*1 People Wilkinson 1977]
PEOPLE WILKINSON Opinion op the Court Robbery Robbery Jury 1. —Armed —Instructions —Lesser In- cluded Offenses. request
A trial court’s denial of a defendant’s
for instructions on
robbery
person,
offenses of unarmed
from a
a trial for armed
was not reversible error where the
supported
robbery charge,
evidence
the armed
and where the
place
1975,
prior
took
to December
the date of a
decision of the
Court which holds that unarmed
person
are
offenses of armed
Robbery
Robbery
2.
—Armed
—Lesser
Included Offenses.
preclude
jury
A trial court did not
in a trial for armed
considering
offenses,
though
lesser included
even
offenses,
court did not instruct
on the lesser
where
during
its deliberations the
asked if a lesser offense could
found,
the court
answered
the affirmative with the
counsel,
concurrence of both
the court then stated to counsel its
elaborating
requested by
intention of
jury,
if so
and the
guilty
original charge
returned a verdict of
seven
minutes later.
Speedy
Delay—Statutes.
3. Criminal Law —
Trial —
prosecution
did not violate the rule that a defendant who is
penal
incarcerated in
brought
institution be
to trial within
days
proceedings
by bringing
where
were initiated
defendant before the
days
district court within the 180
by any
such action
delay
was not followed
inexcusable
evidenc-
ing
(MCLA
bring
promptly
an intent not to
the case
to trial
seq.;
seq.).
780.131 et
et
28.969[1]
[1,
[3]
Accused’s
75 Am Jur
21 Am Jur
preme Court cases.
4. Criminal Law —Armed —Instructions —Lesser Included Offenses. *2 require Certain decisions of Court which a trial requested instruct a when on the lesser included charged applied retroactively, offenses of the crime are to be thereby requiring a reversal in case which was tried before the release of the Court decisions and which the trial court refused to instruct lesser included offenses charged crime of armed because the court supported robbery charge. believed the evidence the armed Appeal Tuscola, Norman A. J. Baguley, (Docket 7, 1977, Submitted Lansing. March at No. 27301.) Decided June
Joe L. Wilkinson was convicted of armed rob- bery. appeals. Defendant Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, and Patrick R. Jos- General, Solicitor lyn, Prosecuting Attorney (Prosecuting Attorneys Nelson, Unit, by Thomas C Appellate Assistant General), Attorney for people. Walpole,
Forrest for defendant appeal. J., Before: P. Quinn, M. Bronson JJ. Kelly,
M. J. J. Defendant Kelly, was convicted by 750.529; robbery, MCLA 28.797, on 21, 1975, November and was sentenced to a prison term of 20 to 40 years. appeals He as of
The facts adduced trial can be summarized as 18, 1974, July follows: On Robert Sanders was approached front of his business in Tuscola during daylight hours, County, by a wear- stranger v Wilkinson op ing with stripes. blue ski mask red Sanders testified that stranger masked wielded a .22- billfold; caliber his revolver and demanded the assailant took his and ran to a nearby billfold car. Sanders’ description of the assailant’s clothing possession and his gun of a was corroborated other witnesses who observed commission of the robbery. Defendant was subsequently arrested a high after speed chase in a vehicle matching the description given by two bearing witnesses and license number which had re- previously corded.
At trial requested defense counsel instruction on the lesser offenses unarmed simple larceny, person. found no evidence to an in- struction on these lesser included offenses and *3 therefore concluded that he required was not to give such instructions. The trial judge reasoned that since there was evidence adduced to support all elements of the armed charge, all, there existed a crime at such crime was armed robbery and not the lesser included offenses.
Michigan law on lesser included offenses was changed by pronouncement Court’s Chamblis, in People v 408; 236 NW2d (1975). 473 a Before that trial judicial court had a function to exercise. trial court determined if there support was evidence to the factual existence of lesser crimes. Chamblis says armed "every necessarily would include both unarmed robbery and person as lesser included offenses”. 395 Mich 425.1 Unless clairvoyant a trial court in addressing this issue November when defendant’s took 1 judge equation? "every” Did this eliminate from the Does absolutely, unequivocally, reservation, mean without all? App 109
112
76 Mich
Opinion of the Court
Chamblis
place,
anticipated
could not have
Having
decision of
no wish
December
to
controversy
add to
we say
the literature
citation,
only, and
that December’s
without
law
cannot
trial. How
applied
November’s
many
Chamblis v
judges
prior
this state
to
Ora
(1975),
We are not unmindful Lovett, v NW2d 44 raised the Chamblis rationale a constitu tional was” stature but we believe there "always is v Ora possible In analysis. alternative Jones, supra, at 390 the Court stated:2 duty
"The of the trial to instruct on lesser included offenses is determined the evidence. Phillips, If NW2d evi- presented dence has been which would a con- offense, give viction of a lesser included refusal requested instruction is reversible error. Id. at 36. Peo- Hamilton, ple NW "If the lesser offense is one that is in- greater, always cluded within the support the evidence will supports greater.” the lesser if it Chamblis Applying prospectively say can we not that unarmed robbery, simple larceny person are lesser offenses of but are "necessarily lesser Building leger included offenses”? on this literary demain, a review of this evidence3 is *4 if it supports simple determine unarmed robbery, put equation? this back in Does the "necessarily review would be in- No such for a lesser attempted attempt robbery cluded offense” such as is armed because the always completed father to the offense. People v Wilkinson Opinion op the Court person. The trial ruled as follows:
"’The As I previously, Court: All indicated the case law that in a seems to indicate situation such as this, any where the has not other defense offered theo- ries of robbery, crimes other than armed where the evidence even offenses; would not the lesser-included though an on there is instruction lesser-included defendant, requested offenses obligated by the the Court is not present jury. instructions to the such clearly "The evidence in this case would indicate that it, if the on jury July chooses to believe that County, in this the Robert Sanders was victim of an armed "All of the elements of armed have been evidence, by including weapon; shown in the the use of a assault, pistol. Certainly by an the use of taking
that weapon; property complain- the of from the ant; deprive complainant the intention to the of that transportation property permanently; and the or move- ment plainant. property possession from the of the com- anything
"There isn’t in the evidence which would anything indicate that there was other than an armed it, fact, robbery, occurred. question in "The real has one case been of identification, really and that is the has been issue raised determine; the evidence the one that the has to course, although, of can determine all, suppose. did occur I not "But, committed, certainly, if there was a crime any the lesser-included offenses. authority
"Under which counsel and the Court being have examined in primarily Chambers —that opinions Appeals, the Michigan Court of recall can’t at, certainly the last one we looked but two indicate charge obligation not have does an lesser-included offenses. lawsuit, Court, therefore, particular "In this will respectfully decline to do so. *5 the Court of "Mr. Kent Rather than my renew [Defense counsel]: request, Honor, instructions, your close of at the will simply request indicate for the record is a one, continuing assuming the instructions to be as be, now, object I will indicates will preserve order to the record.” agree We judge’s with the trial assessment of that no evidence. We would hold error existed up to that point. However defendant was convicted on an testimony accomplice of who had already permitted plead been to simple and the well knew it. The accomplice had charged been but pleaded with guilty charge simple to a reduced of larceny and had charge prior been giving sentenced on his testimony. puzzled Juries are often by these seeming inequities. during In this delibera- tions, sent a note to back the trial court which said: "Can the find guilty the defendant of a lesser Yes,
charge? or no?” The court with the concurrence of both counsel replied "The yes. answer is All That’s all”. Seven minutes later the jury returned with a guilty original verdict of on the charge. During period that short inescapable inference is the jury rejected finding considered and the de- fendant guilty of a lesser charge. Following the note, counsel and the court conferred in chambers agreed on the simple affirmative with elaborating, intention of depending jury’s words, reaction. In other the court reversed itself on the lesser offense ruling with the concurrence of both counsel after receiving query. the written People Wilkinson Opinion of the Court The court to the desire to jury’s deferred consider clemency, often called a verdict conscience.4 We think was a reasonable abbreviated way handling the situation. The next step, that is, detailing offenses, proved the lesser included unnecessary collective and jury’s unani- *6 mous action. agreement After the in-chambers was put on the record defense counsel asked what step next would be: Honor, just
"Mr. wondering Kent: Your I’m if who- immediately ever has sent Court, the note in then asks the possible might be’, 'what lesser offenses there we again retire to chambers to— down; "The Court: I Then will have to set I know what are.
"Mr. Kent: Okay.”5 We find no injustice. manifest
Defendant next asserts a violation of the 180-day rule, 780.131, seq.; et 28.969(1), MCLA seq. et The issue is without merit. The proceedings were initiated within the 180-day limit prose- when the cutor obtained a writ of April habeas corpus bring defendant before district court. Castelli, 121 438 NW2d (1963). This initial action was not by any followed "inexcusable delay” evidencing an intent not bring the case v Hender- promptly trial. shot, 98 568 NW2d 4 "affirmatively The lesser included offenses had not been excluded” argument implied there had otherwise existed an for exclusion simple proceeding. only argu- it was answered in this It leaves sponte ment the included offenses should then sua have been spelled out in detail. 5 prescinds addressing analysis considering The dissent from this hoc, post ergo propter unworthy a respect hoc rationale of comment. We position. Perhaps conflicting perspectives a review the by herein Court would be salubrious. App 109 Bronson, J. defendant’s motion to denied dis- correctly
miss on ground. remaining allegations
Defendant’s error do require reversal. Affirmed. J.,
Quinn, P. concurred. Bronson, (dissenting). dissent. The majority despite writes to affirm defendant’s conviction fact give requested refused to instructions on unarmed person, included offenses of it is conceded that Apparently v Ora reversible error under NW2d Chamblis, NW2d The majority merely apply would not those cases retroactively.
I would suggest
Court has
decided that question
to the
contrary
majority
*7
Lovett,
position. People
v
101;
238 NW2d
Thomas,
People v
(1976);