People v. Mosko

• Decision Date: 18 December 1992
• Docket Number: Docket No. 92066
• Citation: People v. Mosko, 495 N.W.2d 534, 441 Mich. 496 (Mich. 1992)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Billy David MOSKO, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 534

495 N.W.2d 534

441 Mich. 496

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Billy David MOSKO, Defendant-Appellant.

Docket No. 92066.

Supreme Court of Michigan.

Dec. 18, 1992.

Frank J. Kelley, Atty. Gen., Thomas Casey, Sol. Gen., Richard Thompson, Pros. Atty., Michael J. Modelski, Chief, Appellate Div., and Thomas S. Richards, Asst. Pros. Atty., Pontiac, for the people.

William David Mosko in pro. per.

PER CURIAM.

At the conclusion of a jury trial, the defendant was found guilty of first-degree criminal sexual conduct. The Court of Appeals affirmed the defendant's conviction, rejecting his argument that the circuit court committed an error that required reversal when it failed to give a requested instruction on third-degree CSC. We agree that the defendant's conviction should be affirmed.

I

The defendant was charged with first-degree CSC, following a report by a young relative that he had sexually abused her. M.C.L. Sec. 750.520b(1)(b)(ii); M.S.A. Sec. 28.788(2)(1)(b)(ii). The matter was tried before a jury in circuit court. The prosecution introduced testimony that satisfied the elements of the statute, ¹ while the defendant unequivocally denied the charge against him:

"I never done anything improper at all with [the victim]. I never touched her in any way."

Following the close of proofs, the defendant asked the circuit court to instruct the jury on the elements of second-, third-, and fourth-degree CSC. The court agreed only to instruct on second-degree CSC. ² M.C.L. Sec. 750.520c(1)(b)(ii); M.S.A. Sec. 28.788(3)(1)(b)(ii). The court denied the request for an instruction on third-degree CSC. ³ M.C.L. Sec. 750.520d(1)(a); M.S.A. Sec. 28.788(4)(1)(a). The court likewise refused to instruct on fourth-degree criminal sexual conduct. ⁴ %2990,0000,441 Mich. [PG499]M.C.L. Sec. 750.520e(1); M.S.A. Sec. 28.788(5)(1).

A two-judge majority of the Court of Appeals panel affirmed the defendant's conviction. ⁵ 190 Mich.App. 204, 475 N.W.2d 866 (1991). The Court said that the circuit court had not erred in refusing to give an instruction on fourth-degree CSC, but that it had been error to refuse the request for an instruction on third-degree CSC. However, the Court of Appeals found the error to have been harmless.

The dissenting judge said that the error of failing to give an instruction on third-degree CSC was not harmless. He would have remanded the case for entry of a judgment of conviction of third-degree CSC, with the prosecutor being given the option to retry the defendant on the original charge of first-degree CSC.

The defendant has applied to this Court for leave to appeal.

II

In People v. Ora Jones, 395 Mich. 379, 387, 236 N.W.2d 461 (1975), ⁶ this Court explained the difference between a lesser offense that is necessarily included and a lesser offense that is a cognate offense:

"The common-law definition of lesser included offenses is that the lesser must be such that it is impossible to commit the greater without first having committed the lesser. 4 Wharton, Criminal Law and Procedure, Sec. 1799. This definition includes only necessarily included lesser offenses. This definition, however, is generally conceded to be unduly restrictive, and thus most jurisdictions, including Michigan, have statutes that are broadly construed to permit conviction of 'cognate' or allied offenses of the same nature, under a sufficient charge. These lesser offenses are related and hence 'cognate' in the sense that they share several elements, and are in the same class or category, but may contain some elements not found in the higher offense." (Emphasis in original.)

Employing that distinction, this Court then explained the circumstances under which a trial court is required to give an instruction on a lesser offense:

"The duty of the trial judge to instruct on lesser included offenses is determined by the evidence. People v. Phillips, 385 Mich 30; 187 NW2d 211 (1971). If evidence has been presented which would support a conviction of a lesser included offense, refusal to give a requested instruction is reversible error. Id. at 36 . People v. Hamilton, 76 Mich 212; 42 NW 1131 (1889).

"If the lesser offense is one that is necessarily included within the greater, the evidence will always support the lesser if it supports the greater.

"In the area of 'cognate' lesser offenses, the evidence in each case adduced at the particular trial must be examined to determine whether that evidence would support a conviction of the lesser offense....

"Because the evidence adduced at trial would have supported a guilty verdict on the [cognate lesser] offense ..., the trial court was required to accede to defendant's request to instruct the jury that such offense was a lesser included offense of the charge...." 395 Mich. at 390, 236 N.W.2d 461.

This rule was later summarized in People v. Kamin, 405 Mich. 482, 493, 275 N.W.2d 777 (1979):

"Pursuant to People v. Ora Jones, 395 Mich 379; 236 NW2d 461 (1975), and People v. Chamblis, 395 Mich 408; 236 NW2d 473 (1975), it is clear that a defendant has a right upon request to have the jury instructed on necessarily included offenses. 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 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."

These principles remain sound. Reviewing the record of this matter, we agree with the Court of Appeals that, in this case, third-degree CSC is necessarily included within the charged offense of first-degree CSC. Thus the Court of Appeals correctly held that the circuit court erred in its refusal to give the requested instruction on third-degree CSC. ⁷

III

Our determination that the circuit court erred in failing to instruct the jury on third-degree CSC does not end the inquiry, however. There remain the questions whether an error of this sort can be harmless and, if so, whether it was harmless in the present case.

The Court of Appeals correctly observed that a harmless error analysis is properly employed where a court errs by failing to give a requested instruction on a cognate offense. People v. Beach, 429 Mich. 450, 418 N.W.2d 861 (1988). However, we reserved in Beach the question whether a harmless error analysis is appropriate where a trial court errs by failing to give a requested instruction on a necessarily included offense. Id., 429 Mich. at 465-466, 418 N.W.2d 861.

In the present case, the Court of Appeals urged that a harmless error analysis be applied where there is a failure to instruct on a necessarily included offense:

"Our Supreme Court has adopted a harmless error analysis where a trial court has failed to instruct on a cognate lesser included offense. People v. Beach, 429 Mich 450, 466; 418 NW2d 861 (1988). At that time, the Supreme Court refused to comment on this Court's failure to apply a harmless error analysis to a refused instruction regarding a necessarily included offense, noting that the case before it presented only cognate lesser included offenses. We conclude that the harmless error analysis should be extended to refused instructions regarding necessarily lesser included offenses.

" Beach addressed instructions regarding cognate lesser included offenses that should have been given because the evidence adduced at trial was sufficient to support a guilty verdict on that charge. Thus, these cognate offenses effectively are in the same posture as necessarily included lesser offenses. We can find no rationale not to apply a harmless error analysis to the latter as well as the former." 190 Mich.App. at 209, 475 N.W.2d 866.

We agree with those statements. Rules of automatic reversal are disfavored, for a host of obvious reasons. The doctrine of harmless error has been adopted by the Legislature ⁸ and by this Court, ⁹ and has been applied by this Court in many different contexts. ¹⁰ As this Court said in Beach, "We require a fair trial, not a perfect trial." 429 Mich. at 491, 418 N.W.2d 861.

Properly understood, the doctrine of harmless error is perfectly consonant with the purpose and function of an appellate court. Our constitutional mission, as the highest branch of the one court of justice, ¹¹ is to correct errors that have deprived a litigant of a fair trial or have otherwise interfered significantly with the trial's search for truth and a just verdict. With few exceptions, the judgment of a trial court may not be set aside on the ground of error unless there is a determination that the error was not harmless. We see no reason to exclude from this rule errors involving a failure to provide a requested instruction on a necessarily included offense.

IV

The final question is whether the erroneous failure to instruct the jury on third-degree CSC was harmless in this case. We are satisfied that this error was, indeed, harmless.

In Beach, the defendant was convicted of conspiracy to commit armed robbery. The jury had also been instructed on conspiracy to commit unarmed robbery. The question in Beach was whether error had occurred that required reversal when the court refused to instruct the jury on the cognate offense of conspiracy to commit larceny in a building. ¹² In Beach, therefore, this Court's harmless error analysis focused on the jury's decision not to find the defendant guilty of the intermediate charge:

"Because the instruction should have been given, upon the basis of the state of the record, we are presented with the decision whether or not to conclude that this omission was harmless error. To apply the reasoning of [People v. Ross, 73 Mich.App. 588, 252...