People v. Burrell

• Decision Date: 04 February 1970
• Docket Number: Docket No. 5964,No. 3,3
• Citation: 175 N.W.2d 513,21 Mich.App. 451
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George Washington BURRELL, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 513

175 N.W.2d 513

21 Mich.App. 451

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George Washington BURRELL, Defendant-Appellant.

Docket No. 5964.

Court of Appeals of Michigan, Division No. 3.

Feb. 4, 1970.

Released for Publication April 3, 1970.

Thomas D. Van Hattum, Rhoades, McKee & Boer, Grand Rapids, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Wesley J. Nykamp, Chief Trial Atty., for appellee.

Before FITZGERALD, P.J., and R. B. BURNS and BRONSON, JJ.

R. B. BURNS, Judge.

Defendant appeals his conviction by a jury of breaking and entering with intent to commit larceny. M.C.L.A. § 750.110 (Stat.Ann.1969 Cum.Supp. § 28.305).

Two police officers, while on patrol, responded to a burglary alarm from a plating company. As they pulled into the parking lot at the rear of the building they saw defendant running away from the premises. One of the officers chased the defendant and apprehended him after ordering him to halt. Other police arrived at the scene and it was observed that a windowpane was missing along the east side of the building and that a very distinct set of footprints led from the window to the 'well' area of the loading dock and then to the corner of the building from which defendant was first observed by the arresting officers. In addition an orange colored liquid was observed around the imprints which diminished in quantity as the footprints progressed away from the window. A snow imprint of defendant's boot was made at the scene and was found to be identical to the footprints.

An inspection inside the building revealed that below the area of the missing pane was a tank filled with orange colored liquid and on the surrounding floor was a sawdust-like material saturated with the orange liquid. A footprint similar to those outside the window was observed in this material. Close at hand was found a 40 pound nickel anode which appeared to have been recently removed from a nearby plating tank. The bag in which it was contained was wet with plating solution and liquid was running on the catwalk where it was found. An investigating officer subsequently discovered a screw outside the broken window that was similar to one allegedly found among defendant's belongings.

The clothing and boots worn by defendant at the time of arrest were examined by an expert. A stain was found on the coat which was proved to have been caused by a nickel solution. Stains on the defendant's boots were found to be of a type of chromium associated with the plating industry.

The defendant testified on his own behalf. He stated that he was walking past the plating company when he heard the burglar alarm go off which excited him and caused him to run. He further testified that the boots he was wearing had been given to him by an employee of a plating company. He denied that he had any screws in his possession or that he had identified any screws as belonging to him. He denied that he had been in the building or involved in the break in.

Defendant raises fives questions on appeal, only three of which we shall consider.

1. Defendant claims the verdict of the jury was contrary to law and against the great weight of the evidence; that People v. Spann (1966), 3 Mich.App. 444, 142 N.W.2d 887, and People v. Johnson (1966), 4 Mich.App. 205, 144 N.W.2d 646, dictate a reversal because defendant's testimony presented a theory of innocence consistent with the circumstantial evidence which the prosecution failed to rebut.

People v. Johnson, supra, involved a defendant convicted of the crime of breaking and entering in the nighttime who appealed on the ground that there was not sufficient evidence as a matter of law to support the conviction. The Court therein said:

'The only criminating evidence adduced was the defendant's presence at the scene of the crime and his activities which the police regarded as suspicious. His explanation was that he lived next door to the gasoline station and no evidence was introduced to show he did not. His exculpatory statements, even if regarded as false, while they might show a consciousness of guilt are no substantive evidence of it.'

The Court reversed because it could find 'no evidence in the record which supports a conclusion that negatives every reasonable theory consistent with the defendant's innocence.' Such is not the case here. The prosecution, through the testimony of the police officers, presented evidence that supported a conclusion negating defendant's theory of innocence, to wit: a footprint similar to those made by defendant's boots was discovered inside the plant; footprints leading away from the broken window were identical to those made by defendant's boots; below the window was a vat containing an orange colored liquid and this liquid was also on the floor around the vat; the same colored liquid was present in the footprints in diminishing amounts as they progressed away from the window; and the orange color on defendant's boots was wet when he was taken into custody.

This evidence was sufficient to negate defendant's theory that he was merely passing by the plating company when the alarm went off.

2. Defendant claims the introduction of exhibits into evidence over the objection of the defendant constituted error.

This question involves the admission of a screw alleged to have been among defendant's personal possessions. Defendant challenged its admission on the basis that no one person or continuous series of persons had actually seen this screw taken from his person, marked as evidence and placed in a secure place.

The admission of the screw into evidence followed a thorough hearing by the trial court to establish the chain of evidence. Two officers testified that they had been present when the defendant was searched and that there had been a screw among his possessions which was put on the counter with the rest of his belongings and given to the turnkey. There was testimony by the officer who subsequently found a second similar screw, that he had been...