People v. Henry

• Decision Date: 18 December 1975
• Docket Number: No. 8,8
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward HENRY, Jr., Defendant-Appellant. 395 Mich. 367, 236 N.W.2d 489
• Court: Michigan Supreme Court

Page 489

236 N.W.2d 489

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward HENRY, Jr., Defendant-Appellant.

No. 8.

395 Mich. 367, 236 N.W.2d 489

Supreme Court of Michigan.

Dec. 18, 1975.

Office of the Pros. Atty., Berrien County, John A. Smietanka, Pros. Atty. by Sally M. Zack, Asst. Pros. Atty., St. Joseph, for plaintiff-appellee.

State App. Defender Office by Steven L. Schwartz, Asst. Defender, Detroit, Judith Magid, Legal Researcher, for defendant-appellant.

T. G. KAVANAGH, Chief Justice.

Defendant was charged and convicted by a jury of breaking and entering with intent to commit larceny. M.C.L.A. § 750.110; M.S.A. § 28.305. The Court of Appeals affirmed. 44 Mich.App. 290, 205 N.W.2d 498 (1973).

Defendant contends that the trial court committed reversible error in its instructions to the jury by affirmatively excluding lesser included offenses from the jury's consideration. Defense counsel requested no instructions on lesser included offenses and did not object to the charge given.

We conclude that the affirmative exclusion doctrine will no longer be followed and that ordinarily a failure to instruct on lesser included offenses will not be regarded as reversible error absent a request for such instruction.

I

The principal issue is whether the trial judge erred reversibly by failing to instruct Sua sponte on the lesser included offenses of entering without breaking (M.C.L.A. § 750.111; M.S.A. § 28.306) and entering without breaking and without permission. (M.C.L.A. § 750.115; M.S.A. § 28.310).

The prosecution maintained that the defendant broke and entered a tavern intending to commit larceny therein. He was arrested running away from the rear of the tavern, a window of which had been broken and the rear door of which was open.

No one saw the defendant enter the tavern. No one saw him inside it. No one saw him break any window. No one saw him take anything. By the tavern owner's own testimony, this place of business had been involved in several such incidents in recent weeks and months.

Defendant admitted being in the vicinity, but said he saw someone else running from the area. He testified that he was making a phone call and was arrested after leaving the phone booth.

There are alternative hypotheses which the jury could have believed in whole or in part. The jury could have decided that defendant came upon a broken window entered the tavern, saw a coin box, and rifled it; or the jury could have found that the men defendant testified were present in the area were frightened away, that defendant seized upon the opportunity to enter the premises, and that he immediately ran away upon seeing the officer. These hypotheses are not intended to be exhaustive. They are merely indicative of what the jury could have decided based upon the evidence presented at trial. The jury could have found that the lesser included offenses of entering without breaking, or of entering without breaking and without permission, had been committed by the defendant. ¹

The 'affirmative exclusion' doctrine is based upon People v. Lemmons, 384 Mich. 1, 178 N.W.2d 496 (1970). In Lemmons, this Court, relying on People v. Jones, 273 Mich. 430, 263 N.W. 417 (1935), reversed a conviction due to erroneous jury instructions, even though no requests for instructions on lesser offenses were made. The pertinent jury instructions in Lemmons were as follows: 'There are only two possible verdicts as to each defendant. You may find the defendant * * * guilty of robbery armed or not guilty. There are no included offenses.' 384 Mich. 1, 2, 178 N.W.2d 496, 497.

In reversing defendant's conviction, this Court held that a distinction existed between not instructing on lesser offenses and 'affirmatively excluding' them from the consideration of the jury. 'Affirmative exclusion' was held to violate M.C.L.A. § 768.32; M.S.A. § 28.1055 which states:

'Upon an indictment for any offense, consisting of different degrees, as prescribed in this chapter, the jury may find the accused not guilty of the offense in the degree charged in the indictment and may find such accused person guilty of any degree of such offense, inferior to that charged in the indictment, or of an attempt to commit such offense.'

According to Lemmons, if the judge expressly tells the jury that there are no included offenses, appeal may be had even though defendant requests no such instructions and makes no objections to the instructions given. If, on the other hand, the judge does not expressly so state, it is not assignable as error even though the jury is not instructed that there are lesser included offenses unless counsel asked for such instructions.

This 'distinction' has caused great confusion. Many opinions of our appellate courts have attempted to distinguish between 'exclusion by implication' and 'affirmative exclusion' holding only the latter to be error. ² Convicted defendants who requested no lesser offense instructions at trial often contend on appeal that the judge 'affirmatively excluded' lesser offenses from the jury's consideration. The prosecution counters that the court did not Exclude these lesser offenses, it merely did not Include them.

As the only member of the unanimous Lemmons Court still on this bench, the writer acknowledges the poetic justice which ordains that he write for this Court a repudiation of the doctrine, first articulated in People v. Jones, supra, but endorsed and followed in Lemmons, that 'affirmative exclusion' is erroneous but 'implied exclusion' is not. We are now persuaded that such a distinction serves no good purpose. If a jury is not instructed on lesser included offenses, such offenses are for all practical purposes excluded from the jury's consideration.

Instructions to a jury are in response to the jury's hypothetical inquiry: 'Now that we have this evidence, what are the legally permissible verdicts we may return?' Nice distinctions between affirmative exclusion and exclusion by implication are of little use when it comes to answering this question. If the jury is not told, we must assume it does not know.

It is indeed the duty of the trial court to instruct correctly on the law, and it is error for the court not to do so. People v. Oberstaedt, 372 Mich. 521, 526, 127 N.W.2d 354 (1964). The rule was stated most forcefully in People v. Murray, 72 Mich. 10, 16, 40 N.W. 29, 32 (1888):

'Without any requests from counsel it is the duty of the circuit judge to see to it that the case goes to the jury in a clear and intelligent manner, so that they may have a clear and correct understanding of what it is they are to decide, and he shall state to them fully the law applicable to the facts. Especially is this his duty in a criminal case. In this case it was not so done. Too much reliance is often placed upon counsel by the court in this respect for requests; but this should not be done. The court must do its duty in a criminal case, whether counsel do so or not. It is to the court that the accused has a right to look to see that he has a fair trial.'

We are forced to admit, however, that the goal of Murray has yet to be attained in the area of instructions on lesser included offenses. We have not yet been able to establish and consistently follow a rule which would require the trial judge to instruct on lesser included offenses without relying on requests from counsel. That is the goal toward which we are striving. It is our intention to formulate a court rule which will require instructions on lesser included offenses in every appropriate case, without requests from counsel. Such a rule, however, should not be promulgated before the Michigan Standard Criminal Jury Instructions are finalized and reviewed by this Court. This will not be done until we receive the comments of the bench and bar.

We hold that with the sole exception of first degree murder cases, ³ failure of the trial court to instruct on lesser included offenses will not be regarded as reversible error, absent requests for such instructions before the jury retires to consider its verdict.

II

Defendant contends that reversible error was committed when the prosecutor sought to impeach defendant's credibility by bringing to the jury's attention prior convictions allegedly obtained in the absence of counsel, citing Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972). Defendant also argues that he is entitled to resentencing per United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), because prior convictions allegedly obtained in the absence of counsel were considered by the trial court in imposing sentence.

In People v. Moore, 391 Mich. 426, 440--441, 216 N.W.2d 770, 777--778 (1974), this Court resolved a Tucker issue, concluding that:

'In the future, post-sentencing Tucker claims should be initially decided by the sentencing judge or his successor. He is in the best position to explore and decide the factual issues and, if necessary, the defendant can then be resentenced. The Court of Appeals may refrain from considering a Tucker claim until the sentencing court has had an opportunity to resolve it.

'To invoke a Tucker hearing, the defendant must (1) present prima facie proof that a previous conviction was violative of Gideon, such as a docket entry showing the absence of counsel or a transcript evidencing the same; or (2) present evidence that he has requested such records from the sentencing court and it has failed to reply or has refused to furnish copies of records within a reasonable period of time, say four weeks. Upon such presentation, either (1) or (2), the burden will then be upon the prosecutor to establish the constitutional validity of the prior conviction. Thus, if the prosecutor contends that the defendant waived counsel, the burden will be on him to show affirmative record evidence of waiver.'

Defendant's procedural remedy with respect to the Tucker issue is prescribed by Moore.

In our...