statement he stated he was arrested "because I ran from by the building . . . ." When petitioner denied having run from the police, this statement was read to the jury in the form "(B)ecause I ran from the building . . ." Further, the statement had never been admitted into evidence, hence its voluntariness was never established.

Petitioner argues that (a) the evidence was insufficient to establish his intent to larcenize the real estate office, hence, his conviction was a denial of due process within the purview of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); and, (b) that use of his statement to impeach his testimony without producing the officer who transcribed it constituted reversible error because (1) petitioner denied the veracity of the statement in his testimony and (2) because it had not been shown to be voluntary.

Petitioner bases his argument regarding the sufficiency of the evidence upon the thesis that the evidence clearly showed intent to larcenize the adjacent bar and not the real estate office. Hence, he argues, evidence of intent to larcenize the real estate office had not been established and petitioner could not be convicted of MCLA 750.110. While petitioner's argument raises an interesting problem in conceptualization and may point out some ambiguity in the statute, we are constrained to note that "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (emphasis in the original) Jackson v. Virginia, supra at 319, 99 S.Ct. at 2789. In determining whether this standard has been met, the habeas court may properly take cognizance of state evidentiary law. Thus, in Moore v. Duckworth, 443 U.S. 713, 99 S.Ct. 3088, 61 L.Ed.2d 865 (1979), where the question was whether the state had met its burden of proof of sanity beyond a reasonable doubt, the United States Supreme Court held that it was proper for the federal habeas court to take cognizance of state evidentiary law to the effect that lay rather than expert testimony was sufficient to prove the element of sanity.

As in every case where intent is material, larcenous intent may be inferred from the surrounding circumstances. "Because such mischief is a normal incident to a breaking and entering, and because of the difficulty of proving the actor's state of mind, circumstantial evidence has been found sufficient to sustain the conclusion that the defendant entertained the requisite (larcenous) intent." People v. Palmer, 42 Mich.App. 549, 551-552, 202 N.W.2d 536 (1972). See also People v. Jablonski, 70 Mich.App. 218, 223, 245 N.W.2d 571 (1976).

Under Michigan law, intent to commit larceny may be inferred from the totality of circumstances...