People v. Parks

• Decision Date: 27 January 1975
• Docket Number: No. 2,Docket No. 18127,2
• Citation: 226 N.W.2d 710,57 Mich.App. 738
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Norman Robert PARKS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 710

226 N.W.2d 710

57 Mich.App. 738

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Norman Robert PARKS, Defendant-Appellant.

Docket No. 18127.

Court of Appeals of Michigan, Division No. 2.

Jan. 27, 1975.

Released for Publication March 19, 1975.

Joel H. Schavrien, Southfield, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., for plaintiff-appellee.

Before QUINN, P.J., and McGREGOR and O'HARA, ^* JJ.

McGREGOR, Judge.

Defendant was found guilty by a jury, on April 24, 1973, of breaking and entering with intent to commit larceny. M.C.L.A. § 750.110; M.S.A. § 28.305, and was sentenced to 6 1/2 to 10 years in prison. He appeals as of right.

On Monday, July 31, 1972, a maintenance employee of Northland Moving and Storage Company returned to work at 5 a.m. and discovered that Northland had been burglarized some time between 1 p.m. on Saturday, July 29, and his arrival at work. The employee summoned the police and David Leonard, the company president. When the Troy police arrived, they observed that entry had apparently been gained by driving a fork-lift truck through the warehouse door. The door window was broken and the interior ransacked. Inside the premises, tools and liquor bottles were found in the 'drivers' waiting room'. The tools belonged to the maintenance employee and were on his workbench at the rear of the premises at quitting time the previous Friday.

Approximately one hour later, another call was received by the Troy police from Northland. The caller told the polce that a man had been found sleeping in one of the vans located in the parking lot adjoining Northland Moving and Storage. This individual found sleeping in the van by the police was the defendant, an employee of Northland for about 4 years. The police noted some intoxication about the defendant and escorted him inside the building.

Once inside the premises, defendant was given the Miranda warnings and confronted with a hacksaw which had been found in the drivers' waiting room. A conversation then occurred between the defendant and the police officers as to whether the defendant had handled the hacksaw; at that time the defendant denied handling the saw.

The police lifted a total of 18 fingerprints from the tools, the liquor bottles, and a clipboard which were found in the drivers' waiting room; the only two fingerprints which were ever identified were removed from the hacksaw. At trial, expert testimony revealed that these two fingerprints were those of the defendant. Defense counsel objected to the admission of these fingerprints. The record reflects that the hacksaw was accessible to the defendant during the course of his employment and between the time of the discovery of the tools and the lifting of the fingerprints by the police.

Four undistributed checks, which were in the operation manager's desk as of 1 p.m. on Saturday, were missing after the burglary; one of these checks was a payroll check made out to an employee named Richard Butterfield. Several days after the breaking and entering, the defendant, in the company of an unknown male, appeared at the Troy Bar and presented a check to be cashed. Mrs. Irene Kucab, the bar owner, testified that she knew the defendant, and that the check which he presented was endorsed in the name of the payee, Richard Butterfield. At trial, Richard Butterfield testified that he did not pick up his check on Friday, July 28th; further, that he did not sign the check, did not give permission to anyone to pick it up, nor did he accompany the defendant to the bar when the check was allegedly cashed.

Defendant raises six issues for our consideration. Those meriting discussion are as follows:

I. Did the trial court err by giving an instruction over defense counsel's objection, on aiding and abetting?

The prosecution based its theory on aiding and abetting on the following facts: (1) numerous unknown fingerprints were found on objects in the burglarized area; (2) defendant's fingerprints matched two of the prints found on a hacksaw in the burglarized premises; (3) defendant was accompanied by an unknown individual when he cashed a payroll check allegedly taken from the burglarized premises.

Defendant contends that the evidence presented was insufficient to support a theory of aiding and abetting. We agree. It is reversible error to give an instruction on aiding and abetting when there is no evidence to support that charge. In order to warrant such an instruction, there must exist some evidence of a 'concert of action' between the defendant and the principal in the commission of a crime. People v. Marshall, 53 Mich.App. 181, 218 N.W.2d 847 (1974).

The Sine qua non of aiding and abetting is that more than one person must be criminally involved either before, during, or after the commission of a crime. A defendant cannot aid and abet himself in the commission of his crime. In order to sustain a charge of aiding and abetting against an accessory, the guilt of another person as principal must be shown. People v. DeBolt, 269 Mich. 39, 256 N.W. 615 (1934); People v. Williams #1, 45 Mich.App. 623, 207 N.W.2d 176 (1973).

The prosecutor points to the unidentified fingerprints on the objects found at the scene of the crime as evidence of the existence of other parties in the commission of the crime. The record shows that employees of Northland had, on occasion, indulged in alcoholic beverages at the company premise in the drivers' room and in the dipatcher's office. Although the defendant and other employees of Northland did not have permission to use the tools which belonged to the maintenance employee, such tools were accessible to other employees and could easily have been touched and used prior to the breakin. Since the prosecution did not establish that the fingerprints could only have been impressed at the time when the crime was committed, a conviction of an unknown principal could not be based upon this fingerprint evidence, standing alone. People v. Cullens, 55 Mich.App. 272, 222 N.W.2d 315 (1974).

The prosecution also alleges that the fact the defendant was accompanied by another person when he cashed the check stolen from Northland justifies the charge of aiding and abetting. We disagree. One can easily conceive a number of reasons why defendant was seen in a bar with another individual.

The prosecution was required to prove the existence and guilt of a principal other than the defendant in order to establish the propriety of the charge on aiding and abetting. The prosecutor's case on this theory was based entirely on circumstantial evidence. In order to prove guilt by circumstantial evidence, the facts proven must not only point to a defendant's guilt but must be inconsistent with any other reasonable hypothesis upon which the defendant's innocence may be maintained. 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 906, pp. 1216, 1217.

The fingerprints found on the bottles and tools in the drivers' waiting room and the presence of an unknown person at a bar where the defendant cashed the stolen check do not point to the guilt of anyone other than the defendant. There are many hypotheses which would explain these pieces of circumstantial evidence which would be inconsistent with the prosecutor's theory of the existence of a principal other than the defendant in the commission of this crime. It is the opinion of this Court that the prosecution not only failed to prove the guilt of this unknown principal, but also the very existence of a principal other than this defendant.

It is reversible error for the court to give instructions upon a theory for the prosecution which is unsupported by the evidence. There was no substantive proof to justify the trial court's instruction on the theory of aiding and abetting. People v. Ware, 12 Mich.App. 512, 163 N.W.2d 250 (1968).

The defendant stands convicted on one of two theories, one of which is permissible and one of which is not. The inability to say for sure upon which theory the conviction rests demands reversal. People v Gilbert, 55 Mich.App. 168, 222 N.W.2d 305 (1974).

II. Is it reversible error for the prosecutor to elicit testimony which indicates that defendant had exercised his right to remain silent?

During his examination of Officer Martel, the prosecutor elicited the following testimony:

'Q. Did you at about that time have a further conference with Mr. Parks?

'A. Yes, I did.

'Q. Where did that take place?

'A. It took place at the Oakland County Jail.

'Q. And do you know if that was following * * * your receipt of a report from him?

'A. This was after the warrant had been issued.

'Q. I see, and did you give Mr. Parks some information in that interview?

'A. Yes, I did.

'Q. What did you tell him?

'A. I advised him that his fingerprint had been found on the hacksaw that was taken from Northland Moving and asked him again after having advised him of his rights.

'Q. In other words, you repeated the Miranda warning?

'A. Yes, sir.

'Q. Did he, following that, wish to make a statement?

'A. He refused at that time to answer any questions.'

The admission of testimony that a defendant exercised his privilege of silence at the time of his arrest is reversible error, unless such testimony was elicited to impeach the defendant's inconsistent statements at trial or unless the error can be said to have been harmless beyond a reasonable doubt. People v. Kremko, 52 Mich.App. 565, 218 N.W.2d 112 (1974); People v. Bobo, 390 Mich. 355, 212 N.W.2d 190 (1973).

It cannot be claimed that this testimony was given to impeach a prior inconsistent statement of the defendant, since the defendant did not testify in his own behalf. The prosecution does claim, however, that the error here complained of was harmless beyond a reasonable doubt. The prosecution bases its argument on the fact that Officer Martel testified that the defendant then made an exculpatory...