People v. Matthews

• Citation: 53 Mich.App. 232,218 N.W.2d 838
• Decision Date: 02 May 1974
• Docket Number: Docket No. 17583,No. 1,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles MATTHEWS, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 838

218 N.W.2d 838

53 Mich.App. 232

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

Docket No. 17583.

Court of Appeals of Michigan, Division No. 1.

May 2, 1974.

Released for Publication June 19, 1974.

Markus S. Simon, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, App. Div., Thomas A. Ziolkowski, Asst. Pros. Atty., for plaintiff-appellee.

Before McGREGOR, P.J., and R. B. BURNS and SMITH,* JJ.

McGREGOR, Presiding Judge.

On March 7 and 8, 1973, defendant was tried in Recorder's Court on a charge of assault with intent to rob being armed. M.C.L.A. § 750.89, M.S.A. § 28.284. The trial court, sitting without a jury, found the defendant guilty of the lesser included offense of attempted robbery not being armed. M.C.L.A. § 750.530, M.S.A. § 28.798; M.C.L.A. § 750.92, M.S.A. § 28.287. The defendant was sentenced on March 27, 1973, to a term of from 3 1/3 to 5 years in prison.

The record in this case indicates that on February 15, 1973, the complaining witness heard a commotion in a back corner of a market. Failing to see the store guard, he turned toward the front of the store and saw a man who he later identified as the defendnat, entering with what appeared to be a handgun. The defendant said something which the complaining witness did not understand, and the complaining witness fired two shots at the defendant; the defendant thereupon fled from the store, followed by another man carrying what appeared to be a shotgun.

When police arrived, the complaining witness described the men and the police proceeded into the alley and followed two sets of fresh footprints in the snow to a home a short distance from the store. The officers knocked on the door and asked the occupant if anyone had just run into her house. She said her son had just come in, the officers asked to speak with him, and she led the officers to the basement where the officers found three young men in a small room, another crouched behind a washing machine, and another, identified as the defendant, under the stairs behind a headboard and footboard of a bed. The police also found a BB-pistol resembling a .357 magnum Luger and a Winchester .22-caliber rifle. The complaining witness later identified two of the men as the perpetrators of the crime.

When defendant's case was called for trial, the defendant consulted with his attorney and waived his right to trial by jury in writing. At trial, one of the two men identified by the complaining witness admitted that he tried to hold up the store, but the defendant claimed that he was only going into the store to purchase pop and cigarettes. The court found the defendant guilty of attempted robbery not being armed, and on September 19, 1973, denied defendant's delayed motion for a new trial, deciding that (1) defendant waived his right to trial by jury; (2) defendant was found guilty beyond a reasonable doubt; and (3) the finding of defendant's guilt was not against the great weight of the evidence.

In this Court, defendant argues that the trial court's finding of attempted robbery not being armed is against the great weight of the evidence and that the evidence adduced at trial was insufficient to support the conviction.

An objection going to the weight of the evidence can only be raised by a motion for a new trial. It is when that motion is denied, as in the instant case, that such denial is reviewable for abuse of discretion. People v. Mattison, 26 Mich.App 453, 182 N.W.2d 604 (1970). An abuse of discretion is found only where the trial court's decision was manifestly against the clear weight of the evidence. Murchie v. Standard Oil Co., 355 Mich. 550, 94 N.W.2d 799 (1959); Termaat v. Bohn Aluminum & Brass Co., 362 Mich. 598, 107 N.W.2d 783 (1961). Since the defendant in this case did make a delayed motion for a new trial, his assertion that the conviction was against the great weight of the evidence is properly before this Court.

A challenge to the sufficiency of the evidence does not require a prior motion for a new trial. People v. Ragland, 34 Mich.App. 673, 192 N.W.2d 73 (1971). The evidence is insufficient if it could not support a finding of guilt beyond a reasonable doubt. People v. Williams, 368 Mich. 494, 118 N.W.2d 391 (1962).

The judge in his decision in this case did not articulate the elements of the crime nor his findings of fact with respect thereto. Admittedly, 'the elements (of attempted robbery unarmed) are few in number and relatively simple in nature', People v. Green, 32 Mich.App. 482, 485, 189 N.W.2d 122, 124 (1971), and evidence was adduced at trial supporting the lower court's finding, which will only be set aside where clearly erroneous. GCR 1963, 517.1. However, the clearly erroneous standard is to be applied to special findings of fact not present here. We are thus required to decide a basic threshold question raised by neither party in this appeal, namely, whether the trial court's failure to make special findings of fact in compliance with GCR 1963, 517.1 requires reversal.

GCR 1963, 517.1 provides that the court in a nonjury case shall:

'(F)ind the facts specially and state separately its conclusions of law thereon.'

Our Supreme Court has recently resolved all doubt as to whether the provisions of the foregoing court rule apply to judge-tried criminal cases. In People v. Jackson, 390 Mich. 621, 627, 212 N.W.2d 918, 921 (1973), the Court stated:

'We are now of the opinion that in criminal cases as well as civil cases a judge who sits without a jury is obliged to articulate the reasons for his decision in findings of fact. Findings of fact in a nonjury case serve a function of paralleling the judge's charge in a jury case, that of revealing the law applied by the fact finder.'

In a footnote, however, Justice Levin added that the trial court's failure to make special findings of fact will not require remand where it is apparent that the trial judge was aware of the factual issue involved and resolved it. Jackson, supra, p. 627, fn. 3, 212 N.W.2d 918. The footnote in question cites People v. Green, 32 Mich.App. 482, 189 N.W.2d 122 (1971), as an example.

Jackson, supra, was decided on December 18, 1973. Defendant Matthews was sentenced on March 22, 1973, and his delayed motion for a new trial was denied on September 19, 1973. The obvious question, therefore, is whether the Supreme Court's requirement, enunciated in Jackson, that in nonjury criminal cases the trial court comply with GCR 1963, 517.1, is retroactively applicable to nonjury criminal trials occurring prior to the date of decision in the Jackson case.

This question of retroactivity is neither decided nor discussed in the Jackson case itself. One could argue that Justice Levin's statement that '(w)e are Now of the opinion' (emphasis added) intimates that the rule therein enunciated is intended to be prospectively applicable only. However, notwithstanding Justice Levin's well-known semantic precision, we hesitate to determine such an important question on the basis of his use of the one word 'now'.

The Jackson opinion is the resting place of a long line of conflicting decisions with respect to the applicability of GCR 1963, 517.1 to nonjury criminal trials. Prior to 1971, this Court had uniformly upheld the applicability of that court rule. However, on February 9, 1971, the Supreme Court, in People v. Thomas, 384 Mich. 804 (1971), summarily ruled that 517.1 does not apply in criminal cases. Three months later, on April 15, 1971, the Court vacated its order and thus generated a good deal of confusion. 384 Mich. 828 (1971). Compare People v. Payne, 37 Mich.App. 442, 446, 194 N.W.2d 906, 908 (1971) ('this court rule does not apply to criminal cases'), with People v. Curry, 39 Mich.App. 412, 416, 197 N.W.2d 837, 839 (1972) ('(t)his court rule applies to criminal trials'). Perhaps the most accurate assessment with respect to the question at the time was provided in People v. Manning, 38 Mich.App. 662, 664, 167 N.W.2d 152, 153 (1972):

'The question of whether rule 517.1 applies to criminal cases has not been definitively decided.'

When, in the following year, the Supreme Court handed down its opinion in the Thomas case, 387 Mich. 368, 197 N.W.2d 51 (1972), the confusion was not dispelled, for the Court split three-three on whether 517.1 applies to criminal cases. Three justices stated that 'no special findings of fact are required in judge-tried criminal cases', and a fourth concurred in the result. The other three were of the opinion that 517.1 should apply to civil and criminal cases alike.

Indeed, if anything, the confusion became more acute, for several panels of this Court read Thomas as excluding criminal cases from the operation of 517.1, despite the three-three-one split on the question in the Supreme Court. However, in the Jackson decision, Justice Levin, speaking for a unanimous Court, held that since neither opinion in Thomas obtained four signatures, 'neither (was) binding under the doctrine of stare decisis'.

We now know, of course, that the court rule does indeed apply to criminal cases, at least as of December 18, 1973, when Jackson was decided. It may be safely assumed, however, that during the interim period between 1971 and 1973, many trial judges were not uniformly making findings of fact and stating conclusions of law in accordance with the court rule. The present case, tried in Recorder's Court in early 1973, is but one example.

Thus, it may be seen that the Supreme Court's decision in Jackson was not merely a clarification or simple expansion of existing law, but was, rather, a new and hopefully definitive statement of the law with respect to one area of criminal procedure. Because of this, the question of Jackson's retroactivity is one that cannot be avoided.

In determining whether a new rule of law should be...