People v. Bryant

• Decision Date: 04 January 1978
• Docket Number: Docket No. 28880
• Citation: 80 Mich.App. 428,264 N.W.2d 13
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alan C. BRYANT, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 13

264 N.W.2d 13

80 Mich.App. 428

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Alan C. BRYANT, Defendant-Appellant.

Docket No. 28880.

Court of Appeals of Michigan.

Jan. 4, 1978.

Released for Publication April 6, 1978.

James R. Neuhard, State App. Defender by P. E. Bennett, Asst. Defender, Ronald J. Bretz, Research Atty., for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter E. Deegan, Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P. J., and R. B. BURNS and BROWN, ^* JJ.

R. B. BURNS, Judge.

Defendant was convicted by jury of unarmed robbery, M.C.L.A. § 750.530; M.S.A. § 28.798, and appeals. Although his codefendant, Elmer Suratt, was also charged with unarmed robbery, he was convicted of the lesser offense of assault and battery, M.C.L.A. § 750.81; M.S.A. § 28.276, and has not appealed.

Ten witnesses testified that defendant and three others repeatedly visited their campsite. The last visit precipitated a fight between Suratt and one of the campers, which escalated into an assault on the campers by the visitors. After the visitors subdued the campers, they rummaged through the campsite, and carried away a cooler, a chain saw, and tent poles. As the visitors left, defendant kicked one of the campers in the face.

Defendant testified that he was at a party at the time of the assault, and presented three corroborating witnesses. Suratt admitted being involved in the incident, but claimed to have fought and taken the tent poles in self-defense.

Both defendant and Suratt requested jury instructions on the lesser offense of assault and battery. Although the trial court granted Suratt's request, it ruled that defendant had waived instructions on any lesser included offenses by interposing the defense of alibi. Defendant objected to the court's failure to give the requested instruction. After four hours of deliberation, the jury returned to the courtroom to ask the trial court if defendant could "be charged with just assault and battery". The trial court answered in the negative. When the jury was polled after returning the verdict, the following transpired:

"THE CLERK: (W)as that your verdict, Mrs. Hull?

"JUROR HULL: Yes, I believe he was there.

"THE CLERK: Was that your verdicts, Mr. Bankson?

"JUROR BANKSON: He was there.

"MR. FOSTER: If the Court please, I do not believe the first two persons answered the question correctly, their answer to my understanding was that Mr. Bryant was there.

"THE COURT: Mrs. Hull, the question was, was that your verdict, the verdict in the case of Alan Bryant?

"JUROR HULL: We had to accept the way it was written and that was our verdict.

"THE COURT: And Mr. Bankson.

"JUROR BANKSON: Right, that's the way it was written."

Defendant argues on appeal that assault and battery was a cognate lesser included offense upon which the trial court was required to instruct. People v. Jones, 395 Mich. 379, 390, 236 N.W.2d 461, 465 (1975). Plaintiff argues that assault and battery is not a cognate lesser included offense; that even if it is, Jones is not retroactive and does not apply in this case.

We note initially that the trial court's ruling cannot be sustained on the rationale advanced by it. Although there is merit to the argument that it is inconsistent for a defendant to both assert that he was not at the scene of the crime and that, if he was, the crime he committed was a lesser offense than that charged, a defendant "may advance inconsistent claims and defenses". People v. Williams, 26 Mich.App. 218, 222, 182 N.W.2d 347, 349 (1970).

"A defense of alibi, per se, does not mean that a defendant may not be convicted of a lesser offense. A jury may disbelieve a defendant's alibi but nevertheless find that a disputed element of the principal charge was not proven." People v. Membres, 34 Mich.App. 224, 232 fn. 7, 191 N.W.2d 66, 69 fn. 7 (1971).

We are not unmindful that People v. Clemons, 74 Mich.App. 448, 452-454, 253 N.W.2d 795, 796-797 (1977), dealt with a situation similar to that in the instant case. In Clemons this Court distinguished Jones on the basis that it was unclear that Jones was to be applied retroactively, that Jones did not involve an alibi situation, and that the trial court "properly applied the law as it was then understood". The Court did not discuss why an alibi defense should waive a defendant's right to instruction on lesser included offenses, nor did it review the analyses in Williams or Membres. We agree with the concurring opinion in Clemons "that the alibi makes not a whit of difference", 74 Mich.App. at 459, 253 N.W.2d at 800 (Riley, J., concurring), and hold that assertion of an alibi defense does not deprive a defendant of his right to instruction on appropriate lesser included offenses.

Was assault and battery a lesser included offense of unarmed robbery in the instant case? M.C.L.A. § 750.530; M.S.A. § 28.798 states that

"(a)ny person who shall, by force and violence, or by assault or putting in fear, feloniously rob, steal and take from the person of another, or in his presence, any money or other property which may be the subject of larceny, such robber not being armed with a dangerous weapon, shall be guilty of (unarmed robbery)."

Assault has been defined as

"any intentional, unlawful offer of corporal injury to another by force, or force unlawfully directed toward the person of another, under such circumstances as create a well-founded fear of imminent peril, coupled with the apparent present ability to effectuate the attempt if not prevented." Tinkler v. Richter, 295 Mich. 396, 401, 295 N.W. 201, 203 (1940).

Battery is

"the willful touching of the person of another by the aggressor or by some substance put in motion by him; or, as it is sometimes expressed, a battery is the consummation of the assault." Id.

An assault and battery is therefore a consummated assault. A necessarily included lesser offense is one such that it is impossible to commit the greater without first having committed the lesser. People v. Jones, supra, 395 Mich., at 387, 236 N.W.2d at 464. Since it is possible to commit an unarmed robbery by some method of "putting in fear" other than through an assault and battery, assault and battery is not a necessarily included lesser offense of unarmed robbery. An offense is a cognate lesser included offense where it shares overlapping elements with the greater, and the overlapping elements relate to a common statutory purpose. Whether a lesser offense is a cognate included offense depends upon whether the facts in a given case will support a conviction on the lesser offense. People v. Jones, supra, at 389-390, 236 N.W.2d at 464-465. In the instant case there was evidence that defendant's group beat the campers into submission and then carried off their equipment. Since the "force and violence" through which the unarmed robbery was accomplished was an assault and battery, the unarmed robbery in this case shares all the elements of assault and battery. Although the unarmed robbery statute has the dual purpose of protecting persons and their property, the overlapping elements have the shared purpose of protecting persons. Therefore, assault and battery was a lesser included offense of unarmed robbery in the instant case.

Jones requires that instructions on cognate lesser included offenses be given where requested by the defendant. The defendant in this case was found guilty prior to the release of the opinion in Jones. Does Jones apply retroactively? The Supreme Court has not explicitly addressed this issue. It has, however, consistently applied Jones retroactively, albeit without discussing the retroactivity issue. See People v. Lovett, 396 Mich. 101, 238 N.W.2d 44 (1976); People v. Thomas, 399 Mich. 826, 249 N.W.2d 867 (1977). See also People v. Bills, 396 Mich. 819, 238 N.W.2d 803 (1976); People v. Dates, 396 Mich. 820, 238 N.W.2d 360 (1976); People v. Smith, 396 Mich. 825, 238 N.W.2d 536 (1976); People v. Aaron, 396 Mich. 843, 239 N.W.2d 602 (1976); People v. Watson, 396 Mich. 870 (1976); People v. Jones, 397 Mich. 871 (1976). The Court of Appeals has split on the issue, with some panels deciding that the acts, if not the words, of the Supreme Court should be followed, while other panels have determined that substantial reliance on the old rule requires Jones be given only prospective application. ¹ Since the Supreme Court has not explicitly decided this issue, and there is no consensus on the issue in this Court, we proceed to determine whether Jones should be applied retroactively as to an instruction on a cognate lesser included offense.

As a general principle full retroactivity is the rule, and prospectivity is the exception. People v. Markham, 397 Mich. 530, 548, 245 N.W.2d 41, 49 (1976) (Levin, J., dissenting). However, retroactivity may be limited where a balancing of three factors so dictates. The three factors are (1) the purpose of the new rule, (2) the general reliance upon the old rule, and (3) the effect on the administration of justice of the new rule. People v. Markham, supra, at 535, 245 N.W.2d at 42, People v. Hampton, 384 Mich. 669, 674, 187 N.W.2d 404, 405 (1971).

Hampton is instructive as to the importance of the first factor. In holding retroactive a new rule that a trial court must, on request, instruct that a defendant found not guilty by reason of insanity would not be released, the Supreme Court said:

"It is clear that the primary purpose of this instruction is to insure that a defendant will not be found guilty because the jury fears that he will be set free if an insanity verdict is returned. Thus, this decision goes to the very heart of our jury trial system. The United States Supreme Court has applied decisions retroactively where the guilt or innocence of the defendant was at stake." 384 Mich. at 676, 187 N.W.2d at 406.

The rule in Jones maximizes a jury's discretion with regard to what verdict to render, institutionalizes...