People v. Johnson, Docket No. 24116

• Decision Date: 28 March 1977
• Docket Number: Docket No. 24116
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Luther JOHNSON, Defendant-Appellant. 74 Mich.App. 250, 253 N.W.2d 722
• Court: Court of Appeal of Michigan — District of US

Page 722

253 N.W.2d 722

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Luther JOHNSON, Defendant-Appellant.

Docket No. 24116.

74 Mich.App. 250, 253 N.W.2d 722

Court of Appeals of Michigan.

March 28, 1977.

Released for Publication May 31, 1977.

[74 MICHAPP 251] Joseph DeVal Wilton, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., by Charles P. Kellett, Asst. Pros. Atty., for plaintiff-appellee.

Before ALLEN, P. J., and T. M. BURNS and BEASLEY, JJ.

BEASLEY, Judge.

In this case, a jury convicted defendant of armed robbery in violation of M.C.L.A. § 750.529; M.S.A. § 28.797. After sentence to a term of not less than 15 nor more than 25 years in prison, defendant appeals as of right claiming that the trial judge's instruction to the jury was coercive and unduly interfered with the jury's method of deliberation.

The record indicates that after the jury was instructed, in their absence, the court inquired of counsel and the following occurred:

"MR. GRANT: (Defense Counsel) Judge, I wish I could quote to you a case, but I can't. But I am questioning, in recent case law in Michigan haven't they found error where the Court directed the jury to go first to the major offense and proceed in succession to each? I think I could probably put my hand on the case if you will give me five minutes.

THE COURT: In the absence of a case, it is the only [74 MICHAPP 252] logical way to proceed. Unless you give them a logical way to proceed the jury becomes completely confused when you have six possible verdicts. I will note your objection. Anything else?"

Defense counsel's question is typical of the confusion engendered on the trial bench and in the trial bar by the unfortunate line of cases that give rise to this issue. It is suspected that this troublesome and confusing doctrine, that it is error for the trial judge to "suggest" that the jury start by considering the offense charged, began with People v. Lemmons, 384 Mich. 1, 178 N.W.2d 496 (1970), where a defendant, not wishing to run the risk of being found guilty of a lesser included offense on a compromise verdict, made no request for lesser included offenses. ¹ As a result, the court instructed the jury that "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". The Supreme Court reversed, saying that the instruction did more than fail to charge upon the included offenses; that it affirmatively excluded them from the consideration of the jury and that this was error. Eventually, five years later in December of 1975, in People v. Henry, 395 Mich. 367, 372-374, 236 N.W.2d 489, 491 (1975), the Supreme Court repudiated Lemmons, saying, among other things, as follows:

"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 objection 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 [74 MICHAPP 253] 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. 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. (Emphasis in original.)

"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 (273 Mich. 430, 263 N.W. 417), 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. * * * 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 should 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 [74 MICHAPP 254] 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.' " (Emphasis supplied.) (Footnotes omitted.)

In contrast with these admonitions to trial judges, is the line of cases, starting with People v. Ray, 43 Mich.App. 45, 204 N.W.2d 38 (1972). In People v. Ray, supra, at 48, 204 N.W.2d at 40, after deliberating for a time, the jury requested guidance from the court on the manner in which they should conduct their deliberation. In Ray, defendant was charged with assault with intent to rob being armed and two lesser included offenses. Part of the exchange between the judge and the jury went as follows:

"JUROR NO. 1 : We want to know Do we have to vote on the first charge, the second charge and the third charge separately, or

"THE COURT : All right, let me see if I can explain it.

"If you find the defendant not guilty of the first charge, then go to the second charge. You don't have to vote on all of them. If you find him guilty of the first charge, there is no need to go to the other charges.

"You can only find him guilty of one of those charges.

"JUROR NO. 1 : That's right. Now how many votes can we take on the first charge?

"THE COURT : You can take unlimited.

"JUROR NO. 1 : If we insist If someone insists upon taking a vote on the first charge, do we have to keep voting on that charge?

"THE COURT : Well, you have to either keep voting on the first charge until you either all find him not guilty or all find him guilty." (Emphasis in Ray.)

In that context, this Court found that to require a unanimous agreement on defendant's innocence of the greater charge, that is, that with which the [74 MICHAPP 255] prosecution charged the defendant, before discussion of the lesser charges is permitted, was coercive, unduly restrictive and reversible.

Since the decision in Ray, this Court has refused requests to apply the Ray rule and to reverse, in the following cases: People v. James, 51 Mich.App. 777, 216 N.W.2d 473 (1974); People v. Bates, 55 Mich.App. 1, 6, 222 N.W.2d 6 (1974); People v. Freeman, 57 Mich.App. 90, 225 N.W.2d 171 (1974); People v. Szymarek, 57 Mich.App. 354, 225 N.W.2d 765 (1975); People v. Britt, 57 Mich.App. 375, 225 N.W.2d 771 (1975); People v. Walker, 58 Mich.App. 519, 228 N.W.2d 443 (1975); People v. Robert Hall, 56 Mich.App. 10, 223 N.W.2d 340 (1974); People v. Bankston, 61 Mich.App. 275, 232 N.W.2d 381 (1975); People v. Waldron, 64 Mich.App. 648, 236 N.W.2d 732 (1975); People v. Don Francisco Lopez, 65 Mich.App. 653, 237 N.W.2d 599 (1975); People v. Erwin, 70 Mich.App. 60, 245 N.W.2d 173 (1976).

Essentially, these appeals involved erroneous interpretations of Ray. It is not error for a trial judge to tell a jury that they "may" first consider the offense charged by the prosecutor and it is not error to refer to a lesser included offense, as a lesser included offense. Some suggested "structuring" of jury deliberations by the trial judge is proper and desirable. ²

[74 MICHAPP 256] Only in the controversial decision in People v. Harmon, 54 Mich.App. 393, 221 N.W.2d 176 (1974), was Ray successfully invoked to reverse. See, People v. Erwin, supra.

In the within case, the trial judge defined the included offenses and then stated as follows:

"So, the main offense, charge in this case, Robbery Armed.

We have been through all the law states in the description of the various elements. We...