People v. Adams

• Decision Date: 26 July 1973
• Docket Number: 11765,No. 2,Docket Nos. 15189,2
• Citation: 210 N.W.2d 888,48 Mich.App. 595
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel J. ADAMS and George Drinkwine, Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 888

210 N.W.2d 888

48 Mich.App. 595

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Daniel J. ADAMS and George Drinkwine, Defendants-Appellants.

Docket Nos. 15189, 11765.

Court of Appeals of Michigan, Division No. 2.

July 26, 1973.

Released for Publication Oct. 12, 1973.

Carl H. Leiter, Flint, for Adams.

William A. Shaheen, Jr., Shaheen & Shaheen, Flint, for Drinkwine.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and DANHOF and ADAMS, ^* JJ.

DANHOF, Judge.

Defendants were tried jointly and convicted by a jury of breaking and entering an occupied dwelling with intent to commit larceny. M.C.L.A. § 750.110; M.S.A. § 28.305. On April 14, 1971, defendant Adams was sentenced to a prison term of 7 1/2 to 15 years; defendant Drinkwine was sentenced to a prison term of 12 1/2 to 15 years. Defendant Drinkwine filed a timely claim of appeal. Defendant Adams's motion for appointment of counsel, filed April 3, 1972, was denied by the trial court. On appeal, this Court treated the motion as a complaint for superintending control and granted defendant Adams's request on July 14, 1972. On September 27, 1972, these appeals were consolidated for review. We affirm the convictions of both defendants.

Defendants first claim that the trial court erroneously refused to instruct the jury on the possible lesser included offenses of attempted breaking and entering of an occupied dwelling with intent to commit larceny and breaking and entering of an unoccupied dwelling. The trial court instructed the jury on 3 possible verdicts as to each defendant: Guilty of breaking and entering an occupied dwelling with intent to commit larceny, guilty of entering without permission, and not guilty. The evidence at trial was uncontradicted that a completed breaking and entering took place in an occupied dwelling; that defendants entered, secured what goods they desired, and were seen outside the apartment in possession of those goods. Since there was no evidence adduced at trial to support the requested instructions, the trial court's refusal to so instruct was not error. People v. Simpson, 5 Mich.App. 479, 486, 146 N.W.2d 828, 831 (1966); People v. Stram, 40 Mich.App. 249, 253, 198 N.W.2d 753, 756 (1972); People v. Gardner, 43 Mich.App. 574, 576, 204 N.W.2d 272, 273 (1972). Where the record shows that the completed offense has been committed and the jury could not reasonably have inferred that defendants did not go beyond the attempt stage, it is not error to refuse an instruction on attempt. People v. Tyrone Williams, 38 Mich.App. 146, 149, 195 N.W.2d 771, 772 (1972).

Defendant Drinkwine claims that he was denied a fair trial when an out-of-court statement of the nontestifying codefendant Adams was introduced to implicate him. He cites Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). This verbal statement concerning a contemplated breaking and entering was reportedly made by defendant. Adams to Mr. Lloyd Decker in the presence of defendant Drinkwine and was subsequently testified to at trial by Decker. No objection to the testimony of witness Decker was made by trial counsel. This does not, however, automatically preclude review of this claim which raises the issue of defendant's constitutional right of confrontation. People v. Shirk, 383 Mich. 180, 194, 174 N.W.2d 772, 780 (1970). In Dutton v. Evans, 400 U.S. 74, 91 S.Ct. 210, 27 L.Ed.2d 213 (1970), the Supreme Court declined to reverse a conviction where a hearsay statement of a coconspirator was admitted into evidence. It was pointed out that there was a statutory exception to the hearsay rule in Georgia which allowed admission of an out-of-court statement by a coconspirator. Moreover, the Court in Dutton found that the statement testified to by a witness under oath and subject to cross-examination did not involve evidence which was 'crucial' or 'devastating'. 400 U.S. 87, 91 S.Ct. 219, 27 L.Ed.2d 226. In Michigan there is an exception to the hearsay rule 'in conspiracy cases where there is proof of a common enterprise or a mutual agency'. People v. Trilck, 374 Mich. 118 122, 132 N.W.2d 134, 137 (1965). While defendants in the instant case were not charged with conspiracy, an examination of the facts reveals that a mutual agency or common enterprise existed. Moreover, the statements which were made by defendant Adams and testified to by witness Decker cannot be construed as crucial to defendant Drinkwine's conviction or devastating to his claim of innocence. Decker testified that defendant Drinkwine was present when the statements were made by Adams, that he thought defendant Drinkwine understood, but that he did not say too much. In addition, Decker could not remember whether defendant Drinkwine invited him to participate in the crime charged. Defense counsel had full opportunity and did in fact cross-examine Decker about this conversation. Independent evidence placed defendant Drinkwine near the scene of the crime. There was eyewitness testimony that he was in possession of the guns after the breaking and entering and further testimony that he delivered these guns to Cynthia Cromwell. Finally, witness Decker testified that he encountered defendant Drinkwine on the street and that Drinkwine himself said that he and defendant Adams 'had tried and had failed at the B & E, and that Danny Adams was caught'.

It is alleged that the trial court's instruction on intoxication was erroneous. The court gave 4 instructions on intoxication, the first 2 requested by the defense, the latter 2 by the prosecution. It will suffice at this point to summarize those instructions as follows: (1) Whether defendants were so intoxicated as to be incapable of having the necessary specific intent was a question of fact for the jury; (2) The degree of intoxication must have been such that defendants did not know what they were doing, or if they did, that they did not know that they were doing it; (3) That the jury must find that defendants were so intoxicated at the time of the breaking and entering that they lacked intent to steal; (4) If the jury found that defendants formed their intent before they became intoxicated, intoxication would not shield them from later criminal responsibility. It is this last instruction which forms the basis of defendants' claim of error. We find no error. Defendants' reliance upon People v. Kelley, 21 Mich.App. 612, 176 N.W.2d 435 (1970) is misplaced since in that case there was no claim or proof that defendant formed the requisite specific intent before becoming intoxicated; rather, the instruction was found erroneous in that it could lead the jury to believe that intoxication is no defense when an accused becomes voluntarily intoxicated knowing that he has a propensity for criminal behavior while in that state. See 21 Mich.App. 624, 176 N.W.2d 440--441, footnote 17. In the case at bar, there was evidence by which the jury could have found that defendants were intoxicated at the time of the offense, but that...