People v. Harrison
247 N.W.2d 360
Mich. Ct. App.
1976
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*1 PEOPLE HARRISON op Opinion the Court Jury 1. Criminal Law —Included to Offenses —Instructions —Re- Retroactivity. quests for Instruction — Supreme that a decision which held trial court must request honor a for defendant’s instruction on lesser charged applicable offenses of crime retroac- tively. Drugs Delivery—Procuring Agent 2. and Narсotics — Defense— Statutes. procuring agent defense is available to a defendant charged delivery of with a controlled substance because under Act, the Controlled Substances a crime has been committed regardless any agency relationship between the defendant agent a suppli- and narcotics or between the defendant and the actual, constructive, attempted delivery. ers if an there is or 3. Witnesses —Criminal Law —Res Gestae —Motions—Failure to Appeal Call — Error. and prosecution gestae A claim that the to failed call a res witness appeal should not be heard where there was neither a witness, although motion at trial to indorse the knew tion, witness and the witness’s conneсtion to the transac- ground nor a motion for new trial on the of nonindorse- nonproduction. or ment by Bashara, Jury 4. Criminal Law —Included Offenses —Instructions —Re- Duty Retroactivity— quests for Instruction — Instruct — Evidence. The recent Court decision which mandates de- [2] [1, [3] Entrapment 4] 25 Am Jur 81 Am ALR2d 883. 20 Am Jur Jur 2d, 2d, Drugs, Narcotics, to commit offense with Rеferences 2d, Witnesses 2. Courts § for § Points et and seq. Poisons §§ respect Headnotes to narcotics law. 33 43, 46, Opinion of the Court request jury instructions on lesser fendant’s included of- applied retroactively; fenses should not be must be honored prior recognized consistently had that a case law trial court duty give requested jury instruction had no on a lesser *2 undisputed attempt pre- where the included crime of completed offensе or sented at trial showed a where the lesser charge unsupported by was the evidence. Appeal Oakland, Moore, from Arthur E. J. Sub- (Docket 9, 1976, mitted Lansing. June at No. 26214.) 8, Decided September 1976. Leave to ap- peal applied for.

William G. was of convicted delivery of a controlled ‍​​‌​​​​‌​‌​​‌​​​​‌​​‌​‌​‌​​‌​​‌‌‌‌‌‌‌​​‌​​​‌​​​‌‍Defendant appeals. substance. Re- versed.

Frank J. Kelley, Attorney General, Robert A. Derengoski, General, Patterson, L. Brooks Solicitor Attorney, Robert C. Prosecuting Chief Appellate Counsel and James L. McCarthy, Assist- Prosecuting ant for the Attorney, people. Siegrist, Howard S. for defendant. Cavanagh Bashara,

Before: P. M. F. and and Anderson,* D. T. JJ. Cavanagh,

M. F. J. Defendant was convicted by substance, a jury delivery of of a controllеd 18.1070(41), and to 2 to 20 sentenced imprisonment. years

Defendant’s conviction must be reversed because judge the trial refused to the lesser instruct on attempted included offenses of and of delivery ‍​​‌​​​​‌​‌​​‌​​​​‌​​‌​‌​‌​​‌​​‌‌‌‌‌‌‌​​‌​​​‌​​​‌‍Peo- possession despite request. defense counsel’s Lovett, ple v 101; 396 Mich 238 NW2d Ora NW2d (1975). The Jones Ora issue is whether key

* judge, sitting Appeals by assignment. Circuit on Court of App 226 Lovett, supra, retroactive. the basis of On we conclude it is.

In Lovett Court rеversed convic- tion on because the trial failed the lesser attempted included offense of armed robbery request. counsel’s despite defense Ora Jones and reversed the basis v Henry, 236 NW2d 489 Lovett did retroactivity; not discuss how- ever, it applies Ora Jones retroactively, sincе Lo- before the Jones decision. vett’s trial place took Lovett appeal was on the Supreme Court at the (claim Jones. time instant case of appeal filed, 1975) August appeal our Court the time of Jones. at conclude that any We dis- Lovett, crepancy might еxist between Thomas, and Mich App would not have occurred had *3 Thomas panel of been aware the Supreme Court’s Jones, supra, Lovett, of Ora application supra. in two Defendant’s other claims of error are with- out merit. Under the Controlled of Substances Act 1971, there People v procuring agent is no defense. Collins, 63 App 234 Mich 531 v People ‍​​‌​​​​‌​‌​​‌​​​​‌​​‌​‌​‌​​‌​​‌‌‌‌‌‌‌​​‌​​​‌​​​‌‍Mich 221 NW2d (1974). regards alleged gestae As the res wit- ness, there was neither a mоtion at en- witness, dorse the although defendant knew the witness and the witness’s connection to the trans- action, nor a motion for ground new trial on the of or nonendorsement nonproduction.

Reversed and remanded for a new trial. Anderson, T.D. concurred.

Bashara, J.P. (concurring). I in am concur- rence, but would comment on Michigan the Su- v preme Court’s of People application retroactive People v (1975). Jones, 379; 236 NW2d 461 In 395 Mich Ora 101, Lovett, v 102; 238 NW2d 44 Mich (1976), thе Court stated: the 'If lesser offense is one

"In we said: greater, within the the necessarily is included that supports the if it always support lesser will evidenсe Attempted robbery greater.’ 395 armed is Mich the the offense of armed rob- 'necessarily ‍​​‌​​​​‌​‌​​‌​​​​‌​​‌​‌​‌​​‌​​‌‌‌‌‌‌‌​​‌​​​‌​​​‌‍within included’ 329, Bradovich, 9 NW2d bery. v (1943). may have found the defendаnt jury although the showed a attempt of the guilty 28.1055; People completed offense. MCLA (1928).” 229, 232; Baxter, 222 NW 149 245 Mich a criminal recognize that thing It is one guilty attemрt al- found may be defendant offense. completed disclosed though the evidence Bradovich, to assume quite It another Baxter, 28.1055, 768.32; MSA lead tо and MCLA upon a trial request, conclusion logical the the offense of must the evidence discloses a though even attempt, matter is that оffense. The fact the completed Michi- the law in conclusion has been such some time. gan predecessor reveals that the historiсal review

A 28.1055,1 construed 768.32; MSA Allie, 135-136; 184 NW the statute concluded that Court to have right a criminal gives of the included offenses. any instructed Jones, 430, 432; 263 NW In that a recognized *4 on did have a to instruct duty not judge trial How- request charge. to offenses absent included the trial to affirma- ever, judge it error 15616. 1 1915 CL

230 71 226 tively exclude the from jury considering lesser The Court reasoned that offenses. 768.32; 28.1055,2 ‍​​‌​​​​‌​‌​​‌​​​​‌​​‌​‌​‌​​‌​​‌‌‌‌‌‌‌​​‌​​​‌​​​‌‍the jury MSA authorized to find the guilty of lesser offenses. Court had occasion in Peoрle v

Netzel, 353, 357-360; 294 NW 708 (1940), cert den 313 1116; 592; 61 S 85 L US Ct Ed 1546 (1941), People v explain as well as to implicitly modify interpretation the of MCLA Allie, 28.1055, supra. in Netzel & Sparf Hansen v United Court cited States, 51, 103; 273; 156 US 15 S Ct L39 Ed 343 (1895), for if proposition the evidence offense, support cannot a lesser a trial judge can in a criminal case that the de fendant cannot be convicted a crime lesser than charged, or the trial can refuse instruct on lesser included offenses. For an excel lent detailed above, discussion of the see Judge V. J. People Membres, opinion Brennan’s in 34 Mich App lv den 386 (1971), NW2d (1972). Mich 790 least since Netzel

At Michigan hаs required judges to instruct requested in- lesser unsupported cluded offenses by the evidence. See generally application of the same rule with respect felony my concurring murder opinion v Thompson, Mich App (1976). NW2d 93 Case law in this state has consist- ently recognized that is there duty no to give a requested attempted instruction robbery where the undisputed shows completed of- fense, v Tyrone Mich App NW2d or where the lesser charge unsupported by the evidence. Giddens, App 588, 589; 171 den, lv 383 Mich 760 CL

2 1929 *5 by law, the case In review of it light of the above logic Court’s very difficult to follow Jones, suprа, applying v Ora retroactively. with an Today’s exceedingly is faced keep abreast of attempting difficult task in issued opinions ap- voluminous amount of daily. this state See pellate courts of McDaniels, Jr, Arthur (1976) (Kelly, NW2d 793 dissenting). We should expect our trial judges prescient to be with regard to the state of the law.