PEOPLE OF MI V DERRICK C GARNER
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
_____________________________________
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 6, 1996
Plaintiff-Appellee,
v
No. 177271
LC No. 93-36369-FH
DERRICK CONRAD GARNER, a/k/a
DERRICK C. HERNTON,
Defendant-Appellant.
_____________________________________
Before: MacKenzie P.J., and Markey and J.M. Batzer,* JJ.
PER CURIAM.
Defendant appeals as of right his conviction by a jury of breaking and entering a building with
the intent to commit larceny, MCL 750.110; MSA 28.305. Defendant was also convicted of being a
third habitual offender, MCL 769.11; MSA 28.1083. Defendant was sentenced to seven to twenty
years' imprisonment. We affirm.
During trial, at the close of the prosecution's case and after the jury was given the opportunity to
view a video recording of the breaking and entering of the United Oil gas station, defendant was asked
to put on and display before the jury the plaid shirt, the gloves, and the purple skull cap that were
confiscated as evidence and worn by the perpetrator caught on camera. Defendant now claims that in
doing so, he was forced to incriminate himself, and thus denied his constitutional right against self
incrimination. We disagree. Whether the trial court violated defendant's constitutional right is a question
of law subject to de novo review on appeal. People v Connor, 209 Mich App 419, 423; 531 NW2d
734 (1995).
Michigan's constitutional provision against self-incrimination, Const 1963, art 1, §17, is
construed no more liberally than the Fifth Amendment to the United States Constitution. People v
Burhans, 166 Mich App 758, 761; 421 NW2d 285 (1988). The constitutional privilege against self
incrimination protects a defendant from being compelled to testify against himself or from being
* Circuit judge, sitting on the Court of Appeals by assignment.
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compelled to provide the state with evidence of a testimonial or communicative nature. Id., at 761-762.
“Compulsion which makes a defendant a source of real or physical evidence does not violate the Fifth
Amendment's privilege against self-incrimination,” and “[c]ompelling a defendant to perform actions
which demonstrate identifying physical characteristics . . . does not compel a defendant to give
testimonial or communicative evidence and so does not violate the privilege against self-incrimination.”
Id. at 762; see also Schmerber v California, 384 US 757, 761, 764; 86 S Ct 1826; 16 L Ed 2d 908
(1966).
In the present case, we find that defendant displayed the clothing for demonstrative and
identification purposes (i.e., to allow the jurors to compare their present observations of defendant with
the perpetrator seen on the security videotape) and was not forced to communicate or testify. People v
Stone, 195 Mich App 600, 603-604; 491 NW2d 628 (1992). Thus, defendant’s privilege against
self-incrimination was not violated.
Next, focusing only on the evidence implicating him as the perpetrator, defendant argues that
there was insufficient evidence to support his conviction. We disagree. To review a claim of
insufficiency of the evidence, this Court must consider the evidence in a light most favorable to the
prosecution and determine whether a rational trier of fact could have concluded that the essential
elements of the crime were proven beyond a reasonable doubt. People v Hurst, 205 Mich App 634,
640; 517 NW2d 858 (1994).
Defendant specifically argues that the prosecution presented purely circumstantial evidence and
was unable to produce any witness who could positively identify him as the perpetrator. However,
circumstantial evidence, and the reasonable inferences which arise from that evidence, constitute
satisfactory proof to support the jury's decision to convict defendant of the crime charged. People v
Reddick, 187 Mich App 547, 551; 468 NW2d 278 (1991). We hold that the record was replete with
evidence to support the jury's conclusion that defendant was indeed the perpetrator responsible for the
breaking and entering of the United Oil gas station.
Here, the black male suspect was first seen wearing a dark-colored cap and coat, carrying a
large garbage bag, and fleeing the scene of the crime on a bicycle. Immediately thereafter, the suspect
was spotted by the police and followed until he reached the edge of an apartment complex. A witness
who was a resident of the complex then reported seeing a black male speed through his backyard on a
bicycle, and when he and a friend went outside, they were approached by a man they later identified as
defendant. That same witness reported that defendant had emerged from behind the apartment building,
the same place where the man on the bicycle had gone, that defendant appeared nervous, and was
wearing dark clothing and a skull cap. The police later found a ten-speed bicycle, various articles of
clothing, a large garbage bag, and the stolen goods behind the apartment.
In addition, a videotape from the security cameras at the United Oil gas station revealed a
perpetrator with facial hair, and wearing gloves, and a skull cap. When defendant was apprehended, he
had a significant amount of facial hair, he was wearing the same skull cap, and had a disposable latex
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glove in the back pocket of his jeans. At the time of arrest, it was discovered that defendant was
wearing several layers of clothing, that his sweatshirt and sweatpants were ripped, and that glass was
embedded into the soles of his boots. The glass particles recovered from defendant's clothing and
boots were later determined to be consistent with the broken plate glass from the United Oil gas station.
We find that the prosecution presented sufficient evidence to prove defendant's identity as the
perpetrator beyond a reasonable doubt.
Affirmed.
/s/ Barbara B. MacKenzie
/s/ Jane E. Markey
/s/ James M. Batzer
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