Michigan Court of AppealsAug 13, 1975
63 Mich. App. 316 (Mich. Ct. App. 1975)
63 Mich. App. 316234 N.W.2d 502

Docket No. 21123.

Decided August 13, 1975.

Appeal from Macomb, Alton H. Noe, J. Submitted May 12, 1975, at Lansing. (Docket No. 21123.) Decided August 13, 1975.

Larry Shepherd was convicted of larceny in a building. Defendant appeals. Affirmed.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Don L. Milbourn, Chief Appellate Lawyer, and Stephen J. Osinski, Assistant Prosecuting Attorney, for the people.

William M. Havey, for defendant on appeal.

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

Defendant, Larry Shepherd, was found guilty by a jury of the crime of larceny in a building, contrary to MCLA 750.360; MSA 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, 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], 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]. 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.

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 MCLA 750.356; MSA 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 two 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 (CA 10, 1972), United States v Earley, 482 F.2d 53 (CA 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 (CA 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 (CA 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 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 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 comprehend, and it may simply compare the defendant's conduct with the example. To prevent these adverse effects, the trial judge must clearly indicate that the examples are only examples, and that the jury must determine guilt or innocence by following the jury instructions as a whole, People v Murphy, 28 Mich. App. 150; 184 N.W.2d 256 (1970), People v Roberson, 44 Mich. App. 105; 205 N.W.2d 50 (1972). We find that the trial judge here followed that admonition in giving his instruction, and committed no error.

During the trial, several prosecution witnesses testified as to some out-of-court statements made by one of the codefendants in the case, Henry Witcher. Witcher never took the stand at trial, being the codefendant who disappeared the second day of trial. Defendant contends that such testimony was hearsay, and its introduction reversible error.

It is well settled that admissions and statements of a codefendant are admissible against another defendant if there exists a concert of action between the defendants, and the statements are made while the common scheme or plan is still in effect, People v Trilck, 374 Mich. 118; 132 N.W.2d 134 (1965), People v Adams, 48 Mich. App. 595; 210 N.W.2d 888 (1973). The defendants need not actually be charged with conspiracy, as long as there is independent evidence of the required concert of action, People v Stewart, 46 Mich. App. 282; 207 N.W.2d 907 (1973). We have no trouble in finding a concert of action between the defendant and Witcher in committing the larceny of the records. The real question is whether the scheme had ended at the time of the statements.

The first statement by Witcher was an admission that he had not purchased the merchandise when he and defendant were stopped outside the store by a security guard. However, it is clear from the evidence that Witcher talked to that security guard to distract him before both defendants suddenly fled. This statement was made to prevent the termination of the joint scheme, and therefore was made while the scheme was still in effect, People v Batten, 9 Mich. App. 195; 156 N.W.2d 640 (1967), rev'd on other grounds 386 Mich. 483; 192 N.W.2d 241 (1971). A second statement by Witcher, questioning why he should return with other store employees who eventually caught him, must also be held to have been made while the scheme was in effect by similar reasoning. Since these two statements come within an exception to the hearsay rule, their introduction into evidence was not error.

Although defendant does not raise this issue, it is worth noting that his right to confront the witnesses against him is not violated because of the absence of Witcher from the trial. The United States Supreme Court in Dutton v Evans, 400 U.S. 74; 91 S Ct 210; 27 L Ed 2d 213 (1970), ruled that the right to confrontation was not involved where a codefendant's statement was introduced at trial under the coconspirator exception to the hearsay rule. That ruling was directly applied to the Michigan coconspirator exception in People v Adams, 48 Mich. App. 595; 210 N.W.2d 888 (1973).

The store security guard also testified as to Witcher's silence in the face of a question as to his motives for taking the records. The coconspirator hearsay exception is clearly inapplicable, as the statement was made after he was retained at the store after his capture, People v Stewart, 46 Mich. App. 282; 207 N.W.2d 907 (1973). However, even if this silence can be considered to be a "statement", we find no error here. Defendant did not object to the testimony at trial, requiring him to now show "manifest injustice" resulting from its introduction, People v Tooks, 55 Mich. App. 537; 223 N.W.2d 63 (1974). The prosecutor in the case did not once argue that Witcher's silence was any sort of "tacit admission". Further, this statement was quickly passed over during the security guard's testimony. We find no manifest injustice, and, hence, no error in this regard.

Defendant raises several other errors on appeal, but we feel that these issues do not merit discussion.