People v. Stewart, Docket No. 9950

Decision Date27 September 1971
Docket NumberNo. 1,Docket No. 9950,1
Citation36 Mich.App. 93,193 N.W.2d 184
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael STEWART, Defendant-Appellant
CourtCourt of Appeal of Michigan — District of US

Coleman E. Klein, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Leonard Meyers, Asst. Pros. Atty., for plaintiff-appellee.

Before LEVIN, P.J., and QUINN and V. J. BRENNAN, JJ.

V. J. BRENNAN, Judge.

Defendant, Michael Stewart, was found guilty of breaking and entering a business place with intent to commit larceny (C.L.1948 § 750.110 (Stat.Ann.1962 Rev. § 28.305)) after a jury trial in the recorder's court of Detroit. Defendant's motion for judgment of acquittal notwithstanding the verdict was denied. He was sentenced to a term of 3 1/2 to 10 years.

The only issue raised on appeal is whether there was sufficient evidence to support the jury's finding of guilty beyond a reasonable doubt. The testimony elicited at trial presents two contradictory versions of the circumstances leading to the arrest of the defendant. In view of the complex nature of the situation, each version of the incidents will be individually considered.

First, the version of the situation consistent with the jury's finding of guilt beyond a reasonable doubt:

Mr. James H. Williams testified at trial that he was the owner of a grocery store located at 3025 Beaubien in the city of Detroit. On the night of February 9, 1970, he closed and locked the store at approximately 10:00 p.m. The front door contained a plywood insert, which was intact at the time he closed the store. When he returned to the store the following morning, the plywood had been removed and poorly replaced in the door. He believed some packages of cigarettes were missing, but could out say how many.

Mr. George Haney testified that he lived directly across the street from Mr. Williams' store, and that he was awakened by a noise at approximately 12:45 a.m., February 10, 1970. After being awakened, he proceeded downstairs and looked out the window of his home; at this time he observed a negro male leaving Mr. Williams' store carrying a package in his hands. Mr. Haney telephoned the Detroit police department to report the incident, and continued to observe the man who walked south on Beaubien. Mr. Haney lost sight of this man, but remained on the phone with the police. He then observed a man approach from the south and enter the store; this man, the defendant, was arrested by the Detroit police and identified by Mr. Haney as the same man he originally saw leaving the store, despite the fact that he could not see defendant's face, and could not identify him at trial.

In response to a radio call received in their scout car, Detroit patrolmen Gainey and Wilson were the first police officers to arrive at the scene. Officer Gainey testified that as they approached the store from the north, he observed defendant in the store with the latter's head projecting outside and looking about. He told defendant to freeze, and defendant fell out of the doorway onto the ground. The plywood panel of the door was off, and individual packages of cigarettes were found both strewn about the floor of the store, and within a large box near the door.

Patrolman Wilson, who was driving the car, corroborated Officer Gainey's testimony and added that as the car approached the store, he observed defendant in the doorway bent over at the waist and moving his elbows.

Second, the defendant's explanation of the incident:

The defendant testified that he was preparing to leave the home of his girl friend, Cassandra Penny, at approximately 12:30 a.m., February 10, 1970. Her home is onc-half block south of, and across the street from, Mr. Williams' grocery store. As he was leaving, he observed two men about to break into Mr. Williams' store; he instructed Miss Penny to telephone the police and then proceeded to the scene to discourage the two men. As he approached the store, the two men dispersed; he was in the process of attempting to replace the paneling when Officers Gainey and Wilson apprehended him.

Defendant attempted to inform the officers that he was not the culprit; he did not attempt to flee or resist arrest. When he was informed, by a detective at police headquarters, that there was an eyewitness and defendant might be placed in a lineup, he indicated that he was eager to take part in a lineup.

Miss Penny corroborated defendant's testimony, and further testified that she did call the police. At trial, two police department tape recordings were introduced into evidence. One was identified as a recording of Mr. Haney's call, the other was that of a woman informing the police of the same incident; such tape recordings include automatic time signals in the background. Counsel stipulated that the woman's call was received four and one-half seconds before Mr. Janey stated that defendant had been apprehended. Officers Gainey and Wilson approached the store from the north, and did not pass Miss Penney's residence in the process.

The police officers did corroborate defendant's testimony to some extent. They testified that defendant did attempt to indicate that he was responsible for the police department being informed of the incident. They also agreed that defendant did not attempt to flee or resist arrest.

Based on these facts, and the fact that there was a discrepancy between Mr. Haney's description of the culprit's apparel, and the police (and defendant's) description of his apparel, defendant contends that there was insufficient evidence introduced at trial to support a finding of guilt beyond a reasonable doubt.

When an appellate court is confronted with a challenge to the judgment of the trier of the facts, it will not easily be moved to overturn the judgment below. The trier of the facts, be it judge or jury, has had the opportunity to listen to the witnesses and observe their demeanor; he has had the opportunity to observe and evaluate the plethora of subjective and objective factors which together influence his opinion of the credibility of the witnesses. These factos do not survive in the stenographic transcription, we merely...

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  • People v. Bowyer
    • United States
    • Court of Appeal of Michigan (US)
    • 6 Agosto 1981
    ...Mich.App. 176, 178, 192 N.W.2d 335 (1971), People v. Strunk, 11 Mich.App. 99, 101-103, 160 N.W.2d 602 (1968). In People v. Stewart, 36 Mich.App. 93, 98, 193 N.W.2d 184 (1971), this Court stated that great deference should be given to the trier of fact because of the problems inherent in rev......
  • People v. Fell
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    • Court of Appeal of Michigan (US)
    • 13 Noviembre 1975
    ...People v. Palmer, 392 Mich. 370, 376, 220 N.W.2d 393 (1974). As to the evidence presented to the trial court, People v. Stewart, 36 Mich.App. 93, 98, 193 N.W.2d 184, 186 (1971), V. den., 386 Mich. 775 (1971), 'When an appellate court is confronted with a challenge to the judgment of the tri......
  • People v. JP (In re JP)
    • United States
    • Court of Appeal of Michigan (US)
    • 24 Septiembre 2019
    ...had the jury been properly instructed, as appellate courts are generally reluctant to overturn a jury verdict. See People v. Stewart , 36 Mich. App. 93, 98; 193 N.W.2d 184 (1971). But, as the majority opinion observes, the jury did not receive the appropriate instructions, and, in my opinio......
  • In re JP
    • United States
    • Court of Appeal of Michigan (US)
    • 24 Septiembre 2019
    ... 944 N.W.2d 422 IN RE JP. People of the State of Michigan, Petitioner-Appellee, v. JP, ... reluctant to overturn a jury verdict. See People v. Stewart, 36 Mich.App. 93, 98; 193 N.W.2d 184 (1971). But, as the majority ......
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