Palmer v. State

• Decision Date: 19 December 1975
• Docket Number: No. X--225,X--225
• Citation: 323 So.2d 612
• Parties: Franklin D. PALMER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 612

323 So.2d 612

Franklin D. PALMER, Appellant, v. STATE of Florida, Appellee.

No. X--225.

District Court of Appeal of Florida, First District.

Dec. 19, 1975.

Richard W. Ervin, III, Public Defender, and David J. Busch, Asst. Public Defender, for appellant.

Robert L. Shevin, Atty. Gen., and A. S. Johnston, Asst. Atty. Gen., for appellee.

SMITH, Judge.

When apprehended appellant was driving an automobile carrying two companions and, on the rear floorboard and seat and in the trunk, fishing tackle, cigarettes and beer which had been stolen that night from Libby's Bait Shop at Southport in Bay County. Appellant was granted a trial separate from his companions because one of them, when taken in custody, made an explanatory statement incriminating appellant as well as himself and the other gave an explanation incriminating in its improbability. Convicted of entering without breaking with intent to commit a felony, appellant complains on appeal of the trial court's charge that the jury might infer guilt from his unexplained possession of recently stolen goods.

It is far too late in the day to doubt that the unexplained possession of stolen goods soon after the theft gives rise to an inference that those in possession are the thieves. As Mr. Justice Roberts stated for the Court in State v. Young, 217 So.2d 567 (Fla.1968), cert. den. 396 U.S. 853, 90 S.Ct. 112, 24 L.Ed.2d 101 that inference was formally recognized in Florida before Young v. State, 24 Fla. 147, 3 So. 881 (1888), and in the common law before Regina v. Langmead, 169 Eng.Rep. 1459 (Cr.Cas.1864).

Appellant argues that no presumption of guilt could arise against him because he was not in exclusive possession of the stolen goods, Solomon v. State, 145 So.2d 492 (Fla.App.2d, 1962), cert. den. Fla., 155 So.2d 151 (1963), Cone v. State, 69 So.2d 175 (Fla.1954), nor was his possession of the car and its contents, jointly with his passengers, accompanied by personal knowledge of the stolen goods and the ability to control them. See, e.g., Frank v. State, 199 So.2d 117 (Fla.App.1st, 1967) and Harris v. State, 307 So.2d 218 (Fla.App.3d, 1975). In the absence of evidence to the contrary, appellant urges that he didn't place the stolen goods in the car or see them placed there, that the goods must have been placed there while appellant slept a drunken sleep on the front seat, that appellant did not see and could not conveniently see any of the goods from the driver's seat, and that he drove the car only to accommodate the owner, a companion with an injured foot.

The visibility of stolen goods to anyone who looked in the rear seat and appellant's control of the car while driving are persuasive that appellant knew of and was able to control the stolen goods. But the necessary proof need not be derived solely from the automobile. There is other evidence that appellant acted in concert with his companions, the only other likely handlers of the stolen property. The three spent most of the day driving and drinking together. Libby's Bait Shop, where the goods were stolen, is next door to the Seahorse Lounge where appellant and his companions drank late into the night. At intervals each of the three stepped out of and then returned to the barroom. When finally they drove away, the suspicious bartender discovered that Libby's had been broken, entered and pillaged. Proof of those circumstances tended to show that the goods carried away in the car were not merely in the possession of the member of the party most likely to have placed them there but were rather under the knowing dominion of all three jointly. Cameron v. State, 112 So.2d 864 (Fla.App.1st, 1959); State v. Chase, 444 S.W.2d 398 (Mo.1969); Gilley v. State, 227 Ind. 701, 88 N.E.2d 759 (1949); Flamer v. State, 227 A.2d 123 (Del.1967); 1 Wharton, Criminal Evidence § 139, n. 38 (13th ed., 1974 Supp.); Annot., 51 A.L.R.3d 727, 752 (1973). The Frank and Harris decisions relied on by appellant are thus distinguished, as is the similar decision in Lockett v. State, 262 So.2d 253 (Fla.App.4th, 1972).

There was evidence, then, from which the jury could have concluded that appellant possessed the recently stolen property and so likely was the thief or one of them. State v. Young, 217 So.2d at 571:

'It can be seen, therefore, that the rule of evidence respecting possession of recently stolen goods is no different, in kind, from the rule respecting the probative value of any other circumstantial evidence. Flight, concealment, resistance to a lawful arrest, presence at the scene of the crime, incriminating fingerprints--the whole body of circumstantial evidence relevant in a given case--are all incriminating circumstances which the jury may consider as tending to show guilt if evidence thereof is allowed to go to the jury unexplained or unrebutted by evidence of exculpatory facts and circumstances.'

The issue at hand is not precisely whether the trial judge in ruling on an acquittal motion and the jury in deliberating upon its verdict were entitled to reflect on the inference that appellant is the thief. On the evidence as well as in contemplation of the law, that inference arises inexorably 'from the reason and experience and common understanding of men' (Young, 217 So.2d at 571), and it would be as frivolous to obstruct the natural effect of the proof as to command the arrest of the sun. The particular issue before us, however, is whether the inference is a proper subject of comment by the trial judge and whether the charge in this case was properly given over objection: ¹

'I charge you further that with reference to the possession of recently stolen goods, that where it is shown beyond a reasonable doubt that a building has been entered and property stolen from it and soon thereafter the property is found in possession of the person charged with entering the building with an intent to steal, Such possession unexplained, or if explained is by an explanation so unreasonable and incredible that the jury finds it unworthy of belief, may warrant the jury to infer guilt of the crime of entering the building with intent to steal. The guilt of the defendant does not follow as a presumption or conclusion of law from the unexplained possession of the property recently stolen, but an inference of guilt as a matter of fact may be drawn therefrom by the jury to be considered by them in connection with all other evidence' (emphasis added).

If the propriety of such an instruction were a fresh issue today, we might doubt that sensible jurors need telling of an inference that is said to arise unaided from their own reason, experience and common understanding. And if the evidence is such that the inference has not occurred to the jury after argument of counsel, we might doubt that it is the trial judge's business to summon up the inference either by a wink and nod or by an overt instruction. ² But the giving of such a charge in a proper case was approved long ago, 2 Wharton, Evidence in Criminal Issues, § 758, at 1509--11 (10th ed., 1912), ³ and recently. Romanello v. State, 160 So.2d 529 (Fla.App.1st, 1964), cert. den. 381 U.S. 915, 85 S.Ct. 1541, 14 L.Ed.2d 436; McClain v. State, 185 So.2d 707 (Fla.App.2d, 1966), cert. den. 192 So.2d 498 (Fla.1966); State v. Young, supra.

Although the formulation of the inference remains much as stated in the trial court's charge in this case, its rationale has been remarkably transformed in response to Fifth Amendment pressures. Formerly all emphasis was on the accused's duty to explain satisfactorily how he came honestly by the stolen goods. See Leslie v. State, 35 Fla. 171, 17 So. 555 (1895); Collier v. State, 55 Fla. 7, 45 So. 752 (1908); McDonald v. State, 56 Fla. 74, 47 So. 485 (1908); Bargesser v. State, 95 Fla. 401, 116 So. 11 (1928); Ferguson v. State, 157 Fla. 324, 25 So.2d 799 (1946). If his explanation was 'reasonable and credible,' the State was said to have a 'duty' to disprove it. Collier, 55 Fla. at 10, 45 So. at 753; McDonald, 56 Fla. at 79, 47 So. at 486. But recognizing now that the accused has the absolute right to remain silent both at trial ⁴ and in custody, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), we do not permit the prosecutor to exact a penalty by calling up an inference of guilt from the accused's silence while in custody, as by rhetorically questioning the arresting officer about the accused's failure when arrested to explain his possession of stolen goods. Miranda v. Arizona, 384 U.S. at 468, 86 S.Ct. at 1625, 16 L.Ed.2d at 720, n. 37; State v. Young, 217 So.2d at 570 (Fla.1968) (dictum); People v. Masters, 30 A.D.2d 723, 291 N.Y.S.2d 230 (1968), citing People v. Travato, 309 N.Y. 382, 131 N.E.2d 557 (1955). ⁵

Because of Fifth Amendment considerations, the District Court of Appeal, Fourth District, held in its Young decision, 203 So.2d 650 (Fla.App.4th, 1967), rev'd 217 So.2d 567 (Fla.1968), that charging the jury on the inference of guilt is no longer constitutionally permissible. Accord, Gamble v. State, 210 So.2d 238 (Fla.App.2d, 1968), cert. dism. Fla., 225 So.2d 910 (Fla.1969); Urquhart v. State, 211 So.2d 79 (Fla.App.2d, 1968); Carpenter v. State, 213 So.2d 738 (Fla.App.2d, 1968), rev'd 222 So.2d 194 (Fla.1969). Contra, Shaw v. State, 209 So.2d 477 (Fla.App.1st, 1968), cert. dism. 218 So.2d 168 (Fla.1968).

The Supreme Court, over the dissent of three justices who wished to infer guilt from possession and to excise all reference to the accused's explanation or the lack of it, sought in Young to preserve the formulation based on 'unexplained possession of goods recently stolen' while avoiding the implication that the accused has, at any time, a duty to explain. Thus, although unexplained possession of recently stolen goods is the triggering circumstance, the resulting inference of guilt was said to arise not from the accused's failure to explain his possession of stolen goods, not from the fact of 'unexplained...