People v. Tillman, Docket No. 18998

• Citation: 229 N.W.2d 922,59 Mich.App. 768
• Decision Date: 24 March 1975
• Docket Number: Docket No. 18998,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harvey TILLMAN, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 922

229 N.W.2d 922

59 Mich.App. 768

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harvey TILLMAN, Defendant-Appellant.

Docket No. 18998.

Court of Appeals of Michigan, Division No. 2.

March 24, 1975.

Released for Publication June 11, 1975.

James R. Neuhard, State App. Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., for plaintiff-appellee.

Before ALLEN, P.J., and T. M. BURNS and MAHER, JJ.

T. M. BURNS, Judge.

Defendant Harvey Tillman and a co-defendant, Harvey Lee Collins, were convicted by a jury on July 30, 1973, of receiving and concealing stolen property valued over $100. M.C.L.A. § 750.535; M.S.A. § 28.803. On October 5, 1973, defendant was sentenced to a 40 months to 5 years prison term. He now appeals as of right assigning several errors. Only those facts necessary to the resolution of the issues discussed shall be presented.

Defendant first claims that the judge who presided over his preliminary examination erroneously refused to disqualify himself for a prejudicial statement he allegedly made against defendant in his chambers. ¹ Neither the judge nor the prosecutor could recall such statement being made; and even if the statement had been made in chambers, defendant has not shown this Court how he was prejudiced by it. Where, as here, the alleged incident did not occur at the trial stage before a jury, the presiding magistrate and prosecutor did not admit any impropriety, the record reveals that the 3-day proceeding was conducted in an impartial manner and the evidence presented showed that a crime was committed, and that there was probable cause to believe that defendant had committed that crime, reversal is not required.

Defendant next contends that the trial court erred in denying his motion to quash the information on the ground that the prosecutor failed at the preliminary examination to prove two necessary elements of the charged offense--identity and value of the stolen property. The record does not support this claim.

The television, stereo speakers, and pillow cases found in the trunk of the automobile driven by the defendant were identified by the complaining witness. The stereo, found along with the items mentioned above, was identified by comparing it's model and serial numbers with those on a sales slip produced by the complaining witness. The serial number on the sales slip read 111040--400318 while the number on the stereo read 211040--400318. Considering the fact that the stereo was found with the other items in the trunk of the automobile defendant was driving at the time of his arrest and the fact that the stereo was the same make as that stolen, we are of the opinion that the single digit discrepancy in a 12-digit serial number was not fatal to identification under the facts of this case. The prosecutor satisfactorily proved that the value of the stolen property exceeded $100. Just as value does not signify the price a stolen article may be worth to it's owner, value does not necessarily connote what a liquidator will pay. Value means the price an item will bring in the open market. People v. Fishel, 270 Mich. 82, 258 N.W. 217 (1935); People v. Gilbert, 163 Mich. 511, 128 N.W. 756 (1910). See also People. v. Otler, 51 Mich.App. 256, 214 N.W.2d 727 (1974). The prosecutor presented sufficient evidence to show that the property in question was worth more than $100 on the open market. Therefore, the trial court did not err in refusing to quash the information. ²

Defendant next asserts that the trial court erred in failing to grant his motion to suppress evidence obtained as a result of the search without a warrant of the automobile he was driving after he and Collins had been arrested and were police custody. We agree with the defendant that the facts of this case will not support the theory that the search was valid was incidental to a lawful arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). However, the facts do show that the police had probable cause to search the vehicle and that the search without a warrant was reasonable and justified. Defendant had been arrested for an alleged burglary within minutes and a few miles from the burglarized premises. The facts surrounding defendant's arrest also provided the police with probable cause to believe that the vehicle might contain contraband. Therefore, the search was justified whether made before or after the arrest. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); People v. Earle, 51 Mich.App. 232, 214 N.W.2d 892 (1974).

Defendant next argues that he was denied the effective assistance of counsel due to the fact that he and his co-defendant were represented by the same attorney at trial. Defendant claims that since counsel, during closing argument, pointed out the strength of the state's case against defendant to show the weakness of it's case against codefendant Collins, he sacrificed defendant's interest in order to represent the codefendant. However, a close reading of counsel's argument in context discloses that counsel was arguing that the evidence presented was insufficient to warrant a guilty verdict against defendant and was even less convincing with respect to codefendant Collins. We fail to see how an argument of this nature prejudiced the defendant. Counsel did not sacrifice defendant's interests but rather pointed out that neither he nor codefendant Collins should be convicted. The mere fact that counsel pointed out that the state's case against codefendant Collins was weaker than that against the defendant does not support the claim that d...