People v. Hendricks

• Decision Date: 26 August 1994
• Docket Number: No. 2,No. 97912,M,97912,2
• Citation: 521 N.W.2d 546,446 Mich. 435
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregory HENDRICKS, Defendant-Appellant. ay Term 1994. Calendar
• Court: Michigan Supreme Court

Page 546

521 N.W.2d 546

446 Mich. 435

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregory HENDRICKS, Defendant-Appellant.

No. 97912, May Term 1994.

Calendar No. 2.

Supreme Court of Michigan.

Argued May 5, 1994.

Decided Aug. 26, 1994.

John D. O'Hair, Pros. Atty., County of Wayne, Timothy A. Baughman, Chief of Research, Training and Appeals, Jeffrey Caminsky, Asst. Pros. Atty. and Wayne County Prosecutor by Jeffrey Caminsky, Detroit, for plaintiff-appellee.

David Cripps, Detroit, for defendant-appellant.

OPINION

BOYLE, Justice.

In this case, we are asked to determine if the trial court committed error requiring reversal by refusing defendant's request to instruct the jury on the felony of unauthorized driving away of an automobile (UDAA), ¹ as a cognate, lesser included offense to a principal charge of armed robbery. ² We hold that there was no error in the refusal to provide the cognate offense instruction because UDAA and armed robbery are not of the same class or category of offenses. People v. Ora Jones, 395 Mich. 379, 388, 236 N.W.2d 461 (1975). We therefore affirm the decision of the Court of Appeals upholding the defendant's conviction and sentence.

I

A

The incident to which the present inquiry relates occurred on December 28, 1989. At approximately 9:30 a.m., complainant Shirley McGriff was filling the gas tank of her car at a self-service station in the City of Detroit. At the same time, defendant was near the station and twice got change from the station attendant. The attendant assumed the change was for bus fare because she observed the defendant stand for several minutes at a nearby bus stop. Defendant testified that, while waiting for the bus, he observed another automobile that he believed contained several individuals whom he thought intended to kill him over an unpaid debt of $1,000. As complainant finished putting gas into her car, defendant jumped in and drove the car away. Defendant testified that he felt that such action was necessary to escape possible harm from the men to whom he owed the debt. Defendant also testified that he had no intent to keep the car permanently, and that he "figured" that the complainant was going to get her car back. ³

Complainant testified that when defendant approached her car, she objected to his intent to take it, at which time the defendant threatened to blow her brains out if she did not get away from the car. Consistent with this threat, complainant observed that defendant had his hand in his pocket, holding what she believed to be a gun. Defendant denied that he confronted complainant in any way, and claimed he was unarmed.

Defendant admitted that he drove complainant's car throughout the day, making stops at four or five locations, allegedly for the purpose of obtaining a gun to protect himself. At no time, however, did defendant attempt to contact police to ask for their protection from the men that were supposedly out to kill him. Defendant also admitted that complainant's purse was in the car when he drove off, but denies taking forty-five dollars that was apparently missing when the purse was returned to complainant.

At approximately 4:30 p.m. that same day, defendant was stopped in complainant's car by the police. As the police approached the car, defendant backed into an intersection, running into another vehicle, and then accelerated forward in the direction of one of the police officers. After the officer jumped out of the way, defendant crashed the car into a fence and was apprehended.

B

Defendant was charged with armed robbery and assault with intent to murder ⁴ the police officer. The defendant received a trial by jury. The trial judge agreed to instruct the jury on several lesser included offenses. The jury was instructed on assault with intent to do great bodily harm less than murder ⁵ and felonious assault, ⁶ as lesser offenses to the principal charge of assault with intent to murder. On the principal charge of armed robbery, the judge instructed the jury on the lesser offenses of unarmed robbery ⁷ and larceny from a person. ⁸ Defendant's request for lesser offense instructions of unlawfully taking and using an automobile ⁹ and UDAA ¹⁰ was refused. The defendant was convicted of larceny from a person and acquitted of the assault charges.

Defendant appealed the refusal to instruct the jury on UDAA. The Court of Appeals unanimously affirmed the action of the trial judge, finding that armed robbery and UDAA consisted of few common elements, and that, more fundamentally, they were not of the same class or category of offenses. 200 Mich.App. 68, 503 N.W.2d 689 (1993). On the defendant's application, we granted leave to appeal. 444 Mich. 963, 518 N.W.2d 477 (1994).

II

The duty of the trial judge to instruct the jury is provided by statute. Pursuant to M.C.L. § 768.29; M.S.A. § 28.1052, a jury must be instructed regarding the law applicable to the case; however, any verdict rendered will not be set aside because of the failure to instruct the jury on any point of law unless the defendant requests such instruction. Id. Because the defendant here properly requested that instruction be given to the jury on the felony of UDAA, we focus our attention on whether the refusal to give such instruction was error.

A

While examination of the law controlling the propriety of lesser included offense instructions in Michigan normally reaches back only to 1975, the doctrine developed at common law much earlier. Lesser included offense instructions originally were intended to assist in the prosecution of cases where there was a deficiency in the proof of some element of the principal crime charged. Keeble v. United States, 412 U.S. 205, 208, 93 S.Ct. 1993, 1996, 36 L.Ed.2d 844 (1973). Application of the common-law doctrine is readily apparent in early Michigan case law, in which instruction on lesser offenses requested by the prosecution was allowed if the information charging the greater, principal offense included allegations supporting a lesser offense. See, e.g., People v. McDonald, 9 Mich. 150, 152 (1861) overruled on other grounds by People v. Worrell, 417 Mich. 617, 340 N.W.2d 612 (1983) (consent is relevant to a charge of assault to commit statutory rape) but see id. 340 N.W.2d at 623 (Boyle, J., dissenting) ("It is a general rule of criminal law, that a jury may acquit of the principal charge, and find the prisoner guilty of an offense of lesser grade, if contained within it"); Hanna v. People, 19 Mich. 316 (1869) (affirmed a conviction for assault and battery where the defendant was acquitted of the principal charge of assault with intent to murder). Express allowance for the jury to find a defendant guilty of an inferior degree of an offense is presently provided by statute. M.C.L. § 768.32; M.S.A. § 28.1055. ¹¹

Although originating as an aid to prosecution, it is clear that the lesser included offense doctrine has evolved to allow defendants to request instruction on such offenses. Keeble, supra, 412 U.S. at 208, 93 S.Ct. at 1996.

B

The current rule for lesser included offense instructions in Michigan is set forth in People v. Ora Jones, supra, 395 Mich. at 390, 236 N.W.2d 461:

The duty of the trial judge to instruct on lesser included offenses is determined by the evidence. If evidence has been presented which would support a conviction of a lesser included offense, refusal to give a requested instruction is reversible error.

If the lesser offense is one that is necessarily included within the greater, the evidence will always support the lesser if it supports the greater.

In the area of "cognate" lesser offenses, the evidence in each case adduced at the particular trial must be examined to determine whether that evidence would support a conviction of the lesser offense. [Citations omitted.]

It was also noted in Ora Jones that to warrant instruction of a jury on a lesser included offense, the lesser offense should be "of the same class or category, or closely related to the originally charged offense...." Id. at 388, 236 N.W.2d 461. ¹² While this requirement does not provide a meaningful restriction on instruction requests for necessarily included lesser offenses, it is essential in limiting the proper scope of cognate offenses for which instruction may be given. ¹³

Ora Jones articulates rules for determining when to give lesser offense instruction for both "necessarily included" and "cognate" lesser offenses. "Necessarily included" lesser offenses encompass situations in which it is impossible to commit the greater offense without first having committed the lesser. Ora Jones, supra at 387, 236 N.W.2d 461. "Cognate" lesser included offenses are those that share some common elements, and are of the same class or category as the greater offense, but have some additional elements not found in the greater offense. Id. ¹⁴ The parties do not dispute that the case before us concerns a possible cognate offense. ¹⁵ Therefore, further inquiry is limited to the requisite elements necessitating instruction on this type of lesser offense.

In order to require a properly requested instruction for a cognate lesser included offense, two elements must be satisfied. First, the principal offense and the lesser offense must be of the same class or category, a requirement we have termed in a related context to be one of an "inherent relationship." People v. Stephens, 416 Mich. 252, 262, 330 N.W.2d 675 (1982); People v. Steele, 429 Mich. 13, 412 N.W.2d 206 (1987). Second, the evidence adduced at trial "must be examined to determine whether that evidence would support a conviction of the lesser offense." Ora Jones, supra, 395 Mich. at 390, 236 N.W.2d 461, People v. Pouncey, 437 Mich. 382, 387, 471 N.W.2d 346 (1991), and People v. Beach, 429 Mich. 450, 464, 418 N.W.2d 861 (1988).

C

In addition to separate tests for determining the propriety of necessarily and cognate lesser included offense instructions, we have also...