People v. Bashans

• Decision Date: 23 January 1978
• Docket Number: Docket Nos. 29441 and 31063
• Citation: 80 Mich.App. 702,265 N.W.2d 170
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jacob Phillip BASHANS and Harry Herbin, Defendants-Appellants. 80 Mich.App. 702, 265 N.W.2d 170
• Court: Court of Appeal of Michigan — District of US

Page 170

265 N.W.2d 170

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jacob Phillip BASHANS and Harry Herbin,

Defendants-Appellants.

Docket Nos. 29441 and 31063.

80 Mich.App. 702, 265 N.W.2d 170

Court of Appeals of Michigan.

Jan. 23, 1978.

Released for Publication April 26, 1978.

[80 MICHAPP 703] Thomas L. Frank, Saginaw, for Bashans.

Craig H. Dill, Saginaw, for Herbin.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert L. Kaczmarek, Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and ALLEN and HEADING, ^* JJ.

[80 MICHAPP 704] DANHOF, Chief Judge.

Defendants were convicted by a jury of breaking and entering with intent to commit larceny, contrary to M.C.L.A. § 750.110; M.S.A. § 28.305. Defendants were sentenced to terms of from 6 to 15 years imprisonment and now appeal by right.

I

Defendant Bashans assigns as error the trial court's refusal to instruct on "larceny" and "entering without breaking and without permission", as requested by his counsel. This refusal occurred two days before the Supreme Court released opinions in People v. Henry, 395 Mich. 367, 236 N.W.2d 489 (1975); People v. Jones, 395 Mich. 379, 236 N.W.2d 461 (1975), and People v. Chamblis, 395 Mich. 408, 236 N.W.2d 473 (1975). We need not address the question of retroactivity, however, since we conclude that the trial judge did not err even under the post-Jones rules.

Defense counsel failed to specify with clarity upon what assertedly lesser included offenses he wanted the jury instructed, at one point referring to "larceny" and "entering without breaking and without permission" and at another point referring to "larceny from a building" and "breaking and entering without permission". ¹ Appellate counsel has not attempted to remedy this confusion, asserting at various points in his brief that defendant was entitled to instructions on "larceny" and "larceny from a building" and on "entering without breaking and without permission" [80 MICHAPP 705] and "breaking and entering of a dwelling without permission". In People v. Smith, 396 Mich. 362, 363-364, 240 N.W.2d 245, 246 (1976), the Court held that under the rule of People v. Henry, supra, 395 Mich. at 374, 236 N.W.2d 489, which requires a request for instructions on lesser included offenses before reversal is warranted for failure to so instruct,

"The issue is not preserved * * * by a general request for an instruction on the 'lesser included offenses'. We have recognized that the trial judge must rely on requests from counsel in carrying out his responsibility to instruct the jury. Henry, supra. He must receive more assistance from counsel than a mere request for an instruction on lesser included offenses to make his failure to so instruct reversible error." (Footnotes omitted.)

Smith imposes upon defense counsel a requirement of specificity; requests for instructions on lesser included offenses must be sufficiently definite and unequivocal to apprise the trial court of what instructions it is being asked to give. For the present, at least, the trial judge may continue to rely on requests from counsel in formulating his instructions. People v. Henry, supra, at 374, 236 N.W.2d 489; People v. Smith, supra, see generally, People v. Coles, 79 Mich.App. 255, 261 N.W.2d 280 (1977). In this case, defense counsel's shifting oral requests for instructions on lesser included offenses were insufficient to satisfy the requirements of Henry, supra, and Smith, supra. ² Accordingly, the [80 MICHAPP 706] trial judge did not err in refusing defense counsel's equivocal oral requests for instructions. ³

II

Defendant Herbin attempted to introduce testimony by one Robert Lacy, a prisoner in the county jail who professed to know one LaVerne Averill, to the effect that Averill (who was deceased at the time of trial) had told Lacy that he had "duped" defendant Herbin into removing furniture from a house by telling Herbin that the house and the furniture belonged to him (Averill) and that he wanted the furniture moved. The trial judge refused to admit Lacy's testimony on the ground that it was hearsay. Defendant brought a motion for new trial, claiming that under People v. Edwards, 396 Mich. 551, 242 N.W.2d 739 (1976), which was decided approximately six months after the trial of the instant case, Lacy's testimony was admissible because Averill's statement was a declaration against penal interest. The trial court denied the motion for new trial. We affirm, on [80 MICHAPP 707] authority of People v. Alexander, 72 Mich.App. 91, 96, 249 N.W.2d 307 (1976), with the reasoning of which we agree, holding People v. Edwards, supra, nonretroactive.

III

Defendant Bashans called as his first witness his co-defendant, Harry Herbin. When counsel for defendant Bashans called Herbin, Herbin's counsel announced to the court that he would like to make an objection out of the presence of the jury, whereupon the jury was excused. The court agreed that Bashans could not compel Herbin to be a witness, since Herbin was himself on trial, but after conferring with his client, Herbin's counsel announced that Herbin would testify after all. This announcement prompted the court to explain to defendant Herbin at some length his right not to testify. ⁴ The [80 MICHAPP 708] rest of the day was consumed in making separate records of certain testimony to determine questions of admissibility.

On the next day of trial, out of the jury's presence, the court inquired whether defendant Herbin still wished to testify as a witness for Bashans. The following colloquy ensued:

"MR. BRIGHT (counsel for defendant Herbin): Judge, I have conferred with Mr. Herbin last night and again very briefly this morning, and it is my understanding this morning that Mr. Herbin will not take the stand when called or will not take the stand if called by (Bashans' counsel), that he reserves the right to take the stand on his own behalf, but it is his decision not to testify if called by Mr. Frank.

"THE COURT: So, if I'll make it plain when we reopen again. I will ask Mr. Frank to call his first witness. If you call Mr. Herbin, of course, then the court will explain to the jury that under our system of law, a person accused of a crime and Mr. Herbin is a co-defendant does not have to take the stand as a witness in this case where he himself is on trial, unless he does it in his own behalf.

"And he has a right to do this and a right not to do that. And if he chooses not to, they may not in any way use this fact against him in their deliberations.

"If that's called, I will make that explanation to the jury.

"Then when it comes time to put on his defense he, of course, has that right to testify in his own behalf or not.

"So, if we have any questions now, I would like to have them raised right now, before I call the jury back. This is defense, so, the Prosecutor really has no control over the situation.

"You have a right to call whom you wish."

When asked by the court whether there was "anything before we call the jury back?", Herbin's [80 MICHAPP 709] counsel replied, "I have nothing". Thereupon, defendant Bashans' counsel called Herbin to testify, and the following occurred:

"THE COURT: Mr. Bright (Herbin's counsel)?

"MR. BRIGHT: Your Honor, the election as to whether or not Mr. Herbin shall take the stand is his own election. He is a co-defendant in this matter.

"I would object to the calling of Mr. Herbin as a witness by Mr. Frank and would state for the court that Mr. Herbin elects not to take the stand at this point, but reserves the right to take the stand on his own behalf, if he desires to do so.

"THE COURT: The court would instruct the jury that this is the right of Mr. Herbin. He is a co-defendant in this case, and under our system of law, as I instructed you at the beginning, these defendants are presumed to be innocent of the charges against them; the burden of proof is on the People to prove their guilt, and no man on trial may be required to give testimony in a case. He may do so, if he wishes, or he may decline to do so.

"If he declines to do so, you, as jurors, cannot consider the fact that he does not testify in any way as inferring (sic) guilt, because the duty remains at all times in a criminal case on the People to prove the guilt of the people accused of a crime beyond a reasonable doubt.

"So, Mr. Herbin has a right not to take the stand in this case, and you may not in any way infer anything from his refusal at this time to be called as a witness.

"Call your next witness * * *."

The trial judge was in error when he stated that "you (Bashans' counsel) have a right to call whom you wish". As the Court observed in People v. Giacalone, 399 Mich. 642, 645, 250 N.W.2d 492, 494 (1977),

"A lawyer may not knowingly offer inadmissible evidence or call a witness knowing that he will claim a valid privilege not to testify. The American Bar Association[80 MICHAPP 710] standards relating to the prosecution and defense functions provide that it is unprofessional conduct for a prosecutor or a lawyer representing a defendant

" 'knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury to offer inadmissible evidence'; 4

" 'to call a witness who he knows will claim a valid privilege not to testify, for the purpose of impressing upon the jury the fact of the claim of privilege.' 5

That Bashans' right to call Herbin was thus qualified is clear not only from the standards above quoted, but also from the result in Giacalone, supra. The question remains, however, whether the error committed by Bashans' attorney when he went through the motions of calling co-defendant Herbin, whom he knew intended to claim his privilege not to testify, warrants reversal. For the reasons outlined below, we conclude it does not.

The most basic distinction between Giacalone and the present case is that here it was co-defense counsel, and not the prosecutor, who committed the error. Although we...