Lead Opinion
In this сase, we are asked to determine if the trial court committed error requiring reversal by refusing defendant’s request to instruct the jury on the felony of unauthorized driving away of an automobile (udaa),
A
The incident to which the present inquiry relates occurred on December 28, 1989. At approximately 9:30 a.m., complainant Shirley McGriff was filling the gas tank of her car at a self-service station in the City of Detroit. At the same time, defendant was near the station and twice got change from the station attendant. The attendant assumed the change was for bus fare because she observed the defendant stand for several minutes at a nearby bus stop. Defendant testified that, while waiting for the bus, he observed another automobile that he believed contained several individuals whom he thought intended to kill him over an unpaid debt of $1,000. As complainant finished putting gas into her car, defendant jumped in and drove the car away. Defendant testified that he felt that such action was necessary to escape possible harm from the men to whom he owed the debt. Defendant also testified that he had no intent to keeр the car permanently, and that he "figured” that the complainant was going to get her car back.
Defendant admitted that he drove complainant’s car throughout the day, making stops at four or five locations, allegedly for the purpose of obtaining a gun to protect himself. At no time, however, did defendant attempt to contaсt police to ask for their protection from the men that were supposedly out to kill him. Defendant also admitted that complainant’s purse was in the car when he drove off, but denies taking forty-five dollars that was apparently missing when the purse was returned to complainant.
At approximately 4:30 p.m. that same day, defendant was stopped in complainant’s car by the police. As the police approached the car, defendant backed into an intersection, running into another vehicle, and then accelerated forward in the direction of one of the police officers. After the officer jumped out of the way, defendant crashed the car into a fence and was apprehended.
B
Defendant was сharged with armed robbery and assault with intent to murder
Defendant appealed the refusal to instruct the jury on udaa. The Court of Appeals unanimously affirmed the action оf the trial judge, finding that armed robbery and udaa consisted of few common elements, and that, more fundamentally, they were not of the same class or category of offenses.
ii
The duty of the trial judge to instruct the jury is provided by statute. Pursuant to MCL 768.29; MSA 28.1052, a jury must be instructed regarding the law applicable to the case; however, any verdict rendered will not be set aside because of the failure to instruct the jury on any point of law
A
While examination of the law сontrolling the propriety of lesser included offense instructions in Michigan normally reaches back only to 1975, the doctrine developed at common law much earlier. Lesser included offense instructions originally were intended to assist in the prosecution of cases where there was a deficiency in the proof of some element of the principal crime charged. Keeble v United States,
Although originating as an aid to prosecution, it is clear thát the lesser included offense doctrine has evolved to allow defendants to request instruction on such offenses. Keeble, supra at 208.
B
The current rule for lesser included offense instructions in Michigan is set forth in People v Ora Jones, supra at 390:
The duty of the trial judge to instruct on lesser included offenses is determined by the evidence. If evidence has been presented which would support a conviction of a lesser included offense, refusal to give a requested instruction is reversible error.
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.
In the area of "cognate” lesser offenses, the evidence in each case adduced at the particular trial must be examined to determine whether that evidence would support a conviction of the lesser offense. [Citations omitted.]
It was also noted in Ora Jones that to warrant instruction of a jury on a lesser included offense, the lesser offense should be "of the same class or category, or closely related to the originally charged offense . . . .” Id. at 388.
Ora Jones articulates rules for determining when to give lesser offense instruction for both "necessarily included” and "cognate” lesser offenses. "Necessarily included” lesser offenses encompass situations in which it is impossible to commit the greater offense without first having committed the lesser. Ora Jones, supra at 387. "Cognate” lesser included offenses are those that share some common elements, and are of the same class or category as the greater offense, but have some additional elements not found in the greater offense. Id.
In order to require a properly requested instruction for a cognate lesser included offense, two elements must be satisfied. First, the principal offense and the lesser offense must be of the same class or category, a requirement we have termed in a related context to be one of an "inherent relationship.” People v Stephens,
c
In addition to separate tests for determining the propriety of necessarily and cognate lesser included offense instructions, we have also articulatеd a distinct test for determining when a requested instruction on a lesser included mis
As detailed in the misdemeanor lesser offense analysis, an inherent relationship between a greаter and lesser offense requires that the two offenses " 'relate to the protection of the same interests’ ” and " 'must be so related that in the general nature of these crimes, though not necessarily invariably, proof of the lesser offense is necessarily presented as part of the showing of the commission of the greater offense.’ ” Stephens, supra at 262, quoting United States v Whitaker, 144 US App DC 344, 349; 447 F2d 314 (1971).
"In the absence of such restraint defense counsel might be tempted to press the jury for leniency by requesting lesser included offense instructions on every lesser сrime that could arguably be made out from any evidence that happened to be introduced at trial. 'An element of the mercy-dispensing power is doubtless inherent in the jury system, and may well be a reason why a defendant seeks a lesser included offense instruction, but it is not by itself a permissible basis to justify such instruction.’ ” [Steele, supra at 20, n 4, quoting Whitaker, supra at 349. Citation omitted.]
We continue to uphold the requirement for an inherent relationship between a charged offense and a cognate lesser offense for instruction, and similarly approve of the underlying rationale for such a rule.
The object of a criminal trial is a determination of the question whether the defendant has committed the crime charged or some related offense on the basis of evidence presented relating to the event or events in question at trial. Additionally, determination of what crime, if any, a defendant is guilty of is necessary so that the proper punishment may be imposed. In order to achieve this end, especially in a jury trial, clarity must be maintained regarding those crimes for which a
The absence of a lesser included offense instruction increases the risk that the jury will convict, not because it is persuaded that the defendant is guilty of capital murder, but simply to avoid setting the defendant free. . . . The goal . . ., in other words, is to eliminate' the distortion of the factfinding process .... [Spaziano v Florida,468 US 447 , 455;104 S Ct 3154 ;82 L Ed 2d 340 (1984).]
However, unless there is some evidentiary protection against an appeal to the jury’s mercy-dispеnsing power, it is likely that the evidence introduced will be "whatever manner of evidence ... of use in obtaining a charge on the least punitive lesser included offense possible in order that the jury may have the opportunity to be merciful.” Ettinger, In search of a reasoned approach to the lesser included offense, 50 Brooklyn LR 191, 217 (1984). To preserve the jury’s proper function, the bounds of possible offenses the jury may consider in a particular case must be described. In the case of cognate lesser offenses, the method of management adopted by this Court is to limit instruction to those offenses that bear a sufficient relationship to the principal charge in that they are in the same class or category, protect the same societal interests as that offense, and are supported by the evidence adduced at trial. Thus, not all lesser offenses that are not necessarily included are potential candidates for consideration as cognate crimes. If the jury’s mercy-dispensing power is unrestrained, attention to the factfinding duty may be diverted, and the jury may assume the punishment prerogative of the court. The guidance
D
The initial inquiry then, where jury instruction on a possible cognate lesser included offense has been requested, is whether the lesser offense bears an inherent relationship to, or is of the same class or category as the charged offense. This requirement in the present case dictates that we examine the statutory purpose behind udaa and armed robbery.
Udaa, more commonly known as "joyriding,” was enacted soon after the appearance of the automobile to protect against the unauthorized use of those vehicles. The statute was not aimed at preventing theft, because under such circumstances our larceny statutes would suffice.
"It was early discovered that so many automobiles would be taken, but without intent to permanently deprive the owner of the possession of his property, but merely for the sake of joyriding or something of that kind and then abandoning the cars, so the legislature created this crime, and they called it unlawfully driving away an automobile, and it differs from larceny in that respect, that is, it is not necessary that the State should establish in this type of case any specific intent to permanently deprive the owner of the possession of his property.”
In light of this lower standard of intent, udaa requires only that the unauthorized use of the vehicle be done " 'wilfully’ ” or " 'wilfully and wantonly.’ ” Stanley, supra at 365, quoting People v Smith,
Robbery, while containing elements of theft of property, is primarily an assaultive crimе. People v Wakeford,
[T]he gravamen of the offense [of аrmed robbery] is the armed assault on a person when combined with the taking of money or property. The primary purpose of the statute is the protection of persons; the protection of property afforded by the statute is not significantly greater than that afforded by the statute prohibiting larceny from the person of another .... [Wakeford, supra at 111.]
Recognizing the aggravating elements of assault and an armed perpetrator required for armed robbery, we agree with the rationale of Wakeford, and conclude that such an offense is most properly classified under the category of crimes against the person.
This analysis leads to the conclusion that udaa and armed robbery are not of the same class or category, аnd that udaa is not a possible cognate offense where the primary offense charged is armed robbery. Udaa, while a property offense, lies within a hierarchy in line with, but below, the outer reaches of larceny. While bearing some relationship to theft, it requires no larcenous intent. Armed robbery also bears some secondary relationship to larceny, but is principally directed at protection of the person. That crime evinces a primary concern for the threat to the safety of the individual inherent in the manner chosen by the perpetrator to accomplish his larcenous end.
iii
Applying the requirement for instruction on cognate lesser included offenses that the principal offense and the lesser crime be of the same class or category, or be closely related, we find that armed robbery and udaa do not possess the requisite inherent rеlationship necessary to consider the possibility of such instruction. Udaa is a property offense, aimed exclusively at deterring and punishing joyriding. Armed robbery, while including the elements of larceny, is a crime against the person, concerned primarily with the safety and protection of the individual. The offenses pertain to distinct criminal behavior and are thus different classes or categories of crimes. We accordingly affirm the decision of the Court of Appeals.
Notes
MCL 750.413; MSA 28.645 provides:
Any person who shall, wilfully and without authority, take possession of and drive or take away, and any person who shall assist in or be a party to such taking possession, driving or taking away of any motor vehicle, belonging to another, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years.
MCL 750.529; MSA 28.797. The relevant portion of this statute provides:
Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years.
Defendant testified at trial concerning his decision to take the car and his intent at the time as follows:
Q. Why did you jump in the car?
A. Whatever. I mean I ain’t going to get shot. I ain’t going to get killed. I rather do that and stay alive than, yоu know. So I just pulled off and went down Fenmore.
Q. Okay. Now did you intend to keep that car permanently?
A. No.
Q. Where is her [the complainant’s] $45.00?
A. The police took the purse. I don’t know.
Q. You didn’t have anything to do with that $45.00 being missing out of that purse?
A. No, I didn’t even really even think about nothing like*439 that. She was going to get her car back. That is the way I figure. So I put the purse in the trunk. [Emphasis added.]
MCL 750.83; MSA 28.278.
MCL 750.84; MSA 28.279.
MCL 750.82; MSA 28.277.
MCL 750.530; MSA 28.798.
MCL 750.357; MSA 28.589.
MCL 750.414; MSA 28.646.
MCL 750.413; MSA 28.645.
Pursuant to MCL 768.32(2); MSA 28.1055(2), added by amendment in
We have previously expressed frustration with the scope of our current lesser included offense doctrine, People v Stephens,
In Ora Jones this requirement was thought necessary to give notice to the defendant that he may be required to defend against the lesser offense. Notice would always be satisfied where the defendant requests the instruction. However, it is apparent from Ora Jones that the same class or category requirement retains its force even when it is the defendant who requests the lesser offense instruction. That case, like the present one, concerned consideration of a cognate lesser included offense instruction requested by a defendant.
The inclusion of cognate offenses for possible instruction broadens the pool of possible lesser offenses from that permitted at common law, which only included instructiоn on necessarily included offenses. Ora Jones, supra at 387. Federal courts continue to limit alternative
Conviction of udaa clearly does not require proof of several elements of the principal offense of armed robbery, such as an assault, the perpetrator being armed with either a dangerous weapon or an article that the victim reasonably believes to be a dangerous weapon, People v Jolly,
In People v Chamblis,
While the inherent relationship test stated in Whitaker was ultimately rejected in the federal courts in favor of an elements approach to lesser included offense instructions for necessarily included offenses, Schmuck v United States,
The proofs in this case present an example of the infinite malleability of combining the "automatic instruction rule” of People v Kamin, n 12 supra at 493 overruled in part by People v Beach, supra (larceny from a person was found to be a necessarily lesser included offense of armed robbery), in which review of the evidence is not in order for necessarily included offenses, with "[r]eview of the record for evidentiary support,” id., with regard to cognate lesser included offenses. Defendant’s testimony directly traced the elements of udaa and was thus inconsistent at a minimum with an instruction on larceny from the person; nonetheless, defendant received the benefit of a charge for that offense although affirmatively denying thаt he intended to deprive plaintiff permanently of her property. Federal and state courts have held that a defendant has the burden of showing evidence in the record sufficiently in dispute to provide a rational basis for the jury to find the defendant guilty of a lesser offense and not guilty of the greater crime charged. United States v Torres, 937 F2d 1469 (CA 9, 1991); United States v Miller, 939 F2d 605 (CA 8, 1991); State v Adams, 74 Ohio App 3d 140;
Joyriding, however, may be a lesser included offense of theft of a motor vehicle. Brown v Ohio,
People v Harris,
Dissenting Opinion
(dissenting). I dissent from the majority’s conclusion that the trial court did not
i
A trial court is generally under no obligation to instruct the jury on a lesser included offense,
The common-law definition of lesser included offenses is that the lesser must be such that it is impossible to commit the greater without first having committed the lesser. 4 Wharton, Criminal Law and Procedure, § 1799. This definition includes only necessarily included lesser offenses. This definition, however, is generally conceded to be unduly restrictive, and thus most jurisdictions, including Michigan, have statutes that are broadly construed to permit conviction of "cognate” or allied offenses of the same nature, under a sufficient charge. These lesser offenses are related and hence "cognate” in the sense that they share several elements, and are of the same class or*453 category, but may contain some elements not found in the higher offense. [People v Ora Jones,395 Mich 379 , 387;236 NW2d 461 (1975). Emphasis in original.]
The question whether an offense is a necessarily included offense of another can be determined by a review of the elements of each offense;
n
While Ora Jones and its progeny enumerate the standard used to determine when a trial court must instruct the jury on cognate lesser included felony offenses, the majority relies on language found in cases enumerating the applicable standard for lesser included misdemeanor offenses.
First, the principal offense and the lesser offense must be of the same class or category, a requirement we have termed in a related context to be one of an "inherent relationship.” People v Ste*454 phens,416 Mich 252 , 262;330 NW2d 675 (1982); People v Steele,429 Mich 13 ;412 NW2d 206 (1987). [Ante at 444.]
Both Stephens and Steele apply the standard for lesser included misdemeanor offenses — this case involves a lesser included felony offense.
The rule [for lesser included misdemeanor instructions] was adopted from the United States Court of Appeals decision in United States v Whitaker, 144 US App DC 344; 447 F2d 314 (1971). Indeed, our conditions parallel the Whitaker reasoning. Although we do not follow the federal approach for lesser included felony offenses, we do so in the separate misdemeanor realm. This distinction must be made because the federal courts acknowledge only necessarily lesser included offenses; cognate offenses instructions are simply not allowed. Hence, instructions for lesser misde*455 meanor offenses are less freely given .... [Steele at 19.]
The "inherent relationship” requirement is not simply an alternative term for the "same class or category” requirement. This is evidenced by thе majority’s own explanation:
[A]n inherent relationship between a greater and lesser offense requires that the two offenses " 'relate to the protection of the same interests’ ” and " 'must be so related that in the general nature of these crimes, though not necessarily invariably, proof of the lesser offense is necessarily presented as part of the showing of the commission of the greater offense.’ ” [Ante at 445. Emphasis added.]
Although the Michigan standard for cognate lesser included felony offenses speaks in terms of the earlier requirement, it does not require the latter. In essence, the second requirement describes a necessarily included offense.
The majority concludes that udaa is not a cognate lesser included offense of armed robbery because it is in the category of property offenses and armed robbery is in the category of crimes against the person. Admittedly, the crime of robbery is an assaultive crime, but it does include an element of theft similar to udaa.
A trial judge is compelled to provide a requested cognate lesser included offense instruction if the evidence introduced at trial "would support a conviction of a lesser included offense . . . .” Ora Jones at 390. Evidence was presented at trial that would support a conviction of udaa.
The conclusion that the trial court erred in refusing to instruct the jury on udaa does not, however, end the inquiry. The question remains whether the error was harmless. People v Mosko,
Generally, the refusal to give an instruction on a lesser included offense is considered harmless if the jury finds the defendant guilty of a greater charge as opposed to an instructed intermediate charge. Mosko at 504, Beach at 490-491. The Court justifies this rule by reasoning that if the jury had doubts about the defendant’s guilt of the charged offense, it would have found the defеndant guilty of the instructed lesser included offense. Id.
This rule is not applicable in the instant case, however, because the jury found the defendant guilty of the lowest crime on which it was instructed (larceny from a person). Furthermore, there is no evidence that the element that would have reduced the crime from the higher to the lesser offense was not at issue.
Accordingly, I would reverse the defendant’s convictiоn of larceny from a person and remand the case to the trial court for entry of a judgment of conviction of udaa and resentencing. See People v Stephens,
An exception to this general premise is that the trial court must instruct the jury, sua sponte, on the crime of second-degree murder in every first-degree murder case. See People v Jenkins,
Unlike Michigan courts, federal courts are not obligated to instruct on requested, lesser included cognate offenses:
The defendant may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an offense necessarily included therein if the attempt is an offense. [FR Crim P 31(c).]
Udaa is not a necessarily included offense of armed robbery because one does not necessarily commit udaa while committing armed robbery.
The federal courts employ the "rational view of the evidence” standard when determining whether a federal court must instruct on a necessarily included offense. Michigan courts also apply this standard for lesser included misdemeanor offense instructions. The rational view of the evidence standard is not, however, the Michigan standard for lesser included felony instructions. "In adopting a rational basis test for lesser misdemeanor offense instructions, we do not wish to be understood as adopting such a rationale for lesser included felony offense instructions. People v Ora Jones is still controlling thereon.” People v Stephens, supra at 264.
By definition a cognate lesser included offensе will not share all the elements of the greater offense.
The universal view at common law was that robbery was an aggravated form of larceny or theft. 1 Hawkins, Pleas of the Crown (1716-1721), p 95 (robbery is mixed or complicated larceny); 2 East, Pleas of the Crown (1803), p 707 (robbery is a species of aggravated larceny from the person); 23 RCL 1140, Robbery, § 1(2) ("Robbery may thus be said to be a compound larceny composed of the crime of larceny from the person with the aggravation of force, actual or constructive, used in the taking”). Textbooks published during the past century have continued to state that common-law robbery is larceny or theft aggravated by the use of force. See, e.g., Clark & Marshall, Crimes (7th ed), § 12.09, pp 881-882; LaPave & Scott, Criminal Law, § 94, p 692; Perkins, Criminal Law (2d ed), § 2, p 280; Smith & Hogan, Criminal Law (3d ed), p 434; Cross & Jones, Criminal Law (8th ed), § 11.2, p 215; Williams, Criminаl Law, p 791. The courts, some defining the common-law offense and some construing a statutory codification of the offense, have also said that robbery is aggravated theft. And in People v Jankowski,
"Robbery has long been defined' in this jurisdiction to be nothing more than a 'larceny committed by assault or putting in fear.’ . . . When the taking is accomplished by force or assault, the offense is aggravated to one of robbery.” [People v Wakeford,
The udaa statute provides:
Any person who shall, wilfully and without authority, take possession of and drive or take away, and any person who shall assist in or be a party to such taking possession, driving or taking away of any motor vehicle, belonging to another, shall be guilty of a felony, punishable by imprisonment in the state prison for not more than 5 years. [MCL 750.413; MSA 28.645.]
Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years. [MCL 750.529; MSA 28.797.]
To convict a defendant of udaa, the prosecution must prove each of the following elements beyond a reasonable doubt:
(2) First, that the vehicle belonged to someone else.
(3) Second, that the defendant took possession of the vehicle and [drove/took] it away.
(4) Third, that these acts were both done [without authority/ without the owner’s permission],
(5) Fourth, that the defendant intended to take possession of the vehicle and [drive/take] it away. It does not matter whether the defendant intended to keep the vehicle. [CJI2d 24.1, see also MCL 750.413; MSA 28.645.]
A harmless error analysis applies regardless whether the rejected jury instruction concerned a necessarily, Mosko, or a cognate, Beach, lesser included offense.
In Mosko, supra at 505-506, the Court held that the trial court’s refusal to instruct on the lesser included offense of third-degree criminal sexual conduct (charged offense first-degree criminal sexual conduct), was harmless because first- and third-degree criminal sexual conduct are "distinguished only by the presence or absence of a familial relationship” and the defendant never disputed that a family relationship existed.