People v. Patskan, 9

• Decision Date: 26 July 1972
• Docket Number: No. 9,9
• Citation: 387 Mich. 701,199 N.W.2d 458
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George PATSKAN, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 458

199 N.W.2d 458

387 Mich. 701

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George PATSKAN, Defendant-Appellant.

No. 9.

Supreme Court of Michigan.

July 26, 1972.

William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Department, Gerard A. Poehlman, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Arthur J. Tarnow, State Appellate Defender, Detroit, for defendant-appellant.

Before the Entire Bench.

SWAINSON, Justice.

On July 14, 1967, at approxiamtely 4:00 a.m., three men attempted to hold up a restaurant-bar on East Eight Mile Road, in Detroit. The establishment had closed for the evening and a night porter, Fernando Jaime, was inside cleaning. He received a telephone call that the place was on fire and upon attempting to leave by way of the back door he was accosted by two men who took his keys and informed him that it was a stick-up.

Upon the back door being opened, a silent alarm was sounded in a private protection agency's office. The police were summoned and the robbery thwarted. One of the holdup men was fatally shot by the police as he tried to escape, and another was wounded. Officer Andrews saw a third man leave the building and gave chase. The officer, who was about 30 feet behind the fleeing man, noted the color and type of the latter's clothing. The fleeing man ran into an open field. After having lost sight of him for a period of five to ten seconds, the officer found defendant George Patskan in the field lying face down, and arrested him. Defendant told the officer that he was sleeping in the field. Officer Andrews handcuffed defendant and brought him back to the bar. Defendant Patskan was then identified by Officer King and Patrolman Blanchard.

Defendant, along with a co-defendant, was charged with assault with intent to commit robbery being armed. ¹

Defendant's counsel filed a written request that a charge be given to the jury on the crime of attempted robbery armed. ² Co-defendant's counsel requested that a charge be given on attempted assault with intent to commit robbery being armed, and defendant Patskan's counsel asked that that charge also be given as to defendant. Discussions were held in the judge's chambers and the court told counsel he would not give the charge on attempted robbery armed, but would give a charge on attempted assault with intent to rob while being armed.

Based on these discussions in chambers, defendant's counsel, at the closing argument, argued to the jury that the crime of attempted assault with intent to rob being armed had been committed. The court did not give a charge on attempted assault with intent to rob being armed. Defendant's counsel and co-defendant's counsel took exception to the court's failure to instruct the jury on attempted robbery armed and attempted assault with intent to rob being armed. Defendant and his co-defendant were convicted by the jury and found guilty of the crime charged--assault with intent to rob being armed. The co-defendant was sentenced to 25 to 30 years, and defendant Patskan was sentenced to 25 to 50 years. The Court of Appeals affirmed. 29 Mich.App. 354, 185 N.W.2d 398. We granted leave to appeal. 384 Mich. 842, 186 N.W.2d 737.

Five issues are raised on appeal:

1) Whether the record of the trial below sustains defendant's contention that the trial court stated it would give a charge on attempted assault with intent to rob being armed and, if so, whether defendant was denied due process of law and a fair trial when the court failed to give such charge?

2) Whether the testimony elicited at trial justified the trial court's refusal to give a charge of attempted assault with intent to commit armed robbery, requested as an included offense?

3) Whether the evidence elicited at the trial justified the court's refusal to give a charge of attempted robbery armed?

4) Whether there is an unconstitutional delegation of legislative and judicial authority to set sentences in the discretion of the prosecutor in that the alleged facts upon which defendant was convicted could equally have sustained two charges: attempted robbery armed, or assault with intent to rob being armed?

5) Whether the arresting officer violated defendant Patskan's rights to due process of law and assistance of counsel when he returned defendant to the scene of the alleged holdup?

I.

Defendant contends he was denied due process and the right to a fair trial by the fact that the court failed to instruct the jury on the crime of attempted assault with intent to commit robbery being armed. He contends that his attorney relied, to his detriment, on the belief that the trial court would give such an instruction. Defendant's counsel argued to the jury in his closing argument that the crime of attempted assault with intent to commit robbery being armed was committed.

The People contend that the trial judge only promised to define 'attempt,' and that he did this when he defined attempted larceny from a person. They further argue that defense counsel placed little emphasis on this argument and, 'As a matter of fact, counsel's argument on attempt seems merely to have been thrown in as an after-thought.'

GCR 1963, 516.1 reads:

'Request for Instructions. 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. A copy of such requested instructions shall be served on the adverse parties in accordance with Rule 107. The court shall inform counsel of its proposed action on the requests prior to their arguments to the jury, and, subject to the provision of sub-rule 516.3, shall instruct the jury after the arguments are completed. * * *' (Emphasis added.)

Defendant clearly complied with this part of the Court Rule. In 2 Honigman and Hawkins, Michigan Court Rules Annotated (2d ed.), Comments, p. 565, it is stated:

'The court is required to inform counsel of its proposed action on the requests prior to their arguments to the jury. Sub-rule 516.1. The obvious purpose of this provision is to enable counsel to know which requests will be granted or denied, in order to argue the facts in the light of the law as the court will charge the jury.' (Emphasis added.)

In the discussion between court and counsel, the court stated:

'THE COURT: That is the court's problem right now. I don't think those facts fit an attempt robbery armed. It fits attempted assault to rob while armed.' (Emphasis added.)

'MR. TAYLOR (defendant Patskan's counsel): In the fact of that, I would ask you to adopt Usiondek's (co-defendant) charge Number 9, and also--which covers attempt assault.

'THE COURT: I indicated that--

'MR. TAYLOR: If you are going to give attempt assault with intent to rob armed, I ask that you include that consideration for Patskan. Of course, then we get into the point where you will probably read the attempt statute to the jury, will you not?

'THE COURT: I shall define what an attempt is. All right.'

We agree with defendant that the trial judge stated he would give an instruction of attempted assault with intent to rob being armed. His failure to do so violated GCR 1963, 516.1.

As the People point out, defendant's basic defense was that he was not a participant in the crime. However, this does not lessen the prejudice to him where the court has agreed to give a specific charge and then fails to do so. His counsel forcefully argued that if any crime was committed it was attempted assault with intent to rob being armed. ³ The failure of the trial judge to give the instruction after indicating be would do so, was fundamentally unfair, violated GCR 1963, 516.1 and, also, defendant's right to due process of law. Therefore, the conviction must be reversed and a new trial held.

II.

However, because other issues raised by defendant might also be presented on retrial, we will deal with them in this opinion. Defendant contends that the trial court committed reversible error in failing to give a charge on attempted assault with intent to rob being armed. He cites cases which state that there is a crime of attempted assault. ⁴ The Court of Appeals in its opinion stated (29 Mich.App. p. 357, 185 N.W.2d p. 401):

'There can be no offense of an attempt to assault, which by definition would include an attempt to attempt or offer.'

However, we do not need to consider whether, under any circumstances, there could be an attempted assault to decide the issue before us. The only issue we face is whether it was error to refuse to give such an instruction under the circumstances of this case. 2 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 674, pp. 863, 864, states:

'Where the offense charged in the information includes other offenses of a lesser degree, it is not error to omit an instruction on such lesser offenses, where the evidence tends only to prove the greater, or, in such case to state to the jury that the only question before them is as to the greater offense, and they cannot convict of a lesser offense. Where there is no evidence before a jury upon which a verdict upon lesser offenses included in the information could be returned, it is not error for the trial court to instruct the jury that their verdict must be one of guilty or not guilty of the principal offense charged.' (Emphasis added.)

This rule has been followed by our Court in People v. Utter, 217 Mich. 74, 185 N.W. 830 (1921); People v. Hearn, 354 Mich. 468, 93 N.W.2d 302 (1958), and by the Court of Appeals in People v. Stevens, 9 Mich.App. 531, 534, 157 N.W.2d 495 (1968) (authored by then Judge and now Justice T. G. Kavanagh); People v. Sweet, 25 Mich.App. 95, 181 N.W.2d 7 (1970); and People v. Crothers, 28 Mich.App. 496, 497, 184 N.W.2d 479 (1970). The rule cited is applicable under the circumstances of this case. The evidence of the assault was given by witness Jaime, who testified:

'Q. All right. Mr. Jaime,...