People v. Lambo

8 Mich. App. 320 (1967) 154 N.W.2d 583

PEOPLE
v.
LAMBO.

Docket No. 2,329.

Michigan Court of Appeals.

Decided November 27, 1967.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Donald L. Reisig, Prosecuting Attorney, and James R. Ramsey, Assistant Prosecuting Attorney, for the people.

John L. Cote, for defendant.

A.C. MILLER, J.

Defendant was convicted after trial by jury of the offense of breaking and entering a store with intent to commit larceny therein^[1] and on February 11, 1966, was sentenced to prison for a term of 5 to 10 years.

In his appeal defendant asserts three grounds for reversal: (1) receipt in evidence of admissions of defendant prior to establishment of corpus delicti; (2) refusal of trial judge to ask the jury the following question on voir dire: "Now, would the election of the defendant in this case not to take the stand in any way cause you to conclude that his failure to do so is evidence of his guilt?"; and (3) failure of officers to apprise defendant of his constitutional rights during interrogation.

The expression "caught in the act" applies to Mr. Alexander Lambo. Police officers on routine patrol at 3:45 a.m. heard a noise inside the store building that sounded like metal hitting concrete. They investigated and found the defendant inside. They asked him what he was doing there and promptly arrested him. Investigation indicated that a window screen had been pushed in and that two boards guarding a window opening had been tampered with — one removed and the other merely hanging from a nail. The screen and window boards had been in order the night before. The officer was able to enter the building through this opening by merely moving the board to one side.

Subsequent investigation disclosed that there was dynamite in a rat hole near the window, tire irons were found inside the building, and pop cases just inside the building near the window were in a state of disarray. There was testimony that this was not the situation at 10 p.m. when the building was locked by the departing employees.

The defendant's first ground that competent evidence did not establish the corpus delicti is without merit. The unexplained presence of the defendant in a grocery store at 3:45 a.m., he being the sole occupant with a window screen and window guards disturbed, clearly established a prima facie breaking and entering.

In the case of People v. White (1908), 153 Mich. 617, 621, the Court said:

"We think the rule adopted * * * is a reasonable one. It is, in effect, that if any force at all is necessary to effect an entrance into a building, through any place of ingress, usual or unusual, whether open, partly open or closed, such entrance is a breaking sufficient in law."

There is also ample basis for drawing the inference that a prima facie case of intent to commit larceny was shown, not by the pyramiding of inferences, but rather based on the facts and clearly within the long-established rule set forth by Mr. Justice CAMPBELL in People v. Scott (1858), 6 Mich. 287, 296:

"The intent * * * must undoubtedly be established, as an inference of fact, to the satisfaction of the jury; but they may draw that inference, as they draw all other inferences, from any fact in evidence which, to their minds, fairly proves its existence. Intentions can only be proved by acts, as juries cannot look into the breast of the criminal. And where any act is knowingly committed which naturally and usually leads to certain consequences, a jury certainly has the right, in the exercise of ordinary sagacity, to draw the inference that such results are intended."

The unexplained presence of the defendant in a grocery store at 3:45 a.m. would be sufficient alone to permit the jury to find the intent to commit larceny. Here there were the many other facts. A classic prima facie case was presented. The statements given to the officers were properly admitted into evidence over this objection.

Appellant's second ground pertaining to the voir dire presents a more serious challenge. A similar problem has been recently discussed by Judge FITZGERALD in People v. Simpson (1966), 5 Mich. App. 479. Discussing GCR 1963, 511.3, Judge FITZGERALD states as follows at page 483:

"Error, if any, must arise in the manner of conducting that voir dire and whether discretion was abused in refusal to ask proper and relevant questions submitted to the court. In assaying the questions, the overriding consideration must be whether the answers thereto were essential to counsel for an intelligent exercise of his challenges in his effort to obtain a fair and impartial jury."

The posed question purports to inquire as to the state of mind of the juror, but really involves a statement of legal principle. There are several approaches in the courts of other States to this problem of voir dire interrogation involving rules of law. For a recent compilation, see 99 ALR2d 1, and 50 CJS, Juries, § 275. One of the preferred methods is to have the court briefly outline the rules of law covered in the voir dire requests, and then ask the jurors if they would and could follow such instructions. Clem v. State (1958), 166 Tex Crim 429 (314 S.W.2d 579). Any other course is likely to result in undue repetition of certain rules.

Michigan gives the trial court wide discretion. The controlling case is People v. Lockhart (1955), 342 Mich. 595, under the prior but similar court rule.^[2] In that case, appellant requested that the jury be asked what their verdict would be if the evidence were evenly balanced. The trial court refused to ask that question and the Supreme Court recognized its true nature as: "basically a question of law." The trial court did ask each juror (p 599):

"Whether the juror knew of any reason why he could not sit and render a fair and impartial verdict, based upon the evidence produced in open court and further asked of each juror, ``Do you know of any matter, fact or circumstance that might tend to prejudice you one way or another in this case?'"

The Supreme Court held these two questions were sufficient (p 600):

"In view of the answers of the jurors, disclosing want of prejudice, the ruling of the court was not reversible error. There was no abuse by the trial court of the discretion vested in him under the court rule."

These identical questions were asked by the trial court in the case at bar. Therefore, the trial judge did not abuse his discretion.

Our present rules in addition make available to counsel a personal history questionnaire. GCR 1963, 510. In Kuisel v. Farrar (1967), 6 Mich. App. 560, 563, 564, the Court said:

"The questionnaires gave the appellants' attorney ample additional information upon which to base his challenges. While a fair range of latitude must be allowed in putting questions to a jury, as suggested by counsel, the latitude of voir dire interrogation is largely a matter of judicial discretion. Darr v. Buckley (1959), 355 Mich. 392, People v. Lockhart (1955), 342 Mich. 595, Church v. Stoldt (1921), 215 Mich. 469. The question thus becomes whether the court abused its discretion in the conduct of the voir dire examination."

Furthermore, defendant's counsel did indicate at the conclusion of the court's voir dire that he was satisfied with the jury. While the attorney renewed his objection at the first recess, this nevertheless was after the jury had been sworn. Such a statement by counsel for a party has been held to be binding upon him. In People v. Rose (1934), 268 Mich. 529, 531, the Court ruled:

"If the objecting party afterwards expresses himself as satisfied with the jury, he thereby waives the error."

Also in Kuisel v. Farrar, supra, the Court noted (p 564):

"At the conclusion of the voir dire examination, the attorney for the appellant stated, ``The plaintiff is satisfied,' and that he had nothing further."

The remaining question pertains to warning of constitutional rights and police interrogation. The question is answered by the United States Supreme Court in Johnson v. New Jersey, 384 U.S. 719 (86 S. Ct. 1772, 16 L ed 2d 882), where the Court held that the decision in Miranda v. Arizona, 384 U.S. 436 (86 S. Ct. 1602, 16 L ed 2d 694, 10 ALR3d 974) should not be applied to trials beginning prior to June 13, 1966. The Supreme Court of Michigan in People v. Fordyce (1966), 378 Mich. 208, adopted the same rule for Michigan trials.

The rights that defendant-appellant claims were violated were Miranda-given rights. Since the trial took place in January of 1966, no error could be predicated on failure to afford the rights conferred upon a suspect by Miranda. No other questions were raised at the pretrial hearing which would justify rejection of the testimony regarding the statements. Furthermore, defendant was warned at the time of arrest as follows:

"I informed him that anything he said could be held against him later, that he had a right to an attorney, and also the right to make a phone call when he got to the station, and he said that he understood."

Shortly after the arraignment defendant was interrogated at police headquarters, but again only after the giving of the following warning:

"I told him that I was a police officer and that anything that he said could be used against him; that he didn't have to make any statements unless he wished to and that I was aware he was represented by an attorney and that the attorney could be present if he so desired."

Professional ethics^[3] pertaining to discussion of matters with the client of another attorney may have been involved if this had been conducted by a member of the prosecutor's staff, but this would not be a basis for rejection of proofs. This interrogation was conducted by a police officer.

The record contained ample proof of corpus delicti prior to receiving the testimony of defendant's admissions, there was no constitutional or other reason for rejecting those admissions and the trial judge did not abuse his discretion in the manner of conducting the voir dire.

Affirmed.

QUINN, P.J., and McGREGOR, J., concurred.

NOTES

[1] CL 1948, § 750.110, as amended by PA 1964, No 133 (Stat Ann 1962 Rev § 28.305).

[2] Court Rule No 37 (1945).

[3] Canons of Professional Ethics, No 9, 38 Mich SBJ 14 (May, 1959).