People v. Mack

346 N.W.2d 57, 131 Mich. App. 9
Michigan Court of Appeals·Decided December 6, 1983·No. Docket No. 65377·Published·Cited by 1 cases

Opinion

Per Curiam.

Defendant appeals as of right from his plea-based conviction of breaking and entering with intent to commit larceny, MCL 750.110; MSA 28.305. Defendant pled nolo contendere to a charge of breaking and entering a dentist’s office at 2545 Baker Street in the City of Muskegon Heights with intent to commit larceny.

On appeal, defendant claims that an inadequate factual basis for his plea was presented. GCR 1963, 785.7(3)(b)(ii) requires a judge who takes a nolo plea to conduct a hearing (unless there has already been one) that establishes support for a finding that the defendant is guilty. No preliminary examination was held before defendant offered his plea. At the plea-taking proceeding, a police officer testified that he responded to a call concerning a possible overnight break-in. He met the owner of the building with whom he examined its exterior and interior. He concluded that the building had been entered through a side window which had been smashed. Numerous drawers were opened in the room entered; a number of cabinets were opened in an adjacent room. Apparently a clock was the only thing which was taken. Outside the smashed window, the officer discovered a distinctive heelmark which he concluded would lead to the identification of the burglar. Remembering that defendant had been dropped off by police near [12]*12the office the night before, he concluded that he should interview him. He found the defendant and read him his Miranda1 rights before questioning him. The officer testified:

"We talked about the breaking and entering at Doctor Howell’s office, and the fact that he had been dropped off there that night in the area by Sergeant Whittaker. Mr. Mack was intoxicated at the time that Sergeant Whittaker dropped him off, and his recall was a little hazy as a result of that. He told me that he recalled smashing the window out on the north side of the building, but he didn’t know if he went in or not. He couldn’t remember, but he did recall breaking the window out because he was upset.”

The clock which was taken was not recovered.

On this testimony, we believe that the trial judge properly concluded that the crime charged had been committed. Evidence showing a nighttime entry of a professional office, effected by breaking a window and crawling through it, in which a clock was taken established an ample factual basis for finding a breaking and entering and for inferring the intent to commit larceny.

The testimony is less convincing, but still adequate, concerning the identity of the burglar. To conclude that defendant did not enter the building and take the clock, one would have to believe that two persons were involved in this crime. This hypothesis cannot be entirely ruled out based upon the evidence presented at the plea-taking. It is, however, sufficiently improbable that its mere existence does not bar defendant’s conviction. Where breaking and entering were proven (both occurring in close temporal proximity) and the evidence [13]*13adduced at trial identified defendant as the person who did the breaking, the evidence has been held sufficient to convict him of the offense. People v Bahlhorn, 298 Mich 545; 299 NW 709 (1941); People v Barnes, 51 Mich App 735; 216 NW2d 464 (1974); People v Ware, 12 Mich App 512; 163 NW2d 250 (1968). See also Anno: Fingerprints, palm prints or bare footprints as evidence, 28 ALR2d 1115, §§27-30, pp 1149-1157. Given the testimony presented, we believe that the trial judge reasonably inferred from the evidence that defendant broke the window and entered the building with the intent to commit larceny therein.

Defendant’s far more serious claim of error concerns the trial judge’s failure to follow the procedures suggested in this Court’s opinion in People v Stoner, 23 Mich App 598; 179 NW2d 217 (1970). In Stoner, this Court vacated a guilty plea in which the defendant was unable to remember his commission of the offense. At the time the plea was taken, nolo pleas were not permitted in Michigan. See People v Booth, 414 Mich 343, 361, fn 17; 324 NW2d 741 (1982). The defendant remembered going to a house, seeing an old man, and discovering a considerable sum of money in his possession upon leaving the house. Stoner, supra, pp 603-604. This Court stated:

"While a trial judge may not be obliged to search out possible defenses, in this case it has not been made to appear that Stoner planned or participated in the commission of the robbery. While Stoner was present when 'someone’ planned or suggested commission of a robbery, he claimed he was too drunk to care what happened. And while he obtained proceeds of the alleged robbery, he did not recall the robbery itself or participating in it. A factual basis for his guilty plea was not established.
[14]*14"We do not mean to be understood as saying that a plea of guilty may not be accepted merely because a defendant says that by reason of intoxication he cannot recall his participation in the commission of the offense. However, where the defendant claims that he cannot recall participating, the inquiry must go further: Is the defendant aware that if his claim to being so completely intoxicated that he cannot recall participating is believed by the trier of fact, that the trier would then be obliged to acquit him? If so, why then is the defendant pleading guilty?
"We recognize that a defendant may wish to waive a possible defense and plead guilty simply because he has concluded that the trier of fact will not believe him. The people’s evidence that the defendant was not intoxicated may be overwhelming.
"When a defendant claims that because of intoxication he does not recall participating in the commission of the offense, but, nevertheless, desires to plead guilty, the people should be asked to produce evidence negating the intoxication defense. Such evidence might appear in the transcript of a preliminary examination presented to and read by the trial judge before accepting the plea. If from such evidence it appears that the people can substantially refute a claim of intoxication, then a factual basis for the defendant’s plea would appear without regard to his own acknowledged recollection of what occurred. Upon such a showing and express and knowledgeable waiver of the defense by the defendant, the judge could properly accept the plea.
"There would then, in the words of the Barrows [People v Barrows, 358 Mich 267; 99 NW2d 347 (1959)] Court, be a basis for concluding that there had been (p 272) 'reasonable ascertainment of the truth of the plea’. We would then have no reason to be concerned that the defendant’s plea was not an 'understanding’ plea. It would then appear, as we said in Bartlett [People v Bartlett, 17 Mich App 205; 169 NW2d 337 (1969)] (p 209), 'that there is a factual basis for the plea, that the plea is a truthful, honest plea of guilty to an offense of which the accused person might well be convicted upon trial.’ ” (Footnotes omitted.) Stoner, supra, pp 607-608.

[15]*15Defendant claims that his conviction should be reversed because several of the procedures suggested in Stoner were not followed. He was not asked if he was aware "that if his claim to being so completely intoxicated that he cannot recall participating is believed by the trier of fact, that the trier would then be obliged to acquit him”.

Free access — add to your briefcase to read the full text and ask questions with AI

People v. Mack, 346 N.W.2d 57, 131 Mich. App. 9 (Mich. Ct. App. 1983).

346 N.W.2d 57 (People v. Mack) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

People v. Cannoy
357 N.W.2d 67 (Michigan Court of Appeals, 1984)