People v. Fry

• Decision Date: 23 April 1969
• Docket Number: Docket No. 5214,No. 3,3
• Citation: 169 N.W.2d 168,17 Mich.App. 229
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald FRY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 168

169 N.W.2d 168

17 Mich.App. 229

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald FRY, Defendant-Appellant.

Docket No. 5214.

Court of Appeals of Michigan, Division No. 3.

April 23, 1969.

Released for Publication July 29, 1969.

Thomas C. Shearer and Jack M. Bowie, McShane, Bowie & Anderson, Grand Rapids, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, James K. Miller, Pros. Atty., Kent County, Grand Rapids, for plaintiff-appellee.

Before LEVIN, P.J., and HOLBROOK and DANHOF, JJ.

LEVIN, Presiding Judge.

The defendant, Donald Fry, appeals his conviction of larceny in a building. M.C.L.A. § 750.360 (Stat.Ann.1954 Rev. § 28.592). The victim of the larceny, Alden Smith, testified that he admitted to his apartment a person who identified himself as Donald Fry and that, after that person left the apartment, Smith's radio was missing. Smith was acquainted with a Donald Fry.

Smith was unable to identify the defendant because Smith was blind and his hearing was so impaired that he was unable to identify the defendant's voice.

A pawnshop owner testified that the defendant and 2 other persons pawned with him a radio bearing the same model number appearing on a purchase order for Smith's radio. A thumbprint on the pawnshop owner's inventory card for the pawned radio was identified as the defendant's thumbprint. The radio was pawned 2 days after Smith's radio was stolen.

The defendant asserts that the evidence was insufficient to warrant a conviction because there was no evidence showing that he was the person who entered Smith's apartment just before the radio was taken. However, it is well established that the trier of fact may properly infer that one in possession of recently stolen property was the thief. People v. Helcher (1968), 14 Mich.App. 386, 165 N.W.2d 669. ¹

A witness who claimed ability to recognize Smith's radio testified that the pawned radio was Smith's radio. This testimony would support a finding that the radio the defendant pawned was the stolen radio. See Jones v. State (1962), 106 Ga.App. 614, 127 S.E.2d 855.

The people's evidence, if believed by the trier of fact, established that the defendant was in possession of Smith's radio just 2 days after it was taken from his apartment. The fact that such possession may have been shared with 2 other persons, one of whom might have been the thief, does not negate the reasonableness of the permissible inference that the defendant was the thief.

This case differs from Gablick v. People (1879), 40 Mich. 292, relied upon by the defendant. In that case there was no evidence that the defendant had ever had his hands on the stolen property. The stolen property was found in Cablick's room months after it was stolen although a search of that room the day before the stolen property was found had failed to disclose the stolen property. It also appeared that other persons had access to the room during the intervening time.

The cases cited by the defendant where the offense charged was burglary are not in point. There is authority that the unexplained possession of recently stolen property, unaccompanied by other facts or circumstances indicating guilt, will not sustain a conviction of breaking and entering even though such possession is some evidence that the possessor is guilty of theft. See People v. McDonald (1910), 163 Mich. 552, 555, 128 N.W. 737; People v. McDonald (1968), 13 Mich.App. 226, 236, 163 N.W.2d 796. In this case it was not necessary to prove the additional element of breaking and entering and, thus, the question dealt with in the McDonald cases is not here involved.

The defendant asserts that his constitutional right not to incriminate himself ² was violated by reference during the prose-court's closing jury argument to the fact that the defendant had chosen to exercise his constitutional right to remain silent. A police officer testified that when he and a fellow police officer advised the defendant that he was charged with stealing Smith's radio they tried to tell him of his constitutional rights 'and he said he knew his constitutional rights. We didn't have to tell him that, and he wouldn't tell us anything else.' The prosecutor emphasized this testimony during oral argument. ³

The defendant did not take the stand in his own behalf. The trial judge cautioned the jury that, 'No presumption adverse to the defendant is to arise from the mere fact that he does not offer himself as a witness and testify in his own behalf, or that he does not respond to the police officer. That is his constitutional right.'

Courts generally have held that the constitutional privilege against self-incrimination protects an accused person from introduction at trial of evidence that he remained silent or claimed that privilege in the fact of an accusation made after he was taken into custody. ⁴'While, under certain circumstances, the statements of a person in custody may be used in evidence against him, his silence may not.' People v. Gisondi (1967), 9 Mich.App. 289, 294, 156 N.W.2d 601, 604.

In People v. Bigge (1939), 288 Mich. 417, 285 N.W. 5, the conviction was reversed because the prosecutor in his opening statement referred to the fact that the defendant had not responded to an accusation made at a conference held some time before the lodging of formal charges against the defendant (p. 420, 285 N.W. p. 6):

'There can be no such thing as confession of guilt by silent in or out of court. The unanswered allegation by another of the guilt of a defendant is no confession of guilt on the part of the defendant. Defendant, if he heard the statement, was not morally or legally called upon to make denial or suffer his failure to do so to stand as evidence of his guilt. He said nothing, and what was said in his presence by another was inadmissible'.

Similarly, see Templeton v. People (1873), 27 Mich. 501. ⁵

However, in this case, in contrast to the Bigge case, counsel for the defendant Fry did not voice an objection either to the police officer's testimony or to the prosecutor's argument. See Koepel v. St. Joseph Hospital and Medical Center (1968), 381 Mich. 440, 163 N.W.2d 222.

The defendant should not, in our opinion, be granted a new trial because of the introduction of this testimony or the prosecutor's argument based thereon. In Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, rehearing denied 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241, the United States Supreme Court held that adverse comments by the prosecuting attorney regarding the defendant's failure to testify would not necessarily require reversal of a conviction following such comments, and laid down the rule, 'that before a federal constitutional error can be held harmless, the court...