United States v. Mullen

• Decision Date: 28 December 1967
• Docket Number: Cr. No. 13323.
• Citation: 278 F. Supp. 410
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America v. Vernon Lee MULLEN.

278 F. Supp. 410

UNITED STATES of America v. Vernon Lee MULLEN.

Cr. No. 13323.

United States District Court E. D. Virginia, Norfolk Division.

December 28, 1967.

James A. Oast, Esquire and Alfred Swersky, Asst. U. S. Atty., Norfolk, Va., for plaintiff.

Henry Kowalchick (Court Appointed), Norfolk, Va., for defendant.

MEMORANDUM ORDER

KELLAM, District Judge.

Defendant was tried before a jury upon a charge that he did break and enter a certain building housing First and Second Class Petty Officers Mess Open, U. S. Naval Air Station, Oceana, with intent to commit larceny (Title 18, Section 13, U.S.C.A. and Title 18.1, Section 89, Code of Virginia, 1950, as amended). The jury returned a verdict of guilty. Defendant moved the Court to set aside the verdict and enter judgment of acquittal. The motion Challenges the sufficiency of the evidence to support the verdict.

Much of the evidence was circumstantial. Briefly stated, the evidence established these facts.

The scene of the crime was the rear of the Acey-Ducey Club, Oceana Naval Air Station, owned by the United States and operated by the United States Navy. Entrance to the site of the club was gained through a gate shown in "Government Exhibit 2". This photo shows a sign posted at the entrance, "No Visitors—All Delivery Vehicles proceed to Main Gate Except Club Vehicles". Government Exhibit 1 shows a large sign posted near the above mentioned entrance, "N.A.S. Oceana, North Gate".

At 2:30 A.M. in the morning of August 19, 1967, Special Police Officer Schimmel (employed at the Base), while on patrol of the area, as he approached the rear of the Acey-Ducey Club observed a black Plymouth. At about the same time he spied two men in the rear of the building start to run. He observed one of them drop an object. When the object was later found it turned out to be a metal tire iron. One of the men ran behind an oil tank. As Schimmel approached he observed the man lying flat behind the tank and in "considerable quantity of water which had collected in a low area". He came out upon order, after Schimmel had drawn his gun (Schimmel had previously fired one shot in the air to try to stop the men). The man was dressed in heavy gloves (although this was August and he was not employed to perform any labor). Schimmel discovered a man asleep in the Plymouth. In the Plymouth Station Wagon the officer found a sledgehammer, a claw hammer, a hacksaw and pliers. When F.B.I. Agent Don Ray arrived he located the tire iron above referred to near the oil tank where defendant was concealed. He took samples of the window paint which were sent with the tire iron to the F.B.I. Bureau for testing. Paint similar to the samples taken from the window which had been pried open was found on the tire iron.

It was established that the building in question was locked and all windows closed when the assistant manager left the premises late the night of August 18, 1967, or early the morning of August 19, 1967. When the manager came to the Club after being called on the early morning of August 19th, he observed footprints on the tops of tables in the Club, a window open, and damage to a hasp and lock on an inside door leading to the room where cigarettes are kept.

After being warned of his rights, defendant told one of the F.B.I. Agents he had been at a pool hall earlier that evening and that he gave a man $2.00 to drive him home in the Plymouth and that when he was observed by Schimmel he was in the process of being robbed. The evidence established that the station wagon in question belonged to Thornton Johnson, who had loaned it to his son, Joseph Johnson. Earlier that evening defendant had been in a place called "Queenies" in Norfolk in company of Joseph Johnson, Barbara Vaughan, and one Clark (the one found asleep in the wagon at the AceyDucey Club); that defendant, Clark and Johnson were all in the wagon when Barbara was driven home in Norfolk about 10:00 or 10:30 P.M. on August 18, 1967.

"Government Exhibit 3" shows the raised window, the window pried open to gain entrance to the building; "Exhibit 4" shows the window leading to the room where cigarettes were kept. A visual look is better than words can explain.

There is no question that there was a breaking and entry. Likewise the intent is clear. Defendant says the evidence does not meet the required burden to connect him with the crime.

The evidence, facts and circumstances must be construed in the light most favorable to the Government and the finding of a jury must be upheld if there is evidence to support it. Glasser v. United States, 315 U.S. 60 at page 80, 62 S.Ct. 457, 86 L.Ed. 680, Moore v. United States, 271 F.2d 564 (4th Cir. 1959), United States v. Luxenberg, 374 F.2d 241 (6th Cir. 1967).

When Officer Schimmel approached defendant he (and another man with him) fled. The jury had a right to consider this circumstance as tending to show consciousness of guilt on the part of defendant. United States v. Commonwealth of Pennsylvania, 267 F.Supp. 316 (E.D.Pa.1966), Nance v. Commonwealth, 203 Va. 428, 124 S.E.2d 900, Sturgis v. Commonwealth, 197 Va. 264, 88 S.E.2d 919, Bowie v. Commonwealth, 184 Va. 381, 35 S.E.2d 345, Duty v. Commonwealth (1923) 137 Va. 759, 119 S.E. 62. In United States v. Commonwealth of Pennsylvania, supra, at page 319, the Court said:

"Defendant's flight upon accusation is indicative of a consciousness of guilt. Commonwealth v. Myers, 131 Pa.Super. 258 (1938); Commonwealth v. Fasci, 287 Pa. 1, 134 A. 465 (1926); Commonwealth v. Coyle, 415 Pa. 379, 393, 203 A.2d 782 (1964). The Federal cases are to the same effect. Hunt v. United States, 115 U.S.App.D.C. 1, 316 F.2d 652 (1963); Gicinto v. United States, 212 F.2d 8 (8th Cir. 1954), where the court stated: `And evidence of flight is always admissible, especially when the conduct of the defendant is apparently inconsistent with innocence.' The theory on which flight is admissible is that it shows consciousness of guilt. Thus, in rebuttal, the defendant may show a reason for his departure, Commonwealth v. Myers, supra. Gaspero did not take the stand to explain why he ran out of the shop when confronted with the slips. `Ordinarily, flight or concealment, standing alone, is insufficient to convict. When accompanied by other evidence, the flight or concealment may justify an inference of guilt.' Commonwealth v. Grazziani, 86 Pa.Super. 571 (1925).

"In Government of the Virgin Islands v. John Lake, 362 F.2d 770, Opinion filed June 22, 1966, the United States Court of Appeals for the Third Circuit said:

`If, however, the prosecution proves facts from which an inference relevant to the question of the accused's guilt may reasonably be drawn, the burden is necessarily cast upon the accused of going forward with evidence upon the particular point to which the inference relates if he desires to rebut it.'"

In Duty v. Commonwealth, supra, 119 S.E. at page 64 the Court said:

"The correct doctrine on the subject is stated in Anderson's Case, Anderson v. Com. 100 Va. 860, 863, 42 S.E. 865, cited with approval in Jenkins' Case, 132 Va. 692, 696, 111 S.E. 101, 103, 25 A.L.R. 882, as follows:

`When a suspected person attempts to escape or evade a threatened prosecution, * * * though the inference of his guilt is by no means strong enough by itself to warrant a conviction, yet it may become one of a series of circumstances from which guilt may be inferred. An attempt to escape or evade prosecution is not to be regarded as a part of the res gestae, but only as a circumstance to be considered by the jury along with the other facts and circumstances tending to establish the guilt of the accused. The nearer, however, the commission of the crime committed, the more cogent would be the circumstance that the suspected person attempted to escape, or to evade prosecution; but it should be cautiously considered, because it may be attributable to a number of other reasons, than consciousness of guilt'—citing Wharton's Cr.Ev. §§ 750, 751. See, also, Williams' Case, 85 Va. 607, 613, 8 S.E. 470."

See also Nance v. Commonwealth, supra, where the Court at page 904 said:

"The effort to escape by flight at an excessive speed in itself is one of a series of circumstances from which guilt may be inferred. Duty v. Commonwealth, 137 Va. 759, 119 S.E. 62."

There is no question of the fact that a charge of breaking into a building may be founded on circumstantial evidence. In Fout v. Commonwealth, 199 Va. 184, 185, 98 S.E.2d 817, at page 821:

"The guilt of one breaking into a building may be established by circumstantial evidence. Direct testimony on the part of someone who saw him in the commission of the act or near the scene of the crime is not necessary, and it is unusual in cases of this character. Wilborne v. Com., 182 Va. 63, 66, 28 S.E.2d 1."

The finding of the burglarious tools was a circumstance to be considered by the jury. See Wilborne v. Commonwealth, 182 Va. 63, 28 S.E.2d 1, 3, where the Court said:

"In 12 C.J.S. Burglary, § 51, pp. 724, 725, it said: `After preliminary proof of a burglary, it is competent for the state to prove that defendant was found in the possession of burglarious tools or implements shortly after the alleged burglary, and to introduce the tools or implements in evidence, such as explosives, "jimmies," bits, chloroform, and flash lights. Such evidence, it is said, is just as competent as evidence of the possession of stolen property; but, "like the possession of stolen goods, the possession must be recent, or soon after the commission of the offense," * * *.' See, also, 9 Am.Jur., Burglary, § 66, p. 273; 1 Wigmore on Evidence, 3d Ed., § 153, p. 600. People v. Courtney, 178 Mich. 137, 144 N.W. 568, 573, 574.

"In People v. Parkinson, 138 Cal.App. 599, 33 P.2d 18, 22, it is said: `While the evidence of the possession of stolen goods, and we may add, of burglarious tools, shortly after the commission of an offense may not, standing alone, be sufficient to sustain

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