People v. Dupie, 17

• Decision Date: 18 December 1975
• Docket Number: No. 17,17
• Citation: 236 N.W.2d 494,395 Mich. 483
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Patrick DUPIE, Defendant-Appellant. 395 Mich. 483, 236 N.W.2d 494
• Court: Michigan Supreme Court

Page 494

236 N.W.2d 494

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Patrick DUPIE, Defendant-Appellant.

No. 17.

395 Mich. 483, 236 N.W.2d 494

Supreme Court of Michigan.

Dec. 18, 1975.

James B. Jenkins, Pros. Atty., Ontonagon County, Pros. Attys. App. Service, Edward R. Wilson, III, Director, William P. Weiner, Sp. Asst. Atty. Gen., Dept. of Atty. Gen., Lansing, for plaintiff-appellee.

Wisti & Jaaskelainen by J. Kent Bourland, Hancock, for defendant-appellant.

FITZGERALD, Justice.

Defendant was jury-tried and convicted of unarmed robbery. ¹ Evidence introduced by the people at trial indicated that defendant, at the time 17 years of age, spent the late evening hours of August 25--26, 1971, in the company of complainant John Gregorich and others eating and drinking. In the morning defendant and complainant visited downtown Ontonagon where complainant, planning to go to Detroit to get on a freighter as a sailor, withdrew $215 from the bank. Defendant and complainant continued drinking at the home of defendant's mother, where they were visited by two girls. After the girls departed from the home, defendant demanded complainant's money. Complainant balked and defendant beat and kicked him. Defendant obtained complainant's wallet but did not discover $184 which was hidden in a secret compartment in the wallet. He did, however, take from $14 to $18 which complainant had not placed in the secret compartment.

Defendant denied that he had beaten and robbed the complainant, testifying that complainant fell on several occasions, injuring himself.

Defendant's conviction was affirmed by the Court of Appeals in a short memorandum opinion. ² We granted leave to appeal. 392 Mich. 785 (1974).

Before this Court, defendant raises eight allegations of error, the most significant of which allege trial court error in rendering supplemental instructions to a divided jury and ineffective assistance of counsel. We find no instance of reversible error and affirm, remanding to the trial court for an evidentiary hearing respecting defendant's allegation that his conviction resulted from serious error of trial counsel.

I

Defendant assigns error in three respects concerning the trial court's instructions to the jury.

It is first alleged that the court did not adequately instruct on the specific intent required to be guilty of unarmed robbery. Second, it is argued that the instructions on the other elements of the offense were confusing. Defense counsel made no objection to these instructions at trial. Third, it is contended that the trial court 'affirmatively excluded' lesser included offenses from the jury's consideration.

Unarmed robbery is a specific intent crime. People v. McKeighan, 205 Mich. 367, 171 N.W. 500 (1919). The instruction objected to as failing to adequately instruct on the specific intent element reads as follows:

'You are, therefore, advised that the essential elements of robbery unarmed are: One, that the Defendant by force and violence, assault, or putting in fear--two, feloniously took any property from the person of the complainant or in his presence--and three, that the Defendant was not armed with a dangerous weapon.'

Also, during the charge to the jury, the court instructed:

'In order to warrant a conviction under this statute, it must appear first that the Defendant feloniously--without any claim or color of right--stole or took money or property, which may be the subject of larceny, from the person of the complaining witness or in his presence.'

The prosecution contends that the charge adequately instructed the jury on specific intent due to the use of the term 'feloniously', citing People v. Gregg, 170 Mich. 168, 135 N.W. 970 (1912), and 4 Gillespie, Michigan Criminal Law and Procedure (2d ed.), §§ 2219, 2231. The instruction given is an almost verbatim reading of the suggested Gillespie instruction of 'Form No. 968. Instruction on Robbery Armed'. We again must caution members of the bench and bar against using the 'form instructions' of Gillespie (and, indeed, any other treatise) without an independent determination of the accuracy of these suggested instructions. We do not wish to be seen as stamping our imprimatur on the instruction given. Nevertheless, our responsibility as a reviewing court is limited to determining whether a defendant received a fair trial.

The charge to the jury must be considered in its entirety, and

'(w)here the charge of the judge to which exception is taken is not strictly correct, but the court can clearly see that the jury could not have been misled by it, to the injury of the party excepting a new trial will not be granted for that error.' People v. Scott (syllabus), 6 Mich. 287 (1859).

We are not persuaded that the instruction given was so deficient as to mislead the jury or to leave them in doubt about their responsibility. People v. Schwitzke, 316 Mich. 182, 25 N.W.2d 160 (1946).

The allegation regarding the 'confusing and conflicting' instruction on the elements of the offense is also without merit.

Defendant also alleges error in the failure of the court to instruct on lesser included offenses. Defendant did not request instructions on lesser included offenses. There was no reversible error. People v. Henry, Mich., 236 N.W.2d 489 (1975).

II

Defendant contends jurisdiction to try him was not properly in the circuit court in light of the decision of this Court in People v. Fields, 388 Mich. 66, 199 N.W.2d 217 (1972), Aff'd on rehearing, 391 Mich. 206, 216 N.W.2d 51 (1974). Defendant's argument is intricate and its suggested resolution--that jurisdiction in this case should of necessity have resided in the probate court--untenable. The facts of this case and those of Fields are distinguishable. Here defendant, a 17-year-old, was originally charged in the circuit court. In Fields defendant was under 17 years of age and the question of waiver from probate court was involved. The precise question in Fields was 'whether the lack of standards in the (waiver) statute preclude a waiver proceeding.' 388 Mich. 66, 75, 199 N.W.2d 217, 221 (1972). No such question of waiver is here involved. Jurisdiction legally resided in the circuit court. Const.1963, art. 6, § 13; and M.C.L.A. § 712A.2; M.S.A. § 27.3178(598.2). See, also, Downs, Michigan Juvenile Court: Law and Practice § 4.12.

III

Defendant complains that his counsel was not permitted to inspect the presentence report prior to sentencing as provided in GCR 1963, 785.12 (effective Sept. 1, 1973). ³ He asks that we remand for resentencing.

In People v. Martin, 393 Mich. 145, 224 N.W.2d 36 (1974), this Court ruled that defendants were not entitled as a matter of right to inspect the presentence report prior to the effective date of the new court rule. Defendant's sentencing occurred prior to this date.

Reviewing this record we further note that defendant's appellate counsel was afforded opportunity to review the presentence report at the hearing held on defendant's motion for new trial in the court below. The record indicates that counsel reviewed the presentence report and offered no objection to the contents thereof. Remand for resentencing is not warranted.

IV

Defendant contends the evidence presented at trial was insufficient to permit jury determination of his guilt beyond a reasonable doubt. It has been said that the question defendant raises, properly stated, 'is whether the evidence was Ample to warrant a finding of guilty beyond a reasonable doubt of the crime charged.' People v. Williams, 368 Mich. 494, 501, 118 N.W.2d 391, 395 (1962), emphasis supplied. For explication see People v. Palmer, 392 Mich. 370, 220 N.W.2d 393 (1974), and People v. Howard, 50 Mich. 239, 15 N.W. 101 (1883) quoted therein. The testimony of complainant John Gregorich supplies ample evidence upon each element of the crime of unarmed robbery, thereby indicating the sufficiency of the evidence to sustain the verdict of guilt beyond a reasonable doubt.

V

Defendant argues that the following supplemental charge, given the jury after the trial court had learned that the jury was deadlocked, was coercive:

'THE COURT: All right. And it's my understanding that there are some of you who are in favor of a not guilty verdict, and some of you who are in favor of a guilty verdict.

'I simply want you to understand this--that each of you, as jurors, are charged with the responsibility of attempting to arrive at a verdict. There's nothing compulsive about your arriving at a verdict, but you should understand that, if there's a hung jury, this case will, in all likelihood, be retried and there will be twelve citizens of Ontonagon County who will be called to sit as jurors, to hear the evidence and have this matter submitted to them. And, while I am not directing you that any of you need to change your minds from any position that you presently have, because that's not my function--and it is your function to render a verdict which you honestly believe in. The fact is that, if we bring twelve more people in here, they're not going to be any more intelligent or any more capable jurors than you people are, and if there is any way of resolving this matter--one way or the other--it ought to be done.

'Now, I want it understood that I am not compelling you to arrive at a verdict, but I am suggesting to you that--as reasonable people, you've heard the evidence, and you've heard the law as it applies to this case--if it can be resolved, it should be resolved. The inconvenience and so forth to all the parties involved in trying this case once, and retrying it a second time--If there's no way that you can arrive at a verdict, then that's what you should report--that you've got a hung verdict--a hung jury, but I would simply suggest to you that the twelve of you aren't any different than the next twelve people that we may bring in for a jury, so that if there is any way of your resolving this, the Court is desirous of having you do so,...