People v. Shepherd

• Decision Date: 13 August 1975
• Docket Number: Docket No. 21123
• Citation: 63 Mich.App. 316,234 N.W.2d 502
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry SHEPHERD, Defendant-Appellant. 63 Mich.App. 316, 234 N.W.2d 502
• Court: Court of Appeal of Michigan — District of US

Page 502

234 N.W.2d 502

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry SHEPHERD, Defendant-Appellant.

Docket No. 21123.

63 Mich.App. 316, 234 N.W.2d 502

Court of Appeals of Michigan.

Aug. 13, 1975.

Released for Publication Nov. 5, 1975.

[63 MICHAPP 318] William M. Havey, Mt. Clemens, for defendant-appellant.

[63 MICHAPP 317] George N. Parris, Pros. Atty., Don L. Milbourn, Chief Appellate[63 MICHAPP 318] Lawyer, by Stephen F. Osinski, Asst. Pros. Atty., for plaintiff-appellee.

Before QUINN, P.J., and BRONSON and KAUFMAN, JJ.

BRONSON, Judge.

Defendant, Larry Shepherd, was found guilty by a jury of the crime of larceny in a building, contrary to M.C.L.A. § 750.360; M.S.A. § 28.592. The trial judge sentenced defendant to a term of from two to four years in prison, and defendant appeals as of right.

The primary prosecution witness in the case was Robert Maley, a security guard at the Montgomery Ward's store in Warren. He testified that he was watching for shoplifters on the day in question when his attention was drawn to a person carrying an easily-opened large cardboard box. That person was later identified as Henry Witcher, and he was accompanied by the defendant. Maley continued to observe these two, when he saw defendant go into the record department and begin placing records from various bins into one section. Defendant then went up to the cashier to buy one record, while Henry Witcher simultaneously moved over to the bin and put those records in the box. Witcher and the defendant then exited together.

The security guard Maley stopped the two defendants outside the store, and asked Witcher if he had purchased the records. He replied that he had not. While this was going on, defendant was slowly slipping around out of sight. Both defendants then suddenly started running off. After momentarily losing Maley, they returned to the Ward's parking lot, where a third codefendant was waiting in their car. Maley flagged down several Ward's employees, [63 MICHAPP 319] and sent them after the car. Those employees caught up with the car, and talked Witcher into returning to the store with them. Defendant and the third codefendant were told to drive the getaway car behind the employees' car and follow them back to the store. Before they reached the store, defendant and his partner stopped following the car containing Witcher and the employees in an attempt to escape. They were later picked up by the police.

Defendant contends that his sentence constitutes cruel and unusual punishment because (1) the value of the goods taken from the store, 54 phonograph records, was small and (2) defendant did not actually take the records, but was merely convicted under the aiding and abetting statute. We cannot agree.

This Court has previously upheld similar sentences for larceny convictions involving the taking of property without great value. See People v. Jackson, 29 Mich.App. 654, 185 N.W.2d 608 (1971) (two to four years for the theft of a $55.95 jacket); People v. Bullock, 48 Mich.App. 700, 211 N.W.2d 108 (1973) (3 1/2 to 4 years for the theft of four sirloin steaks worth $11.00), and People v. Bohm, 49 Mich.App. 244, 212 N.W.2d 61 (1973) (two to four years for the theft of a purse containing $10.00). In addition, this Court has rejected the view, in the context of the felony-murder statute, that it constitutes cruel and unusual punishment to sentence one convicted of aiding and abetting to the same term as the principal, People v. Moore, 51 Mich.App. 48, 214 N.W.2d 548 (1974); People v. Bills, 53 Mich.App. 339, 220 N.W.2d 101 (1974). Overall, the trial judge properly considered the defendant's extensive criminal record in imposing a sentence within the bounds of reason.

[63 MICHAPP 320] Defendant indirectly attacks his sentence by arguing that the prosecuting attorney abused his discretion by charging him with larceny from a building. It is claimed that the prosecutor was required to charge defendant with simple larceny, contrary to M.C.L.A. § 750.356; M.S.A. § 28.588. That argument was directly rejected in People v. Jackson, supra, where this Court held that the prosecutor did not abuse his broad discretion by charging defendant with larceny in a building when evidence existed to support that charge. No error occurred here in this regard.

After appearing in court for the first day of trial, one of the three codefendants, Henry Witcher, failed to show up for the rest of the trial. Defendant contends that the trial judge was required to Sua sponte instruct the jury to disregard the disappearance of that codefendant when passing on the guilt or innocence of the remaining defendants. We hold that the trial judge has no such duty.

Defendant attempts to analogize to cases imposing a requirement of a cautionary instruction to the jury after a codefendant has pled guilty to the charges during trial. See, for example, United States v. Soares, 456 F.2d 431 (C.A.10, 1972); United States v. Earley, 482 F.2d 53 (C.A.10, 1973), Cert. den., 414 U.S. 1111, 94 S.Ct. 841, 38 L.Ed.2d 738 (1973). However, even that rule is subject to the requirement of a request for such an instruction, Richards v. United States, 193 F.2d 554 (C.A.10, 1951), Cert. den., Krupnick v. United States, 343 U.S. 930, 72 S.Ct. 764, 96 L.Ed. 1340 (1952); Jiron v. United States, 306 F.2d 946 (C.A.10, 1962). Further, even if this Court would hold that a Sua sponte instruction is required for the above situation, an important difference is present here. The jury is much [63 MICHAPP 321] more likely to infer the codefendant's own guilt from his guilty plea than from his flight from the trial. Consequently, the possibility of a jury inference as to the Other defendants' guilt from the absence of a codefendant is also more remote. For those reasons, we cannot hold that the guilty plea rule alone mandates a similar result here. General principles of law must control.

The general rule in this area is that the trial judge is not required to give limiting or cautionary instructions absent a request or a proper objection, People v. Streetman, 59 Mich.App. 49, 228 N.W.2d 539 (1975); People v. Chism, 390 Mich. 104, 211 N.W.2d 193 (1973). While prejudice to the absent defendant himself is presumed, People v. Ewing, 48 Mich.App. 657, 211 N.W.2d 56 (1973); People v. Swan, 59 Mich.App. 409, 229 N.W.2d 476 (1975), no such rule exists as to the codefendants remaining for trial. We see no reason to depart from the requirements of the general rule. Since defendant did not request the cautionary instruction which he now contends should have been given, nor object to the instructions as given, the trial judge did not err by not giving that instruction.

The trial judge in his final instructions attempted to explain the aiding and abetting statute through the use of an example. He stated that the statute makes the lookout remaining in the getaway car during an armed robbery equally as guilty as his partners who actually entered the premises carrying weapons. Defendant claims that the jury was thereby misled into believing the defendant was carrying a weapon at the time of the theft. We must disagree.

It is certainly true that the use of examples in jury instructions serves to clarify the meaning of complex legal terms. On the other hand, the precision[63 MICHAPP 322] involved in the use of the proper legal terminology is lost to some degree. In addition, the jury is likely to give undue weight to examples, since they are easier to...