People v. Orsie

• Decision Date: 08 May 1978
• Docket Number: Docket No. 30864
• Citation: 83 Mich.App. 42,268 N.W.2d 278
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Billy Joe ORSIE, Defendant-Appellant. 83 Mich.App. 42, 268 N.W.2d 278
• Court: Court of Appeal of Michigan — District of US

Page 278

268 N.W.2d 278

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Billy Joe ORSIE, Defendant-Appellant.

Docket No. 30864.

83 Mich.App. 42, 268 N.W.2d 278

Court of Appeals of Michigan.

May 8, 1978.

Released for Publication Aug. 1, 1978.

[83 MICHAPP 44] James R. Neuhard, State App. Defender, Kathleen M. Cummins, Asst. State App. Defender, for defendant-appellant.

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

Before WALSH, P. J., and MAHER and BEASLEY, JJ.

BEASLEY, Judge.

Defendant, Billie Joe Orsie, was convicted by a jury, under count one, of attempting to break or enter a safe with intent to commit larceny in violation of M.C.L. § 750.531; M.S.A. § 28.799 and, under count two, of wilfully or maliciously burning a building in violation of M.C.L. § 750.73; M.S.A. § 28.268. Under count one, he was sentenced to not less than ten nor more than 15 years in prison and, under count two, he was sentenced to not less than six years eight months nor more than ten years, the sentences to run concurrently. He appeals as of right, raising two issues which he claims require reversal.

First, defendant claims there was no sufficient foundation upon which to admit tracking-dog evidence. In accordance with the majority view, Michigan admits tracking-dog evidence. ¹ But, four conditions precedent must be satisfied before such evidence is admitted. They are: 1) it is necessary to show that the handler is qualified to handle the dog; 2) it must be shown that the dog was trained and accurate in tracking humans; 3) it is necessary [83 MICHAPP 45] to show that the dog was placed on the trail where circumstances indicate that the culprit was; and 4) it is necessary to show that the trail had not become stale when the tracking occurred. ²

Defendant claims foundation was lacking as to the dog's training and accuracy in tracking humans.

Review of the record tends to support defendant's assertion. However, no objection was made at trial by defendant respecting the qualifications of either the tracking dog or his owner-trainer. We are, therefore, left without evidence concerning the experience of the tracking dog and his owner-trainer. Since no objection was made, perhaps defense counsel was satisfied as to their qualifications and, thus, waived his right to object.

Failure to object to admission of evidence precludes appellate review; the question is deemed not preserved for appellate review. ³

Under M.C.L. § 769.26; M.S.A. § 28.1096, improper admission of evidence is not a basis for reversing or granting a new trial unless "after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice". In this case, there was not any manifest injustice in admitting the tracking-dog evidence. The testimony indicated that the officer could visually follow the tracks in the snow of shoes similar to those worn by defendant. The shoes left a distinctive print in the snow which was fully described in the testimony. The trail led from the location of the crime to the basement of an apartment building where defendant was apprehended hidden on a ledge. Thus, while the tracking-dog evidence may be described as cumulative,[83 MICHAPP 46] its addition to the overwhelming proofs against defendant did not constitute a miscarriage of justice.

Defendant also claims that the circumstantial evidence used to convict him constituted piling inference on inference based on the same evidence.

In support, defendant cites People v. Atley. ⁴ As indicated in Atley, ⁵ the "no inference upon an inference" doctrine is a difficult concept at best.

In Atley, supra, the court continues to pay lip service to the now generally discredited "no inference upon an inference" terminology. Indication of the ill repute in which this doctrine is held, is the following from Wigmore on Evidence: ⁶

"It was once suggested that an 'inference upon an inference' will not be permitted, i. e. that a fact desired to be used circumstantially must itself be established by testimonial evidence; and this suggestion has been repeated by several Courts, and sometimes actually enforced." (Footnotes omitted.)

"There is no such orthodox rule; nor can be. If there were, hardly a single trial could be adequately prosecuted. * * * In these and innumerable daily instances we build up inference upon inference, and yet no Court (until in very modern times) ever thought of forbidding it."

A similar view is expressed in People v. Eaves, ⁷ citing with approval. 5 A.L.R.3rd 104-105, which states:

"The discussion of the legal effects of presumptions and inferences has evoked perhaps as much cloudy [83 MICHAPP 47] thinking and confusion of terminology as any other area of the law.

* * *dis

"The origin of the so-called rules against basing an inference upon an inference or a presumption upon a presumption is obscure, but statements and applications thereof appeared early in the reports and, despite the almost unanimous criticisms of legal scholars and of those courts which have gone into the matter at any length, the 'rules' have shown amazing vitality, * * *." (Footnotes omitted.)

In Atley, a jury convicted defendant of three counts; one, conspiracy to sell marijuana, two, unlawful possession of marijuana, and three, unlawful control of marijuana. The trial judge vacated and dismissed the convictions for unlawful possession and unlawful control of marijuana and reduced the sentence on the conspiracy conviction. The Supreme Court reversed the conviction saying it was not "a fair inference" to infer the ultimate fact of conspiracy to sell from joint acquisition. ⁸ The underlying theory of the cases that use the no inference on an inference terminology is well and accurately stated in People v. Helcher, ⁹ which cites an often quoted Indiana case as follows:

" 'What is actually meant by the statement found in many cases, that an inference cannot be based upon an inference, is that an inference cannot be based upon evidence which is uncertain or speculative or which raises merely a conjecture or possibility.' Shutt v. State (1954), 233 Ind. 169, 117 N.E.2d 892, 894, quoted approvingly in People v. Eaves (1966), 4 Mich.App. 457, 145 N.W.2d 260." (Footnote omitted.)

Similarly, while we exercise the caution suggested [83 MICHAPP 48] in the Atley footnote, ¹⁰ we find the statement in the federal case of Dirring v. United States ¹¹ clear and instructive "The defendant cautions us against 'piling inference upon inference.' As interpreted by the defendant this means that a conviction could rarely be justified by circumstantial evidence (citation omitted.) The rule is not that an inference, no matter how reasonable, is to be rejected if it, in turn, depends upon another reasonable inference; rather the question is merely whether the total evidence, including reasonable inferences, when put together is sufficient to warrant a jury to conclude that defendant is guilty beyond a reasonable doubt. (Citations omitted.) If enough pieces of a jigsaw puzzle fit together the subject may be identified even though some pieces are lacking. Reviewing the evidence in this case as a whole, we think the jury was warranted in finding beyond a reasonable doubt the picture of defendant Dirring."

In short, we express a preference for abandoning the no inference upon an inference terminology because we believe it to be misleading and uncertain of meaning. There is nothing inherently wrong or erroneous in basing a valid inference upon a valid inference. In so indicating, we do not consider that we are acting contrary to precedents established by the Supreme Court which are, of course, binding; on the contrary, we are consistent with the substance of those decisions.

In this case, no objections were made by defendant at trial to the circumstantial evidence that convinced the jury of his guilt. Neither does defendant claim on appeal that objections should have been made at trial and sustained by the trial [83 MICHAPP 49] court. No motion for directed verdict was made by defendant at trial, either on completion of the prosecutor's proofs or subsequent to both sides resting. No request was made for a jury instruction advising the jury that they were not permitted to pile one inference upon another. Neither was objection made in the trial court to the trial court's instruction to the jury.

As this court indicated in People v. Horowitz, ¹² most arson cases are based upon circumstantial evidence. In affirming a conviction in Horowitz, this court said:

"As evidence bearing upon the opportunity and motive of defendants to set the blaze, the prosecutor introduced the following facts: that the building was secured from the outside and there was no evidence of a breaking-in; that defendants were on the premises not long before the conflagration began; that it would have been easy for defendants to set the fire, although not physically present, by means of a timing device; that defendants owed three months rent; that they were indebted to the Michigan Department of Revenue for sales tax; that defendants owed $650 to the gas company; and that defendants carried $40,000 in fire insurance."

Stated simply, the issue here is: was the circumstantial evidence sufficient for the jury to find defendant guilty beyond a reasonable doubt? In this case, the evidence indicates that a police officer saw smoke coming out of a ventilation duct in a Kentucky Fried Chicken building near Sturgis sometime shortly before 5:00 a. m. on January 15, 1976; that firemen and the assistant manager of the building were called; that the building had been secured around 9:20 the previous night; that [83 MICHAPP 50] a window had been broken during the night; that the store safe had been moved and damaged; that money was missing from the safe, and that there was substantial fire damage to the premises. The evidence also...