People v. Hutton

• Decision Date: 01 November 1973
• Docket Number: Docket Nos. 14534,14629,No. 3,3
• Citation: 213 N.W.2d 320,50 Mich.App. 351
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eddie Lee HUTTON, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Johnnie L. TOWNSEND, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 320

213 N.W.2d 320

50 Mich.App. 351

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eddie Lee HUTTON, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Johnnie L. TOWNSEND, Defendant-Appellant.

Docket Nos. 14534, 14629.

Court of Appeals of Michigan, Division No. 3.

Nov. 1, 1973.

Released for Publication Dec. 28, 1973.

James R. Neuhard, State Appellate Defender, Detroit, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Donald A. Johnston III, Chief Appellate Atty., for plaintiff-appellee.

Before DANHOF, P.J., and McGREGOR and MILES,* JJ.

McGREGOR, Judge.

On April 26, 1972, at the conclusion of their joint jury trial, defendants were found guilty of breaking and entering a store with intent to commit larceny, a violation of M.C.L.A. § 750.110; M.S.A. § 28.305. After motions for new trials, filed by both defendants, were denied, defendant Hutton was sentenced to 6 to 10 years, and defendant Townsend to 4 to 10 years. Subsequently, both defendants timely petitioned for appointment of appellate counsel and their claims of appeal were filed.

Testimony adduced at trial indicates that at about 4:55 a.m., on August 25, 1971, two Grand Rapids police officers observed a black Ford Thunderbird with a defective license plate light, at an intersection. A combination television set/record player was protruding from the partially open trunk of the auto. The officers followed the car a short distance and then pulled it over; defendant Hutton was the driver and defendant Townsend the only other occupant. After checking defendants' identification, the officers advised Hutton that he had been stopped for a defective license plate light. However, no traffic citation was issued. In addition to the television/record player protruding from the trunk, other electronic equipment including a second television set was plainly visible in the back seat. When asked by one officer to whom his equipment belonged, defendant Townsend replied that it was his, and that he did part-time electronics work as a hobby. He further indicated that he was moving to a new address and that this early hour of the morning was the only time when he could obtain the use of an automobile.

During the course of the conversation concerning the ownership of the electronic equipment, one of the officers leaned into the back seat of the automobile and noted the serial numbers of the equipment. While doing so, he noticed a repair bill from Don's TV Repair Shop lying on top of a tube tester. The defendants were then allowed to proceed and the officers went to Don's TV Repair, where an investigation disclosed that the shop had been burglarized. The officers immediately issued a radio alert for the Thunderbird, and at approximately 6:45 a.m. these same officers located the car; however, two men other than these defendants were now occupying the automobile and the electronic equipment had vanished. The driver advised the officers that the defendants could be found at his apartment. The officers then went to the apartment, where they found the electronic equipment and arrested the defendants.

Additional proofs established that the goods found in the apartment were from the burglarized repair shop and had a value in excess of $100, and that the repair shop had been closed and secured at about midnight the previous evening. In addition, there was testimony that defendant Townsend stated, when arrested, 'I didn't B & E, I just did the toting'. For the most part, the remainder of the transcript is comprised of the testimony of various people who were at the apartment while the defendants were there. Their testimony indicates that, at about 1:30 a.m., a girl friend of the apartment's lessee gave the keys to the automobile to the defendants.

At trial, defendant Hutton did not testify. However, defendant Townsend took the stand and denied any involvement in the breaking and entering. Townsend testified that at about 11:00 p.m. on August 24, 1971, defendant Hutton requested his assistance in moving some 'stuff' for a friend. At approximately 1:00 or 1:30 a.m., defendant Hutton was given the keys to the Thunderbird by a girl friend of its owner. According to Townsend, he and Hutton then proceeded to a nearby house where they found the electronic equipment lying on the ground near a basement door. This house was next door to Don's TV Repair, the burglarized establishment. After loading the equipment into the car, the ment drove to the home of an acquaintance, parked in his driveway and enjoyed a bottle of wine. On the return trip to the apartment in which they were arrested the next morning, they were stopped by the police. Following that encounter, the defendants took a circuitous route to their destination to insure that the police did not follow them there. Defendant Townsend testified that he did not know the property had been stolen and denied any connection with the breaking and entering.

Defendants first contend that the trial court erred in denying their motion to dismiss because of insufficient evidence to establish that defendants committed the breaking and entering. This contention is premised on the rule, well settled in this state, that the mere possession of stolen property is insufficient, as a matter of law, to support a conviction for burglary. An early, and since undisputed, statement of the rule is found in People v. McDonald, 163 Mich. 552, 555--556, 128 N.W. 737, 738 (1910):

'This court is committed to the doctrine that the possession of stolen property, standing alone, is not even Prima facie evidence that the person in whose possession it was found committed the burglary.

'The unexplained possession of property recently stolen is Prima facie evidence of larceny (People v. Carroll, 54 Mich. 334 (20 N.W. 66 (1884))), but, unaccompanied by other facts or circumstances indicating guilt, will not sustain a conviction for burglary.'

The rule that mere possession of recently stolen property is legally insufficient to sustain a burglary conviction and the distinction regarding the probative value of such possession in larceny and burglary prosecutions has been recognized on numerous occasions by the Courts of this state. ¹ Since a conviction for breaking and entering with intent to commit a larceny cannot be sustained on mere proof of the defendants' unexplained possession of recently stolen property, the question becomes whether, in the instant case, there are 'other facts or circumstances indicating guilt' to support such a conviction.

In his brief on appeal, the prosecutor points to four 'other facts and circumstances' which allegedly take this case out of the 'mere possession' category of People v. McDonald, Supra.

First, it is urged that defendants' possession of the repair bill from Don's TV Repair Shop 'directly connects the defendants with the breaking and entering'. Quite apart from any problems of admissibility, it is difficult to see how possession of this repair bill is any more probative with respect to whether defendants did the breaking and entering than is their possession of the television sets, tape recorders, tubes and other electronic equipment. While admittedly the repair bill does show that the goods came from the burglarized establishment, that fact was also proven by the owner's testimony. Certainly, possession of a recently stolen repair bll is no more probative than a recently stolen television set, with respect to whether the possessors committed the breaking and entering.

The prosecutor next argues that the false story given by defendant Townsend to one of the police officers is sufficient to establish the additional factor necessary to sustain the conviction. When the defendants were pulled over by the police at 4:55 a.m. on August 25, 1971, defendant Townsend stated that the equipment was his, that he did part-time electronics work as a hobby, and that he was moving to a new address. At trial, Townsend testified that these statements were false and were made by him due to his intoxicated state at the time of the stop. Notwithstanding the claim of intoxication, defendant Townsend's false statements to the officers are certainly inconsistent with his testimony at trial, that he acquired possession of the equipment rightfully and without knowledge that it had been stolen. The apparently fabricated story given to the police regarding defendant Townsend's interest in the equipment could properly be considered by the jury as circumstantial evidence that defendants committed the breaking and entering. People v. Williams, 11 Mich.App. 62, 160 N.W.2d 599 (1968), aff'd 383 Mich. 118, 174 N.W.2d 564 (1970).

Third, the prosecutor asserts that the 'relatively close proximity of defendants' possession of the stolen goods to the crime' is circumstantial evidence that the defendants committed the crime. We agree. Testimony at trial indicated that the burglarized shop was closed and secured at approximately midnight on August 24. Less than five hours later, the defendants had in their possession the stolen goods. Although it is conceivable that the defendants acquired the goods from some third party, the close time proximity involved could reasonably support an inference by the jury that defendants committed the breaking and entering.

The prosecutor's fourth 'fact or circumstance' is that defendants attempted to hide when the police arrived at the apartment in which they were staying. Although this evasive action would be consistent with the defendants' illegal possession of the goods, however acquired, it is inconsistent with defendant Townsend's assertion that the goods were rightfully acquired without knowledge that they had been stolen. Thus, defendants' evasive action could also support an inference that the defendants broke and entered the television repair shop.

In addition to the evidence pointed out by the...