People v. TeboPeople v. Tebo
- Reporters:
- , ,
- Before:
- Bronson
Defendant was convicted of breaking and entering (MOLA § 750.110 [Stat Ann 1971 Cum Supp § 28.305]) in Iosco County Circuit Court by a jury and was sentenced to a term of four to ten years. He appeals of right. ’
On the night in question, the defendant, Gregory Collins, Ronald Carraway, Beverly Baynes, and an unidentified girl were at defendant’s home listening to records until about 2:30 a.m. Miss Baynes testified that the others took her home about that time. Another witness, Mrs. Alice Weilandt, testified to seeing three boys walking toward the Gold’n Grove Grocery at approximately 2:30 a. m. She saw them return before 3 a. m. carrying several items, one of which appeared to be a case of beer, in the direction of a trailer belonging to Carraway’s grandmother. She identified two of the boys as Carraway and Collins. The owner of the Gold’n Grove Grocery notified the local sheriff’s department immediately upon finding his store in shambles about 7 a.,m. the same morning. At about 8 a. m. Officer Knuth spoke with Mrs. Weilandt. Upon learning what she had seen, he remembered a request by Carraway’s grand
At the trial, Carraway, who pled guilty, invoked the Fifth Amendment and refused to testify as to who had been with him. He was found in contempt. Collins, who had already been convicted, testified that defendant was not with him on the night in question. Additionally, the defendant’s mother testified that she awoke about 4 a.m. on the night in question, heard the record player going and told her son to go to bed. To destroy the credibility of this alibi testimony, the prosecutor offered the testimony of Leon Putnam, an undersheriff. He testified as follows :
“Q. Now, officer, on June 18, 1970, was Kenneth Tebo brought into your jail to be booked and lodged?
“A. Bight, he was.
“Q. Did you offer him an opportunity to make a telephone call?
(‘A. He made a telephone call soon after he was booked that day. I think it was around noon or shortly thereafter when they were brought in.
“A. He wanted to make a call, and so he dialed his number, dialed the number. Well, there was something mentioned. I knew at the time he was calling his folks or his mother.
“Q. And did you lift up the extension to ascertain who he was talking to ?
“A. I sure did.
“Q. Did you recognize that voice ?
“A. Right, it was his mother’s.
“Q. Do you recall the conversation?
“A. Well, I can recall pretty much exactly what it was. She said, ‘Ken, are you mixed up in this ?’ He said, ‘We have got it all set. They are going to say I wasn’t there.’
“Mr. Myles: No further questions.”
In her rebuttal testimony, defendant’s mother testified that her phone had been removed three to four months prior to the alleged phone call. On cross-examination, she changed her story to not remembering receiving the phone call.
The jury was charged and retired to deliberate. After deliberating about 1 hour and 35 minutes, the jury sent a note to the judge showing the scores of ballots they had taken. These showed a badly split jury. The judge read the note into the record and called the jury hack in. He charged it as follows :
“The Court: * * * While I would not have requested the score of your ballots that you handed to the sheriff and to me, and so I have placed it on the record, it does show quite a broad split, although with very little change from the beginning, and I read the actual figures to the both sides and to the defendant.
“This is of course a serious matter, serious to the people and serious to the defendant. An hour and a half’s deliberation is a lot for what would seem to
“The issue of course is whether or not there is a reasonable doubt as to whether or not the defendant was one of the persons who joined in this offense. It is clear there was a breaking and entering. Two boys have been convicted and sentenced because of it. The question is, was the defendant one of those persons?
“You have heard the testimony. There is no reason why you can’t decide this case as well as 12 more jurors that we might bring in. I ask you to do your duty.”
Defendant’s attorney objected to the charge. The jury deliberated for another hour before returning a guilty verdict.
On appeal defendant asserts five assignments of error. Because of the position we take in this case, we need only discuss two of these assignments at length.
First, defendant argues that the evidence seized at Carraway’s grandmother’s trailer was the fruit of an unconstitutional search and seizure. This is the first time defendant has challenged the legality of the search. This Court will not consider this issue for the first time on appeal since the Court is without a sufficient record to make a fair decision. People v. Wilson (1967), 8 Mich App 651.
Defendant nest contends that it was error to admit Undersheriff Putnam’s testimony regarding the telephone call. The police station to which defend
Defendant argues that the conversation was governed by § 605 of the Federal Communications Act (
We need not discuss
Title III was drafted to delineate a uniform basis for authorizing electronic surveillance in compliance with the standards set forth in
Katz
v.
United States
(1967), 389 US 347 (88 S Ct 507, 19 L Ed 2d 576).
The statute sets forth detailed criteria for courts to follow in authorizing electronic surveillance,
As indicated, an interception occurs when the contents of an oral or wire communication is obtained “through the use of any electronic, mechanical or other device”. This latter phrase is defined to mean:
“(5) * * * any device or apparatus which can be used to intercept a wire or oral communication other than—
“(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, * * * (ii) being used by * * *
an investiga tive or lavo enforcement officer in the ordinary course of his
duties.”
At first glance it would appear that Officer Putnam was using the extension in the ordinary course of his duties and that no interception occurred. A more careful reading of the statute indicates otherwise.
As
We recognize, as the Supreme Court did in
Rathbun, supra,
the importance of extension phones in the telephone communications system. When an extension line exists, a party’s privacy is vulnerable. But we do not believe that a person loses all protection merely because an extension line exists. See
Lee
v.
Florida, supra,
p 381, n 5 (88 S Ct 2098, n 5, 20 L Ed 2d 1170, n 5). We also do not believe the use of a phone with an extension is necessarily a “consent” to an interception. There is nothing in the record which indicates that the defendant should have known someone was listening in. The fact that he was using a phone in a police station should not alter a person’s expected privacy in a phone conversation. The Omnibus Crime Bill is based on Fourth Amendment case law which protects people, not places.
Katz
v.
United States
(1967), 389 US 347 (88 S Ct 507, 19 L Ed 2d 576). Further, the fact that a routine regularly-employed police procedure is involved puts this case closer to
Lee, supra,
than to
Rathbun, supra.
The police claim they were listening to conversations emanating from their headquarters on a regular basis to prevent being charged for long-distance phone calls a prisoner might make without their knowledge. The plain effect, no matter what the intent, is to eavesdrop on all calls emanating from its phones. The interest of the sheriff’s department in limiting expenses can be protected by other procedures. We do not believe the activity
Ordinarily, the fact that no objection to this evidence was raised below would preclude consideration of the question. People v. Camak (1967), 5 Mich App 655. Even when the failure to object is a serious mistake, we will not reverse unless‘- we are convinced a new trial will serve a useful purpose. People v. Mattison (1970), 26 Mich App 453. In making such a decision, the public’s interest in avoiding purposeless trials is balanced against defendant’s right to a fair trial. A new trial will not be ordered unless it appears that a new trial conducted without the mistake in question may well result in acquittal. People v. Degraffenreid (1969), 19 Mich App 702. We believe that an acquittal could result in this case. Defendant’s defense was alibi. His mother gave alibi testimony. Undersheriff Putnam’s testimony went to the credibility of her testimony. In view of the difficulty the jury exhibited in reaching a verdict, a retrial without Mr. Putnam’s testimony could result in a different verdict.
The other issues raised by defendant deal with the jury deliberations, whether the jury was coerced into finding guilty and whether the evidence is sufficient to support the verdict. We need not discuss them.
Reversed and remanded for a new trial.
All concurred.