People v. Bean

• Court: Court of Appeal of Michigan
• Writing for the Court: McGREGOR
• Citation: People v. Bean, 151 N.W.2d 878, 7 Mich.App. 402 (Mich. App. 1967)
• Decision Date: 20 July 1967
• Docket Number: Docket No. 1279,No. 1,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Vernon L. BEAN, Defendant-Appellant

Page 878

151 N.W.2d 878

7 Mich.App. 402

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Vernon L. BEAN, Defendant-Appellant.

Docket No. 1279.

Court of Appeals of Michigan, Division No. 1.

July 20, 1967.

Joseph A. Powers, Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Samuel H. Olsen, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Rheo C. Marchand, Asst. Pros. Atty., Wayne County, Detroit, for appellee.

Before T. G. KAVANAGH, P.J., and GILLIS and McGREGOR, JJ.

McGREGOR, Judge.

The appellant, Vernon Lee Bean, was arrested on February 15, 1965, and charged with the offense of being in possession of burglary tools, in violation of C.L.1948, 750.116 (Stat.Ann.1962 Rev. § 28.311). After arraignment and formal examination, a motion to quash and a motion to determine the admissibility of the appellant's confession were heard and denied. The case was heard before a jury and the appellant was found guilty. Upon the jury verdict, the appellant was sentenced to a term in the State prison of not less than 3 1/2 years nor more than 10 years.

The appellant now contends primarily that the trial court erred in admitting oral confessions and statements made by him without the benefit of counsel, and that the verdict was against the overwhelming weight of the evidence. He contends that he was not effectively warned of his 'absolute constitutional rights' within the meaning of the precedents of the U.S. Supreme Court, of Escobedo v. State of Illinois (1964), 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977, Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733, White v. State of Maryland (1963), 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193, Hamilton v. State of Alabama (1961), 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, and Carnley v. Cochran (1962), 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70.

The appellant testified that 'they roughed me up a little bit, not what you call a beating or nothing, but one of the officers threatened me with a pistol'. It is noted that the threatening with a pistol came before the appellant was arrested and while he was fleeing down the alley. He also testified that after he was put in the back seat of the patrol car, the officers threw the jacks into the car and asked if they were his, to which he replied that they were, because he was 'scared'. As to statements made by the appellant at the police station, he said, 'I don't remember actually the things that I told him because I was not actually scared, but I was nervous and dumbfounded at being arrested here in Detroit'.

Appellant also claims error because the witness who first called the police to the scene of the attempted breaking and entering was unavailable at the trial. He claims that this, with the other facts, should have led the trial court to direct a verdict of not guilty, and that there was no evidence to connect the appellant with ownership or possession of the implements in question, nor was there evidence that a crime had been committed.

A police officer of the city of Detroit police department testified that he was in a patrol car and responded to a police radio call that a breaking and entering of a grocery store was in progress at 4160 Cass avenue. The officer and his partner arrived at the scene and 'observed a colored man running' from the rear of the block of stores on which was located the store reportedly being broken into. The officers chased the man and caught him less than a block away, after losing sight of him for only a few sconds and then regaining sight of him. seconds and then regaining sight of him. The officers asked the appellant, 'What are you running from?', and he replied, 'I tried to break into the store.' Appellant was then arrested and put into the patrol car. At the back of the store the officers found a scissors jack, a bumper jack, a bumper jack handle, and a pipe wrench. The officer testified that the appellant told them he got the bumper jack out of an auto and that he needed money.

A police officer assigned to the criminal investigation bureau testified that he had a conversation with the appellant later the same day of the arrest, and that he advised the appellant of his constitutional rights. He testified that the appellant related how he had gone to the rear of 4160 Cass avenue about 1:00 a.m. and spent about an hour trying to break into the grocery store in question by prying the window bars apart with a bumper jack. Having no luck getting the bars apart, appellant was gathering up his tools when he saw the police coming and he ran about half a block before he was apprehended. The information thus given by the appellant was reduced to writing, whereupon the appellant read the statement and signed it. Another police officer testified that on February 15, 1965, he also had an occasion to talk to the appellant and also had advised him of his constitutional rights. He testified that he re-read the signed statement to the appellant and the appellant acknowledged it as his own. The same police officer testified that he interviewed the appellant three days later, at which time the appellant claimed he was going to change his story in order to 'beat this case' and the appellant was also going to claim the statement was made because of fear of the police officers.

It is noted that the statements of the appellant were not admitted at trial until after their voluntariness was established by the trial judge, on a separate record, and in the absence of a jury. After their voluntariness had been established, the testimony of the police officers was repeated before the jury.

An expert witness employed by the Detroit police department testified that he was familiar with the tools used and designed for the purpose of breaking and entering buildings, and that the jacks offered into evidence could be used for that purpose.

The appellant took the stand on his own behalf and testified that he was just new in Detroit, having moved from Chicago a couple of months previously. He related that he had previous arrests in Illinois and Nebraska for grand larceny and burglary. He told the story of going into the alley to relieve himself and that he ran out of the alley because of previous experiences he had had with police brutality in other states. He said that he had admitted the jacks...