People v. HarrisonPeople v. Harrison
- Reporters:
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- Before:
- Bashara
Lead Opinion
Defendant was convicted by a jury of delivery of a controlled substance,
Defendant’s conviction must be reversed because the trial judge refused to instruct on the lesser included offenses of attempted delivery and of possession despite defense counsel’s request. People v Lovett, 396 Mich 101; 238 NW2d 44 (1976), People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975). The key issue is whether Ora Jones is *228retroactive. On the basis of People v Lovett, supra, we conclude that it is.
In Lovett the Supreme Court reversed a conviction because the trial judge failed to instruct on the lesser included offense of attempted armed robbery despite defense counsel’s request. The Court reversed on the basis of Ora Jones and People v Henry, 395 Mich 367; 236 NW2d 489 (1975). Lovett did not discuss retroactivity; however, it applies Ora Jones retroactively, since Lovett’s trial took place before the Jones decision. Lovett was on appeal to the Supreme Court at the time of Jones. The instant case (claim of appeal filed, August 27, 1975) was on appeal to our Court at the time of Jones. We conclude that any discrepancy that might exist between Lovett, supra, and People v Thomas, 68 Mich App 302; 242 NW2d 564 (1976), would not have occurred had the Thomas panel been aware of the Supreme Court’s application of Ora Jones, supra, in Lovett, supra.
Defendant’s two other claims of error are without merit. Under the Controlled Substances Act of 1971, there is no procuring agent defense. People v Collins, 63 Mich App 376; 234 NW2d 531 (1975), People v Williams, 54 Mich App 448; 221 NW2d 204 (1974). As regards the alleged res gestae witness, there was neither a motion at trial to endorse the witness, although defendant knew the witness and the witness’s connection to the transaction, nor a motion for new trial on the ground of nonendorsement or nonproduction.
Reversed and remanded for a new trial.
D. T. Anderson, J., concurred.
Concurrence Opinion
(concurring). I am in concurrence, but would comment on the Michigan Supreme Court’s retroactive application of People v *229Ora Jones, 395 Mich 379; 236 NW2d 461 (1975). In People v Lovett, 396 Mich 101, 102; 238 NW2d 44 (1976), the Court stated:
“In Jones, supra, we said: ‘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.’ 395 Mich 390. Attempted armed robbery is ‘necessarily included’ within the offense of armed robbery. People v Bradovich, 305 Mich 329, 332; 9 NW2d 560 (1943). The jury may have found the defendant guilty of the attempt although the evidence showed a completed offense.MCLA 768.32 ; MSA 28.1055; People v Baxter, 245 Mich 229, 232; 222 NW 149 (1928).”
It is one thing to recognize that a criminal defendant may be found guilty of attempt although the evidence disclosed a completed offense. It is quite another to assume that Bradovich, Baxter, and
A historical review reveals that the predecessor to
In People v Jones, 273 Mich 430, 432; 263 NW 417 (1935), the Supreme Court recognized that a trial judge did not have a duty to instruct on included offenses absent a request to charge. However, it was error for the trial judge to affirma*230tively exclude the jury from considering lesser included offenses. The Court reasoned that
The Supreme Court had occasion in People v Netzel, 295 Mich 353, 357-360; 294 NW 708 (1940), cert den 313 US 592; 61 S Ct 1116; 85 L Ed 1546 (1941), to explain People v Jones, supra, as well as to implicitly modify the interpretation of
At least since Netzel Michigan has not required trial judges to instruct on requested lesser included offenses unsupported by the evidence. See generally the application of the same rule with respect to felony murder in my concurring opinion of People v Thompson, 69 Mich App 465; 245 NW2d 93 (1976). Case law in this state has consistently recognized that there is no duty to give a requested instruction on attempted robbery where the undisputed evidence shows a completed offense, People v Tyrone Williams, 38 Mich App 146, 149; 195 NW2d 771 (1972), or where the lesser charge is unsupported by the evidence. People v Giddens, 18 Mich App 588, 589; 171 NW2d 596 (1969), lv den, 383 Mich 760 (1970).
*231In light of the above review of the case law, it is very difficult to follow the Supreme Court’s logic in applying People v Ora Jones, supra, retroactively. Today’s trial judge is faced with an exceedingly difficult task in attempting to keep abreast of the voluminous amount of opinions issued by the appellate courts of this state daily. See People v Arthur McDaniels, Jr, 70 Mich App 469; 245 NW2d 793 (1976) (Kelly, J., dissenting). We should not expect our trial judges to be prescient with regard to the state of the law.
Notes
1915 CL 15616.
1929 CL 17325.