People v. Lewis, Docket No. 78-785

• Decision Date: 06 August 1979
• Docket Number: Docket No. 78-785
• Citation: 91 Mich.App. 542,283 N.W.2d 790
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles LEWIS, Defendant-Appellant. 91 Mich.App. 542, 283 N.W.2d 790
• Court: Court of Appeal of Michigan — District of US

Page 790

283 N.W.2d 790

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

Docket No. 78-785.

91 Mich.App. 542, 283 N.W.2d 790

Court of Appeals of Michigan.

Aug. 6, 1979.

Released for Publication Oct. 10, 1979.

[91 MICHAPP 543] Kenneth J. Bloom, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, App. Chief Asst. Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P. J., and BEASLEY and RANSOM, ^* JJ.

BEASLEY, Judge.

Defendant was convicted by jury of assault with intent to rob being armed, in violation of M.C.L. § 750.89; M.S.A. § 28.284, and assault with intent to do great bodily harm less than murder, in violation of M.C.L. § 750.84; M.S.A. § 28.279. On the first charge he was sentenced to not less than 40 nor more than 60 years in prison and, on the second charge, not less than six and two-thirds nor more than 10 years in prison; the sentences to run concurrently with each other and with a previous life sentence for a first-degree murder conviction. Defendant appeals as of right.

At trial, the following discussion occurred between defense counsel and the trial court:

"MR. ARDUIN (defense counsel): I also want to state for the record, Your Honor, that I've had a conference with Mr. Lewis in regards to any lesser that he could be charged with lesser included offenses. At this time, Your Honor, he wishes to inform this Court that he does not (Sic ) you to charge the jury on lesser included offenses.

"THE COURT All right.

"MR. MORGAN (the prosecutor): Could some inquiry be made of the Defendant?

"THE COURT Is that true, Mr. Lewis?

"MR. LEWIS (the defendant): Yes.

[91 MICHAPP 544] "THE COURT All right."

Subsequently, the court instructed the jury on both counts of the information, but no instructions were given as to lesser included offenses. At the end of its charge to the jury, the trial court stated:

"Now, members of the jury, your possible verdicts in this case are as follows: As to Count I, the charge of assault with intent to rob while being armed, the verdict may be guilty or not guilty. As to Count II, assault with intent to commit murder, your verdict may be guilty or not guilty. You may find the Defendant guilty of one count and not guilty or vice versa. Your verdict, however, must be unanimous. It must be the verdict of all 12."

Nevertheless, the jury returned with the following verdicts:

"THE CLERK: How do you find the defendant, Charles Lewis of Count One, Assault with Intent to Rob Being Armed?

"THE FOREMAN: Guilty.

"THE CLERK: How do you find the defendant, Charles Lewis, of the charge of Assault with Intent to Murder?

"THE FOREMAN: We found him guilty of Assault with Intent to do great bodily harm less than the crime of murder."

Defendant claims the trial judge erred in accepting a verdict to an offense which was neither given the jury as a possible verdict, nor whose elements were defined to the jury. We find defendant's claim to be meritorious and reverse.

The right to a jury trial includes the right of a [91 MICHAPP 545] defendant to have a properly instructed jury pass upon the evidence. ¹

In the instant case, the court instructed the jury as to the possible verdicts. Defendant had been charged with assault with intent to commit murder. Defense counsel requested that the court not charge the jury with any lesser included offenses and the court agreed. At no time did the court discuss any lesser charges in the presence of the jury. Thus, only two choices were available to the jury as possible verdicts on the assault with intent to murder charge. They could find defendant guilty of the charge or they could find him not guilty.

It is the trial judge's duty to inform the jury on the law, so that they may understand and apply the law to the facts of the case. ² A defendant has a right to have a properly instructed jury pass upon the evidence, and the instructions must include all the elements of the crime charged. ³

A jury cannot disregard the court's instructions and return what appears to them to be an appropriate verdict. ⁴

The instant jury was not instructed as to the elements of assault with intent to do great bodily harm less than murder. If a jury is not instructed on lesser included offenses, such offenses are, for all practical purposes, excluded from the jury's consideration. ⁵ By rendering a verdict absent any instruction by the court as to the elements of the crime, the jury impermissibly usurped the function of the trial judge. ⁶

[91 MICHAPP 546] In view of the fact that the jurors response to the judge's inquiry as to their verdict on the assault with intent to murder charge was a lesser offense, we must conclude that the jury...