People v. Oswald

• Decision Date: 18 March 1991
• Docket Number: 120912,Docket Nos. 116519
• Citation: 188 Mich.App. 1,469 N.W.2d 306
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Leo OSWALD, Defendant-Appellant. (After Remand) 188 Mich.App. 1, 469 N.W.2d 306
• Court: Court of Appeal of Michigan — District of US

Page 306

469 N.W.2d 306

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Leo OSWALD, Defendant-Appellant. (After Remand)

Docket Nos. 116519, 120912.

188 Mich.App. 1, 469 N.W.2d 306

Court of Appeals of Michigan.

Submitted Dec. 20, 1990, at Lansing.

Decided March 18, 1991, at 9:20 a.m.

Released for Publication May 17, 1991.

[188 MICHAPP 3] Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., John L. Livesay, Pros. Atty., and J. Ronald Kaplansky, Asst. Atty. Gen., for people.

State Appellate Defender by Gail Rodwan, and Robert L. Oswald, in pro. per., for defendant-appellant on appeal.

Before SULLIVAN, P.J., and DOCTOROFF and MURPHY, JJ.

MURPHY, Judge.

Defendant was originally convicted and sentenced as a fourth-felony habitual offender, M.C.L. Sec. 769.12; M.S.A. Sec. 28.1084, on two counts of malicious destruction of property over $100, M.C.L. Sec. 750.377a; M.S.A. Sec. 28.609(1), one count of possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2), and one count of extortion, M.C.L. Sec. 750.213; M.S.A. Sec. 28.410. This Court reversed defendant's convictions and remanded for a new trial in an unpublished opinion per curiam [188 MICHAPP 4] decided March 31, 1988 (Docket Nos. 85570 and 92507). On remand, after four jury trials, defendant was again convicted of all charges. In Docket No. 116519, the trial court sentenced defendant as a fourth-felony habitual offender to forty to sixty years in prison for extortion. Later, defendant was sentenced as a fourth-felony habitual offender to concurrent ten- to fifteen-year prison terms for malicious destruction of property and to a consecutive two-year term for felony-firearm in Docket No. 120912. Defendant appeals as of right from his convictions in both cases, which are consolidated before this Court. We affirm defendant's convictions, but remand for resentencing.

Defendant's convictions were the ultimate result of a dispute between defendant and the members of the Preston family, who operated a dairy farm and had purchased defendant's adjacent forty-acre farm at a foreclosure auction in May 1982. Apparently, this sale was never completed because the bank was unable to provide the Prestons with clear title to the farm. About this time, defendant began asserting that he still owned the farm and insisted that the Prestons seek his permission to harvest the crops they had planted on the land. In spring of 1983, the bank again offered to sell the farm and the Prestons purchased it at that time. They had no further dealings with the defendant.

At approximately 4:00 a.m. on July 8, 1984, Glenn Preston went out to the barn to milk the cows and discovered that two hundred gallons of milk from the previous evening had been drained from the storage tank. The telephone lines to the barn, his house, and his father's house had been cut. The vehicles at both houses had flat tires. When the police came, it was discovered that there were holes in the engine blocks of a tractor and a [188 MICHAPP 5] self-propelled haybine. Three other tractors were also damaged.

Two days later, Glenn Preston received a telephone call and identified defendant as the caller. The caller said:

My client informs me that you had some trouble on your farm. Would you like to borrow, one, two, three, four, or five tractors? This is costing my client five thousand dollars which you will pay.

My client informs me he told you not to trespass on your farm. You should have done as he said. He wants a written apology mailed to his farm within two weeks, or one or three homes will burn. My client does his work at night which means there will be loss of life.

Preston called the police, who came back to the farm and reinspected the damaged farm equipment. They found .22 caliber shell casings on the floor of the building where the machinery was stored. Bullet fragments were also recovered from the haybine and a tractor.

The Westland, Michigan, home of defendant's stepmother, Emma Harris, was searched for a .22 caliber firearm pursuant to a warrant. A .22 caliber semiautomatic pistol and a .44 caliber revolver were found between the mattress and box spring of the bed used by defendant's children when they visited. Both weapons were seized. A gun dealer in Ohio identified defendant as the man who had purchased both weapons in June 1984, using an Ohio driver's license bearing the name Bob Harris. At defendant's trials, experts testified that the .22 caliber cartridges and metal fragments found on the Prestons' floor were fired from the .22 caliber weapon seized during the search. Moreover, they also testified that a circular fragment recovered [188 MICHAPP 6] from the haybine was fired from the seized .44 caliber revolver.

At 10:00 p.m. on August 24, 1984, patrol officers stopped defendant's vehicle after hearing a police radio broadcast concerning the outstanding felony warrants and a description of his automobile. Defendant was arrested and his car was searched. The arresting officer found and seized three used .44 Magnum shell casings and a knife. He also observed two checkbooks, one in defendant's own name and one bearing the name of Bob Harris, and an Ohio driver's license bearing defendant's picture and the name Bob Harris, but left these items in the car.

When defendant later asked his former wife, Sandra Oswald, to retrieve his car, which the police had impounded, she found a writing tablet among the items she removed from the car for storage. She later turned this tablet over to the police after she read the writing on it and recognized defendant's printing. Defendant's fingerprints were found on the tablet, and an expert identified the writing as defendant's, although heavily disguised. The words written on the tablet closely paralleled the telephone call described by Glenn Preston.

I

Defendant raises several evidentiary issues which merit only brief discussion.

First, we find no error in either trial resulting from the admission of the arresting officer's testimony concerning items he observed during an inventory search of defendant's vehicle at the time of his arrest. In defendant's first appeal, this Court ordered these items suppressed on retrial because a search of defendant's automobile, which occurred [188 MICHAPP 7] five days after his arrest, was illegal because of a defective warrant. However, the arresting officer's testimony on retrial was based on his observation of this evidence, a source wholly independent of, and therefore untainted by, the illegal search. People v. Kroll, 179 Mich.App. 423, 428-429, 446 N.W.2d 317 (1989); People v. Harajli, 148 Mich.App. 189, 384 N.W.2d 126 (1986).

Second, defendant's claim that, at his extortion trial, the trial court should have also suppressed evidence of the writing tablet bearing defendant's printing is also without merit. Defendant's former wife discovered the writing tablet after she retrieved his automobile from the police impoundment at defendant's request and was removing his property from it for storage. She voluntarily turned the tablet over to the police. The protection against unreasonable search and seizure is not violated when a private individual, acting with no knowledge on the part of the police, seizes evidence and voluntarily gives it to the police. People v. DeLeon, 103 Mich.App. 225, 228, 303 N.W.2d 447 (1981); People v. Langley, 63 Mich.App. 339, 344, 234 N.W.2d 513 (1975).

Third, we conclude that the trial court did not err in refusing to suppress the .44 caliber revolver seized during the search of the Harris home. Although this weapon was outside the scope of the search warrant, it was inadvertently discovered along with the .22 caliber weapon which was described in the warrant as a result of the shell casings found near the damaged machinery at the Prestons' farm. The officer in charge of the case was aware from the beginning of the investigation that some other, larger weapon might also be involved. The officer stated that he seized the .44 caliber revolver, rather than a .44 semiautomatic rifle also found at the Harris home, because a [188 MICHAPP 8] semiautomatic weapon would have discarded shell casings when fired and no .44 caliber casings were found near the damaged machinery. We conclude that the .44 caliber revolver was found in plain view and the officer had a reasonable basis for connecting it to the crime he was investigating and seizing it. People v. Secrest, 413 Mich. 521, 525-529, 321 N.W.2d 368 (1982). Moreover, because the evidence against defendant in both trials was overwhelming, suppression of this evidence was not likely to have resulted in defendant's acquittal. Therefore, even if the admission of this weapon was error, it was harmless error. People v. Robinson, 386 Mich. 551, 563, 194 N.W.2d 709 (1972).

Fourth, there is no merit to defendant's claim that the trial court abused its discretion by admitting the .22 caliber semiautomatic pistol into evidence. Defendant contends that this weapon had no probative value because there was no evidence linking it to the charges of malicious destruction of property. Contrary to defendant's claim, there was a great deal of evidence linking this weapon to defendant and to the crimes. Probative evidence of guilt is always prejudicial from a defendant's point of view. The relevant question is whether the evidence was unfairly prejudicial. People v. Bunting, 145 Mich.App. 210, 213, 377 N.W.2d 307 (1985). In this case, it was not.

Fifth, we find that there was clear and convincing evidence that the witness who made an in-court identification of defendant as the man who purchased both weapons had a sufficient independent basis for the identification to warrant admission of this testimony. People v. Laidlaw, 169 Mich.App. 84, 92-93, 425 N.W.2d 738 (1988).

Sixth, defendant has failed to establish that the trial court abused its discretion by denying his request to call the prosecutor from...