People v. Reese

Decision Date08 December 2000
Docket NumberDocket No. 214414.
Citation619 N.W.2d 708,242 Mich. App. 626
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clinton Wayne REESE, Defendant-Appellant.
CourtCourt of Appeal of Michigan — District of US

Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and Vicki L. Seidl, Assistant Prosecuting Attorney, for the people.

William A. Van Eck, Belding, for the defendant.



Defendant appeals as of right from his conviction by a jury of armed robbery, M.C.L. § 750.529; MSA 28.797. The trial court sentenced defendant as an habitual offender, M.C.L. § 769.12; MSA 28.1084, to life imprisonment. Defendant contends that (1) the trial court erred in failing to provide a requested jury instruction with respect to unarmed robbery, M.C.L. § 750.530; MSA 28.798, and (2) his sentence was disproportionate. Although we question whether an instruction regarding a necessarily included lesser offense should be required in a case in which a rational view of the evidence would not support a finding of guilt under this instruction, we agree that, under applicable precedents, the trial court erred in failing to give such an instruction. However, we further conclude that the error was harmless. In addition, we conclude that defendant's sentence was not disproportionate. Accordingly, we affirm.

This case arises from the robbery of a Kentwood gas station. One of its employees testified at trial that a man wearing a nylon stocking over his face robbed the station at knifepoint. The employee, together with one of the people with whom she worked, identified defendant as the robber. The gas station manager, in reviewing a video surveillance tape for the jury, pointed out a stick-like object in the robber's hand. An additional witness testified that he found a knife in an area outside the gas station where the robber had dropped some money.

During closing arguments, defense counsel did not argue that the witnesses erred in testifying that the perpetrator possessed a knife or at least a knife-like object during the incident.1 Instead, counsel argued that (1) the eyewitnesses had been mistaken in identifying defendant as the perpetrator, and (2) the prosecution did not prove that the perpetrator used or threatened to use violence in committing the theft, since no witnesses testified that the perpetrator referred to the knife or put it to anyone's throat.

Defense counsel requested a jury instruction with respect to unarmed robbery, M.C.L. § 750.530; MSA 28.798. The trial court denied the request, saying that an unarmed robbery instruction was not warranted under a reasonable assessment of the evidence and that such an instruction would merely invite the jury to exercise leniency by finding defendant "guilty of less than [he was] in fact guilty of." Defendant contends that the trial court erred in refusing to give the requested instruction.

A trial court must instruct the jury with respect to necessarily included lesser offenses upon a request for such instructions.2 People v. Jones, 395 Mich. 379, 390, 236 N.W.2d 461 (1975). A necessarily included lesser offense is one that must be committed as part of the greater offense; in other words, it would be impossible to commit the greater offense without first having committed the lesser. People v. Bailey, 451 Mich. 657, 667, 549 N.W.2d 325 (1996), amended 453 Mich. 1204, 551 N.W.2d 163 (1996). Unarmed robbery is a necessarily included lesser offense of armed robbery, with the distinguishing element being the use of a weapon or an article used as a weapon. People v. Chamblis, 395 Mich. 408, 424, 236 N.W.2d 473 (1975), overruled in part on other grounds People v. Stephens, 416 Mich. 252, 330 N.W.2d 675 (1982); People v. Garrett, 161 Mich.App. 649, 652, 411 N.W.2d 812 (1987). Applying these precedents here, we conclude that the trial court erred in this case by failing to instruct the jury with respect to the necessarily included lesser offense of unarmed robbery.

Although our current case law compels the conclusion that the trial court erred, we note that other jurisdictions have different rules regarding when the duty to instruct with respect to lesser included offenses arises. In the federal courts, for example, an instruction regarding a lesser included offense need be given only if it is rationally supported by the evidence. See Sansone v. United States, 380 U.S. 343, 351, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965); Arcoren v. United States, 929 F.2d 1235, 1243-1244 (C.A.8, 1991). In United States v. Walker, 75 F.3d 178, 180 (C.A.4, 1996), the court explained this principle as follows:

More specifically, to receive a lesser-included offense instruction, the proof of the element that differentiates the two offenses must be sufficiently in dispute that the jury could rationally find the defendant guilty of the lesser offense but not guilty of the greater offense. To be sufficiently in dispute, we have held that the testimony on the distinguishing element must be sharply conflicting, or that the conclusion as to the lesser offense must be fairly inferable from the evidence presented. [Citation omitted.]

Conversely, "[w]hen the evidence taken as a whole does not provide a rational basis for the jury to find the elements necessary to support the lesser-included offense instruction, the trial court may properly exclude such an instruction." Arcoren, supra at 1244. A number of states have either followed the federal rule or adopted a similar view of when an instruction regarding necessarily included offenses should be given. See State v. Kinnane, 79 Hawai'i 46, 49, 897 P.2d 973 (1995) (adopting similar rule under state law); Dishman v. State, 352 Md. 279, 303, 721 A.2d 699 (1998) (following federal model); State v. Swafford, 109 N.M. 132, 136, 782 P.2d 385 (1989) (following federal model); State v. Phipps, 331 N.C. 427, 457, 418 S.E.2d 178 (1992), citing State v. Drumgold, 297 N.C. 267, 271, 254 S.E.2d 531 (1979) ("[T]he trial court need not submit lesser included degrees of a crime to the jury `when the State's evidence is positive as to each and every element of the crime charged and there is no conflicting evidence relating to any element of the charged crime.'"); Commonwealth v. White, 490 Pa. 179, 183-184, 415 A.2d 399 (1980) (adopting rule similar to federal model).

The Michigan Supreme Court has adopted an approach with respect to cognate lesser included offenses that is similar to this approach. A cognate lesser included offense is one that shares several elements with and is of the same class or category of the higher offense but that may contain some elements not found in the higher offense. Bailey, supra at 668, 549 N.W.2d 325. In the context of cognate lesser included offenses, our Supreme Court stated:

[I]t is neither necessary nor sound policy to require the trial court to blind itself to uncontroverted proof of an element of the greater crime that would necessarily raise a defendant's culpability to that of the more serious crime, if all elements common to the two offenses were found to be proven beyond a reasonable doubt. Where a defendant admits activity that, as a matter of law, constitutes proof of the distinguishing element, the basis for instruction on the lesser crime evaporates. [Id. at 671, 549 N.W.2d 325.]

In addition, our Supreme Court has adopted the federal model for determining whether an instruction regarding a lesser included offense should be given, without regard to whether the lesser offense is a cognate lesser included offense or a necessarily included lesser offense, when the lesser offense is a misdemeanor and the greater offense is a felony. See Stephens, supra at 262-263, 330 N.W.2d 675. The Court has limited this type of analysis, however, to the two situations outlined above; the trial court is to instruct regarding necessarily included lesser felony offenses without regard to the evidence. Bailey, supra at 668, 549 N.W.2d 325; People v. Beach, 429 Mich. 450, 463-465, 418 N.W.2d 861 (1988).

We see no sound basis for allowing the trial court to determine if the evidence rationally supports an instruction regarding a lesser offense in these situations, while disallowing such a determination in the context of necessarily included lesser felony offenses. Indeed, the Court's statement from Bailey, supra at 671, 549 N.W.2d 325, that it is unsound policy to "require the trial court to blind itself to uncontroverted proof of an element of the greater crime" applies with as much force to necessarily included lesser felony offenses as it does to cognate lesser included offenses and to lesser included misdemeanor offenses. At worst, had the jurors been properly instructed under our current law here, they could have found defendant to have been unarmed notwithstanding the fact that there was no evidence or argument suggesting that he was not carrying a knife, as we will discuss more fully below. At the very least, such an instruction would have led to confusion as jurors pondered an offense option that was directly contrary to the facts presented.

Our Supreme Court has been urged in the past to apply a "rational view of the evidence standard" to all requests for lesser included offense instructions, see Bailey, supra at 667, 549 N.W.2d 325, and the Court recently stated that "we are prepared in a more appropriate case to consider adopting the federal model regarding lesser offense instructions." People v. Perry, 460 Mich. 55, 61, n. 17, 594 N.W.2d 477 (1999).3 Considering the facts here, as well as the prosecutor's argument in favor of the federal rule, we conclude that this case presents an appropriate occasion for our Supreme Court to consider adopting the federal model...

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2 cases
  • People v. Reese
    • United States
    • Michigan Supreme Court
    • 9 Julio 2002 adopt the federal model and apply a "rational view of the evidence standard" to all requests for lesser included instructions. Id. at 633, 619 N.W.2d 708. Despite the error, the Court of Appeals determined that reversal was not required because the error was harmless. The Court of Appeal......
  • McCoy v. State
    • United States
    • Indiana Appellate Court
    • 10 Septiembre 2020
    ...conviction in Michigan includes unarmed robbery as a necessarily lesser-included offense of armed robbery. See People v. Reese , 242 Mich.App. 626, 619 N.W.2d 708, 710 (2000). Therefore, the more appropriate inquiry is to address the broader issue as to whether the Michigan and Indiana robb......

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