People v. Feldman

• Decision Date: 27 November 1978
• Docket Number: Docket No. 27266
• Citation: 274 N.W.2d 1,87 Mich.App. 157
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joel David FELDMAN, Defendant-Appellant. 87 Mich.App. 157, 274 N.W.2d 1
• Court: Court of Appeal of Michigan — District of US

Page 1

274 N.W.2d 1

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joel David FELDMAN, Defendant-Appellant.

Docket No. 27266.

87 Mich.App. 157, 274 N.W.2d 1

Court of Appeals of Michigan.

Nov. 27, 1978.

Released for Publication Jan. 25, 1979.

Rehearing Denied Feb. 2, 1979.

[87 MICHAPP 158] James R. Neuhard, State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Eugene C. Penzien, Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P. J., and WALSH and HEADING, (*) JJ.

V. J. BRENNAN, Presiding Judge.

Defendant Joel David Feldman was convicted on May 14, 1975, in Bay [87 MICHAPP 159] County Circuit Court of one count of possession of burglary tools, contrary to M.C.L. § 750.116; M.S.A. § 28.311, one count of possession of a device adapted for breaking into a parking meter with intent to steal, contrary to M.C.L. § 752.811; M.S.A. § 28.643(101), four counts of inserting part of an instrument into a parking meter with intent to steal, contrary to M.C.L. § 752.811; M.S.A. § 28.643(101), and four counts of forcing an entrance into a parking meter with intent to steal, contrary to M.C.L. § 752.811; M.S.A. § 28.643(101). On September 2, 1975, defendant was sentenced to a prison term of from 2 to 10 years on the possession of burglary tools count and 1 to 3 years on each of the remaining counts, the sentences to run concurrently. Defendant appeals his convictions here on delayed leave to appeal granted.

Defendant's prosecution arose out of events occurring near the Jenison Hardware Store in Bay City, Michigan, across from the Wenona Park. Testimony of employees of the hardware store indicated that on July 29, 1974, three people were observed standing around one of the several parking meters which were located on the street adjacent to Wenona Park. Employee Paul Abbs testified that one of defendant's companions was holding a wire and that shortly afterward money fell out of a meter and into the purse carried by defendant's other companion. Defendant appeared to be on watch and was not involved in the actual taking of the money from the meter. This testimony was corroborated by another eyewitness.

The police were subsequently called and apprehended defendant and his companions within Wenona Park. During the process of arrest, officers discovered various tools and a roll of money in the front seat of the suspects' car. These items along [87 MICHAPP 160] with other tools found in defendant's van were introduced into evidence at trial. Defendant's conviction on all ten counts of the information followed.

Defendant claims that reversible error occurred when the trial court failed to caution the jury against discussing the case among themselves. In fact the trial court in its preliminary instruction gave the jury the distinct impression that they could discuss the case among themselves during the course of the trial.

The problem which results from this instruction is that the jury is allowed to formulate and express opinions before all the evidence is in. Given the fact that the prosecution presents its evidence first, initial expressions of opinion would most likely be unfavorable to the defendant. Upon the presentation of the defendant's case, the jury's inclination would be to give special attention to testimony that confirms their prior expressions so as to avoid any embarrassment involved in changing their opinion. As such the burden of proof is effectively shifted from the prosecution to the defendant. ¹ People v. Hunter, 370 Mich. 262, 121 N.W.2d 442 (1963). We agree with defendant that this was reversible error.

Inasmuch as the cause must be sent back we will address the defendant's double jeopardy claim so as to prevent any possible recurrence of error on retrial.

The protection against double jeopardy prohibits double or multiple punishment for the same crime. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), People v. Alvin Johnson, 396 Mich. 424, 430, 240 N.W.2d 729 (1976).

With this in mind we point out that the defendant[87 MICHAPP 161] may again be charged with one count of possession of burglary tools contrary to M.C.L. § 750.116; M.S.A. § 28.311 since this charge was not based on possession of the same tools allegedly used to break into the parking meters.

However, counts 2 through 10 setting forth nine separate charges under M.C.L. § 752.811; M.S.A. § 28.643(101) do present double jeopardy problems. The facts tend to show that two parking meters were broken into. From this incident the defendant was...