People v. Liggett

• Citation: 148 N.W.2d 784,378 Mich. 706
• Decision Date: 07 March 1967
• Docket Number: No. 18,18
• Parties: PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Lawrence LIGGETT, Defendant and Appellant.
• Court: Supreme Court of Michigan

Page 784

148 N.W.2d 784

378 Mich. 706

PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Lawrence LIGGETT, Defendant and Appellant.

No. 18.

Supreme Court of Michigan.

March 7, 1967.

Samuel H. Olsen, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Richard J. Padzieski, Asst. Pros. Atty., Detroit, for the People.

Dominick R. Carnovale, Detroit, for defendant-appellant.

Before the Entire Bench.

ADAMS, Justice.

At about 2 a.m., November 23, 1963, Alfred Sanders was driven by his brother, Lester Sanders, to the house of Lawrence Liggett. Alfred Sanders knocked several times on Liggett's door and awakened him. After a discussion, Liggett dressed and drove his car to Harper Avenue, followed by the two Sanders. They drove to the vicinity of Ray's Radio Clinic. Alfred Sanders broke into the TV shop and took two TVs. He was apprehended by Officers Clark and Stank as he was seen crossing Harper approximately 30 feet from the TV shop. Officers Kelly and Knaus were cruising west on Harper. Kelly observed two men run out of the areaway to to the TV shop and Knaus noticed that the door was busted. Kelly chased Liggett on foot up to an expressway fence where he apprehended him. Knaus pursued the Sanders' car and several blocks away apprehended Lester Sanders. Alfred Sanders and Lawrence Liggett were charged with breaking and entering in the nighttime. No charge was placed against Lester Sanders.

Alfred Sanders and Lawrence Liggett were tried together. During the selection of the jury, the judge made this statement:

'It is the claim of the People that the owner closed his place of business around 8:00 at night. At about 3:00 in the morning, the two patrolmen saw defendant Alfred Sanders carrying two Admiral Television sets in the neighborhood. That they arrested him and claimed that he admitted breaking into the T.V. store. Later on, about this time, a Sergeant Kelly and another patrolman observed The two men running. They took after them. The sergeant arrested the defendant. I guess it was one or the other, but they were arrested in the neighborhood.

'The car belonging to one of the defendants, was parked in the neighborhood and One of the defendants had the two television sets. An investigation disclosed a window had been broken and entrance had been gained. That is in substance the theory of the People.' (Emphasis supplied.)

The judge cautioned the jury that he was merely telling it the theory of the people's case. However, it will be seen that the judge did not distinguish the persons involved or the purported role of each in the breaking and entering.

Alfred Sanders took the stand and confessed to the burglary. Upon direct examination by his attorney, he testified as follows:

'Q. Now, after getting out of the car, what did you do, if anything?

'A. Well, I walked away from them. I walked approximately 50 or 60 feet from Harper Street, and then I turned around and came back. I put my shoulder to the door across the street. I put my shoulder to the door of the T.V. shop and broke the glass and went in and come out with the two TVs.

'Q. You did this on your own, is that correct?

'A. Yes, I did.

'Q. Did you have any assistance in perpetration of this offense?

'A. No.

'Q. Is there anything else you want to say to this jury?

'A. Yes, Lawrence Liggett, ¹ (Lester Sanders) my brother, he didn't--FN1. Note the confusion of names here. Query--Error by the court stenographer or by defendant Alfred Sanders?

'The Court (interposing): No, proceed by question and answer.

'Q. (Continuing): Did your brother Lester in any way participate in the commission of this crime?

'A. No, he didn't.

'Q. Did the defendant Lawrence Liggett in any way participate in the perpetration--

'Mr. Connor (interposing): I am going to object.

'The Court: Of course I will sustain the objection. It is a question of fact.' (Emphasis supplied.)

The judge in part charged the jury as follows:

'You should consider the whole picture and it is a contention of the People that Lawrence Liggett, the defendant here, came from the doorway and ran and was apprehended by the Sergeant. You heard the story of the defendant. His brother had him drive him to the home of Sanders. He previously had a discussion with Sanders And asked the one Sanders to point out where this radio shop was on Mack Avenue. Sanders, at 2:00 or 2:30 in the morning, he got his car out and drove up there after which he told his brother to go home. His brother did not and Liggett, according to his own testimony, went in and burglarized the store. * * *

'Another very important test is their interest or lack of interest in the outcome of the case. It would seem if you believed the sergeants, you have a right to take into consideration their method and manner given in their testimony and interest or lack of interest. They stated that they chased Sanders and young Liggett from the store. One officer took after the car and the other apprehended him near the freeway fence. The theory of the People, if it is right, is that Sanders--that they were both scared away And, of course, Liggett was apprehended the moment he got a few feet from the door.

'As to the prosecutor's discretion, it seems there is a lack of testimony to connect up the brother, and mere knowledge is not sufficient. There must be an overt act. There must be cooperation and The People claim that there was cooperation between Sanders and Liggett. He pointed out the store. They were going to use his car. The other brother has no record. Now, in Liggett's cross-examination, it was brought out that he has two previous convictions for burglary. * * *

'Now, I am leaving the matter to you, but, as I say, all of the elements of burglary have been testified to. It will be up to you to determine whether it is nighttime and then The other question of fact is did defendant Sanders have any knowledge, and did he cooperate, etc. You are to take all of these facts into consideration in arriving at a verdict as to Liggett and Sanders and determine whether or not they are guilty of breaking and entering a business place in the night time with intent to commit larceny. * * *

'Mr. Connor (Assistant Prosecuting Attorney): Your Honor, I believe you said that Sanders was the one that admitted the breaking and entering. It was not Sanders that made the admission on the stand. Liggett ² was the one that made the admission, your Honor.

'The Court: I may have mis-spoke myself. I may have gotten confused. However, the jury will remember the testimony and will also remember which one took the stand. * * *.' (Emphasis supplied.)

After the jury had reached a verdict and a roll call was taken by the Court Clerk, the following occurred:

'The Court: Before I take the verdict, I did explain to you that in discussing the case with you in your final charge, I did get confused by calling Sanders--Liggett. Is that straight in your minds, now?

'The Jury: Yes.

'The Court: You have been concentrating on this. However, in the meantime instead of concentrating on this one case I have been taking pleas and have another case going on and, in addition to that, I have had a couple of sentences this morning, etc. So, you can see I am not able to concentrate like you can. But, before I take your verdict, you know who took the stand and who did not? You remember the circumstances as to who was apprehended by the sergeant and was captured by the two patrolmen?

'The Jury: Yes.

'The Court: I did not mislead you in any way?

'The Jury: No.

'The Court: You all agree to that?

'The Jury: Yes.'

The jury brought in a verdict of guilty as to both defendants. Upon appeal by Liggett, the Court of Appeals (1 Mich.App. 261, 135 N.W.2d 586) held that, while the charge was misleading, no new trial was required because the judge had made sure the jury was not misled. Appeal was taken to this Court upon leave granted.

Did the court err in Keeping from the jury testimony by defendant Alfred Sanders concerning defendant Liggett's participation or lack thereof in the breaking and entering? The court correctly sustained the objection to the question as to whether Liggett participated in the burglary. The solicited answer required the witness to form his own judgment as to the meaning of the phrase 'participate in the perpetration' and then apply that judgment as a test against the acts, if any, of the defendant Lawrence Liggett. The question went to the elements of the crime and was so understood by the trial judge in his ruling. In the form in which the question was framed there could be no assurance that the answer would be limited to a factual recital as it called for a conclusion of law by the witness. People v. Row, 135 Mich. 505, 98 N.W. 13; Ramsey v. State, 24 Ala.App. 83, 130 So. 674, certiorari denied, 222 Ala. 37, 130 So. 676; Anderson v. State, 129 Tex.Cr.App. 586, 90 S.W.2d 564; State of Oregon v. Watson, 82 Or.Adv.Sh. 719, 414 P.2d 337; State v. Borde, 209 La. 905, 25 So.2d 736; State v. Bradley, 231 Iowa 1112, 3 N.W.2d 133. Defense counsel could have questioned the witness as to the witness' knowledge of what Liggett did or did not do but counsel did not elect to pursue such a proper inquiry.

Did the charge of the court which confused the identities of the two defendants constitute prejudicial and reversible error? Was it prejudicial error for the court to imply that Lester Sanders was not brought to trial because he had no record and to state that Liggett was cross-examined and had two previous convictions?

It is settled law of this State that the trial judge should instruct the jury in criminal cases as to general features of the case, define the offense and indicate what it is essential to prove to establish the offense, even in the absence of request. A case may be reversed because the charge omits a legally essential ingredient. People v. Prinz, 148 Mich. 307, 111 N.W. 739; People v. Kanar, 314 Mich. 242, 254, 22 N.W.2d 359; People v. Hearn, 354 Mich. 468, 93...