People v. Kamin
| Citation | 275 N.W.2d 777,405 Mich. 482 |
| Decision Date | 01 December 1977 |
| Docket Number | 59092 and 58980,Docket Nos. 58693,Nos. 7-10,58728,s. 7-10 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Keith V. KAMIN, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas B. AUSTIN, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Cleveland CARGILL, Jr., Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. William Garfield HARRISON, Defendant-Appellee. Calendar, |
| Court | Supreme Court of Michigan |
Robert F. Leonard, Genesee County Pros. Atty., by Donald A. Kuebler, Chief, Appellate Div., and Joel B. Saxe, Sr. Asst. Pros. Atty., Flint, for the People in No. 58728.
William L. Cahalan, Pros. Atty., Wayne County, Larry L. Roberts, Asst. Pros. Atty., Detroit, for the People in No. 58693.
Green & Moon, P. C. by Mark C. McCabe, Barry L. Moon, Flint, for defendant-appellant Austin.
William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Appeals, Andrea L. Solak, Asst. Pros. Atty., Detroit, for the People in No. 59092.
Kenneth M. Mogill, Marjory B. Cohen, Detroit, for defendant-appellant Cargill.
L. Brooks Patterson, Pros. Atty., Oakland County, Robert C. Williams, Chief Appellate Counsel, by James L. McCarthy, Asst. Appellate Counsel, Pontiac, for the People in No. 58980.
Howard S. Siegrist, Southfield, for defendant-appellee Harrison.
Four cases were consolidated on appeal in order to resolve a question common to all: should the trial court have granted defendant's request for jury instructions on lesser included offenses?
Pursuant to People v. Jones, 395 Mich. 379, 236 N.W.2d 461 (1975), and People v. Chamblis, 395 Mich. 408, 236 N.W.2d 473 (1975), it is clear that a defendant has a right upon request to have the jury instructed on necessarily included offenses. 1 Further, a defendant has a right upon request to jury instructions on those cognate lesser included offenses which are supported by record evidence.
The automatic instruction rule 2 for necessarily lesser included offenses removed the need for the trial judges to review the record in order to determine whether or not there is evidence to support a verdict on the lesser offense. Review of the record for evidentiary support is now in order only when the defense requests that the jury be instructed on a cognate lesser included offense.
We decided Jones and Chamblis on December 18, 1975. The four instant cases involve trials which were commenced and concluded prior to December 18, 1975.
In each case here the prosecutor asks that we limit the application of Jones and Chamblis to trials begun after December 18, 1975. The request is based on the claim that Jones and Chamblis announced new rules of law that should be given prospective effect only. We find that contention without merit. In People v. Lovett, 396 Mich. 101, 238 N.W.2d 44 (1976), without discussing the retroactivity issue, we found Jones/Chamblis error and reversed a conviction entered prior to our decision in Jones and Chamblis. See People v. Thomas, 399 Mich. 826, 249 N.W.2d 867 (1977); People v. Bills, 396 Mich. 819, 238 N.W.2d 803 (1976); People v. Dates, 396 Mich. 820, 238 N.W.2d 360 (1976); People v. Smith, 396 Mich. 825, 238 N.W.2d 536 (1976); People v. Aaron, 396 Mich. 843, 239 N.W.2d 602 (1976); People v. Watson, 396 Mich. 870 (1976); People v. Jones, 397 Mich. 871 (1976).
Moreover, in People v. Jenkins, 395 Mich. 440, 236 N.W.2d 503 (1975), a companion case released with Jones and Chamblis, we limited to prospective application our holding that a second-degree murder instruction was to be given Sua sponte at every murder trial.
Noteworthy also is that the Court of Appeals, with few exceptions, has applied the lesser instruction rules retroactively in disposing of a large number of pre-Jones/Chamblis appeals. People v. Bryant, 80 Mich. App. 428, 434-435, 264 N.W.2d 13 (1978).
At this juncture, we believe it is unnecessary to decide whether Jones and Chamblis announced new rules of law. Analysis of traditional considerations for limiting application of new rules convinces us that our decision in the instant cases would be retroactive application of Jones and Chamblis, the same disposition which obviously results from a determination that the already existing law has been merely restated or clarified.
Three factors must be balanced in order to limit the retroactive application of a judicial decision: (1) The purpose of the new rule, (2) general reliance on the old rule and (3) the effect on the administration of justice.
In deciding Jones and Chamblis this Court was concerned with a defendant's constitutionally guaranteed right to trial by jury. We noted that a trial court's denial of a proper request for instruction on lesser included offenses exposes a defendant to conviction on a charged offense because the jury may be reluctant to acquit one guilty only of a lesser crime. Conversely, a trial court's refusal to instruct increases the possibility that one guilty of a lesser crime may be acquitted. Either result is unnecessary. We believe a trial court's failure to give a properly requested instruction attacks the "very heart of our jury trial system". People v. Hampton, 384 Mich. 669, 676, 187 N.W.2d 404, 406 (1971).
We address the second and third considerations together. Whatever the reliance on those appellate decisions which applied a different rule, we find the impact of a retroactive application of this rule to be relatively insignificant on the administration of justice.
Analysis of records in this Court and the Court of Appeals indicate that those pending cases in which trials were concluded and the appellate process initiated prior to our decision in Jones and Chamblis number less than 12. Therefore, no more than 12 cases could, at the outset, require reversal and retrial as a consequence of our disposition in the instant matter. Further mitigation of any burden on the administration of justice may be effected by remand for resentencing on the lesser included offenses, the prosecutor maintaining the option to retry defendant on the greater offense.
Defendant Kamin was arrested December 23, 1974, and charged with breaking and entering of an unoccupied dwelling, M.C.L. § 750.110; M.S.A. § 28.305. After being taken to the station, Kamin alleges he was told that the charges would be dropped and he would be given a lighter sentence if he would confess. Thereafter, Kamin did sign a statement and arranged for the return of certain stolen property. At trial, defendant moved to suppress the confession as improperly obtained. Following a Walker hearing, this motion was denied by the trial court. Defendant subsequently moved that the jury be charged on lesser included offenses of receiving and concealing stolen property and larceny. This motion was also denied. On March 4, 1975, defendant was found guilty of breaking and entering and was sentenced to 5 to 10 years in prison. On appeal, the Court of Appeals affirmed July 15, 1976.
The evidence presented by the prosecution established a completed breaking and entering, positive identification of defendant as the intruder by a neighbor, and defendant in possession of the stolen goods. Defendant entered a plea of not guilty and did not testify at trial.
Neither receiving and concealing stolen goods nor larceny are necessarily lesser included offenses of breaking and entering. Receiving and concealing, a cognate lesser included offense of breaking and entering, is unsupported by the evidence presented at this trial due to the lack of any proof as to the value of the stolen goods. Proof of value is a necessary element for conviction on that charge.
Larceny, a cognate lesser included offense of breaking and entering, is also unsupported by the evidence presented at defendant Kamin's trial, for the same reason that there is an absence of proof on the necessary element of value of the goods stolen.
We therefore affirm defendant's conviction.
Defendant Austin was charged with the unlawful delivery of heroin on June 20, 1973, in violation of M.C.L. § 335.341; M.S.A. § 18.1070(41). The complaint against him, however, was not filed until September 17, 1973. Defendant alleges, Inter alia, that a res gestae witness necessary to his defense, "Marie", was not indorsed and produced by the people. He also claims the trial court erred in refusing to instruct the jury on the charge of unlawful possession of a controlled substance. On June 7, 1974, defendant was convicted and sentenced to 7 to 20 years in prison. The Court of Appeals affirmed February 6, 1976.
At trial, an undercover police officer, the prosecutor's chief witness, testified that he purchased heroin from the defendant in the presence of several other people including Larry Mills, Rose Spurlock, and another woman, Marie. Another police officer corroborated the undercover officer's testimony in part because he had the chief prosecution witness under surveillance and was therefore able to place him in the location of the drug transfer on the evening in question. Larry Mills, a long-time friend of defendant Austin, confessed on the stand, testifying that Marie sold the heroin to him and the undercover officer and that defendant Austin was not present at the time. The defendant did not take the stand at trial.
Our case law makes it clear that possession of a controlled substance may, though need not, be a lesser included offense of unlawful delivery. People v. Syed, 394 Mich. 105, 229 N.W.2d 1 (1975); People v. Martin, 398 Mich. 303, 247 N.W.2d 303 (1976). In People v. Stewart (On Rehearing), 400 Mich. 540, 256 N.W.2d 31 (1977), this Court stated:
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