People v. Bullock

• Court: Court of Appeal of Michigan
• Writing for the Court: ADAMS
• Citation: People v. Bullock, 211 N.W.2d 108, 48 Mich.App. 700 (Mich. App. 1973)
• Decision Date: 27 August 1973
• Docket Number: Docket No. 13289,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dock BULLOCK, Defendant-Appellant

Page 108

211 N.W.2d 108

48 Mich.App. 700

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Dock BULLOCK, Defendant-Appellant.

Docket No. 13289.

Court of Appeals of Michigan, Division No. 2.

Aug. 27, 1973.

Released for Publication Oct. 18, 1973.

Richard F. Zielinski, Flint, for defendant-appellant.

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.

ADAMS, Judge.

On February 20, 1971, Robert E. Speerman, employed by the Sentry Patrol Service, was working at a Hamady Brothers Supermarket in Flint. At about 4:00 p.m., he received word from a store employee that defendant was in the store. Speerman went to the front of the store and stood near the door. He saw defendant lift his jacket with his left hand and with his right hand hide four steaks between his trousers and shirt.

Defendant left the store without stopping to pay. Speerman followed him outside, called to him twice and, after defendant stopped, detained him. A search revealed four sirloin steaks on defendant's person. Bullock was taken to the manager's office and the police were called.

Defendant was charged with larceny in a building. M.C.L.A. § 750.360; M.S.A. § 28.592. He did not testify at his trial and his attorney did not attempt to defend on the basis of defendant's innocence but rather on the ground that the crime charged was disproportionate to the value of the items stolen.

Defendant's attorney requested the judge to instruct the jury on the offense of simple larceny. M.C.L.A. § 750.356; M.S.A. § 28.588. He argued that the proofs indicated that the value of the items taken was less than $100 and that the jury therefore had a right to decide whether defendant was guilty of larceny in a building or simple larceny. The court declined to give this instruction and instead instructed the jury that the possible verdicts were guilty or not guilty of the crime of larceny in a building. Defendant's attorney renewed his objection. The jury found defendant guilty, and he was sentenced to 3 1/2 to 4 years in prison.

Issue I

Did the trial court err by refusing to instruct the jury that the offense of simple larceny was a lesser included offense in the charge of larceny in a building?

The trial court has a statutory duty to 'instruct the jury as to the law applicable to the case'. M.C.L.A. § 768.29; M.S.A. § 28.1052. The jury may find a defendant guilty of lesser included offenses. M.C.L.A. § 768.32; M.S.A. § 28.1055.

In Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965), the United States Supreme Court discussed the general rules governing the propriety of giving an instruction regarding lesser included offenses. The Court said (380 U.S. 349--350, 85 S.Ct. 1009):

'But a lesser-offense charge is not proper where, on the evidence presented, the factual issues to be resolved by the jury are the same as to both the lesser and greater offenses. Berra v. United States, (351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956)); Sparf v. United States, 156 U.S. 51, 63--64, 15 S.Ct. 273, 277--278, 39 L.Ed. 343, (347--348 (1895)). In other words, the lesser offense must be included within but not, on the facts of the case, be completely encompassed by the greater. A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense. Berra v. United States, Supra; Sparf v. United States, Supra, 156 U.S. at 63--64, 15 S.Ct. at 227--278, (39 L.Ed. at 347--348).'

See also People v. Patskan, 387 Mich. 701, 713--714, 199 N.W.2d 458, 463 (1972).

In People v. Jackson, 29 Mich.App. 654, 185 N.W.2d 608 (1971), the defendant was charged with larceny in a building after he stole a jacket worth approximately $56. He argued that he had been charged with the wrong crime because he had actually committed the offense of larceny under $100 (a misdemeanor), but had been convicted of the felony of larceny in a building contrary to the alleged legislative intent evidenced by establishing larceny under $100 as a misdemeanor. This Court disagreed, pointing out that (p. 656, 185 N.W.2d p. 609) '(t)he decision to charge the defendant with the felony instead of a misdemeanor is in the sound discretion of the prosecuting attorney', and adding (id.):

'It is clearly within the discretion of the legislature to distinguished simple larceny and larceny in a building as separate social evils.'

See also People v. Graves, 31 Mich.App. 635, 188 N.W.2d 87 (1971).

While both the larceny in a building statute and the simple larceny statute deal with the offense of larceny, the critical difference between them is that the larceny in a building statute contains no mention of the value of property stolen, whereas under the simple larceny statute theft of property valued under $100 is made a misdemeanor and theft of property valued over $100 is made a felony. In the present case, defendant stresses the fact that the stolen steaks were worth approximately $11. However, the value of the property stolen was not an element of the crime with which defendant was charged. Value would be an additional element which would have to be determined by a jury under the simple larceny statute. People v. Lakin, 30 Mich.App. 441, 186 N.W.2d 867 (1971). Since simple larceny is not an included offense of larceny in a building, the trial court did not err by refusing to give defendant's requested instruction.

Issue II

Was defendant's sentence of 3 1/2 to 4 years imprisonment improper?

Defendant contends that the sentence imposed upon him is so disproportionate to the crime as to constitute cruel and unusual punishment contrary to U.S.Const. Am. XIV. ¹

At the time of trial, defendant was 27 years old. He had been laid off from his job, was never called back to work, and had been unemployed for more than a year previous to this incident. In 1968 defendant served nine months in prison after his conviction of attempted larceny in a building. He served one year in jail in 1969 after his conviction of larceny in a building.

Defendant's prior criminal record may have influenced the prosecutor's decision to charge him with a felony instead of a misdemeanor. It undoubtedly was a factor which the trial judge considered during sentencing, although...