People v. Moore

• Decision Date: 22 March 1972
• Docket Number: Docket No. 11069,No. 1,1
• Citation: People v. Moore, 197 N.W.2d 533, 39 Mich.App. 329 (Mich. App. 1972)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Willie James MOORE, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 533

197 N.W.2d 533

39 Mich.App. 329

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Willie James MOORE, Defendant-Appellant.

Docket No. 11069.

Court of Appeals of Michigan, Division No. 1.

March 22, 1972.

Released for Publication May 25, 1972.

Gerald S. Surowiec, Detroit, for defendant-appellant.

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

Before LEVIN, P.J., and HOLBROOK and BRONSON, JJ.

LEVIN, Presiding Judge.

The defendant, Willie James Moore, appeals his conviction of breaking and entering.M.C.L.A. § 750.110;M.S.A. § 28.305.

Moore contends that the evidence did not establish that He broke and entered the building, and that the trial judge erred in refusing to instruct the jury that no inference should be drawn against Moore because of his failure to take the stand.We hold that there was sufficient evidence to support the jury's verdict, that the judge did err in so refusing to charge, and remand for a new trial.

I.

Moore and John Barnes were seated in an automobile in a parking lot near a building when a police cruiser pulled alongside.The officers observed a crowbar and six fire extinguishers in the automobile occupied by Moore and Barnes.The fire extinguishers had been taken from the building.A window of the building had been broken, a screen had been pulled loose, and the window raised.The officers arrived at approximately 7:45 a.m.A person who worked in the building testified that when he closed it at 9:30 p.m. on the preceding day he had checked the windows and doors and ascertained that they were closed.

Before Moore's trial, Barnes pled guilty to having broken and entered the building.Barnes testified for the defense.He was a dope addict who supported his habit by stealing.He said that while walking past the building he observed that a window was broken, pushed it up, and then reached in and removed the fire extinguishers.A short time later he saw Moore working on an automobile and asked him to drive him 'somewhere to pick up something and run me somewhere; and I told him I'd pay him.'Moore agreed and drove Barnes to the building where Barnes placed the fire extinguishers in the automobile.Barnes said that Moore, sensing the business that Barnes was about, 'didn't want to take me.So we was sitting up there arguing.'The police then pulled up.Barnes said Moore did not have anything to do with the breaking or entering or with stealing the fire extinguishers.

Moore did not take the stand in his own defense.

Resolution of the disputed issue of Moore's guilt or innocence turned on the jury's appraisal of the credibility of the witnesses.The police officers testified that they arrived at the scene within a few minutes after receiving a radio call directing them to proceed to the building in response to a silent alarm signal from the building.If the jurors believed that testimony they could properly conclude that the breaking and entering occurred shortly before the police arrived and that Barnes was lying when he said it occurred some time before he prevailed on Moore to assist him in picking up 'something.'

In People v. McDonald, 13 Mich.App. 226, 236--237, 163 N.W.2d 796, 802(1968), we acknowledged that the rule is 'that unexplained possession of property recently stolen, Unaccompanied by other facts or circumstances indicating guilt, will not sustain a conviction for breaking and entering, even though it is some evidence that the possessor is guilty of theft.'(Emphasis supplied.)¹We affirmed McDonald's conviction because we found that the record did contain evidence tending to establish additional facts and circumstances from which the jurors could properly have found that McDonald broke and entered the building.In McDonald, as here, the people's evidence tended to show not only that the defendant was in possession of stolen goods taken from the building but also that he was in a parking lot adjoining the building shortly after it was broken into.

Barnes's testimony that he pushed up the window, entered the building, and stole the fire extinguishers, coupled with a jury finding that the breaking and entering occurred shortly before the police arrived, supports an inference that Moore was an accomplice, the driver of the get-away car, and, thus, part of an illegal concert of action, not merely an innocent person accommodating Barnes.Those permissible findings and inferences, all entirely reasonable, support the jury's verdict convicting Moore of the charged offense.

II.

After the judge had completed his instructions to the jury he inquired, outside the presence and hearing of the jury, whether the lawyers for the parties were satisfied with the instructions.Moore's lawyer responded that he objected to the judge's failure to instruct the jurors 'that no inference shall be drawn against the defendant because of failure to take the stand.'The judge replied that he was not obliged to give this instruction because the instruction had not been earlier requested.

In People v. Pruitt, 29 Mich.App. 230, 232--233, 185 N.W.2d 57, 58(1970), we said that a defendant's right not to take the stand is part of 'the law applicable to the case' within the meaning of M.C.L.A. § 768.29;M.S.A. § 28.1052, which provides in part:

'The court shall instruct the jury as to the law applicable to the case * * *.The failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused.'

We also said, on the authority of People v. Provost, 144 Mich. 17, 23, 107 N.W. 716(1906), that, without regard to the quoted statutory provision, a defendant is entitled to an instruction regarding his right not to take the stand.In Provostthe Supreme Court declared that upon a defendant's request the jury should be informed of his right to elect not to testify 'to prevent the creation in their minds of any presumption of guilt by reason of his silence.'

In Pruitt we concluded that 'there is No discretion in the trial court when requested to give an instruction similar to the one requested here and the court's refusal to give the instruction is error.The choice as to whether such an instruction is to be given to the jury Is the defendant's and not the trial court's.'(Emphasis supplied.)Similarly, seePeople v. Abernathy, 29 Mich.App. 558, 185 N.W.2d 634(1971).²

The judge's refusal to give the instruction cannot be justified on the ground that Moore's lawyer had not requested the instruction before the judge began to instruct the jurors.The courtrule, GCR 1963, 516.1, in pertinent part provides:

'1.At or before the close of the evidence, any party may, or at any time the Court reasonably directs, the parties shall, file written requests that the Court instruct the jury on the law as set forth in the request.* * *

'2.No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider the verdict, stating specifically the matter to which he objects and the grounds of his objection.Opportunity shall be given to make the objection out of the hearing of the jury.'³

It will be observed that, while the rule expressly provides that a party may not assign as error the giving or the failure to give an instruction 'unless he objects thereto before the jury retires to consider the verdict,' it does not state the consequence of a failure to exercise timely the right to file a written request to charge.

In this case there is no need to decide under what circumstances a judge may properly refuse an instruction to which the requesting party is entitled on the ground that the request, although made before the jury retires to consider its verdict, was not made at or before the close of the evidence.⁴Whatever the rule should be regarding requests to charge on matters which are not fundamental, where the request concerns a fundamental matter and the request is made before the jury retires to consider its verdict, the judge must grant it even though there was not a previous request to charge; failure to give the instruction when so requested is error.See 2 Honigman & Hawkins, Michigan...