People v. Kelly

51 Mich. App. 28 (1973) 214 N.W.2d 334

PEOPLE
v.
KELLY

Docket No. 15884.

Michigan Court of Appeals.

Decided December 28, 1973.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Gerard A. Poehlman, Assistant Prosecuting Attorney, for the people.

Harrison, Friedman & Roberson, for defendant.

Before: LESINSKI, C.J., and FITZGERALD and CARLAND,^[*] JJ.

PER CURIAM.

Defendant Walter C. Kelly was charged with armed robbery, MCLA 750.529; MSA 28.797. He was found guilty by a Wayne County Circuit Court jury and sentenced by the court. Defendant appeals.

The first question raised on appeal deals with the instructions given by the trial judge to the jury. The defendant alleges that the following instruction was prejudicial error:

"But, it is the law in this state on that subject, an act which would otherwise constitute a crime may be excused on the grounds it was done under duress or compulsion but the compulsion must be present, imminent and impending and of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. A threat of future injury isn't enough to excuse the criminal character of the act and compulsion claimed by the defendant must have arisen without any negligence or fault on his part in order to constitute a defense to the crime."

The defendant argues that where an offense is a specific intent crime, as is armed robbery, duress may negate that requisite criminal intent regardless of the defendant's fault or negligence in putting himself in the position to be coerced.

The language in the above charge was taken directly from People v Merhige, 212 Mich. 601; 180 N.W. 418 (1920), in which the Court quoted it as the "correct rule" from 16 CJ 91. Merhige has not been overruled and still is good law. Furthermore, even if the instruction were erroneous, the defendant's failure to object to the instruction as given prevents review unless manifest injustice appears, and none is revealed. GCR 516.2; MCLA 769.26; MSA 28.1096; People v Spaulding, 42 Mich. App. 492; 202 NW2d 450 (1972).

There is no evidence that the defendant was negligent in putting himself in the position of being imminently threatened. The crucial question in regard to the defense of duress was not the defendant's negligence, but whether the alleged compulsion was present, imminent, impending, and fostering a well-grounded apprehension of death or serious bodily injury. There was sufficient evidence that the alleged compulsion was not of such a character and clearly sufficient evidence to show that the defendant committed the crime charged.

The second allegation of error concerns the following instruction of the trial judge:

"There are really only two possible verdicts in this case: a verdict of not guilty, or a verdict of guilty of the offense charged. There is no in between."

The defendant contends that through this instruction the trial court has "affirmatively excluded" lesser-included offenses from the jury's consideration contrary to the mandates of People v Lemmons, 384 Mich. 1; 178 NW2d 496 (1970).

This Court has said that Lemmons will require a reversal only in the situation where:

"(1.) there is no request for an instruction on lesser offenses; (2.) there is evidence on the record to support a conviction on a lesser offense so that, if requested, it would have been error to refuse to instruct on it; and (3.) the court affirmatively excludes the jury from considering lesser offenses." People v Membres, 34 Mich. App. 224, 232; 191 NW2d 66, 69 (1971), lv to app den, 386 Mich. 790 (1972).

This approach has been followed in People v Wilkie, 36 Mich. App. 607, 613; 194 NW2d 154, 158, lv to app den, 386 Mich. 787 (1972); People v Goldfarb, 37 Mich. App. 57; 194 NW2d 535 (1971), lv to app den, 386 Mich. 787 (1972); People v Kyles, 40 Mich. App. 357, 363-364; 198 NW2d 732, 735 (1972); People v Taylor, 44 Mich. App. 640, 644; 205 NW2d 884, 887 (1973); People v Budrick, 40 Mich. App. 647, 653; 199 NW2d 267, 270 (1972).

In Budrick, the Court followed Membres in language which clearly disposes of the issue in the instant case:

"However, there is a distinction between excluding the jury from consideration of lesser included offenses by implication and affirmatively stating that there are no lesser included offenses. Only the latter constitutes reversible error. People v Abernathy, 39 Mich. App. 5; 197 NW2d 106 (1972); People v Goldfarb, 37 Mich. App. 57; 194 NW2d 535 (1971), leave to appeal denied, 386 Mich. 787 (1972). An instruction to the jury that there are only two possible verdicts, guilty as charged or not guilty, is one that excludes lesser included offenses from the jury's consideration by implication."

The above case makes it clear that Lemmons applies only when the judge affirmatively says there are no included offenses and Lemmons will not apply to exclusion by implication. It is arguable that the court effectively excluded the jury from considering lesser included offenses. The defendant argues that the difference between saying "there are no included offenses" (as in Lemmons) and "there is no in between" (as in the instant case) is no more than semantic. That is precisely correct; however, semantics are determinative under the rule of Lemmons as enunciated by the Supreme Court. We cannot reverse in a Lemmons situation unless the trial judge affirmatively states that there are no included offenses.

The defendant has referred the Court to People v Herbert Van Smith, Jr, 388 Mich. 457; 203 NW2d 94 (1972). In People v Taylor, supra, at 44 Mich. App. 645, Judge (now Justice) LEVIN recognized that in Herbert Smith two Justices of the Michigan Supreme Court argued that the trial court's failure to instruct on lesser included offenses could be neither "excused nor waived by the parties," and properly noted that "[t]his view has yet to command the votes of a majority of the justices in any case".

Affirmed.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.