Lambiotte v. State

Scanlan, J., delivered the opinion of the Court. Following a jury trial in the Circuit Court for Montgomery County before Judge H. Ealph Miller, the appellant, Jules Melchoir Lambiotte, Jr., was convicted on the ⁵⁴⁷ first two counts of a three-count indictment. He was found guilty of (1) storehouse breaking and stealing goods of the value of $5.00, and (2) storehouse breaking with intent to steal goods over the value of $100.00. Appellant was acquitted under a third count charging him with grand larceny.

Judge Miller imposed a general sentence of five years covering both convictions. He then suspended the sentence, placed the appellant on supervised probation for a period of four years and ordered him to undergo psychiatric treatment at his own expense. Appellant raised a number of objections to the proceedings in the trial court and again presses those contentions on his appeal. One of these is his claim that the trial court erred in permitting the State to argue, and the jury to consider, that the appellant’s possession of two checks allegedly stolen from premises which were broken into raises the inference that the appellant was the thief who took office equipment stolen from those same premises at the time of the break-in.

For reasons to be stated, we find that the inference which usually arises from the possession of recently stolen property was not established on the facts of this case, in that the State did not present sufficient evidence to show that the checks had been taken at the same time the office equipment was stolen. We, therefore, reverse and remand the case for a new trial. Accordingly, we do not consider the remaining contentions raised by the appellant. 1 THE FACTS Hope’s Windows is an affiliate of Roblin-Hope’s Industries, Inc., of Buffalo, New York. The local office is ⁵⁴⁸ located at 11900 Tech Road, Silver Spring, Maryland.

At trial, F. Philip Trusso, the district manager of Hope’s Windows, testified that he locked the Silver Spring premises at approximately 5:00 p.m., Friday, November 26, 1971. When he returned to work the next Monday morning, November 29, 1971, he was advised by one of his employees that certain office equipment in the main office was missing. Trusso then discovered that a pane of the window in his office had been broken. When he left work on Friday, the window glass was in place.

The evidence also showed that the burglars had gained access to the main office through the door between that office and Trusso’s. The office equipment stolen from Hope’s Windows included two electric typewriters, one calculator, two transcribers, three dictating machines, one electric adding machine and one manual adding machine. Collectively, the equipment had a value of approximately $4100.00. Trusso identified the appellant as a person who had worked for Hope’s Windows for five or six months.

This period of employment ended on June 3, 1971, over five months before the theft. During his employment at Hope’s Windows, the appellant assembled windows in the warehouse and outdoors. The warehouse is located upstairs above the district manager’s office. The checkbook from which employees’ payroll checks are made up was kept in a desk drawer in the district manager’s office.

Trusso and one other employee, a Mr. Winfield, had authority to sign checks for Hope’s Windows. During the course of Mr. Trusso’s direct examination, the following occurred: “MR. CRAVEN: Where were the checks kept from out of which these employees were paid? “MR. JACQUES: Objection. “THE COURT: Overruled. ⁵⁴⁹ “THE WITNESS: My desk drawer. “BY MR.

CRAVEN: Q And when was that checkbook taken out by anyone, if you know? “MR. JACQUES: Objection, Your Honor. “BY MR. CRAVEN: Q I mean in the course of your business? Overruled. “THE COURT: It happened on the weekend after the Friday. “THE WITNESS: / withdraw the question, and I will ask another question. “MR.

CRAVEN: All right.” (Emphasis added.) 2 ‘THE COURT: Subsequently, Mr. Trusso testified that the checkbook was in his desk the last time he was in his office before the theft. Trusso then testified that the fact that 12 checks and their accompanying check stubs were missing from the checkbook was not discovered until the Wednesday following the break-in. The following then ensued: “BY MR. CRAVEN: Q And how far, up to what numbered check did that book go at that time, if you know? “MR.

JACQUES: Objection, Your Honor. “THE COURT: Overruled. ⁵⁵⁰ “THE WITNESS: Well, that particular checkbook goes to eleven hundred and thirty-two. “BY MR. CRAVEN: Q And did there come a time when you noticed something unusual about that checkbook? “MR. JACQUES: Objection, Your Honor. “THE COURT: Overruled. “THE WITNESS: Yes, since we order our checkbooks ahead of time, on Wednesday morning, that is two days after the robbery, we were aware of the robbery, and I asked Mrs. Morrison to check the new checkbook to be taken out to make certain that the number— the sequences were identical so we would have no gap from one checkbook to the other, and at that point she came back to me and said— “MR. JACQUES: Objection. “BY MR.

CRAVEN: Q Don’t tell us what she said. What did you observe if anything about the new book and the old book? “MR. JACQUES: Objection, Your Honor. The new book is irrele ⁵⁵¹ vant to these proceedings. “THE COURT: Objection sustained.

I mean, just go ahead and get right down to what you are after. Objection sustained. “MR. CRAVEN: If Your Honor please, I have a proffer as to the relevancy. “THE COURT: Come up to the bench and make It. (Whereupon, a discussion was held at the bench outside the hearing of the jury as follows:) “THE COURT: Why don’t you just ask Mm did anything happen to the checkbook during the break-in; what happened to it? “MR.

CRAVEN: I think that the numbers on these show that certain checks were missing. “THE COURT: Well, ask him if after the break-in if he checked his checkbook; were there any checks missing. Why go ahead in this way? You can object all you want, Mr. Jacques. All right.

You got a right to object to any question. (Whereupon, a discussion held at the bench ⁵⁵² outside the hearing of the jury was concluded.) “BY MR. CRAVEN: Q Mr. Trusso, after the break-in at Hope’s Windows, what if anything unusual did you notice about the checks that had been in your drawer? “MR. JACQUES: Objection, Your Honor. “THE COURT: Overruled. “THE WITNESS: We had assumed that the checkbook was incomplete because the checks ended at eleven twenty, and the new checks started at eleven thirty three, so we immediately contacted the bank and wondered why this had occurred because I would have to explain to our home office the difference between eleven twenty and eleven thirty-three, and we more less accused the bank that they had sent us a checkbook that was incomplete.

It never dawned on us that twelve checks had been taken out. “BY MR. CRAVEN: Q I show you Exhibit 2 and 3 and ask you if you recognize those? ⁵⁵³ “MR. JACQUES: Objection. “THE COURT: Overruled. “THE WITNESS: I recognize these checks because they were shown to me by I believe it was the bank at the time they were trying to verify whether that signature “BY MR. CRAVEN: Q I see.

If you know, where were those two checks prior to your place of business being broken into ? “MR. JACQUES: Objection, Your Honor. “THE COURT: Overruled. If you know. “THE WITNESS: I can only assume that they were in the checkbook. “MR. JACQUES: Your Honor, I move that the answer be striken. “THE COURT: The jury will disregard that. “BY MR.

CRAVEN: Q What was the highest number in that checkbook when you first saw it after the break-in? “MR. JACQUES: Objection, Your Honor. “THE COURT: Overruled. “THE WITNESS: Probably about — I’m just guessing; about eleven ten. ⁵⁵⁴ ‘BY MR. CRAVEN: Q Well, don’t guess, do you remember. “MR. JACQUES: Objection.

Move it be striken. “THE WITNESS: No, I don’t remember. “THE COURT: The jury will disregard that. The witness is not permitted to guess.” (Emphasis added.) Two bank teller clerks, one from the Eastover branch and the other from the Suitland branch of the Suburban Trust Company bank, testified that on the day following the break-in, a man fitting the appellant’s description had cashed two checks at their respective branches. Both checks were made payable to the appellant and were drawn on Hope’s Windows. Through the testimony of an agent of the Federal Bureau of Investigation, the State showed that the appellant had forged the signature of the drawer on the two checks.

A detective sergeant of the Montgomery County Police Department testified for the prosecution. He stated that he had interviewed the appellant and that the latter, after having been advised of his Miranda rights, stated “that it was a stupid trick . . . .” On cross examination, this police officer testified that when the appellant said “that it was a stupid trick,” he was referring to the check cashing episodes. The witness continued: “I never . . . got to question him regarding the burglary, but he never did make a statement regarding the burglary.” After the State rested, the appellant moved for. a judgment of acquittal, which was denied. The appellant offered no evidence, rested and renewed his motion.

Once more, it was denied. One of the grounds assigned in support of the motion was the improper application of the inference that, because on the day following a break-in theft of office machinery Appellant was found in pos ⁵⁵⁵ session of checks taken from Hope’s Windows, it may be inferred that he was the thief who broke in and stole office equipment from the same premises. IT WAS ERROR TO HAVE PERMITTED THE STATE TO ARGUE AND THE JURY TO CONSIDER THAT APPELLANT’S POSSESSION OF THE CHECKS RAISED AN INFERENCE THAT HE WAS THE THIEF WHO STOLE THE OFFICE MACHINERY Throughout the proceedings below the State maintained that the appellant’s possession of two checks taken from Hope’s Windows was sufficient to raise the inference that he was the burglar who broke in and stole the office equipment from the same place. The trial court agreed with that position and specifically instructed the jury “that the possession of recently stolen goods by the defendant may give rise to the inference of fact that the possessor was the thief and may also give rise [to] and support an inference that the possessor of recently stolen goods was a principal in the breaking of the storehouse.” From the beginning to the end of the trial, the appellant objected to any application of the inference arising from the possession of recently stolen property.

The precise grounds on which appellant relied in arguing against applicability of the inference were two. First, he claimed that before the inference can be drawn it must be alleged in the indictment that the goods found in the appellant’s possession were stolen, and no such allegation was set forth in the indictment. Secondly, the appellant maintained that his constitutional right not to incriminate himself was violated, in that in order to explain how he came into possession of the checks he would be forced to incriminate himself on charges of forging and uttering the two checks which he passed in Prince George’s County the day after the robbery at Hope’s Windows. We find no merit in these two arguments. ⁵⁵⁶ Whatever the rule in other jurisdictions, 3 it is settled in Maryland that the exclusive possession of recently stolen property “permits the drawing of an inference of fact strong enough to sustain a conviction that the possessor was the thief, or, if the circumstances revealed by the testimony so indicate, that he was the receiver of stolen goods.” Anglin v. State, 244 Md. 652, 656 , 224 A. 2d 668 (1966), cert. denied 386 U. S. 947 (1967).

This Court frequently has applied the rule that a person found in possession of property recently stolen in a burglary may be inferred to be the burglar. Middleton v. State, 10 Md. App. 18, 27 , 267 A. 2d 759 (1970); Burkett v. State, 5 Md. App. 211, 217, 218 , 245 A. 2d 911 (1968); Allen v. State, 2 Md. App. 740, 745 , 237 A. 2d 90 (1968). Therefore, if the State had shown that the two checks which the appellant cashed were stolen at the time Hope’s Windows was broken into and office equipment taken, we would have no hesitancy in again applying the rule that appellant’s exclusive possession of stolen property soon after it had been stolen was prima facie evidence of guilt and cast upon him the burden of explaining such possession, and if unexplained, would be sufficient in itself to sustain his conviction for storehouse breaking and stealing. Boswell v. State, supra at 576.

In such a case, the fact that the indictment failed to allege that checks as well as office machinery had been stolen would be of no consequence. Mason v. State, 321 S.W.2d 591, 593 (Tex. Crim. App. 1959).

Similarly, there is no substance to the appellant’s contention that requiring him to rebut the inference of ⁵⁵⁷ fact which arises by virtue of his possession of recently stolen property transgresses upon his constitutional right not to incriminate himself. That very issue was presented and disposed of in Anglin v. State, supra. Speaking through Chief Judge Hammond, the Court of Appeals upheld the constitutionality of the rule which permits the factual inference of guilt to be drawn from the possession of recently stolen property. Id. at 658-663; and see Yee Hem v. United States, 268 U. S. 178 (1925); United States v. Gainey, 380 U. S. 63 (1965); State v. Young, 217 So. 2d 567, 571 (Fla. 1968).

Indeed, appellant’s argument that the inference of fact which arises from the possession of recently stolen property impairs self-incrimination rights — if logically projected —would require the conclusion that the State should not be permitted to produce any evidence creating an inference of fact unfavorable to an accused, for, in such circumstances, he would be theoretically exposed to a Hobson’s choice of either testifying in