People v. Lindsey

• Citation: 224 N.W.2d 273,56 Mich.App. 458
• Decision Date: 07 November 1974
• Docket Number: No. 3,Docket No. 18670,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Teddy LeRoy LINDSEY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 273

224 N.W.2d 273

56 Mich.App. 458

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Teddy LeRoy LINDSEY, Defendant-Appellant.

Docket No. 18670.

Court of Appeals of Michigan, Division No. 3.

Nov. 7, 1974.

Released for Publication Dec. 30, 1974.

William B. Murphy, Murphy & Neff, Grand Rapids, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Donald A. Johnston, III, Chief Appellate Atty., for plaintiff-appellee.

Before ALLEN, P.J., and J. H. GILLIS and McGREGOR, JJ.

ALLEN, Judge.

Defendant appeals as a matter of right his conviction by jury July 31, 1973, of the crime of assault with intent to commit armed robbery. M.C.L.A. § 750.89; M.S.A. § 28.284. He was sentenced to imprisonment for a term of 5 to 15 years.

On the night of May 4, 1973, Belton Shumpert was visiting a friend, Louis Burrell, in a house in Grand Rapids. With them was one Margaret Noel. About 1 a.m. Shumpert went downstairs to answer a knock heard at the front door. Upon opening the door, defendant entered with a shotgun and demanded money of Shumpert. Shumpert replied he had no money, whereupon defendant forced Shumpert to empty his pockets. Defendant then demanded Shumpert call Burrell who came downstairs but upon seeing defendant with the gun ran back to his bedroom, secured a pistol and called to defendant that the police were coming. Defendant then left the house. Meanwhile Shumpert had found refuge in the basement.

At trial, defendant admitted he came to the house that night for the purpose of either picking up a packet of marijuana for which he had paid $15 or, alternately, collecting his money. He claimed that earlier he had given the money to one Mike Gibbs who also lived in the house but was not present that night. He denied he had a gun, explaining that he carried a 'wabby gang'--a sort of stick with a long black handle which could look like a gun barrel. He denied telling Shumpert to empty his pockets. On cross-examination, defendant admitted he had served about 5 years in Jackson Prison for breaking and entering and also had been arrested and convicted for felonious assault.

On appeal to this Court, defendant claims errors (1) during trial when the trial judge limited defense counsel's cross-examination, (2) in the failure to instruct the jury on the alleged lesser included offense of attempted armed robbery even though defense counsel had not requested such charge, (3) following trial when the trial judge responded affirmatively to the jury's question of whether they could return a verdict with a recommendation of clemency, and (4) prior to trial because of the lack of jurisdiction of a district court to conduct preliminary examinations.

We do not agree that the trial court improperly restricted defense counsel's scope of cross-examination. For the most part, the objectional questions asked of Shumpert and Burrell were whether dope was dispensed at the house, whether anyone was smoking marijuana or whether the witness used marijuana. Defendant's theory of defense was that he had given $15 to one Mike Gibbs for which he was to receive marijuana and that when Gibbs did not deliver the packet to him earlier that evening, defendant went to the house for the purpose of obtaining either his money or the merchandise. Citing People v. Henry, 202 Mich. 450, 168 N.W. 534 (1918), counsel claims such a belief would negate the intent to rob and, accordingly, it was error to exclude the questioning. The questioning would be proper if the offense charged had been an offense against Gibbs or possibly Burrell rather than against Shumpert who concededly had nothing to do with the sale. Therefore, the issue of marijuana sale and usage was irrelevant to the offense charged, and injected a collateral matter into the trial. In People v. MacCullough, 281 Mich. 15, 274 N.W. 693 (1937), the Court held that the discretion of the trial court on cross-examination of collateral matters is not subject to review unless shown to have been grossly and oppressively abused. We find no such abuse in the transcript before us.

The trial court instructed the jury that it could return a verdict of guilty of the offense charged or not guilty. No mention was made of a possible included offense of attempted armed robbery under M.C.L.A. §§ 750.529, 750.92; M.S.A. §§ 28.797, 28.287 and no request to so instruct was made by defendant. Defendant now claims that under People v. Patskan, 387 Mich. 701, 199 N.W.2d 458 (1972), attempted armed robbery is an included offense of assault with intent to rob and, without citing any authority, the court sua sponte should have included appropriate jury instructions. Initially we note that only three Justices in Patskan held that attempted armed robbery was an included offense. ¹ But assuming, arguendo, that attempted robbery armed is an included offense we find no authority at all that sua sponte the trial court must so instruct. People v. Wynn, 386 Mich. 627, 194 N.W.2d 354 (1972); People v. Carroll, 49 Mich.App. 44, 51, 211 N.W.2d 233 (1973). This is not a case where the court affirmatively excluded consideration of lesser included offenses. See People v. Van Smith, Jr., 388 Mich. 457, 203 N.W.2d 94 (1972). There being no request for instructions exclusion was by implication only and such does not constitute reversible error. People v. Kelly, 51 Mich.App. 28, 31--32, 214 N.W.2d 334 (1973); People v. Hoffmeister, 52 Mich.App. 219, 222--223, 217 N.W.2d 58 (1974).

The jury had been out about one and one-half hours when at lunch break it informed the trial court that it had a question to ask. The court informed the jury it would take the question following lunch. At 1:50 p.m. the jury returned and the following exchange occurred.

'THE COURT: Mr. Moore and ladies and gentlemen of the jury I have a question that has been handed to me.

"Can the jury ask for a guilty verdict with clemency or must it be just guilty or not guilty'.

'In answer to that obviously the verdict must be guilty or not guilty but the jury may add with clemency.'

The court immediately proceeded to explain its answer as quoted in the footnote below. ² The jury retired at 1:57 p.m. whereupon defendant objected to the charge. At 2:02 p.m. the jury returned, reporting it found 'the defendant guilty and ask for clemency'. Appellant, with some persuasion, argues a new trial is mandated under People v. Warner, 289 Mich. 516, 286 N.W. 811 (1939), and in particular argues that although the court explained it would not have to follow the jury's recommendation the explanatory comment was still defective because it failed to clearly inform the jury that it should arrive at its verdict based upon the evidence and without consideration for the punishment to be administered. Plaintiff claims that Warner, supra, is clearly distinguishable and, further, that the judge followed the mandate of Warner when he explained he did not have to follow the jury recommendation and that he alone would impose sentence.

People v. Warner, Supra, is distinguishable. There, the jury had been out some eleven hours before inquiring of the court whether its verdict might be accompanied by a recommendation of clemency. There, the trial court's response was a mere 'yes' response without qualification or any instruction that the court would not be bound or influenced by the jury's recommendation. Obviously, in Warner the jury was deadlocked and susceptible to being influenced by the court's single word response. Obviously, the jury could easily conclude that its recommendation on sentencing would somehow or other be employed by the court. No Michigan case is found directly in point since Warner, though the decision has been mentioned by a reference on a few occasions. ³ In People v. Kern, 6 Mich.App. 406, 411, 149 N.W.2d 216 (1967), where, upon returning a verdict of guilty, the jury recommended that defendant be remanded to the juvenile court and placed under psychiatric care, the court said:

'The function of the jury is to deduce the truth from the evidence and express that truth in the verdict. There is prejudicial error if there is conduct by the court calculated to draw the attention of the jury from the performance of their duty and to induce them to rest their conclusion upon ulterior consideration. See People v. Warner, 289 Mich. 516, 286 N.W. 811 (1939).

'The trial judge, in this case, Indicated to the jury that he would not be bound by their recommendation. The verdict was then stated in unequivocal language without further deliberation. There is nothing to indicate that defendant's rights were prejudiced.' (Emphasis supplied.)

Other jurisdictions confronted with jury recommendations of mercy have come to mixed results. See Anno., Recommendation of Mercy in Criminal Case, 17 A.L.R. 1117, 1158, 87 A.L.R. 1362, 1371; 138 A.L.R. 1230, 1247. The editorial comment in 138 A.L.R. 1247 summarizes as follows:

'The question has frequently arisen whether or not an instruction which informs the jury that they may make a recommendation of mercy is proper where there is no applicable statute authorizing such a recommendation. The cases involving this question are not in accord as respects results, but it is to be observed that although there is probably some disagreement among them as to theory, they may to a great extent...