People v. Freeman

• Decision Date: 27 November 1974
• Docket Number: No. 2,Docket No. 19714,2
• Citation: 57 Mich.App. 90,225 N.W.2d 171
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles FREEMAN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 171

225 N.W.2d 171

57 Mich.App. 90

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles FREEMAN, Defendant-Appellant.

Docket No. 19714.

Court of Appeals of Michigan, Division No. 2.

Nov. 27, 1974.

Released for Publication Jan. 31, 1975.

John C. Talpos, Troy, for defendant-appellant.

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

Before QUINN, P.J., and McGREGOR and O'HARA,* JJ.

PER CURIAM.

Defendant was convicted on the charge of armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797, by an Oakland County Circuit Court jury.

This is another in an increasing number of appeals involving trial court instructions relating to the supposed obligation of a jury to find a defendant not guilty of the major offense charged before it can consider what has been known for years in the judicial terminology of this state as 'lesser included offenses'.

This is Not the law of the state of Michigan, and to the best of our knowledge it never was. Trial judges should not so charge explicitly and they should not suggest it implicitly by language such as was used in this case. We quote the questioned charge in the case at bar:

'Now, jury members, the law requires that I also define for you and indicate to you what are known as lesser included offenses and I am going to do that.

'Now, my instruction to you is that when you undertake to resolve these matters from the evidence you have heard in accordance with this instruction that you will First direct yourself to the issue that I have just indicated, that being an issue of whether or not the prosecution has proved beyond a reasonable doubt that this defendant is guilty of armed robbery as I have described it. If you do not so find, then you must give consideration to the lesser included offenses that I am now going to describe for you.' (Emphasis supplied.)

This charge comes perilously close to the interdiction in People v. Ray, 43 Mich.App. 45, 204 N.W.2d 38 (1972) and People v. Harmon, 54 Mich.App. 393, 221 N.W.2d 176 (1974).

The situation created by instructions of like ilk raises the same troublesome and misty gray areas as was created by People v. Lemmons, 384 Mich. 1, 178 N.W.2d 496 (1970), where the Supreme Court speaking through the late Justice Dethmers condemned explicitly affirmative exclusion of lesser included offenses, but left seemingly open the situation where the trial judge negatively omitted any reference thereto. The erroneous instruction in Lemmons was:

"There are only two possible verdicts as to each defendant. You may find the defendant, naming them individually, guilty of robbery armed or not guilty. There are no included offenses." (Emphasis supplied.) 384 Mich. at 2, 178 N.W.2d at 497.

This Court construed the Lemmons rule in People v. Goldfarb, 37 Mich.App. 57, 194 N.W.2d 535 (1971), lv. to app. den., 386 Mich. 787 (1972).

We said the Lemmons rule was limited to explicit exclusion rather than to exclusion by implication.

'We read Lemmons to mean that there is a distinction between excluding from the jury consideration of lesser included offenses by implication as in this case, and affirmatively stating that there are no lesser included offenses. Only the latter constitutes reversible error.

'We have studied Lemmons with great care...