People v. Eaves, 964

• Decision Date: 11 October 1966
• Docket Number: No. 1,No. 964,964,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Evelyn EAVES, Defendant-Appellant. Cal
• Court: Court of Appeal of Michigan — District of US

Page 260

145 N.W.2d 260

4 Mich.App. 457

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Evelyn EAVES, Defendant-Appellant.

Cal. No. 964.

Court of Appeals of Michigan, Division No. 1.

Oct. 11, 1966.

Leave to Appeal Denied March 20, 1967.

John D. O'Connell, Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Samuel H. Olsen, Pros. Atty., Wayne County, Detroit, for appellee.

Before LESINSKI, C.J., and T. G. KAVANAGH and WATTS, JJ.

LESINSKI, Chief Judge.

Defendant appeals a jury conviction for unlawful possession of narcotics in violation of P.A. 1952, No. 266, C.L.S. 1961, § 335.153 (Stat.Ann.1957 Rev. § 18.1123).

According to the testimony, on September 25, 1963, at about 12:15 a.m., two Detroit plainclothes officers, Patrolmen Brown and Travis, in an unmarked police car assigned to a car boosting detail, ¹ saw an automobile with one headlight and pulled alongside the car at Larned and Mt. Elliot streets and attempted to get the driver to pull over to the curb. The car did not stop, but rather turned south onto Jefferson avenue and picked up speed--to approximately 45 m.p.h. The car was apprehended several blocks later, east of Elmwood street on Jefferson avenue. One Samuel Peeples was alleged to have been the driver. Defendant Evelyn Eaves was a passenger in the car.

Patrolman Brown testified that before the apprehension of this vehicle, he had waived his badge out the window at them, and that the occupants of the car were looking at him at the time. He further testified that subsequent to this the door of the passenger side where defendant was seated opened, and a package came out of the vehicle and hit the pavement. The patrolmen were unable to testify as to whether the interior lights in the vehicle went on when the door opened, or whether the defendant threw the package therefrom. Both officers testified to hearing a thump. The vehicle, which was continuously in the officers' view, was stopped approximately one block after this alleged incident took place. The officers went to the driver's side of the car, observed empty beer containers in the back seat thereof, and Officer Brown testified that he at first assumed that a beer container was what had been thrown from the car. The officers put the driver in their car and left the defendant in the driver's car. They left to check the driver on the call box, and en route to the call box they recovered a package which contained $5,000 worth of heroin.

Brown estimated that from the time the officers first saw an object on the pavement until they recovered the package of heroin some three to five minutes had passed. Brown testified that he had heard the object hit the pavement with a thud, but he was unable to determine whether it had come to rest or was still moving at the time. The officers could recall no pedestrian or other vehicular traffic during the relevant time interval.

Upon recovery of the package, the officers handcuffed the driver and went back to the place where they had left the defendant. She was not in the car, but was found walking on the sidewalk a block and a half away. When the patrolmen left with the driver to go to the call box, one of the officers told the defendant that he would probably be right back. She was not told that she was under arrest at that time, nor was she told specifically to await the officers' return.

Although the police report named Sam Peeples, the alleged driver, as a suspect, he had been released after questioning on September 26, 1963, and the police were unable to locate him up to the time of the trial in October, 1964. The police report made pursuant to the incident made no mention of the defendant's having Thrown the package from the car.

Defendant testified that she was from New York; that she had been staying on Fort street, but did not remember the address; that on the night in question she had started from the Fort street residence to get toothache medicine; and that the driver of the vehicle was a neighbor whose offer of a ride she had accepted. She stated that she had left New York where her husband and children lived because of marital difficulties.

At the time of her arrest, the defendant gave her name as 'Johnson' rather than 'Eaves.' Several other inconsistencies in her testimony were also uncovered during the course of the trial which, although irrelevant in the main to the fact situation were effective in diminishing the credibility of her story which, in essence, was a denial of the crime alleged.

On appeal, it is the defendant's theory that the People's case amounted to an inference based on another inference which was insufficient to prove that defendant was guilty of the offense as charged; that therefore the conviction on this evidence as adduced at trial was contrary to law; and that her guilt was not established beyond a reasonable doubt.

A recent annotation, 5 A.L.R.3d 100, 104 (1966), in discussing anew the legal theory urged upon this Court by the defendant-appellant, that an inference cannot be based upon an inference, said:

'The discussion of the legal effects of presumptions and inferences has evoked perhaps as much cloudy thinking and confusion of terminology as any other area of the law.'

The annotation cites Busam Motor Sales, Inc. v. Ford Motor Co. (S.D.Ohio), 85 F.Supp. 790, for the applicable Michigan position. In the Busam case, supra, at 795, the court referred to previous Michigan case law that '(p)resumptions and inferences may be drawn from facts established, but may not rest presumption upon presumption, or inference upon inference.' Busam further quoted 20 Am.Jur., Evidence, § 164:

"The decisions are generally agreed that a presumption must rest upon facts proved by direct evidence and cannot be based upon, or inferred from, another presumption. Thus whenever circumstantial evidence is relied upon to prove a fact, the circumstances must be proved and cannot be presumed."

In order to determine if the People's case was one where 'inference was based upon inference,' it is essential to analyze the facts which this case presented, and upon which the case was built.

1. At approximately 2:30 a.m. a package of heroin was found by the police.

2. The package was found on the pavement a block from the place where the police had stopped the car in which defendant was riding in the front seat on the passenger side.

3. The officers had seen the door on the passenger side of this car open as the car passed the approximate place where the package was found.

4. The officers had heard a thud just after the door of the car opened.

From these facts, could the jury have found that the package found was thrown from this car by the defendant without basing an inference upon an inference? We believe that it could. There are facts established by the evidence on which the jury could base its verdict. The Indiana court expressed in succinct language what is meant by the inference theory in Shutt v. State (1954), 233 Ind. 169, 117 N.E.2d 892, 894:

'What is actually meant by the statement found in many cases, that an inference cannot be based upon an inference, is that an inference cannot be based upon evidence which is uncertain or speculative or which raises merely a conjecture of possibility.'

People v. Petro (1955), 342 Mich. 299, 70 N.W.2d 69, is relied on heavily by defendant for the proposition that 'inference may not be built upon inference.' The statement is unquestionably a part of Michigan jurisprudence and is not questioned here. Rather, it is inapplicable to the instant case. In Petro, the defendants were accused of unlawful possession of firearms in violation of C.L.1948, § 750.227. The fact situation in Petro, as set forth by the Court, is easily distinguishable from that which appears in the present case. As was said in Petro, supra, at 308, 70 N.W.2d at 71:

'In the case at bar, in order for the jury to find defendants guilty, the jury had to believe the evidence that defendants had been seen at least once prior to April 30, 1951, in the automobile. From this fact the jury had to infer that the defendants, who were not the owners of the automobile, knew of the hidden compartment behind the dashboard clock, and from this inference the jury had to infer that defendants knew that the guns were in this compartment on April 30, 1951.'

The Petro Court distinguished its holding there from that of People v. Moceri (1940), 294 Mich. 483, 293 N.W. 727, saying, 342 Mich. at pp. 308--309, 70 N.W.2d at p. 71:

'In that case (Moc...