People v. Orsie

268 N.W.2d 278, 83 Mich. App. 42, 1978 Mich. App. LEXIS 2276
CourtMichigan Court of Appeals
DecidedMay 8, 1978
DocketDocket 30864
StatusPublished
Cited by16 cases

This text of 268 N.W.2d 278 (People v. Orsie) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Orsie, 268 N.W.2d 278, 83 Mich. App. 42, 1978 Mich. App. LEXIS 2276 (Mich. Ct. App. 1978).

Opinions

Beasley, J.

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 MCL 750.531; MSA 28.799 and, under count two, of wilfully or maliciously burning a building in violation of MCL 750.73; MSA 28.268. Under count one, he was sentenced to not less than 10 nor more than 15 years in prison and, under count two, he was sentenced to not less than 6 years 8 months nor more than 10 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 [45]*45to 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 MCL 769.26; MSA 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 cumula[46]*46tive, 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 ALR3d 104-105, which states:

"The discussion of the legal effects of presumptions and inferences has evoked perhaps as much cloudy [47]*47thinking and confusion of terminology as any other area of the law.
"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 NE2d 892, 894), quoted approvingly in People v Eaves (1966), 4 Mich App 457.” (Footnote omitted.)

Similarly, while we exercise the caution suggested [48]*48in the Atley footnote,10 we find the statement in the Federal case of Dirring v United States11 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.

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People v. Orsie
268 N.W.2d 278 (Michigan Court of Appeals, 1978)

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Bluebook (online)
268 N.W.2d 278, 83 Mich. App. 42, 1978 Mich. App. LEXIS 2276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-orsie-michctapp-1978.