People v. Evans

• Decision Date: 22 March 1982
• Docket Number: Docket No. 52424
• Citation: 321 N.W.2d 686,115 Mich.App. 711
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Lee EVANS, Defendant-Appellant. 115 Mich.App. 711, 321 N.W.2d 686
• Court: Court of Appeal of Michigan — District of US

Page 686

321 N.W.2d 686

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Lee EVANS, Defendant-Appellant.

Docket No. 52424.

115 Mich.App. 711, 321 N.W.2d 686

Court of Appeals of Michigan.

Decided March 22, 1982.

Released for Publication July 21, 1982.

Submitted Feb. 3, 1982.

[115 MICHAPP 713] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., Appeals, and Janice M. Joyce, Asst. Pros. Atty., for the People.

Richard B. Ginsberg, Asst. State Appellate Defender, for defendant on appeal.

Before KAUFMAN, P. J., and BRENNAN and CYNAR, JJ.

PER CURIAM.

Defendant was convicted by a jury of unarmed robbery, M.C.L. Sec. 750.530; M.S.A. Sec. 28.798. On July 9, 1979, he was sentenced to a term of 7 to 15 years in prison. Defendant appeals as of right.

Defendant first argues that the trial court's instruction regarding the circumstances under which the jury could consider the lesser included offenses constituted reversible error. The instruction at issue provided that:

"THE COURT: * * *

"I am going to give you the verdicts in logical order. That is I will give you the possible verdicts concerning armed robbery, unarmed robbery and larceny from a person guilty or not guilty but you don't have to consider them in that order when you go into the jury room to deliberate, you can pick out either one of them and start talking about it first, do you understand that? The possible verdicts are as follows if you find from the evidence that the People have proven to you beyond a reasonable doubt that the Defendant in this case committed the offense of armed robbery your verdict should be we find the Defendant guilty of armed robbery or guilty as charged. If on the other hand you find that the People failed to prove to you beyond a reasonable doubt that the Defendant committed the crime of armed robbery, you should consider whether or not the People [115 MICHAPP 714] have proven to you that the Defendant committed the crime of robbery unarmed. If you find that the People have proven to you beyond a reasonable doubt that the Defendant committed the offense of robbery unarmed your verdict should be we find the Defendant guilty of robbery unarmed. If however you are of the opinion that the Prosecution failed to prove to you beyond a reasonable [sic] that the Defendant committed the crime of Robbery unarmed then you may consider larceny from a person." (Emphasis added.)

In People v. West, 408 Mich. 332, 341-342, 291 N.W.2d 48 (1980), the Supreme Court considered the following instruction:

"Now, as I have indicated, Mr. Charles West comes into this court charged with the offense of felony murder, first degree. And I have indicated to you that by law there are certain what we call lesser included offenses contained within the more serious charge; namely, second-degree murder, manslaughter, careless use of firearms. And so I instruct you as follows: When you go into the jury room your attention should be initially directed to the question of whether Mr. West is innocent or guilty of the charge made against him. If you decide that he is guilty of the charge made against him in keeping with my instructions and the facts and evidence as you find it to be, then of course you would return a verdict of guilty as charged. If on the other hand you find that he is not guilty of felony murder or first-degree murder on the date and at the time alleged and at the place alleged, you would then turn your attention to the lesser included offenses." (Emphasis in the original.)

The West Court, relying on People v. Hurst, 396 Mich. 1, 238 N.W.2d 6 (1976), and People v. Mays, 407 Mich. 619, 288 N.W.2d 207 (1980), held that the instruction was reversibly erroneous. The Court reasoned that:

[115 MICHAPP 715] "There is an important difference between permitting a jury to consider lesser included offenses only if it fails to find guilt of the principal offense, and permitting it to do so only if it first acquits on the principal charge. In three times telling the jury in effect 'if you find Mr. West not guilty of [the greater offense], then you should consider [the lesser offense]', the trial court erred reversibly." 408 Mich. at 342, 288 N.W.2d 207.

This Court recently considered the issue in People v. Barker, 101 Mich.App. 599, 606, 300 N.W.2d 648 (1980). In Barker, the trial court instructed the jury as follows:

"To establish this charge, the prosecution must prove each of the following elements beyond a reasonable doubt. Now, this is a separate charge. If you find that all of the elements that I read of breaking and entering, including the specific intent instruction, did not exist beyond a reasonable doubt, then you would move to receiving and concealing stolen property to see if these elements exist beyond a reasonable doubt."

The defendant argued that the trial court's instruction to the jury was unduly coercive. The Court held:

"We do not find that this instruction requires the jury to consider the charged offense first or specifies a required order of consideration of possible verdicts. If the jury wished to first consider and decide that their verdict was not guilty, nothing in this charge prevented it. Neither is the jury prohibited from first considering the lesser-included offense of receiving or concealing stolen property if that was their wish.

"We distinguish this instruction from that in People v. Mays [407 Mich. 619, 621, 288 N.W.2d 207 (1980) ]. There is only reversible error where an instruction requires acquittal on one charge before consideration may be had of another. We decline to so find here." 101 Mich.App. 606-607, 300 N.W.2d 648.

[115 MICHAPP 716] The jury instruction in the instant case is similar to that given in Barker. The instruction did not require acquittal on the more serious charge. Rather, it required consideration of the lesser included offenses if the jury did not find beyond a reasonable doubt that defendant was guilty of the greater offense charged. The fact that the defendant was convicted of a lesser offense, unarmed robbery, indicates that the instruction did not improperly interfere with the jurors' consideration of the lesser offenses. Further, before giving the allegedly erroneous instruction, the trial court informed the jury that they could consider the charges in any order. Finally, it must be noted that defense counsel failed to object to the allegedly erroneous instruction. In the absence of manifest injustice, a failure to make timely objection to a jury instruction precludes review. People v. Handley, 101 Mich.App. 130, 300 N.W.2d 502 (1980).

Second, defendant argues that the admission of physical evidence and identification testimony, which tended to inculpate an alleged co-actor who was not on trial, constituted reversible error. Supporting his argument, the defendant cites People v. Brocato, 17 Mich.App. 277, 169 N.W.2d 483 (1969), and People v. Eldridge, 17 Mich.App. 306, 169 N.W.2d 497 (1969), lv. den. 383 Mich. 775 (1970).

The error found in Brocato and Eldridge arose from the prejudicial effect of the jury's being made aware of the guilty pleas of persons alleged to have been associated with the accused in the offense charged. In the case at bar, defendant argues that the evidence and testimony regarding the complainant's identification of the alleged co-actor created the same prejudicial effect. We do not agree.

More on point is People v. Bailey, 36 Mich.App. [115 MICHAPP 717] 272, 193 N.W.2d 405 (1971), where the Court held that a police officer's testimony that defendant had frequently associated with another...