*1 1977] PAGE
PEOPLE v op Opinion Offenses. Included 1. Criminal Law—Evidence—Lesser always support greater supports will a offense a Evidence which necessarily offense is included the lesser lesser offense where greater within the offense. Entering—Lesser Larceny—Breaking Included Offenses. 2. necessarily Attempted included offense is charge with intent to commit to a larceny. to 3. Criminal Law—Lesser Included Offenses—Instructions Jury—Appeal and Error. jury judge give A trial must instructions requested by are included offenses where these instructions be reversed and a defendant’s conviction should defendant give judge refused to such instructions. where trial by to 4. Included Offenses—-Instructions Criminal Law—Lesser Jury—Evidence—Appeal Error. jury duty to instruct on lesser of a trial and, has been offenses determined the evidence evidence support presented a conviction of a lesser included which would offense, give instruction is reversible refusal error.
[1, 21 Am Jur [3-6] [8] [7] [9] [10, [12] [11] [13] 20 Am Jur 75 Am Jur 13 Am 13] 5 Am Jur 75 Am Jur Am Am Jur 81 Am Jur Witnesses Jur Jur 2d, 2d, 2d, Burglary 2d, 2d, 2d, References 2d, 2d, Trial 617. Appeal Courts 2d, Trial Trial Trial Criminal Law 9.§ § §§ § §§ and Error § §§ 906 et 576-599. 69.§ 64, 67, 69. for Points 876-882. seq. §§ 597-599. in Headnotes etseq. 5. Criminal Law—Lesser Included Offenses—Instructions Murder—Appeal the Jury—First:Degree and Error. judge’s A trial failure to instruct on lesser included *2 regarded offenses will not be as reversible error absent a request instruction, exception for with the such an sole of ffrst- degree murder cases. 6. Criminal Included Law—Lesser Offenses—Instructions to Jury—Maximum the Incarceration Period. may jury, matter, A court a instruct a criminal on lesser included offenses for which the maximum allowable incarcera- period year charged tion is one or less where the offense is punishable by years. incarceration for more than two Jury—Cognate 7. Witnesses—Criminal Law—Instructions to Lesser Offenses. judge recognize right A trial jury’s should the to believe or any testimony disbelieve determining or all of a witness’s jury cognate whether to instruct the aon lesser offense. Larceny—Lesser Offenses—Burglary—Larceny 8. Included Building—Instructions Jury—Evidence. to Larceny a is not a included offense in a burglary; justified therefore a trial instructing in not jury larceny attempted a as to at a defendant’s trial charge burglary little, on a any, of where there was substan- larceny presented. tive evidence of Courts—Judgment—Supreme 9. Court—Retroactive Effect— Prospective Effect.
Changes by Michigan Supreme in law only the Court must have prospective application where the Court does not declare that changes applied retroactively. the are to be Law—Evidence—Credibility 10. Witnesses—Criminal of Wit- Statements—Impeachment. nesses—Prior Inconsistent proper prosecution It is for the to attack a defense witness’s credibility by introducing testimony investigating po- from an prior lice officer as to the witness’s inconsistent statements officer, made to the impeachment and the mere fact that this through occurs concerning the use of statements the commis- sion of the charged crime with which the defendant is is impeachment insufficient to disallow its use as evidence. Appeal Appeal—Preserving 11. and Error—Issues Issue—Fail- Object. ure to may appeal An proper issue not be objection raised on where had timely not been made. Opinion of Jury—Defendant’s Theory of to Criminal Law—Instructions
12. Case—Request for Instruction. jury judge to duty instruct on the a trial There is a proper request only if is made theory of case defendant’s testimony. competent supported by and it is Jury—Credibility Law—Instructions Witnesses—Criminal 13. Instructions—Prejudice—Prior Witnesses—Limiting In- Statements—Appeal and Error. consistent sponte sua jury judge’s im- to instruct A trial failure only affecting peachment is to be considered proof credibility and not as substantive of defense witness guilt the defendant is not reversible error where a defendant’s objection request limiting is instruction no does not concerning testi- trial court’s instructions this raised as mony, there no demonstration or likelihood and where prosecutor sug- prejudice has and neither the court nor gested statement could inconsistent as substantive evidence. be used Dunn, D. Richard Sub- Appeal Wayne, from *3 (Docket 4, 1976, at Detroit. No. mitted November 24071.) 1, 1977. Decided March of attempted convicted
Richardo appeals. Defendant Re- breaking entering. and versed and remanded. A. Robert General, Kelley, Attorney
Frank J. Cahalan, L. General, Derengoski, William Solicitor Boyle, Principal J. Prosecuting Attorney, Patricia Research, Training and and Appeals, Attorney, Kellett, P. Charles Prosecuting Attorney, Assistant the people. Stone, for defendant. George J., D. M. P. E. Holbrook Maher, R. and Before: Kaufman, JJ. and N. J. M. P. Defendant’s conviction Maher,
R. 750.110; MCLA entering, attempted op Opinion 28.305, 750.92; 28.287, MSA and MCLA MSA must be reversed.
Judge
opinion accurately
recites the
Holbrook’s
facts.
disagreement
opinion
Our
with his
involves
question
the
of instructions
on lesser
included
offenses,
specifically the
instruction
attempted
building,
MCLA
750.360;
28.592,
MSA
750.92;
and MCLA
MSA 28.287.
The
test for lesser
common-law
included offenses
required "that
must be
lesser
such that
it is
impossible
greater
to commit
without
first
having
Jones,
v Ora
committed
lesser”.
379,
Three
support
cases are
proposi-
offered
tion
attempted
larceny in a building is not a
necessarily included
in a charge
offense
of break-
ing and entering. Two recent decisions of this
Court supporting this proposition, People Keatts,
same, be act can and the overt upon breaking the completed ing. greater The offense is upon an overt act.” 54 entering, the lesser and while App at 623. reversing the Court The order of the Keatts, 396 Mich in decision of this Court whether (1976), not disclose the does We analysis. Judge approved Court Bashara’s attempted lar- and view analysis, agree with his included offense necessarily in ceny entering with intent breaking charge to a larceny.1 commit Lovett, 101; 238 NW2d In a conviction (1976), reversed Supreme Court the trial court person because from larceny on at- instruction requested give a refused to offense an robbery, armed tempted The robbery. of armed charge in included it reversed a explain why Lovett did in Ora opinion to its entered conviction Jones, pronouncement supra, on the basis on necessar- instructions Jones Ora People v given. must be offenses ily (1958), Hearn, 468; 93 NW2d 354 Mich Stevens, 531; 157 NW2d Ora before opinions of other number large and a to instruct refusal trial court’s Jones supported constrained We feel robbery. attempted armed convic- Lovett, reverse defendant’s to follow give refused to trial court tion because any specific article attempted not be directed at need An may pocket reaching empty consti example, property. into an or tute For larceny. People 9 NW building attempted attempted larceny intent element enter intent element of than the no different therefore ing larceny. object. there be crime must In neither intent to commit with the particular to steal an intent *5 by Holbrook, Dissent D. E. J. instruction on building. attempted larceny offense of Reversed and remanded. J.,
J.N. Kaufman, concurred. (dissenting). J. This writer re- Holbrook, spectfully disagrees majority opinion. with the As Judge disagreement indicates, our includes Maher question of lesser offense instructions. This agree writer cannot that the trial court committed by instructing error herein not on a lesser offense. clearly The law at time of this trial required indicated that this instruction was not supported by when the offense was the evi- dence adduced at trial. February 26, 1975,
On defendant was convicted by jury attempted breaking with larceny, intent 28.305, to commit MCLA 750.110; MSA 750.92; and MCLA MSA 28.287. Defendant years. was sentenced to term of 3 to Defendant appeals right. as of night police 7, On the 1974, of December Livonia Goodyear maintained a surveillance of a Tire apparently Store. This undertaken because enterings there had been several particular Shortly this store. after 5 a.m. on De- they blue-green pass 8th cember observed a Ford Finally, lights the store several times. the car pulled off, were shut the car was into the store parking building. lot and then to the rear of the Shortly thereafter the officers heard the unmistak- breaking glass. able sound then officers premises, parking drove onto the store their car so proceeded as to block one entrance. The officers towards the back of the on foot after observing suspect building. one male inside the As attempted escape, the insider one of the officers by D. E. apparently discharged weapon. This his alerted according who, individuals to offi- the other two began escape. cers, Accord- started their car and ing testimony, they were almost run officers’ managed shots into over but to fire several *6 progress forward was automobile. The automobile’s suspects quickly stopped. three were then The apprehended. manager
At the store testified trial the that alleged shortly after the he viewed the store crime approxi- tire had been moved and noticed that one mately window, but two feet toward a broken that nothing missing. was
At
trial
the defendant
testified that he was
having
attempting to
car trouble while
take one of
airport.
He indi-
codefendants herein
pulled
parking lot
cated that he
into the
because
run. He further
testified that
his car ceased to
Patton,
actually
in”,
the codefendant who
"broke
urinate. Patton corroborated
had left the car to
story
it was his idea to
this
and indicated
the tires. Police officers testified
break
and steal
given by the defend-
at the trial as to statements
testimony.
ants which contradicted this
jury only on
The trial court
instructed the
breaking
entering
commit lar-
and
with intent
attempt,
ceny,
750.110; MSA
and
MCLA
28.305,
28.287. Defendant also re-
MCLA
MSA
750.92;
larceny
quested,
refused, instructions on
but was
building,
750.360; MSA
and
MCLA
28.592,
attempt,
also re-
MCLA
MSA
and
28.287,
750.92;
property,
ceiving
concealing
MCLA
stolen
attempt.
A decision of
750.535; MSA
28.803,
attempted larceny
held that
this Court had earlier
offense of
is not a lesser included
lar-
intent
to commit
with
App
People
ceny.
Keatts,
54 Mich
v
618;
73 by
(1974).
decision in Keatts
NW2d 455
The
on
based
of several
authority
indicating
cases
lesser
in-
Huffman,
People
134;
cluded
315 Mich
offense.
Stuart,
274 Mich
(1936).
246; 264
Supreme Court,
NW
however,
reversed Keatts and reinstated
the con-
viction
found
the trial court. 396
(1976).
"The
of the trial
to instruct on lesser
included offenses is determined by the
evidence.
Phillips,
If evi-
*7
presented
dence has been
support
which would
a con-
offense,
of
viction
a lesser
give
refusal
to
requested
Id,
instruction is reversible error.
at 36. Peo-
Hamilton,
ple
v
Therefore, we must determine if the offenses for which instructions requested were were legally required to be included lesser offenses.
The trial court herein followed
Mich-
established
igan authority existing at the time
People
of trial.
Huffman, supra,
v
Stuart,
People
and
supra. People
675
Supreme
clearly
in Huffman
established
and
separate
that
these two
are
distinct.
offenses
present
"In the
clear that
case it is
offense of
nighttime
in the
a store
charged in
larceny,
with intent
as
the first
commit
information,
separate
count
is a
distinct
building,
offense from
charged
from a store
Stuart,
People
the second count. As said
supra,
statutory
'The
of these two
essential elements
offenses are different’.
Mich at
Mich at
248].”
[274
139;
attempt readily thereof, can be dismissed. All any agreement denied to steal the tires and all any knowledge denied of Patton’s decision to take put some tires and them in the car. The tires did premises although store, not leave the of the one may Testimony have been moved two feet. planned put Patton indicated that he them in plans. car, but that no one knew of these attempt There was no evidence of an or of a completed receiving concealing crime of stolen property. See Tantenella, (1920), Keshishian, NW 474 45 App 51; larceny, again
toAs we once must return supra. Larceny Keatts, is not a burglary, is, included offense in a but cognate best, at lesser offense. This is consistent People Keatts, with both our decision and the Supreme Court’s decision. The held: *9 Page 677 People Holbrook, J. Dissent the trial court did that opinion "The Court is of the defendant, charged with convicting err intent to commit building with entering
breaking and a (MCLA 28.305]), of the offense of larceny 750.110 [MSA (MCLA 750.360, 750.92 building attempted larceny in a 803. at 28.592; 28.287]).” 396 Mich [MSA in Keatts. the facts were what We do not know it was not that had held decision Our opinion Supreme after included offense. supra, appar- v Ora decision in their permissible ently was a this decided justified the instruction. facts which on the offense case, if the facts did not Therefore, in the instant attempted larceny, finding larceny justify or requested instruction of the the trial court’s denial affirmed. should be be enti- should determination
The trial court’s dealing weight proper the suffi- with when tled to ciency instruc- as to a of the evidence only case, evidence of a In the tion. instant larceny two feet.2 The of a tire movement was any defend- He and defend- Patton, connection with actor, denied Page the tire. he moved when ant ant no connec- defendant had testified tire. Defendant of this movement tion with the goods. any possession Some stolen not in was way pointed may his have evidence circumstantial rebut offered to the officers was testimony. exculpatory However, there was larceny. any, aof little, evidence if substantive MCLA necessary $100 value is Mich Mich Graves, We do and, App 750.356; not a Jackson, not know the value therefore, required 234 NW2d App MSA NW2d could 28.588. element App also be a (1973), People of this Nevertheless, of a 654; larceny 185 NW2d tire, simple larceny charge, but from a v Patricia it suspect supplies and, building charge. (1971), People misdemeanor, it furthermore, Midgyett, Williams, intent under 49 63 App 667 73 by D. E. circumstances, was justified the court Under these larceny attempted in not lar- instructing ceny.
However, Court’s decision in Keatts, supra, was that charge
"necessarily
included” offense
of bur-
*10
glary,
a departure
prior
this constitutes
from
law.
This
significant departure
would result
from
practice
past
Michigan.
Michigan
The
Supreme
occasions,
People
v
Court has held
on several
Huffman,
Stuart,
People
supra,
v
supra, that
is not a
necessarily included
offense in
charge
burglary. Furthermore,
of
in Michigan
law
justify
has been that
to
in-
an
offense,
struction
on a lesser
such an
instruction
given
will
be
only
evidence on the
justifies
record
on
the offense. Peo-
an instruction
v
ple
Phillips,
30;
385 Mich
Defendant also maintains that the trial court erred by permitting prosecution impeach defense witness by the use of as to testimony by E.D. were offered with- which inconsistent statements Defendant must realize adequate out foundation. puts he of credibility calling that a witness proper it was the witness in issue. Herein credibility by the witness’s prosecution to attack the investigat- from one introducing testimony impeach- effect of had the ing police officers which witness, William the defense ing the 48 Mich App George Patton. People v fact The mere this the use of through state- impeachment occurred commission of crime is concerning ments impeachment. insufficient to disallow its use this contends rebuttal Apparently defendant rebuttal and should scope proper exceeded the prosecution’s been case chief. part have of the basis, this defendant being objection There no Bryant, cannot now raise this issue. App 279; 245 NW2d rea- questions posed herein were foundation *11 general in the specific, view of sonably especially Mr. attributed to Patton nature of the statements questioning did by the officer. The foundational the witness appear to such as to mislead be admit, deprive deny nor him of a chance to Gunne, 65 Mich People v explain the statements. (1975), 66 Mich 216; 237 256 on reh App NW2d (1976). of 318; Impeachment 603 App 239 NW2d showing through questioning this witness proper, that was inconsistent statement of witness laid. proper foundation was that the trial court Defendant also contends to failing jury to instruct the as properly erred duty of There is a theory the defendant’s the case. of the case theory on the defendant’s to instruct sup- it request if a is made and proper only McGhee, People v ported competent testimony. by App 73 667 680 Mich by E. D. 14, 1; (1976), 741 12, n NW2d App Bates, 1; 55 Mich NW2d Bonello,
(1974), People v App 600; 25 Mich of the theory defense as NW2d Patton was that stated defendant defend- merely present way ant was no participated in, aided commission of the or abetted the crime. intent, The trial the on judge jury instructed the prosecution’s of and the presumption innocence of a reasonable proof beyond burden doubt. The the jury they further instructed that had no right to the testimony merely discredit defendant’s defendant, because he and that they found consistent, rational, it natural then defend- ant’s testimony might outweigh the other all witnesses and for the to jury be sufficient return verdict of not guilty. Defendant neither objected nor giving any instruc- tion of the covering theory case which the defense was founded. It would that follow there is no error ground. reversible on this
The final
again
issue
deals with impeachment
Michigan,
In
téstimony.
evidence of a witness’s
prior inconsistent
statements may
only
be received
the purpose
of impeachment
and not as sub
Pointer,
evidence.3 Brown
stantive
(1973),
People
449;
Eagger,
App
v
4 Mich
145 NW2d
(1966),
Lamson,
People
v
Mich App
(1970),
held that
NW2d 204
failure of
the trial
court
such an instruction
give
sua
However,
sponte is
recent
reversible
error.
cases
holdings.
have
People
tended to disavow these
Coates,
(1972),
In the instant neither at the time the admitted, testimony during rebuttal nor suggest instructions did the trial might the statements as sub- be considered Also, prosecution’s only stantive evidence. ref- erence to the impeachment officer’s oc- during closing argument. curred inference *13 73 gave that the officer from was this brief reference prior inconsistent truthful of Patton’s account equivalent saying statement. This is accept jury statement as that the should true as substantive evidence. showing no on the
In this there is record case purpose jury was confused impeaching could be used. which the limiting Defendant no instruction and showing given. any none There is no dem- was likely prejudice or that onstrated or prosecutor. by judge The failure misdirected limiting give sponte not, a sua instruction is ground case, for reversal. record of this This writer votes to affirm.