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Docket Number

Docket Nos. 28978, 29186.

Attorney(S)

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Research, Training Appeals, and Frank J. Bernacki and Brian Marzec, Assistants Prosecuting Attorney, for the people. BeGole, Lukomski, Maddock McDonald, for defendant Ronald Stephens. Raymond E. Willis, for defendant Jesse Smith.

Judges

D.C. RILEY, J.
BEASLEY, J. (dissenting).

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Smart Summary

Summary of Opinion: People v. Stephens; People v. Jesse Smith (Mich. Ct. App., June 20, 1978)

Factual and Procedural Background

Defendants Ronald Stephens and Jesse Smith were tried jointly by jury on a charge of felony murder, MCL 750.316; MSA 28.548. The jury convicted each defendant of the lesser included offense of second-degree murder, MCL 750.317; MSA 28.549, and each was sentenced to 40 to 60 years in prison. The appeals of both defendants were consolidated.

The prosecution's principal witness, Donald Webster, testified that he, defendants Smith and Stephens, and a fourth person planned to commit a robbery. They entered one store but left without committing a robbery and then entered a second store (a bookstore) with intent to rob the cash register. Webster testified that he, Stephens, and the fourth person agreed to leave the bookstore without committing the robbery; Stephens called to Smith to leave, but Smith motioned for the three to remain. While the three were at the door preparing to leave, they heard a shot, and Webster ran.

A Detroit police officer testified as to statements by the defendants. Smith's statement admitted that he shot the proprietor, but said he shot because the proprietor started to pull a gun and Smith feared being shot; Smith denied intending to rob the store and denied announcing a holdup. Stephens' statement admitted he was armed and intending to rob a store with three other men, that they entered the bookstore, and that after looking around he heard a shot and then the four ran from the store. A footnote in the opinion notes that, pursuant to Bruton v. United States, 391 U.S. 123 (1968), neither statement mentioned the other codefendant's name when admitted at trial; the court declined to decide the sufficiency of the method used to "Brutonize" the statements because of its disposition of the case.

At trial, Stephens requested an instruction on abandonment in writing; Smith requested instructions on self-defense and manslaughter. None of these requested instructions were given by the trial court.

Legal Issues Presented

Whether the trial court committed reversible error by refusing to give a requested instruction on abandonment as a defense theory for defendant Stephens when some evidence supporting that theory was presented.
Whether the trial court committed reversible error by refusing to give a requested instruction on self-defense for defendant Smith with respect to the conviction of second-degree murder when a statement by Smith provided factual support for self-defense.
How to address a requested instruction on manslaughter for defendant Smith on remand in light of the Michigan Supreme Court's decision in People v. Van Wyck, 402 Mich. 266; 262 N.W.2d 638 (1978).

Arguments of the Parties

Defendants' (Appellants') Positions

Defendant Stephens: Requested an instruction on abandonment, relying on Webster's testimony that Stephens had decided to exit the bookstore before any criminal act was committed.
Defendant Smith: Requested instructions on self-defense and manslaughter. Smith's post-arrest statement, introduced by the prosecution, admitted the shooting but asserted that the proprietor began to pull a gun and Smith shot because he feared being shot; Smith denied intending to rob the store.

Prosecution's (Respondent's) Positions

The prosecution argued (as noted by the majority) that self-defense is not a defense to felony murder, although the opinion acknowledges that self-defense is a defense to second-degree murder.
The prosecution relied on evidence it introduced (including police officer testimony as to the defendants' statements) to support the convictions and to contest the sufficiency of the evidence supporting the requested defense instructions.

Trial Court and Dissenting View (as Presented in the Opinion)

The dissenting judge (Beasley, J.) argued that Webster's testimony did not supply sufficient evidence that Stephens abandoned his criminal intent before any criminal act occurred; on this view abandonment was legally too late and no instruction on abandonment was required.
The dissent also argued that the contents of Smith's statement were not sufficient to raise a jury question on self-defense such that an instruction was required, and noted that neither defendant testified at trial.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v. Savoie, 75 Mich. App. 248; 255 N.W.2d 11 (1977)	Trial judge must give instructions on a defendant's theory of the case if requested in writing and supported by some evidence; failure to do so is not excused by overwhelming evidence of guilt and is not harmless error.	The court applied Savoie to hold that the requested instructions (abandonment for Stephens and self-defense for Smith as to second-degree murder) should have been given and that failure to give them constituted reversible error requiring reversal and remand.
Bruton v. United States, 391 U.S. 123; 88 S. Ct. 1620; 20 L. Ed. 2d 476 (1968)	Limits on use of a codefendant's confession implicating another; procedures to avoid Bruton problems when admitting statements.	The opinion notes (in a footnote) that neither defendant's statement mentioned the other codefendant's name when admitted at trial pursuant to Bruton; the court declined to decide whether the method used to "Brutonize" the statements was sufficient because of its disposition of the case.
People v. Van Wyck, 402 Mich. 266; 262 N.W.2d 638 (1978)	Michigan Supreme Court decision relevant to instruction on manslaughter (the opinion directs that manslaughter instruction questions be considered in light of this Supreme Court opinion).	The appellate court directed that, on remand, any renewed request for an instruction on manslaughter should be ruled upon in light of Van Wyck.

Court's Reasoning and Analysis

The court began from the rule (GCR 1963, 516.7) that a trial judge is required to give instructions on the theories of the parties if those theories are requested and supported by some evidence. The court emphasized that this obligation exists even when the evidence of guilt appears overwhelming, relying on People v. Savoie for the proposition that failure to instruct in such circumstances is not harmless error.

Applying that rule to the facts:

Abandonment (Stephens): The majority found that Webster's testimony supplied some evidence that Stephens had, by his own volition, decided to exit the bookstore before any criminal act was committed. Although Michigan law was noted as unclear on whether abandonment is a defense to an attempt, Stephens was convicted as an aider and abettor to second-degree murder (not for an attempted armed robbery). Therefore, the jury should have been instructed that Stephens' defense theory included abandonment of any joint effort with Smith prior to the shooting.
Self-Defense (Smith): The court concluded that Smith's statement to the police, introduced by the prosecution, provided sufficient factual support for a claim of self-defense. The court observed that, while self-defense may not be a defense to felony murder (as the prosecution argued), self-defense is a defense to second-degree murder, and therefore the requested instruction should have been given in connection with the jury instruction on second-degree murder.
Manslaughter (Smith): The court directed that on remand any renewed request for an instruction on manslaughter should be considered in light of People v. Van Wyck (Michigan Supreme Court decision).

The court also noted, but did not decide, a procedural issue raised by the Bruton rule: the statements were admitted without mentioning the other codefendant's name and the court declined to address whether the method used to redact the statements was sufficient, given its disposition based on instructional error.

Holding and Implications

Holding: The convictions are reversed and remanded.

Implications and immediate consequences (as stated in the opinion):

The trial court's failure to give requested instructions on abandonment (for Stephens) and self-defense (for Smith, as to second-degree murder) was reversible error under GCR 1963, 516.7 and related authority, requiring reversal of the convictions and remand.
On remand, the trial court should address any renewed request for a manslaughter instruction for Smith in light of People v. Van Wyck, 402 Mich. 266; 262 N.W.2d 638 (1978).
No new legal precedent beyond the court's application of existing rules (including People v. Savoie and the cited authorities) was announced; the direct effect is reversal of the convictions and remand for further proceedings consistent with the opinion.

This summary is based exclusively on the text of the provided opinion and does not add information beyond that opinion.

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PEOPLE v. STEPHENS PEOPLE v JESSE SMITH

D.C. RILEY, J.

Defendants Ronald Stephens and Jesse Smith, tried jointly by a jury on a charge of felony murder, MCL 750.316; MSA 28.548, were convicted of the lesser included offense of second-degree murder, MCL 750.317; MSA 28.549, and sentenced to terms of 40 to 60 years in prison. Their appeals have been consolidated.

Although each defendant raises several issues, we find reversible error in a common issue; i.e., failure to instruct on a defense theory of the case. A short summary of the facts is necessary.

The prosecution's principal witness, Donald Webster, testified that on the date in question he, defendants Smith and Stephens, and one other person, embarked on a plan to commit a robbery. The four men entered one store, but subsequently abandoned the planned robbery and left the store. Shortly thereafter, they entered a second store with the intent to rob the cash register.

Webster testified that after they were in the store for a few minutes, he, Stephens, and the fourth person agreed to leave without committing the robbery. Stephens then called to Smith to leave, whereupon Smith motioned the three to remain. According to Webster, while the three men were at the door, preparing to leave, they heard a shot. Webster then ran from the store.

A Detroit police officer testified that he took a statement from defendant Smith shortly after his arrest. In the statement Smith admitted shooting the proprietor of the store, but stated that he shot because the man had started to pull a gun on him and he (Smith) feared that the man was about to shoot him. Smith denied intending to rob the store and denied announcing a holdup before the deceased started to pull his gun.

The officer also took a statement from defendant Stephens. In that statement Stephens admitted that he was armed and intending to rob a store along with three other men. The four entered one store but left without committing a robbery, and then they entered a bookstore. After looking around for a few minutes, Stephens stated, he heard a shot, whereupon the four men then ran from the store.

Pursuant to Bruton v United States, 391 U.S. 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968), neither statement mentioned the name of the other codefendant when admitted at trial. Because of our disposition of the case, we will not at this time discuss the issue of whether the method used to "Brutonize" the statements was sufficient.

Defendant Stephens, in writing, requested an instruction on abandonment. Defendant Smith requested instructions on self-defense and manslaughter. None of these requested instructions were given.

A trial judge is required by court rule to give instructions on the theories of the parties if they are requested and supported by some evidence. GCR 1963, 516.7. This requirement holds even if the factual evidence disputing the theory is overwhelming:

"Defendant's testimony, taken together with his written request to charge, entitled him to an instruction regarding accidental homicide. The fact that the evidence of defendant's guilt was overwhelming does not excuse the trial judge's failure to comply with the court rule. Even the most guilty defendant is entitled to have the trial judge tell the jury what his theory of defense is. Particularly, this is true where defense counsel expressly so requests in writing. Even when the evidence of guilt is overwhelming, such error is not harmless; the guilty verdict must be overturned and the case remanded for a new trial." People v Savoie, 75 Mich. App. 248, 251; 255 N.W.2d 11 (1977).

The request for an instruction on abandonment should have been given. There was evidence presented (Donald Webster's testimony) that defendant Stephens had, by his own volition, decided to exit the bookstore before any criminal act was committed. While the law in Michigan is unclear on whether abandonment is a defense to an attempt, Stephens was not convicted of felony murder because of an attempted armed robbery. He was convicted as an aider and abettor to second-degree murder. The jury should have been instructed that a theory of Stephens' defense was that he had abandoned any joint effort with Smith prior to the shooting.

See generally, 22 CJS, Criminal Law, § 76, pp 234-235.

Similarly, the instruction on self-defense should have been given in regard to defendant Smith. The statement taken from Smith, and introduced by the prosecution, gave sufficient factual support for a self-defense claim. Even though the prosecution may be correct that self-defense is not a defense to felony murder, it clearly is a defense to second-degree murder. Notwithstanding the other prosecution evidence, the requested instruction should have been given in connection with the instruction on second-degree murder. People v Savoie, supra.

Michigan Proposed Criminal Jury Instructions, § 16:1:16.

On remand, a renewed request for an instruction on manslaughter should be ruled upon in light of the Supreme Court's recent opinion in People v Van Wyck, 402 Mich. 266; 262 N.W.2d 638 (1978).

The convictions are reversed and remanded.

BASHARA, J., concurred.

BEASLEY, J. (dissenting).

I respectfully dissent.

With respect to defendant Stephens, reversal is based on failure to give an instruction regarding abandonment.

Defendants Smith and Stephens, and two others, Donald Webster and Franklin Fleming, a juvenile, decided to rob a store; defendant Smith armed himself with a handgun and defendant Stephens with a small, sawed-off shotgun; they went to rob a Goodwill store, but changed their minds and decided a book store would be the target to rob.

After being in the store for several minutes, defendant Smith shot and killed the store owner who was armed with a gun in his belt. Neither defendant Smith nor defendant Stephens testified. Webster, one of the original robbers, did testify.

The argument is that Webster's testimony indicates that defendant Stephens, Webster and Fleming, abandoned the intent to rob the book store. Defendant Stephens says the trial court's refusal to instruct regarding the alleged abandonment was reversible error.

A police officer testified, without objection, as to a statement allegedly made by defendant Stephens which statement does not indicate any claim of abandonment of the robbery.

In general, I accept the statement of facts of my distinguished colleagues. However, I do not agree that there was evidence of abandonment before any criminal act was committed. In my opinion, entry into the book store by defendant Stephens, with intent to rob while armed with a sawed-off shotgun concealed inside his pant leg, constituted the completed offense of attempted armed robbery or conspiracy to commit armed robbery.

I would agree with the trial court that it was legally too late for defendant Stephens to abandon his criminal intent. Furthermore, Webster's testimony that when defendant Smith signalled him (Webster) and defendant Stephens to hold on (stay in the store), they did stay in the store for two to three more minutes during which time defendant Smith shot and killed the storekeeper, would, in my opinion, defeat any proposition that there was sufficient evidence of abandonment to require an instruction regarding abandonment. The fact that defendant Stephens, still armed with his sawed-off shotgun, did not leave the store, although he had plenty of time to leave, destroys any inference of abandonment. If he had testified, a fact issue regarding his intent might have been raised. But he did not testify. His position rests entirely on Webster's testimony which testimony was insufficient to support the conclusion of abandonment. Under these circumstances, I would not consider it error to deny a request for an instruction regarding abandonment.

But not if he testified the same as in his alleged statement to the police officer.

With respect to defendant Smith, reversal is based on failure to give a self-defense instruction.

Like Stephens, defendant Smith did not testify. His claim of self-defense rests upon the testimony of a police officer who testified regarding a statement Smith made after he was arrested. I would not believe the contents of the statement sufficient to raise a question of self-defense such as to require a self-defense instruction. The only other testimony relative to the actual killing came from Donald Webster's aunt, who testified defendant Smith said he grabbed the victim from the back with his arm around the victim's neck and shot the victim when he thought the victim was reaching in his pocket for a gun.

Defendant Smith first made an oral statement, the police officer wrote it down and defendant Smith signed it. Then, defendant Smith made a second oral statement, the police officer wrote it down, but defendant Smith refused to sign. It is the second statement upon which the subsequent claim of alleged self-defense rests.

Under these circumstances, denial of a self-defense instruction did not constitute error.

This case is clearly distinguishable from People v Savoie where the defendant testified and claimed his gun went off by mistake. While defendant is entitled under the court rules to have the trial judge indicate to the jury his theory of his case, a trial judge need not give a full instruction regarding a subject, e.g., self-defense, where there is not sufficient evidence to support it. Merely asserting a possible defense is to be distinguished from whether there is enough evidence to require an instruction on a subject.

People v Savoie, 75 Mich. App. 248; 255 N.W.2d 11 (1977).

Contrary to my able colleagues, I would vote to affirm the convictions.

PEOPLE v. STEPHENS