*1 1972] 701 v Patskan counsel’ so necessary when liberty one’s jeopardy.”
We, therefore, set aside judgment cir- cuit court and remand the cause to the district court for further proceedings accordance with this opinion. E.
Black, Adams, T. T. Gr. Kavanagh, Brennan, and JJ., concurred with T. M. Swainson, Williams, C. J. Kavanagh,
PEOPLE PATSKAN op the Court Bobbery Attempted Intent J. —Assault With to Bob — Assault With Intent Bob —Instructions—Constitutional Law —Due Process —New Trial. Bailare au of the trial instruction of rob indicating with intent armed after he would so fundamentally unfair, do was violated court rule right and, also, process law; therefore, defendant’s to due the conviction of assault with armed must (MOLA 750.89, 750.92; reversed and a new trial held 1963,516.1). GOB Beferences for Points Headnotes 1, 3, 7,10,11] Jur, Bobbery Am46 70.§ 3,14] '2, '4-7,15] '5-7] '8] '9,13] Jur, 796, 53 Am Trial 798. §§ 2d, 41 Am Jur 312, Indictments Informations 313. and §§ Jur, 65, 46 Bobbery Am 66. §§ 2d, 29 Am 367, 371, Jur Evidence 372. §§ 2d, 6 Am Jur Assault Battery and 10. § 21 Am 2d, Jur Criminal Law 110. § Attempt offense, to commit assault as criminal 79 ALB2d 597. 6 2d, Am Jur Assault Battery 12] 16,17] 3.§ Jur, 46 Am 65, Bobbery §§ 2d, Prosecuting Am Jur Attorneys 25, 18] 26. §§ 29 Am 2d, Jur Evidence 426. §§ Modern of rule status governing admissibility evidence ob- tained seizure, unlawful search 531. ALB2d 387 Offenses —Indictment 2. Law —Evidence—Lesser Criminal Information. their may properly A instruct verdict trial court *2 guilty principal guilty of not the offense must one of or jury upon before the is no evidence where there in included the information upon offenses which a lesser verdict could be returned. Attempted Robbery Rob — Assault
3. Intent to —Assault With Instructions—Appeal and Error. With Intent to Rob — refusing to Trial error in court not have committed would being attempted to rob assault with intent instructions victim, believed, if testimony armed where of assault, completed was presented evidence a no evidence of events, and sequence defendant a different introduced of the crime present was not scene contended he 750.92). (MOLA 750.89, it when occurred 4. Criminal Law —Included Offenses. legal greater all the and
If includes factual of two offenses lesser; if but lesser, greater includes the elements of the necessary requires of some the inclusion lesser offense offense, greater lesser not element so included greater. necessarily in the not included Attempted Robbery 5. Rob — Armed With Intent —Assault Robbery. being (1) an of: Assault to rob armed consists with intent armed; attempted rob; assault; (2) (3) being assault, in- robbery does of an but armed does not consist 750.89, rob; being (MOLA (1) attempt (2) clude: armed 750.529). Robbery Attempted Robbery Rob— With Intent 6. — —Assault
Criminal Law —Intent. crime; enough person there
Intent alone is to eonviet and, once conjunction with intent must be an act taken thus, done, is, therefore, attempt; that is there with of assault robbery is a armed lesser included 750.92, 750.529). 750.89, (MCLA intent to Robbery Attempted Robbery 7. to Rob— With Intent — —Assault Appeal Instructions —Court Rules — Error. refusing
Trial an instruction court committed error requested on attempted robbery properly it armed when pursuant charged with rule, v Patskan robbery armed, commit and the have allowed the would to find of the case that the crime (MCLA 750.89, was committed 750.92, 750.529; 1963, 516). GCR Law —Identification -of 8. Criminal Defendant —Evidence— Hearing. July 14, On of an retrial offense that occurred on hearing court should hold a to determine whether the in-court by poliee identification of defendant officers was arrived at independent confrontation; initial if such in-court identification was not independent, evidence of the identifica- tion of the defendant should be excluded on retrial.
Concurring Opinion Kavanagh T. G. JJ. Williams, Battery Attempted 9. Assault — Assault. *3 “attempted necessarily attempt An assault” would involve to attempt, Michigan. malee an and there is no such crime in Robbery Attempted 10. —Lesser Included Offenses — Assault with Intent to Rob —Instructions. judge jury “attempted
Failure a trial to the instruct on as- of being having agreed armed”, sault with intent to rob to after so, did do not constitute there is no reversible error because Michigan attempted assault, such crime in as and the instruc- requested law”; therefore, tion cannot be said to “on the be requested the instruction did not within the ambit come of the statute and the to the failure of stating instruction, would, a viola- even that he was not after statutory duty (MCLA 750.89, 750.93, 768.39). tion his of Robbery Assault—Attempted 11. — Assault —Instructions. trial, complain should that the not be heard to
Defendant not, gime requested did promised, as it instruction had his though attempted being even with intent to rob armed the closing argument counsel’s indicated reliance defense because, there prior promise gime court’s the instruction assault, Michigan no such in as crime error court, by merely escaped the giving instruction, (MCLA 760.93). 750.89, invited defendant Mich Dissenting Brennan, JJ. and T. E. Black Battery and Phrases. and —Assault—Words 12. Assault violence, attempt offer, and to do with An assault is an or force accomplishing bodily present a means with hurt to another of the hurt. Battery Attempt — Assault. 13. Assault assault, attempt which There can be no of offense attempt or am would include offer. definition Offenses —-Instructions. Included 14. Criminal Law —Lesser given where need No instruction on lesser included offenses grounds there are no reasonable defendant for find guilty and there is total absence included lesser of offense guilty theory is support evidence to any such offense. Robbery Attempted Robbery Intent to Rob — With 15. —Assault Included Offenses. Armed —Lesser the ele- are included all the elements another crime If greater charged, crime is ments the crime offense; a lesser included and the crime is other robbery lesser included is as a armed excluded of- 750.89). (MOLA intent to rob and steal to assault with fense Weapons—Intent. Robbery to Rob — With Intent —Assault 16. complete when an is rob armed Assault intent intent dangerous weapon with both assault made 750.89). (MOLA to rob and steal Robbery- -Attempted Robbery to Rob. Intent With — —Assault 17. present which is not Attempted element includes an while assault with offense of property to take is an abortive element from (MOLA person person presence the assaulted or *4 750.89, 750.92). Attorneys Prosecuting Law —Indict- and —Criminal 18. District ment and Information —Instructions. determining which prosecutor prerogative had the of exclusion to the to be of defendant therefore, and, charges other from information from trial and the instructions. from v Patskan Court Law —Identification 19. Criminal Defendant —Motion Suppress Appeal — Error. illegal suppress A motion claimed identification of defend- timely giving ant must be made where the rise to the illegality are Tmownin claim advance trial and the court will not turn aside case consider such from matter; objection illegal a collateral to claimed defendant’s untimely him was it where raised identification of first appeal. Appeal Appeals, from Court of Division 1, Dan- Kelley, hof, P. J., Y. J. Brennan and J. JJ., J. affirming Recorder’s Court of Detroit, Robert E. January (No. DeMascio, J. Submitted 5, 1972. January 53,323.) Term No. 1972, Docket Decided July 26, 1972. App Mich 354 reversed.
George Patskan was convicted of assault with appealed Defendant Appeals. the Court of Affirmed. Defendant appeals. Reversed and remanded for new trial. Kelley, Attorney
Frank J. General, Robert A. Derengoski, General, Solicitor Gahalan, William L. Prosecuting Attorney, Dominick Carnovale, R. Appellate Department, Chief, and Gerard A. Prosecuting Attorney, Poehlman, Assistant for the people. Appellate
Arthur J. Tarnow, State for Defender, appeal. July approximately J. On 14, 1967, Swainson, up a.m., men three hold restaurant- Eight bar on East Mile The es- Road, Detroit. evening night tablishment had closed for the porter, cleaning. Fernando Jaime, was inside He *5 706 387 701 Opinion op the Court telephone place received a call on that was fire upon by way attempting* to leave of the back by keys door he was accosted two men who took his stick-up. and informed him that it was a Upon being*opened, the back door a silent alarm private protection agency’s was sounded in a office. police The were summoned and the holdup fatally thwarted. by ofOne men was shot police escape, as he tried to another was wounded. Officer a man Andrews saw third building gave leave the chase. The officer,who fleeing about feet behind man, noted the type clothing. fleeing color and of the latter’s open having sight man ran into field. After lost period a of him for five ten seconds, the officer George lying found Patskan in the field face arrested him. down, and Defendant told the sleeping officer he that in the field. Officer brought Andrews handcuffed defendant and him back to bar. Defendant Patskan was then by King identified Officer and Patrolman Blanchard. along Defendant, with a codefendant, was robbery being with assault with intent to commit armed.1 request
Defendant’s counsel filed a written that charge given be to the on crime of at tempted robbery re Codefendant’s counsel quested charge given he robbery being with intent and de to commit armed, charge fendant Patskan’s counsel asked that 750.89; MOLA MSA 28.284. 750.529; 28.797, robbery. MOLA MSA defines armed 750.92; 28.287, provides part: MOLA in MSA “Any person prohibited who shall to commit by law, any and in such shall do act the commis- towards sion of offense, perpetration, such or be but shall fail shall intercepted prevented same, or ex- the execution when no press provision attempt, is made punishment law for the of such * * * punished shall be as follows: .” Patskan op the Oourt given Discussions were defendant. as to
also judge’s court told chambers and the held charge on he would counsel robbery charge but would armed, *6 being attempted while with intent to rob assault armed. chambers, defend- on these discussions
Based argued closing argument, at the counsel, ant’s attempted jury with assault the crime of being had committed. armed been to rob intent attempted give charge assault a on court did being coun- armed. Defendant’s to rob with intent exception to the counsel took and codefendant’s sel attempted jury on failure instruct court’s robbery attempted assault with armed and being his codefend- Defendant and armed. to rob jury guilty by of and found convicted ant were being rob with intent to the crime —assault to 25 was sentenced The codefendant armed. years, sentenced defendant Patskan was Appeals years. affirmed. appeal. 25 to 50 The Court granted App leave to Mich 354. We Mich 842. appeal: issues are raised on
Five (1) below sus- record of the trial Whether trial contention tains defendant’s attempted give charge assault a stated it would if and, so, whether intent to rob process and fair of law was denied due give charge? such failed to when the court trial jus- testimony (2) trial elicited at Whether charge refusal to the trial court’s tified attempted to commit armed with intent requested robbery, as an included offense? (3) elicited at the evidence Whether charge justified refusal court’s armed? 387 Opinion op the Court (4) Whether there is an unconstitutional dele- gation legislative judicial authority to set prosecutor sentences in the discretion of the in that alleged upon which defendant was con- equally charges: victed could have sustained two attempted robbery armed, or assault with intent to armed?
(5) arresting Whether officer violated de- rights process fendant Patskan’s due of law and assistance of counsel when he returned defendant alleged holdup? to the scene of the
1. process Defendant contends he was denied due right and the to a fair trial the fact that the court failed to instruct the crime robbery being assault with intent to commit attorney He contends that relied, his to his detri- *7 ment, on the belief that the trial court would argued such an instruction. Defendant’s counsel to jury argument closing the attempted in his that the crime of with
assault intent to commit being armed was committed. people only contend
promised “attempt,” to define and that he did this attempted larceny person. when he defined from a They argue placed further that defense counsel emphasis argument “[a]s little on this a matter and, argument attempt of fact, counsel’s on seems merely afterthought.” been thrown have as 516.1
GCR reads: 1963, “Request for Instructions. or before close At the any any party may, of the or time the evidence, reasonably parties shall, file directs, requests jury written that the court instruct the on request. copy the law as set forth A of such requested instructions shall on the ad be served v Patskan Opinion op the Court parties in accordance with Rule
verse 107. The proposed counsel its action court shall inform prior requests arguments jury, to their provision subject to the and, 516.3, sub-rule shall arguments completed. instruct the after the are * * # ” (Emphasis added.) clearly complied part Defendant with this of the Honigman Michigan Rule. In 2 & Hawkins, Court (2d ed), p Court Rules Annotated Comments, it is stated: required “The court to inform counsel its
proposed guments requests prior action to their ar- jury. Sub-rule 516.1. The obvious purpose provision this is to enable coumsel requests granted know which will denied, or argue light order to in the the law as charge jury.” (Emphasis added.) court will In the discussion between court and counsel, the court stated: problem right
“The That is Court: the court’s attempt robbery I now. don’t think those facts fit an It assault to rob while fits (Emphasis added.) armed.” Taylor counsel]: [defendant “Mr. Patskan’s In you adopt that, the fact of I would ask Usiondek’s charge [codefendant] Number 9, and also—which covers assault. I “The Court: indicated that— Taylor: you going give “Mr. If are you rob armed, I ask that include that consideration for Patskan. Of course, get point you then we into probably where will *8 attempt jury, read the you statute to will not! attempt “The I shall Court: define what an is. right.” All agree We judge with defendant that the trial give stated he would an instruction of Mioh Opinion op the Court rob armed. His failure being to assault with 1963, 516.1. to do so violated GCR defendant’s, out, basic defense As the people point a in the crime. participant he was not was that to him does not lessen the However, prejudice this charge to agreed specific the court has give where forcefully do so. His counsel and then fails to at was committed it was if crime argued any that rob armed.3 with intent to tempted being assault instruction of the trial failure so, fundamentally he would do after indicating and, also, 516.1 defend violated GCR unfair, Therefore, law. process ant’s due right trial held. be reversed and a new conviction must 11. raised defend- other issues However, by because we will deal presented retrial, be ant also might that Defendant contends opinion. them in this failing error in reversible court committed with intent assault charge which state that He cites cases armed. closing argument, defendant’s counsel stated: his 3 In your comes into just convict a man of whatever you “But don’t says an is assault somebody months later there some mind because say I an say I was not. it was it to rob with intent rob, completed. was never attempt with intent to because it time, as completed. same “I lawyer, it But at the am thankful that wasn’t I am got try you point that I to make see the have yours personal thoughts and be driving as lay at. And aside those you If you can, as as can. as fair and be as candid honest and you your that the crime that can do that conscience to deeide attempt attempt, that aborted was committed here was there responsive responsible getting police officers scene, stopped. Everybody stopped it was was—it agrees stopped got ground. that. It was before it off any committed, per- “If there it is crime is you if form this an abortive act. I wonder act. criminal This objective. you must courage can find Some to be that you.” able to do that. Thank *9 People 711 v kan Pats op Opinion the Court there is a of crime assault.4 The Court in its stated Appeals opinion (p 357): be
“There can no offense of an assault, which by definition would include an attempt or offer.”
However, we do not need to consider whether, under any circumstances, there could at- be an tempted assault decide the issue before us. The issue face is only we whether it was error to refuse give such instruction under circumstances case. 2 this Gillespie, Michigan Criminal Law (2d & Procedure 863-864, states: ed), 674, pp § “Where the offense in the information includes other offenses of lesser it is not degree, error to omit instruction on such lesser offenses, where the evidence tends the greater, only prove or, such case to state only question before them is as to the greater offense, they cannot Where convict offense. lesser there is no evidence jury upon which a ver- before upon dict lesser in the included offenses informa- tion could it returned, is not error for to instruct the jury their verdict must be one or guilty guilty principal charged,” (Emphasis added.)
This rule has been followed
our
by
Court
People v Utter,
“Q. man Which there. man is over “A. “Q. that That sir? man, Which “A. The first. sitting speaking you Usiondek of Roman “Q. Are the table? “A. sir. Yes, happened, sir? “Q. then, What grabbed me, me and told “A. when man And this edge wall and that is where me he took to the the my part gun put in the back man
the other building. me ribs he took inside today, you sir? man here that other “Q. Do see Yes, “A. sir. is sir? “Q. “A. The he, Where sitting gentleman back is crystals, glasses. gentleman
there; George the outside or seated on “Q. Patskan, Mr. right table? next to the
“A. The of the table. outside Prosecuting [Assistant Attor- Poehlman “Mr. is ney]: the witness show that Let the record George person pointing of the Patskan.” presented testimony, evidence believed, if
This completed introduced No evidence assault. n sequence con- Defendant of events. of a different present the crime at the scene tended he was not if the believed Hence, occurred. this when People v Patskan op the Court porter, testimony of the the crime of assault and assault was committed. Thus, have trial court would not fusing committed re error in instructions with intent to rob armed.5
III. Defendant further contends that the court erred refusing charge attempted robbery attempted robbery armed. Defendant contends is a lesser included offense assault with people intent to rob armed. The contend that attempted robbery armed is not such a lesser in- Simpson, App offense. cluded In 5 Mich (1966), Appeals 479, Court of stated: general succinctly rule “The set forth in § pp Criminal Law Wharton’s and Procedure, *11 greater 754, wherein it is 753, stated, ‘If two legal includes all offenses of and factual elements greater the lesser, includes the lesser; but requires if the lesser offense the inclusion of some necessary greater element not so included in the necessarily offense, lesser is not in included ” greater.’ agree proper We that this is a test to in use determining if one offense is a lesser of included fense Ill one. In another v Hawkins, 54 App (1964), 217; 2d NE2d 761 the Court stated: “An assault with to intent rob is more than an
attempt attempt to rob. It an includes rob in all the addition essentials of an assault, United Spain, Supp (ED 32 F 1940).” States 28, 30 Ill, I, As in noted Part was error action rely which led defendant’s counsel such an instruction argument. closing in his the Court Assault with armed to rob consists being of: an (1) assault; rob; an attempt (3) (2) being armed. armed does not Attempted robbery consist of an include: assault, (1) attempt does to rob; but armed. Court of (2) being Appeals The stated (pp 359-360):
“Therefore, includes an robbery ele- ment which present is not the offense here element an charged and that is abortive take from or in property person the presence of the assaulted person.”
The distinction between the element of intent and is, under the circumstances of this case, matter of semantics. Intent alone is enough a person convict of a crime. There must be act taken in the intent conjunction and, once that there done, is, therefore, attempt. at- Thus, tempted armed is lesser included robbery of assault with intent We the court committed error hold refusing an instruction on attempted robbery it properly requested pursuant when to GrCR of this case would 1963, 516. have allowed to find that the crime of jury robbery porter was committed. The was informed that it and he testified he “stick-up,” heard the men office proceed to the and heard upstairs opened. The register cash could have found from these facts that the crime of attempted had been committed.
IV. *12 Defendant contends there was unconstitutional judicial legislative of delegation authority prosecutor discretion of the set in the sentences which upon defendant was alleged People 715 v Patskan Opinion op the Court convicted could have sustained at- two charges: tempted robbery armed, or assault with intent However, in view of our holding III under Part the trial court should have an instruction as to given armed, prejudice defendant’s claimed fails.
F. Finally, defendant contends that his right due process of law right and his to assistance of counsel were violated when he was returned the scene holdup alleged and identified by the other officers. The right counsel at confrontation between an accused and his accuser was recognized the United States Supreme Court in United Wade, States v 388 218; US 1926; 87 S Ct 18 L Ed 2d 1149 (1967). Wade decided 12, June 1967, but was silent on the question of retroactivity. Denno, Stovall v 293; US 87 S 1967; Ct 18 L Ed 2d 1199 (1967), held that Wade succinctly made retroactive. The instant occurred on holdup July 14, 1967, thus, defendant is and, Patskan entitled to the benefits by Wade. provided
Thus, retrial, trial court should hold hearing determine whether the in-court identi- fication of defendant by the officers was ar- police rived at independent of the initial confrontation.6 If such in-court identification was not independent, evidence of the identification defendant should be excluded on retrial. Court Appeals reversed and matter
remanded for new trial in accordance with this decision. Wade, supra, United States p See v for the test to be hearing. applied examples at this For our has where Court remanded Mosden, see, evidentiary
for hearing, v Mich People Gorka, (1969), (1969). Mich 515 *13 387 G-. J. Opinion by Kavanagh, T. J. J., Swainson, with Williams, concurred J., J., T. M. concurred Kavanagh, C. Adams, in the result. (concurring). agree I T. G-. J. Kavanagh,
my judge’s Brother that the trial failure Swainson “attempted grant requested charge robbery” I error. constituted reversible would remand this case for new trial. judge agree
I cannot that the failure of the trial jury “attempted assault with in- to instruct the on agreed having being- after armed”, tent to rob appears This do error. so, constituted reversible injection be the a contractual element me to judge relationship trial into the between defendant. parties shall file
GCB 516.1 states that “the requests written that the instruct request.” no the law as set forth in the There Michigan which assault, such crime in as necessarily to make an involve an would attempt. quested re here This the instruction so, “on law”. There be said to be cannot the ambit did not come within fore such instruction trial failure of the statute,* and the stating that he even after instruction, duty. statutory violation of his not in would, position my anomaly Brother’s is that had given, con- been and defendant been instruction but to would have no choice we thereunder, victed conviction. reverse the closing argument
Although in- counsel’s defense promise court’s reliance dicates n requested, heard not be he should instruction he 768.29; MSA 28.1052. * MOLA v Patskan Dissenting Opinion by Black, J. complain escaped court somehow he invited.
error J., concurred with T. Gr. Kavanagh, J. Williams, (dissenting). agree I J. with the rea- Black, *14 soning disposition (29 of and made Division App 354) Mich and therefore dissent. E. Brennan, J.,
T. concurred with Black, J.