Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED JULY 9, 2002
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee—Cross-Appellant,
v No. 117891
CLINTON WAYNE REESE,
Defendant-Appellant—Cross-Appellee.
____________________________________
BEFORE THE ENTIRE BENCH
WEAVER, J.
Defendant was convicted by a jury in the Kent Circuit
Court of armed robbery. MCL 750.529. He was sentenced as an
habitual offender to life imprisonment. MCL 769.12. The
issue presented is whether the trial court erred in refusing
to give a requested instruction on unarmed robbery. Applying
the analysis of People v Cornell, 466 Mich ___; ___ NW2d ___
(2002) to the facts of this case, we conclude that the trial
court did not err in refusing to give the requested
instruction because the element differentiating armed robbery
from unarmed robbery—namely, whether the perpetrator was
armed—was not disputed. Therefore, we affirm defendant’s
conviction.
Defendant’s conviction stems from an incident occurring
September 27, 1997, at a Wesco gas station in Kent County.
Michelle Livernois, an employee who was working at the gas
station at the time of the robbery, testified that at
approximately 3:45 p.m., a bald, stocky man entered the gas
station wearing a nylon over his face and a green and white
sweatshirt turned inside out. He was holding a knife. Ms.
Livernois was standing behind the counter and had just
finished dropping some money in the safe. She testified that
she recognized the man immediately as a previous customer.
Although she did not know his name, she recalled that on
previous occasions he had purchased beer and Pall Mall
cigarettes. She later identified defendant as the perpetrator
after he was taken into police custody.
Ms. Livernois testified that after defendant entered the
store, he pushed her against the wall and began taking money
from the register. After about ten seconds, Ms. Livernois was
able to escape and run out of the gas station, across the
street to the Hot ‘N Now. She returned to the station after
she observed defendant run across Daniel Street into a yard.
She and her co-worker, Chris McCune, then reentered the store
2
and waited for the police to arrive. Ms. Livernois stated
that approximately $1,095 was taken from the register.
Mr. McCune testified that when defendant entered the
store carrying a knife, he was on the “customer side” of the
counter fixing a cigarette display rack.1 He ran out of the
store to a pay phone to call 911. He then got into a truck
with one of the customers who was present at the gas station.2
They followed the defendant for a few minutes before Mr.
McCune returned to the gas station.
Michael Noren and his girlfriend, Sabina Borowka, stopped
at the Wesco gas station to buy a pair of sunglasses. As he
was driving into the station, he observed defendant crouching
near a wall. After making their purchases and returning to
their car, an employee ran out of the gas station, screaming
that he had been robbed. Mr. Noren observed defendant run out
of the store and over to Daniel Street. He testified that
defendant’s hands were full, and he was trying to shove things
into his pocket as he ran. A few things dropped to the ground
as he ran. Mr. Noren and Ms. Borowka went around to the south
side of the station, where they observed money on the ground
1
Mr. McCune also identified defendant after he was taken
into custody.
2
Mr. McCune got into the truck before he completed the
call to 911. Another customer picked up the phone and
finished the call.
3
and a knife sitting in the dirt. He and Ms. Borowka stayed
near the knife until the police arrived.
Vivian Shepard, the manager of the gas station, explained
that the gas station had eight cameras that recorded twenty
four hour surveillance of the gas station. The jury was shown
the video tape of the robbery while Ms. Shepard explained what
was happening on the tape. Ms. Shepard testified that the
tape showed Ms. Borowka looking at sunglasses and paying for
her purchase. Ms. Livernois was behind the register
completing a safe drop and Mr. McCune was near a display of
cigarettes. The perpetrator entered the gas station wearing
a blue hat with a red button on the top.3 Ms. Shepard
testified that as the perpetrator entered the store, one could
observe a stick-like object—the knife—in his hand.
Paulette VanKirk testified that as she drove into the gas
station to get gas, she observed defendant run out of the
station shoving money into his pocket. The money was falling
to the ground, but defendant did not stop to pick it up. She
and Mr. McCune followed defendant for a few minutes in her
3
Laura Clark, a fifth grader who lived in the area where
defendant was apprehended, testified that at about 4:00 or
4:30 p.m., she observed a black man kneel by the raspberry
bushes in their yard and throw his gloves there. A short time
later, Laura informed her mother, who went outside to check
the area near the raspberry bushes. She discovered a blue
hat, some nylons, and a pair of gloves. The next day, after
learning about the robbery of the Wesco gas station, Mrs.
Clark called the police, who came and retrieved the items.
4
truck down a dead-end street. After she turned around, she
let Mr. McCune out at the station and continued to follow
defendant. She observed defendant enter the parking lot of
Diemer’s Motors, a car dealership. She then flagged down two
police officers who were approaching the area and told them
that the Wesco gas station had been robbed and that she had
observed the suspect in the parking lot.
Defendant was eventually discovered in a home near the
car dealership. Robert Neuman, who resided in the home,
testified that he heard defendant trying to get into his home.
Defendant was perspiring. Neuman let defendant come inside.
Defendant told him that he had been robbed at knife-point by
two white men. Defendant used the bathroom and telephone
while in Neuman’s home. Defendant was wearing a green and
white sweatshirt when he entered the home, but changed into
one of Neuman’s Express Autowash shirts that were drying in
the bathroom.4 About ten to fifteen minutes after defendant
entered his home, police officers arrived and asked Neuman to
come. After Neuman came out of the house, the officers asked
defendant to come out. He eventually came out and was
apprehended.
At trial, defense counsel requested the court to instruct
4
The green and white sweatshirt was found in Mr.
Neuman’s bathroom.
5
the jury on unarmed robbery. The trial court denied the
request, stating:
You did [request an unarmed robbery
instruction], and I concluded not to. The
prosecutor objected, and I agreed with his
objection that on these facts that was not a
reasonable assessment of the evidence, but would
merely have opened the door to compromise somewhere
between guilty and not guilty. And while juries
have the right to exercise leniency and to find
someone guilty of less than they are in fact guilty
of, if that’s the situation, we’re not to invite
it, which I think would have been done in this
case. But your objection is duly noted.
Defendant appealed, arguing that the trial court erred in
refusing the instruction on unarmed robbery. In a two-to-one
decision,5 the Court of Appeals affirmed defendant’s
conviction.6 Questioning whether an instruction on a
necessarily included lesser offense should be required where
a rational view of the evidence would not support a conviction
under the instruction, the Court of Appeals agreed that
existing precedent required it to hold that the trial court
had erred in refusing the instruction on the necessarily
lesser included offense of unarmed robbery. The Court of
Appeals urged this Court to adopt the federal model and apply
a “rational view of the evidence standard” to all requests for
lesser included instructions. Id. at 633.
5
One judge concurred in the result only.
6
242 Mich App 626; 619 NW2d 708 (2000).
6
Despite the error, the Court of Appeals determined that
reversal was not required because the error was harmless. The
Court of Appeals explained that there was no dispute
concerning the existence of the knife. Uncontroverted
eyewitness testimony demonstrated that the perpetrator of the
robbery used a knife, that a knife was found in an area where
the perpetrator had dropped some items, and that a stick-like
or knife-like object was observable on the tape from the
video-surveillance camera.
This Court granted leave “on the issue of the standard to
be used by the trial court in determining whether necessarily
lesser included offense instructions must be given when
requested.” The order instructed the parties to
specifically address whether MCL 768.32 prevents
the Supreme Court from adopting the federal model
for necessarily lesser included offense
instructions and, if it does, whether such
prohibition violates Const 1963, art 6, § 5.[7]
Resolution of this case is controlled by our recent
opinion in People v Cornell, supra. In Cornell, we concluded
that MCL 768.32(1) only permits instructions on necessarily
included lesser offenses, not cognate lesser offenses.
Moreover, such an instruction is proper if the charged greater
offense requires the jury to find a disputed factual element
7
465 Mich 851 (2001).
7
that is not part of the lesser included offense and it is
supported by a rational view of the evidence. Id. at __.
(Slip op, p 25).8 Unarmed robbery is clearly a necessarily
included lesser offense of armed robbery. Thus, the issue in
this case is whether the evidence supported such an
instruction. We conclude that it did not and therefore affirm
defendant’s conviction.9
The element distinguishing unarmed robbery from the
offense of armed robbery is the use of a weapon or an article
used as weapon.10 In the present case, there is no real
8
We note that the Court of Appeals decision in this case
urged this Court to consider adopting the “federal model”
regarding included offense instructions. However, as our
decision in Cornell makes clear, it unnecessary to do so
because resolution of this matter is governed by MCL 768.32,
which, when given its intended meaning, happens to be similar
to the federal model.
9
The concurrence/dissent criticizes our majority
decision in Cornell as one disregarding precedent from this
Court and straying “far beyond the issue presented.” Slip op
at 2. However, as we explained in Cornell, the cases that we
overruled in that matter (and which the concurrence/dissent
relies on in this matter) were cases that blatantly
disregarded MCL 768.32(1)–a statute that had been in existence
since 1846–as well the prior case law interpreting that
statute. “The interests in the “evenhanded, predictable,
consistent development of legal principles” and the “integrity
of the judicial process” require[d] that we rectify the
conflict that our case law ha[d] created.” Cornell at ___, n
14. (Slip op, p 27, n 14).
10
The armed robbery statute reads in pertinent part:
Any person who shall assault another, and
shall feloniously rob, steal and take from his
person, or in his presence, any money or other
8
dispute concerning whether defendant was armed. Rather, the
evidence that he was armed is overwhelming. Both employees of
the gas station testified that defendant was armed with a
knife when he entered the store, a knife-like or stick-like
object can be observed in defendant’s hand in the surveillance
video tape, and a knife was found outside the gas station in
the same area where defendant had dropped money. Indeed,
defense counsel did not explicitly argue that defendant was
not armed. Rather, he questioned the lack of fingerprints on
the knife, argued that defendant was mistakenly identified as
the perpetrator, and suggested that the prosecution failed to
prove that the “perpetrator” used or threatened to use
violence because no testimony established that the employees
felt threatened by the knife. The closest counsel came to
challenging the existence of a knife was to suggest that
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
. . . . [MCL 750.529.]
The unarmed robbery statute reads:
Any person who shall, by force and violence,
or by assault or putting in fear, feloniously rob,
steal and take from the person of another, or in
his presence, any money or other property which may
be the subject of larceny, such robber not being
armed with a dangerous weapon shall be guilty of a
felony . . . . [MCL 750.530.]
9
eyewitness testimony was unreliable because the witnesses were
excited. A rational view of the undisputed evidence in this
case requires us to conclude that the trial court did not err
in refusing to give an instruction on unarmed robbery.
Defendant’s conviction is affirmed.11
CORRIGAN , C.J., and TAYLOR , YOUNG, and MARKMAN , JJ.,
concurred with WEAVER , J.
11
While the trial court’s decision was correct under the
law existing at the time it refused to give the instruction,
as we explained in Cornell, this case law improperly ignored
MCL 768.32. Under a proper application of this statute, the
instruction was not required.
10
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee
Cross-Appellant,
v No. 117891
CLINTON WAYNE REESE,
Defendant-Appellant
Cross-Appellee.
___________________________________
KELLY, J. (concurring in part and dissenting in part).
The majority applies the framework for lesser included
offense instructions that it recently adopted in People v
Cornell 466 Mich ___; ___ NW2d ___ (2002). There, a majority
of this Court overruled longstanding precedent to require that
the lesser offense for which a jury instruction is given be
supported by substantial evidence. Id. at ___. The issue in
Cornell was whether the trial court erred in refusing to give
a requested lesser included misdemeanor offense instruction.
The issue in this case is whether the trial court erred
in refusing to give a requested necessarily lesser included
felony offense instruction. In the past, this Court has
distinguished between necessarily lesser included felony
offenses and necessarily lesser included misdemeanor offenses
and treated them differently. See People v Stephens, 416 Mich
252; 330 NW2d 675 (1982). Cornell rejected the distinction
and addressed itself to both types of offenses. In so doing,
it strayed far beyond the issue presented. Properly applied,
Cornell should not control the outcome of this case.
This case represents a new and more broad application of
the rule in Cornell. Therefore, I again write separately to
dissent. However, because I believe that any error in this
case was harmless, I concur in the result reached in the
majority opinion.
In People v Kamin,1 this Court recognized that our
previous decisions required a judge to automatically instruct
the jury on necessarily lesser included offenses. Refusal to
give the requested instruction was error. This Court
reiterated the automatic instruction rule more recently in
People v Mosko, 441 Mich 496; 495 NW2d 534 (1992):
"Pursuant to People v Ora Jones, 395 Mich 379;
236 NW2d 461 (1975), and People v Chamblis, 395
Mich 408; 236 NW2d 473 (1975), it is clear that a
defendant has a right upon request to have the jury
instructed on necessarily included offenses.
Further, a defendant has a right upon request to
jury instructions on those cognate lesser included
offenses which are supported by record evidence.
"The automatic instruction rule for
necessarily lesser included offenses removed the
need for the trial judges to review the record in
order to determine whether or not there is evidence
1
405 Mich 482, 493; 275 NW2d 777 (1979).
2
to support a verdict on the lesser offenses.
Review of the record for evidentiary support is now
in order only when the defense requests that the
jury be instructed on a cognate lesser included
offense." [Mosko at 501, quoting Kamin at 493.]
At the time Ora Jones, Chamblis, and Kamin were decided,
the automatic instruction rule applied to all necessarily
included offenses. The Stephens Court altered that when it
adopted the rational basis test for lesser misdemeanor offense
instructions, derived from the federal rule established in
United States v Whitaker, 144 US App DC 344; 447 F2d 314
(1971). Stephens expressly refused to extend the rational
basis test to lesser included felony offense instructions,
noting that People v Ora Jones still controlled. Stephens at
264.
The Mosko Court stated, just ten years ago, that “[t]hese
principles remain sound.” Id. at 501. The majority has not
persuaded me that something has occurred in the interim to
render them illogical.
The trial judge in this case denied defendant’s request
to instruct the jury on unarmed robbery, stating that it
"would merely have opened the door to compromise somewhere
between guilty and not guilty." However, the Chamblis Court
addressed this very concern, thereby precluding a trial judge
from refusing a lesser included offense instruction for fear
of a compromise verdict. Chamblis acknowledged that the
possibility of compromise exists, but quoted Justice Holmes
3
"[t]hat the verdict may have been the result of compromise, or
of a mistake on the part of the jury is possible. But
verdicts cannot be upset by speculation or inquiry into such
matters." Chamblis at 426, quoting Dunn v United States, 284
US 390, 394; 52 S Ct 189; 76 L Ed 356 (1932).
As I stated in Cornell, I disagree with the majority's
disregard for the well reasoned and supported precedent of
this Court. It expressly adopted the automatic instruction
rule for necessarily lesser included felony offenses and
articulated sound reasoning for doing so. I also disagree
with the application of Cornell to this case because,
traditionally, we treated necessarily lesser included felony
offenses and necessarily lesser included misdemeanor offenses
differently, as stated in Stephens. Moreover, I would adhere
to the longstanding rule for necessarily lesser included
felony offense instructions and find error in the trial
court's refusal to deliver instructions on unarmed robbery.
Nevertheless, I agree with the Court of Appeals that it
was harmless error for the trial judge to refuse to give the
unarmed robbery instructions.2 The only disputed fact was
2
The Mosko Court applied the harmless error rule to
errors involving a failure to provide a requested instruction
on a necessarily lesser included felony offense. Id. at 503.
As I stated in Cornell, I disagree with the majority's
new harmless error test, which increases the burden on a
defendant by requiring that the instructions be supported by
substantial evidence. Id. at ___. The new rule increases the
(continued...)
4
whether the robber was defendant. There was no question that
the robber was armed. That fact is the element that
distinguishes the greater and lesser offenses. Because it was
not disputed, the judge's failure to deliver the instructions
on the lesser offense, although erroneous, was harmless. See
Mosko, supra at 502-506.
This is the rare case where the facts comprising the
element distinguishing the charged offense and the lesser
included offense are undisputed. Therefore, under the facts
of this case, the majority's change in the law appear
innocuous. More often, however, the issue is not so clear.
Today, in this case and in Cornell, the majority erodes
the fact-finding powers of the jury, allowing judges to weigh
the evidence in place of the jury. In so doing, it rewards
overcharging by the prosecution. Once again it departs from
the precedent of this Court and makes a wrong turn.
CAVANAGH , J., concurred with KELLY , J.
2
(...continued)
likelihood that juries will convict defendants of greater
offenses than they believe them guilty of as an alternative to
acquitting them altogether.
5