People v. Bradley, Docket No. 20082--6

• Decision Date: 26 August 1975
• Docket Number: Docket No. 20082--6
• Citation: 234 N.W.2d 728,63 Mich.App. 610
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Archie P. BRADLEY et al., Defendants-Appellants. 63 Mich.App. 610, 234 N.W.2d 728
• Court: Court of Appeal of Michigan — District of US

Page 728

234 N.W.2d 728

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Archie P. BRADLEY et al., Defendants-Appellants.

Docket No. 20082--6.

63 Mich.App. 610, 234 N.W.2d 728

Court of Appeals of Michigan.

Aug. 26, 1975.

Released for Publication Nov. 12, 1975.

[63 MICHAPP 612] Benson, Sabin & Bloomquist, P.C. by David R. Sabin, Grayling, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert A. Hess, Pros. Atty., Roscommon, for plaintiff-appellee.

Before D. E. HOLBROOK, P.J., and BRONSON and KELLY, JJ.

KELLY, Judge.

The interesting question presented in this appeal is: to what extent may participants in an illegal trespass be found guilty of crimes committed by some of the trespassers absent specific identification. In this case 100 to 120 persons, more or less, participated in a trespass which resulted in vandalism, malicious destruction of private property and arson. These five appellants were among seven defendants arrested at the scene of the criminal activity, a school construction[63 MICHAPP 613] site in Rescommon County and later convicted by a jury of two counts of arson. ¹ Two defendants did not appeal.

Appellants admit that arson was committed but contend that there was no evidence connecting them to the arson and they cannot be found guilty by association. We are compelled to agree.

It is clear from the record that the defendants were picked up when the sheriff arrived at the site because of their obvious illegal trespass. By the time the sheriff arrived on the scene most of the other participants had departed. The defendants were apprehended as they attempted to scatter in different vehicles. They were all booked together and tried together on the charge of arson. There was no eyewitness testimony differentiating any of these defendants from any of the other trespassers at the scene. In other words, the theory of the prosecution was that these defendants and all of the illegal trespassers were accessories to the crime of arson and all were guilty of aiding, counseling, inducing, persuading or procuring another to do such act ² and therefore were guilty as principals. In fact, the people argue that the situation is analogous to a conspiracy and that a conspiracy may be proven by circumstantial evidence, citing People v. Sobczak, 344 Mich. 465, 469, 73 N.W.2d 921 (1955). However the defendants in this case were not charged with conspiracy; they were charged with arson.

The evidence offered in support of the people's case, absent eyewitness testimony, was necessarily circumstantial. Of the five appellants there was absolutely no circumstantial evidence as to one (Smith) connecting him, his clothing, any smell or other item to the transaction except the testimony [63 MICHAPP 614] of a witness that he (Smith) was at the gate waving traffic on. Other witnesses testified that the fires could not even be seen from the gate. From the gate to the buildings it was about an eighth of a mile and trees blocked the view. Two of the defendants (Parson and Sorenson) smelled of fuel oil when they were apprehended and when they were booked. One defendant's (Griswold's) fingerprints were found on two beer cans near a cut telephone wire. All five defendants were apprehended in automobiles at the scene. All save Smith were apprehended in a Plymouth station wagon as it was attempting to leave the compound. The sheriff's vehicle was pulled across the road blocking the exit-entrance of the site. This was the route that ran to Oakwood Avenue and the sheriff testified:

'Q. Did you see any other cars?

'A. Yes. I seen numerous cars out on Oakwood Avenue.'

Defendant Smith was apprehended at the same palce at the wheel of another vehicle. There were two others in that car who were not arrested:

'Q. And is there any reason at this time why only one of the three men was arrested?

'A. (By the sheriff.) Well, Butler advised us that the driver was the only one that had gotten out of the car at the site.'

Both parties agree that the test in this situation is whether reasonable inferences have been drawn from the direct and circumstantial evidence, People v. Spann, 3 Mich.App. 444, 142 N.W.2d 887 [63 MICHAPP 615] (1966), Lv. den., 378 Mich. 744 (s966), People v. Boynton, 46 Mich.App. 748, 208 N.W.2d 523 (1973).

The defendants rely on People v. Davenport, 39 Mich.App. 252, 197 N.W.2d 521 (1972), urging that not only must the prosecutor negate any theory of innocence that would explain these facts, but that any inferences drawn must follow as a compelling certainty from the circumstantial evidence. The people's testimony showed that the defendants were dressed as construction workers. On cross-examination the witnesses conceded that the aroma of fuel oil stated to be on two of the defendants could have come from the construction work which the defendants were engaged in. Furthermore, it was likewise brought out on cross-examination that the aroma of fuel oil could have stuck to the clothing and persons of these defendants from merely being in the vicinity of uncovered fuel oil. This fuel oil aroma is the strongest evidence that the prosecution presented and it applied to only two of these five defendants. As we have said, there was no evidence regarding Smith other than his mere presence. As to one of the other defendants the nexus was fingerprints on two beer cans.

We believe that the jurors may have convicted because they found that the evidence showed the defendants had the opportunity to commit the arson. Mere opportunity is not enough. People v. Besonen, 4 Mich.App. 131, 144 N.W.2d 653 (1966).

In the leading arson circumstantial evidence case dealt with by this Court, we held that inference could be piled upon inference so long as the cumulative effect of the evidence proved guilt beyond a reasonable doubt. People v. Horowitz, 37 Mich.App. 151, 194 N.W.2d 375 (1971), Lv. den., 387 Mich. 753 (1972), relying on Dirring v. United States, 328 F.2d 512 (C.A. 1, 1964), Cert. den., 377 U.S. [63 MICHAPP 616] 1003, 84 S.Ct. 1939, 12 L.Ed.2d 1052 (1964), Reh. den., 379 U.S. 874, 85 S.Ct. 27, 13 L.Ed.2d 83 (1964).

To constitute criminal arson in Michigan both the fact of burning and the fact that the particular defendant caused the burning either by his own hand or by aiding and abetting must be established. M.C.L.A. § 750.71; M.S.A. § 28.266, M.C.L.A. § 750.72; M.S.A. § 28.267, M.C.L.A. § 750.74; M.S.A. § 28.269; People v. Rabin, 317 Mich. 654, 27 N.W.2d 126 (1947).

In this case from 100--120 persons were at the scene as conceded by the people. Statistically, if there were seven or eight fires, depending upon how many participants to each fire, there would seem somewhat less of a possibility that these defendants each aided and abetted or participated in setting a fire than otherwise. We are constrained to believe that either the evidence is sufficient to show each member of the group of 100 to 120 persons guilty of the arson, or the circumstantial evidence linking these defendants to the setting of fires or the aiding and abetting of the setting of the fires, has broken links in the chain. There is no evidence of a conspiracy; there is no evidence to indicate a plan on the part of the group to commit arson; while the evidence shows ample opportunity, that is not enough to convict. The defendants moved for a directed verdict at the close of the people's case and the trial court made the following observations:

'The Court: The Court has heard the arguments of counsel with respect to their motions.

'I might say, in my short term as judge, this is probably one of the weakest cases I have heard, but the prosecutor has had a lot of problems with this case.

'I am going to say what I am going to deny the motions, but I am saying for the record that perhaps I am wrong there and I don't want you to feel that I am [63 MICHAPP 617] passing the buck, that I don't want to make a decision, but I do feel that this is a matter for the jury.

'I think Mr. Barris' points are very good and that this is a borderline case and that the Court has got to grant a motion for a directed verdict.

'I might say to the defendants, Mr. Smith particularly, the proofs are such that I am real close to granting the motion for a directed verdict, but I am not going to do that. You also heard the testimony here.

'I believe the testimony of one witness, Michael Butler, is enough to send this case to the jury.

'It is the ruling of the Court that the motions are denied by the Court as to all defendants which now brings us to the defense of this case.

'Shall we call the jury back?'

Michael Butler was the people's chief witness. He lived approximately 120 feet from the entrance driveway to the construction site. When he saw an abnormal number of cars going into the construction site he called the sheriff's department by phone and 'notified them there might be something happening or some disturbance'. He continued to observe from his house and his observations were as to occurrences at the gate or entrance way into the construction compound. His testimony went to the identification of persons present at the scene but it was a physical impossibility for his observations to extend to the various fires. After the fires had been started, he could see smoke, but he was a long distance from the actual burning and the view was blocked.

In his opening statement the prosecutor said:

'It is not a clear case because of circumstantial evidence. We will have four or five people that were inside this site and it all points to the defendants and say that these men lighted the match to burn these particular articles.'

[63 MICHAPP 618] If the prosecutor had such testimony in mind during his opening statement, he was unable to produce it at trial.

We believe that the trial court's expressed apprehensions were correct and that under the circumstances a directed verdict of not guilty based upon the proofs adduced at trial should...