People v. Smyers

• Decision Date: 01 January 1976
• Docket Number: No. 8,8
• Citation: 248 N.W.2d 156,398 Mich. 635
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Archie SMYERS, Defendant-Appellant. ,
• Court: Michigan Supreme Court

Page 156

248 N.W.2d 156

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Archie SMYERS, Defendant-Appellant.

No. 8, Jan. Term, 1976.

398 Mich. 635, 248 N.W.2d 156

Supreme Court of Michigan.

Dec. 21, 1976.

Donald A. Kuebler, Chief, App. Div., Joel B. Saxe, Sr. Asst. Pros. Atty., Robert F. Leonard, Genesee County Pros. Atty., Flint, for plaintiff-appellee.

Milton R. Henry, Detroit, for defendant-appellant.

LINDEMER, Justice.

Defendant and others were convicted after a jury trial of conspiracy contrary to M.C.L.A. § 750.151; M.S.A. § 28.348. The conspiracy was to violate both the burglary statute, M.C.L.A. § 750.110; M.S.A. § 28.305, and the receiving or concealing of stolen goods statute, M.C.L.A. § 750.535; M.S.A. § 28.803. Defendant's conviction was affirmed by the Court of Appeals, 47 Mich.App. 61, 209 N.W.2d 281 (1973). We granted leave to appeal, 391 Mich. 766 (1974).

It is uncontroverted that a great many burglaries took place in Genesee County from February through December of 1967. The Federal Bureau of Investigation became involved in investigation of the problem, and an FBI agent named Thiel asked defendant in October or November to become a paid informant. Defendant did apparently give information for pay to the authorities that led to the arrest of the two apparently principal burglars, Bolduc and Fralick. Whether defendant was working primarily for himself or as part of an FBI investigation was a key factual issue.

Defendant maintains that, as a matter of law, he may not be convicted of conspiracy since he was a government informer. One who is a government informer and only feigns participation in a criminal enterprise may not be a coconspirator. People v. Atley, 392 Mich. 298, 311--312, 220 N.W.2d 465 (1974). It becomes a question of fact. We find upon examination of the record that the trial judge properly instructed on the question for the jury:

'The question really concerns the presence or absence of criminal intent, whether he was a government informer secretly bent upon frustrating the conspiracy while feigning or pretending to be a coconspirator, or whether he was a willing party to an illegal venture for gain who feigned being a government informer to avoid the consequences of his criminal activities with the persons he informed upon.'

Defendant and prosecutor on appeal both state that trial testimony 'clearly' establishes the respectively favored theory. Neither party is correct. The questions of defendant's complicity and cooperation were vigorously litigated and submitted to the jury.

'In conducting this review the appellate court must remember that the jury is the sole judge of the facts. It is the function of the jury alone to listen to testimony, weigh the evidence and decide the questions of fact. People v. Mosden, 381 Mich. 506, 510, 164 N.W.2d 26 (1969).' People v. Palmer, 392 Mich. 370, 375, 220 N.W.2d 393, 395 (1974).

The jury's determination that defendant was a coconspirator rather than a police informant cannot be upset where sufficient evidence to support a finding of guilt beyond a reasonable doubt is present. After reviewing the record we conclude that the people's proofs meet that standard. The jury's verdict must stand.

Defendant complains of the seizure and admission into evidence at trial of a certain dress. The search warrant which led to the discovery and seizure of the dress was based on an affidavit as to a conversation held six days prior to the execution of the warrant. The article sought was a dress and the affidavit in support stated that 'the said white cocktail dress (is) for (Mrs. Smyers') personal use and that the said dress is presently at the above-described home of (defendant)'. There was reasonable cause to believe at the time the search warrant was issued that the dress was present in defendant's house. The finding of probable cause by the magistrate to issue a search warrant pursuant to M.C.L.A. §§ 780.651--780.653; M.S.A. § 28.1259(1)--(3) does not appear to have been an abuse of discretion. People v. Dellabonda, 265 Mich. 486, 491, 251 N.W. 594 (1933). Since the dress was seized on authority of a properly issued search warrant, defendant's arguments concerning the propriety of his arrest warrant become moot. The cocktail dress was connected up by testimony which, if believed, supported the theory that the dress was a fruit of one of the burglaries within the conspiracy and was provided to defendant by Fralick as a special present for Mrs. Smyers. The dress would be probative of defendant's participation in the conspiracy charged, and admission of the dress was not error.

The admission of a stolen adding machine seized from defendant's house under a valid search warrant and the cross-examination of defendant concerning that machine are also claimed as error. Agent Thiel had testified that defendant had said nothing about the adding machine, while defendant said he had properly reported it. Although the machine wasn't a fruit of the conspiracy, the trial court properly allowed cross-examination to test defendant's credibility, motive and intent. People v. Dellabona, supra. The admission of the machine was without error under the same rationale.

The lower court file in this case contains a handwritten 'missing witness' instruction which was not given at trial. Defendant's brief does no more than state that failure to give this charge was reversible error. No charge is questioned, no argument is offered, no portion of the record is referenced, and no authority of any kind is cited. This issue is deemed abandoned on appeal. People v. George, 375 Mich. 262, 264, 134 N.W.2d 222 (1965).

Defendant finally contends that certain statements by the prosecuting attorney in rebuttal argument were prejudicially erroneous. To say that this trial at times became vigorous and heated would be an understatement. We are satisfied that the remarks of the prosecutor were invited response to the closing argument of defendant's attorney, and will not reverse this case on the basis of any such remarks.

'Criminal trials are not basket luncheons, and we seem faintly to recall that in our experience opposing lawyers rarely if ever pelted each other with rose petals. In any case, counsel for defendants cannot on his side be allowed great latitude to goad and provoke adverse comment or criticism from the prosecutor and then seek a reversal because his strategy succeeded.'

People v. Allen, 351 Mich. 535, 544, 88 N.W.2d 433, 437 (1958).

The Court of Appeals and the circuit court are affirmed.

RYAN and COLEMAN, JJ., concur.

FITZGERALD, J., not participating.

LEVIN, Justice.

Archie Smyers, a police informant, was convicted of conspiracy to break and enter occupied dwellings and to receive or conceal stolen property--the conspiracy he was investigating as part of his undercover activities--on evidence tending to show that he had joined and profited from that criminal enterprise.

There had been a wave of several hundred burglaries in the Flint area, apparently the work of a group of thieves. The FBI became interested when it learned that guns, including machine guns, had been stolen, and asked Smyers, who had previously worked as a police informant, to obtain information.

Smyers learned the identity of two of the burglars, fenced stolen property for them and received a portion of the fencing proceeds, and ultimately supplied the FBI with information which resulted in their apprehension. He reported those sales to the FBI. He testified it was his understanding that he was expected to involve himself in the criminal enterprise if necessary to obtain the desired information and that, in addition to the money he received from the FBI, he could retain as part of his compensation for his undercover work the portion of the fencing proceeds he received from the burglars.

After their arrest the burglars turned state's evidence, and Smyers was arrested. They testified that Smyers purchased and acquired on consignment additional stolen property; the people asserted that Smyers had unlawfully profited from the secret disposition of that property, the receipt and sale of which was not reported to the FBI. Smyers denied the receipt of stolen property not reported to the FBI.

The judge instructed the jury, over objection, ¹ that it should acquit Smyers if it concluded that he feigned complicity and acted as an informant for the police throughout his association with the burglars but that he should be convicted if he joined the 'continuing conspiracy charged to achieve its criminal purpose and to Profit by those purposes but gave information to the government for Gain and with the hope of protecting himself from criminal prosecution.' (Emphasis supplied.)

The jury was instructed that it was the people's theory that Smyers had sought to profit from his participation in the criminal enterprise in three ways:

1) as an informant he would be immune from arrest and prosecution;

2) he would profit from the money paid to him by law enforcement authorities;

3) as an active participant in the conspiracy he would profit from the portion of the money he kept for himself when stolen goods were sold. ²

We would reverse because the instructions

-- were erroneous in permitting the jury to treat as an unlawful 'profit' or 'gain'

i) the immunity from prosecution with which the law shields a feigned accomplice,

ii) the money paid Smyers by the FBI for his undercover activities;

--were misleading in failing to inform the jury that if it concluded that Smyers was authorized to involve himself in the criminal enterprise as a fence, his retention of fencing proceeds on sales reported to the FBI would not support a conviction. (If he was justified in believing he could retain such proceeds, retention was not improper; if that asserted belief was not justified, his duplicity in withholding from the FBI the proceeds of sales he reported was neither related to nor furthered...