People v. Riley

Decision Date21 May 1971
Docket NumberNo. 2,Docket No. 9720,2
Citation190 N.W.2d 569,33 Mich.App. 721
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jimmie Lee RILEY, Defendant-Appellant
CourtCourt of Appeal of Michigan — District of US

M. Patricia Costello, Monroe, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James J. Rostash, Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and McGREGOR and LEVIN, JJ.

DANHOF, Judge.

After a jury trial the defendant was convicted of robbery armed. M.C.L.A. § 750.529 (Stat.Ann.1970 Cum.Supp. § 28.797). He now appeals raising four issues.

The defendant contends that the trial court erred in failing to give an instruction on lesser included offenses. Ordinarily we would summarily dispose of this type of issue on the basis that an instruction had not been requested. GCR 1963, 516.2, M.C.L.A. § 768.29 (Stat.Ann.1954 Rev. § 28.1052). However, because of the Supreme Court's recent decision in People v. Lemmons (1970), 384 Mich. 1, 178 N.W.2d 496, we believe that a more detailed discussion is necessary.

Lemmons was an armed robbery case where the trial court gave the following instruction as quoted by the Supreme Court at p. 2, 178 N.W.2d at p. 497:

"There are only two possible verdicts as to each defendant. You may find the defendant, naming them individually, guilty of robbery armed or not guilty. There are no included offenses."

In Lemmons at p. 3, 178 N.W.2d at p. 497, the Supreme Court quoting from People v. Jones (1935), 273 Mich. 430, 432, 263 N.W. 417, said:

"However, the rule does not excuse improper instructions. Here the court did more than fail to charge upon the included offenses. It affirmatively excluded them from the consideration of the jury. This was error because, under 3 Comp. Laws 1929, § 17325, the jury was authorized to find the defendant guilty of a lesser offense * * *.' (The statutory section now is CL 1948, § 768.32 (Stat.Ann. 1954 Rev. § 28.1055)).'

Under Lemmons and Jones if the trial court affirmatively excludes lesser included offenses from the jury's consideration reversible error is committed. We frankly confess that we do not understand what constitutes affirmative exclusion of lesser included offenses. In any case the trial court will inform the jury what the possible verdicts are. This surely is affirmative action and it effectively prevents the jury from bringing in any other verdict. In both Lemmons and Jones the trial court told the jury that there were no lesser included offenses. It may be that the Supreme Court intended that the use of this specific language be the distinguishing factor. We do not understand the difference between limiting the jury to certain possible verdicts, which do not include lesser included offenses, and telling the jury that there are no lesser included offenses. However, if this is the ruling of Lemmons we can see the distinction even if we cannot perceive the difference.

Further complicating the case is the fact that there is a line of cases which appears to be contrary to Lemmons and Jones. Two of these cases are People v. Hearn (1958), 354 Mich. 468, 93 N.W.2d 302, and People v. Utter (1921), 217 Mich. 74, 185 N.W. 830. The precise questions decided in Hearn and Utter were not identical to those decided in Lemmons and Jones, but the rationale of the cases appear directly contrary.

In Utter, the court held that it was proper to instruct the jury that the defendant was either guilty of first-degree murder or not guilty. The court held that a refusal to instruct on lesser included offenses was proper when there was no evidence to support a finding that one of the lesser included offenses had been committed. In Hearn the question was stated as follows:

"Did not the court err in refusing to charge as to included offenses, as orally requested, and in excluding consideration of the lesser offense from the jury?"

The court answered in the negative.

In both Lemmons and Jones, the court relied on M.C.L.A. § 768.32 (Stat.Ann.1954 Rev. § 28.1055) which provides:

'Upon an indictment for any offense, consisting of different degrees, as prescribed in this chapter, the jury may find the accused not guilty of the offense in the degree charged in the indictment and may find such accused person guilty of any degree of such offense, inferior to that charged in the indictment, or of an attempt to commit such offense.'

The purpose and effect of the predecessor of this statute were explained in Hanna v. People (1869), 19 Mich. 316. At common law when a person was charged with a felony he could not be convicted of a lesser included offense if the lesser offense was a misdemeanor. In discussing the effect of the statute Justice Christiancy said:

'In fact, so far as I have been informed, this section has been long and uniformly construed at the circuits as intended to remove entirely the common law restriction of the general rule, and to authorize a conviction for any substantive offense included in the offense charged, without reference to the fact that one was a felony and the other a misdemeanor; this being the only view in which the statute was needed.'

Whatever the true rule is, we find that the case at bar is distinguishable from Lemmons and Jones. In this case the court did not state in so many words that there were no lesser included offenses. Furthermore, counsel for the defendant indicated on the record that he did not request an instruction on lesser included offenses. As the court said in Walker v. United States (1969), 135 U.S.App.D.C. 280, 418 F.2d 1116, 1119:

'In general the trial judge should withhold charging on lesser included offense unless one of the parties requests it, since that charge is not inevitably required in our trials, but is an issue best resolved, in our adversary system, by permitting counsel to decide on tactics.'

The defendant contends that a pretrial lineup was conducted in such an improper manner that he was denied due process of law. This issue was not raised in the trial court and on appeal, counsel for the defendant has not pointed out any specific defects in the procedure.

In People v. Childers (1969), 20 Mich.App. 639, 645, 646, 174 N.W.2d 565, 568, the court said:

'It should be noted at the outset that the defendants' trial counsel, by waiting until the close of the prosecution's proofs to object to the admission of evidence which they should have known as subject to constitutional attack, may well have acquiesced to damage that can be undone only by granting a new trial. Yet, the state's interest in avoiding a new trial in such cases, to say nothing of its interest in an orderly trial without unexpected but avoidable delay, justifies the refusal by both trial and appellate courts to consider certain constitutional claims that are raised in an untimely manner. See, People v. Wilson (1967), 8 Mich.App. 651, 155 N.W.2d 210. Among these claims, we think, are those arising under Wade (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149) and companion cases. Thus, the procedure to be followed in raising Wade claims and preserving them for review is that announced in People v. Heibel (1943), 305 Mich. 710, 9 N.W.2d 826, and People v. Ferguson (1965), 376 Mich 90, 135 N.W.2d 357, for raising the analogous claim of illegal search and seizure:

'(1) Where the factual circumstances constituting the illegal confrontation are known to the defendant in advance of trial, the defendant is responsible for communicating them to his lawyer and his lawyer, in turn, is responsible for making a motion to suppress in advance of trial.

'(2) Where the factual circumstances constituting the illegal confrontation are unknown to the defendant in advance of trial, or where other 'special circumstances' make a pretrial motion impossible, the motion to suppress may be made during trial.

'(3) In either event, once the claim of illegal confrontation is raised, an evidentiary hearing must be held to determine the merits of the claim, and this hearing must be held outside the presence of the jury.'

The record shows that the defendant had ample opportunity to raise this issue and chose not to do so. Therefore, we do not pass upon it.

The defendant contends that he was denied a fair trial when the trial court excused the production of an indorsed witness, who was charged with the same crime, without a showing of due diligence. This issue is manifestly frivolous. A police officer testified that he had attempted to serve the witness with a subpoena and had been unable to locate him. The defendant's parents, who lived in the same neighborhood as the witness, testified that they had not seen him recently. The witness's attorney testified that he had not seen his client recently and that he did not know where he was.

The defendant's final contention is that the trial court erred in denying his motion for a continuance, to give him time to locate a witness. The motion was made while the trial was in progress, the defendant could have subpoenaed this witness but did not do so, and there is no indication that the testimony would have been anything but cumulative.

A denial of a motion for a continuance is reversible error only if it constitutes an abuse of discretion. People v. Rastall (1969), 20 Mich.App. 264, 174 N.W.2d 33; People v. O'Leary (1967), 6 Mich.App. 115, 148 N.W.2d 516. In this case there was clearly no abuse of discretion.

Affirmed.

LEVIN, Judge (dissenting).

The defendant and three other men were riding together in an automobile. The automobile was parked, and two men left the automobile and shortly thereafter two attendants at a nearby gasoline station were robbed. The occupants of the automobile were arrested soon after the robbery.

The defense at the defendant's trial was that he had remained in the automobile and was not part of...

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