People v. Fry

169 N.W.2d 168, 17 Mich. App. 229, 1969 Mich. App. LEXIS 1183

• Court: Michigan Court of Appeals
• Decided: April 23, 1969
• Docket: Docket 5,214
• Status: Published

Opinion

Levin, P. J.

Tbe defendant, Donald Fry, appeals Ms conviction of larceny in a building. MCLA § 750.360 (Stat Ann 1954 Rev § 28.592). The victim of the larceny, Alden Smith, testified that he admit ted 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 hearing 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. 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 SE 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 Gablick’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; People v. McDonald (1968), 13 Mich App 226, 236. 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 prosecutor’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 face 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.

In People v. Bigge (1939), 288 Mich 417, 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):

“There can no such thing as confession of guilt by silence 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 Pry did not voice an objection either to the police officer’s testimony or to the prosecutor’s argument. See Koepel v. St. Joseph Hospital (1968), 381 Mich 440.

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 US 18 (87 S Ct 824, 17 L Ed 2d 705), rehearing denied 386 US 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 must be able to declare belief that it was harmless beyond a reasonable doubt.” "We are convinced that the evidence and argument complained of did not contribute to the defendant’s conviction, that it was harmless beyond a reasonable doubt and that were we to order a new trial the defendant Pry would again assuredly be convicted. 6

The defendant’s conviction is affirmed.

All concurred.

1 See, also, People v. Tutha (1936), 276 Mich 387, 395; People v. MacCullough (1937), 281 Mich 15, 27; People v. Williams (1962), 368 Mich 494, 501.

2 The Fifth Amendment as applied to the States through the Fourteenth Amendment and Const 1963, art 1, § 17.

3 The prosecutor argued: “and what is the reaction of Donald Fry. He was arrested and advised by the officer that he is being charged with stealing the blind man’s radio, and the officer started to advise him of his constitutional rights, and his response is to the charge, ‘I know all of your constitutional rights, and I am not going to answer any questions about this.’ ’’

4 Gillison v. United States (CA DC, 1968), 399 F2d 586; State v. Ripa (1965), 45 NJ 199 (212 A2d 22); Miranda v. Arizona (1966), 384 US 436, 468 (86 S Ct 1602, 1625, 16 L Ed 2d 694, 10 ALR3d 974), footnote 37.

That the tacit admission argument is impermissible whether the defendant remains silent in the face of an accusation or voiees his claim of privilege, see People v. Gisondi, supra, State v. Ripa, supra, and Gillison v. United States, supra,

5 Other Michigan cases discussing the question are People v. Courtney (1913), 178 Mich 137, 148; People v. Daily (1914), 178 Mich 354, 363; People v. Fitzgerald (1918), 204 Mich 365; People v. DeBolt (1934), 269 Mich 39.

6 We recognize that in People v. Bigge, supra, the Court held that the improper comment on defendant’s silence was not in that case harmless. We do not understand this to mean that such error can never be harmless. See Chapman v. California, supra, n 8. On the facts of this case we have concluded, as previously stated, that the error was harmless.