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  • Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter E. Deegan, Prosecuting Attorney, and Peter R. George, Chief Appellate Attorney, for the people. Roger L. Wotila, Assistant State Appellate Defender, for defendant on appeal.
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  • PER CURIAM.
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Attorney(S)
  • Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Peter E. Deegan, Prosecuting Attorney, and Peter R. George, Chief Appellate Attorney, for the people. Roger L. Wotila, Assistant State Appellate Defender, for defendant on appeal.
Judges
  • PER CURIAM.
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Smart Summary

People v. Combs, Docket No. 23480 — Michigan Court of Appeals (Dec. 20, 1976)

Factual and Procedural Background

James S. Combs was charged with breaking and entering with intent to commit larceny. At trial the prosecutor presented circumstantial evidence, and one arresting officer testified that he found blood on the inside of a broken store window and cuts on the defendant's hands. The defendant moved for a directed verdict of acquittal on the completed breaking-and-entering charge, arguing the evidence of entry was insufficient; that motion was denied. At arrest the defendant made inculpatory statements; prior to trial he moved to suppress those statements as involuntary. At a Walker hearing the defendant testified he had taken 10 to 20 sleeping pills and nearly a fifth of wine the preceding afternoon, had a fuzzy recollection, and did not remember being advised of rights. Two arresting officers testified they advised him of his rights and described his demeanor (dress in disarray, slow answers, speech not slurred; one officer thought he appeared blase, the other thought he appeared depressed). The trial court denied the suppression motion. The trial court instructed on the charged offense and on the lesser included offense of attempted breaking and entering with intent to commit larceny; the jury returned a verdict finding defendant guilty of the lesser included offense (attempted breaking and entering with intent to commit larceny). The defendant was sentenced to 3 to 5 years. He appealed; the Court of Appeals affirmed.

Legal Issues Presented

  1. Whether there was sufficient evidence of entry to submit the charged completed offense (breaking and entering with intent to commit larceny) to the jury or whether the charge should have been dismissed for insufficiency of the entry element.
  2. Whether the defendant's inculpatory statements should have been suppressed as involuntary.
  3. Whether the trial court's jury instructions were inadequate or confusing regarding the element of intent to commit larceny.
  4. Whether the trial court erred by failing to instruct on other lesser included offenses (breaking and entering without intent to commit a felony or larceny and attempted breaking and entering without such intent) without a request on the record.
  5. Whether the jury's spoken verdict (guilty of the lesser included offense of attempted breaking and entering) was ambiguous such that the defendant was convicted of a lesser misdemeanor lacking the element of intent rather than the felony attempted breaking and entering with intent to commit larceny.

Arguments of the Parties

Appellant's (Defendant's) Arguments

  • The evidence of entry was insufficient to sustain the completed breaking-and-entering charge; therefore a directed verdict of acquittal should have been granted as to that charge.
  • The inculpatory statements were not voluntarily made and should have been suppressed (defendant testified he had taken many sleeping pills and substantial alcohol and did not remember being advised of rights).
  • The jury instructions inadequately informed and confused the jury on the element of intent to commit larceny.
  • The trial court erred by failing to instruct on the lesser included offenses of breaking and entering without intent to commit a felony or larceny and attempted breaking and entering without such intent.
  • On appeal the defendant argued the jury's spoken verdict could only mean conviction of the misdemeanor attempted breaking and entering without intent (i.e., a conviction without the larceny-intent element).

People's (Prosecution's) Position

  • The prosecution relied on circumstantial evidence (including blood on the inside of the window and cuts on the defendant's hands) to support the charged completed offense; additionally, the evidence was sufficient to support a conviction for attempted breaking and entering with intent to commit larceny.
  • The officers testified they advised the defendant of his constitutional rights and described his demeanor as not demonstrating incapacity; the trial court properly found the statements voluntary.
  • The record contained no request for the additional lesser included offenses the defendant now complains were omitted, and there was no objection to the instructions; therefore the claimed instruction errors are not preserved for reversal.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Harris v People, 44 Mich. 305, 308; 6 N.W. 677 (1880) That actual entry is not a necessary element for attempted breaking and entering with intent to commit larceny. Used to support the proposition that the evidence was sufficient to sustain a conviction for attempted breaking and entering because attempt does not require entry.
Price v Georgia, 398 U.S. 323, 331-332; 90 S Ct 1757; 26 L Ed 2d 300 (1970) Illustration that submitting a clearly inapplicable charge might produce a compromise verdict of a lesser included offense. Cited (by way of comparison) to acknowledge the defendant's concern about possible compromise verdicts when an improper charge is submitted.
People v Millard, 53 Mich. 63, 70-71; 18 N.W. 562 (1884) Standard for circumstantial evidence: facts proven must point to the conclusion and be inconsistent with any other reasonable hypothesis favorable to the defendant. Quoted as part of the standard for evaluating circumstantial evidence supporting the completed offense.
People v Wingfield, 62 Mich. App. 161, 163; 233 N.W.2d 220 (1975) Support for the rule on circumstantial evidence requiring inconsistency with other reasonable hypotheses. Applied with Millard to frame the circumstantial-evidence threshold the prosecution had to meet for the completed offense.
People v Fudge, 66 Mich. App. 625; 239 N.W.2d 686 (1976) Standard for reviewing motions for directed verdict: view evidence in light most favorable to the prosecution and determine whether credible evidence would justify a reasonable person in concluding all elements established beyond a reasonable doubt. Used to explain the appellate lens when assessing whether the trial court properly denied the directed verdict motion.
People v Stewart, 36 Mich. App. 93, 99; 193 N.W.2d 184 (1971) Authority for the proposition that a jury's failure to find the defendant guilty of the completed offense does not require a finding that submission of that offense to the jury was erroneous. Cited to support the conclusion that submission of the completed offense issue was proper even though the jury convicted only of the lesser offense.
People v Walker (On Rehearing), 374 Mich. 331; 132 N.W.2d 87 (1965) Procedure and reference for a Walker hearing on voluntariness of confessions/statements. Cited as the procedural basis for the hearing conducted to determine voluntariness of the defendant's statements.
People v Hummel, 19 Mich. App. 266, 268-270; 172 N.W.2d 550 (1969) Appellate review of Walker hearing: appellate court reaches an independent conclusion but gives deference to trial court's credibility findings. Invoked to describe the standard of review for the trial court's denial of the suppression motion.
People v Olson, 66 Mich. App. 197, 201; 238 N.W.2d 579 (1975) When credibility is central, appellate court will not disturb trial court's findings of fact. Cited to justify deferring to the trial court's resolution of conflicting testimony at the Walker hearing.
People v Bradley, 54 Mich. App. 89, 97-98; 220 N.W.2d 305 (1974) Support for the principle that a trial court's voluntariness finding will not be disturbed absent clear error (GCR 1963, 517.1 referenced). Used as supporting authority for affirming the trial court's voluntariness determination.
People v Miller, 35 Mich. App. 627; 192 N.W.2d 517 (1971) Illustration of faulty instruction where intent element was not independently defined (contrast case). Distinguished: the court observed that unlike Miller, the trial court here did independently define intent to commit larceny.
People v Herbert Smith, 396 Mich. 362; 240 N.W.2d 245 (1976) Failure to request lesser included offenses on the record precludes reversal for omission of such instructions. Cited to support the court's holding that omission of two other lesser included offenses was not error because there was no request or objection on the record.
People v Henry, 395 Mich. 367, 374; 236 N.W.2d 489 (1975) Similar authority on preservation: omission of lesser included offense instructions not reversible without request/objection. Used with Herbert Smith to preclude reversal for failure to instruct on those lesser offenses absent a request.
People v Larry Smith, 31 Mich. App. 191; 187 N.W.2d 490 (1971) When no objection to instructions is made, review is limited to manifest injustice. Applied to limit appellate review of the defendant's claim about confusing instructions.
People v Green, 34 Mich. App. 149, 151; 190 N.W.2d 686 (1971) Instructions must be read as a whole, not in isolated portions. Invoked to justify assessing the challenged instructions in context rather than focusing on isolated language.
People v Eggleston, 186 Mich. 510, 514-515; 152 N.W. 944 (1915) If instructions are internally inconsistent, appellate courts presume the jury followed the erroneous instruction. Cited to note the presumption applied when instructions conflict; the court found no such manifest inconsistency here.
People v Sangster, 33 Mich. App. 712, 715; 190 N.W.2d 317 (1971) Authority for presuming jury followed erroneous instruction when instructions are internally inconsistent. Used with Eggleston to explain the standard but the court concluded the instructions were not manifestly inconsistent.
Wilson v People, 24 Mich. 410, 412-413 (1872) General rule that a defendant cannot be convicted of a greater charge than the jury clearly states he is guilty of. Cited as background for defendant's argument about the spoken verdict's adequacy; court assessed whether the verdict was clear.
People v Smith, 14 Mich. App. 502, 504-505; 165 N.W.2d 640 (1968), aff'd, 383 Mich. 576, 578; 177 N.W.2d 164 (1970) Support for the rule concerning extent to which a verdict must specify statutory elements. Cited in the discussion of the adequacy and clarity required of jury verdicts.
People v McNary, 43 Mich. App. 134, 142; 203 N.W.2d 919 (1972), modified 388 Mich. 799; 201 N.W.2d 845 (1972) Further authority regarding limits on convicting a defendant of a greater charge than the jury's stated verdict. Used to frame the general rule but the court found the verdict sufficiently clear on the record.
People v Levey, 206 Mich. 129, 133; 172 N.W. 427 (1919) The jury is not required to restate all statutory language when rendering its verdict. Applied to support that the jury's form-language verdict was acceptable so long as the defendant knew the crime and the record reflected it.
People v Stuart, 274 Mich. 246, 248; 264 N.W. 359 (1936) Primary requirement that the defendant know and a proper record be made of the jury's verdict. Cited to emphasize that clarity to the defendant and an adequate record are the principal concerns in accepting a verdict.
People v Clyburn, 55 Mich. App. 454, 460-461; 222 N.W.2d 775 (1974) Support for accepting a jury's verdict stated in the language of the jury form. Accord cited to validate that the jury's use of the jury form language was sufficient here.
People v Measles, 59 Mich. App. 641, 643-644; 230 N.W.2d 10 (1975) Authority noting a jury should not be able to convict of an offense the jury was never informed it could return. Cited to support that because the jury was never informed it could convict without intent, the verdict did not improperly convict of a crime lacking that element.
People v Holliday, 44 Mich. App. 210, 216; 205 N.W.2d 93 (1972) Better practice: request the jury return its verdict in full statutory language and clarify if it does not. Quoted as a recommendation of better practice, though not controlling the outcome here.

Court's Reasoning and Analysis

The court proceeded through the issues in sequence:

  1. Attempt conviction and sufficiency of submission of the completed offense: The court first observed that attempt requires no actual entry and therefore the evidence was sufficient to sustain the jury's verdict of attempted breaking and entering with intent to commit larceny (citing Harris). However, because the defendant had been tried on the completed offense, the court considered whether submission of that completed offense to the jury was proper. For circumstantial-evidence claims the court reiterated the rule that proved facts must be inconsistent with any other reasonable hypothesis favorable to the defendant (Millard; Wingfield). For directed-verdict review the court applied the standard of viewing evidence in the light most favorable to the prosecution (Fudge). Applying both standards, the court concluded reasonable jurors could find entry on the evidence presented, so it was proper to submit the completed-offense question to the jury.
  2. Voluntariness of statements: After describing the conflicting testimony at the Walker hearing (defendant's testimony about pills/alcohol and officers' testimony about the defendant's demeanor and advisement of rights), the court reviewed the entire Walker record and applied the standard of independent appellate review with deference to trial-court credibility findings (Hummel). Because the credibility determination was central and the trial court was in a superior position to judge credibility, the appellate court would not disturb those findings (Olson). Reviewing the transcript, the court found no clear error in the trial court's conclusion that the statements were voluntarily made and therefore affirmed the denial of suppression.
  3. Jury instructions and omissions: The court noted there was no request on the record for the other two lesser included offenses and no objection to the instructions. Under cited authority (Herbert Smith; Henry) failure to request precluded reversal. Because no contemporaneous objection was made, review of the instructions was limited to whether manifest injustice occurred (Larry Smith). Considering the instructions as a whole (Green) and noting that the trial court independently defined intent to commit larceny (unlike Miller), the court found the instructions adequately informed the jury of the intent element and were not manifestly inconsistent such that the jury might have been misled (Eggleston; Sangster).
  4. Clarity of the verdict: Addressing the defendant's claim the spoken verdict might be construed as convicting only of an offense lacking the intent element, the court reviewed the principles governing verdict form and clarity (Wilson; Levey; Stuart). It concluded the jury's verdict, though not reciting the full statutory language, was clear to the defendant and on the record and that the jury had not been instructed it could convict without intent (Measles). The court acknowledged better practice would be to require full statutory language or to clarify an ambiguous verdict (Holliday) but found no reversible error in this case.

Holding and Implications

Holding: The judgment of the trial court is AFFIRMED.

Implications:

  • The defendant's conviction for attempted breaking and entering with intent to commit larceny and his sentence (3 to 5 years) were upheld.
  • The court confirmed that attempt does not require actual entry and that a court may properly submit a completed-offense question to the jury when reasonable jurors could find the necessary facts on the evidence presented.
  • The court affirmed the trial court's voluntariness determination after a Walker hearing where credibility findings were pivotal and supported by the record.
  • The opinion emphasizes procedural limits on appellate review where no request or contemporaneous objection was made (on lesser-included-offense instructions and instruction adequacy), and it endorses the better practice of obtaining full statutory-language verdicts or clarifying ambiguous verdicts, though it did not find reversible error here. The opinion does not announce a new rule of law beyond applying existing precedents to the facts of this case.
Show full summary ...

PEOPLE v. COMBS

PER CURIAM.

Defendant was convicted by a jury of attempted breaking and entering with intent to commit larceny. MCLA 750.92; MSA 28.287, MCLA 750.110; MSA 28.305. He received a sentence of 3 to 5 years in prison. Defendant appeals as of right.

Although the defendant was convicted of attempted breaking and entering with intent to commit larceny, he was initially charged with and tried for a completed breaking and entering with intent to commit larceny. MCLA 750.110; MSA 28.305. At trial sufficient evidence was introduced which, if believed by the jury, would support a finding adverse to the defendant on the elements of breaking and intent to commit a larceny. However, the only evidence introduced on the element of entry was the testimony of one of the arresting officers that he found blood on the inside of the broken store window and cuts on the defendant's hands. The defendant moved for a directed verdict of acquittal on the charge of breaking and entering with intent to commit larceny because the evidence of an entry was insufficient. The motion was denied.

Initially, we note that the evidence is clearly sufficient to support the jury's verdict of guilty of attempted breaking and entering with intent to commit larceny. This is because an actual entry is not a necessary element for attempted breaking and entering with intent to commit larceny. Accord, Harris v People, 44 Mich. 305, 308; 6 N.W. 677 (1880). The fact that the defendant was convicted of attempted breaking and entering with intent to commit larceny, however, does not moot the issue. As the defendant points out, submitting a charge to the jury where the defendant is clearly not guilty might result in the jury reaching a compromise verdict of guilty of a lesser included offense. Cf., Price v Georgia, 398 U.S. 323, 331-332; 90 S Ct 1757; 26 L Ed 2d 300 (1970).

On this point the prosecution's case for the completed offense rested on circumstantial evidence. In order to find against the defendant on an issue based on circumstantial evidence the facts proven must not only point to that conclusion but must also be inconsistent with any other reasonable hypothesis favorable to the defendant. Accord, People v Millard, 53 Mich. 63, 70-71; 18 N.W. 562 (1884), People v Wingfield, 62 Mich. App. 161, 163; 233 N.W.2d 220 (1975). In reviewing a motion for a directed verdict of acquittal, however, we view the evidence presented on the issue at the time of the motion in the light most favorable to the prosecution, and determine whether the evidence, if credible and believed, would justify a reasonable man in concluding that all the elements of the crime were established beyond a reasonable doubt. People v Fudge, 66 Mich. App. 625; 239 N.W.2d 686 (1976).

Applying these two standards we conclude that there was sufficient evidence presented to submit the issue of whether the defendant entered the store building to the jury. The fact that the jury did not find the defendant guilty of the completed offense does not mean that the trial court erred in determining that reasonable men could find the defendant guilty as charged on the basis of the evidence presented. Cf., People v Stewart, 36 Mich. App. 93, 99; 193 N.W.2d 184 (1971). To hold otherwise would mean that in any case in which the jury returned a verdict of guilty of a lesser included offense instead of the charged offense the trial court would have committed error in denying a defense motion for a directed verdict of acquittal on the charged offense.

At the time of his arrest defendant made several inculpatory statements to the arresting police officers. Prior to trial he moved to suppress the statements claiming that they were not voluntarily made. At a Walker hearing the defendant testified that his recollection of the events surrounding his arrest was very fuzzy. He further testified that during the preceeding afternoon he had consumed 10 to 20 sleeping pills and nearly all of a fifth of wine. He also testified that he did not remember being advised of his constitutional rights.

People v Walker (On Rehearing), 374 Mich. 331; 132 N.W.2d 87 (1965).

The two arresting police officers also testified at the Walker hearing. One of the arresting officers stated that at the time of the incident the defendant's dress was in disarray; his answers were slow in coming; but his speech was not slurred. The officer also testified the defendant's eyes did not appear to be glazed and the defendant did not appear to be sleepy or unaware of what was going on. In his opinion the defendant appeared blase rather than depressed. His partner, on the other hand, thought the defendant appeared depressed but stated he did not believe the defendant when the defendant told him that he was "strung out". Both officers stated that they participated in advising the defendant of his constitutional rights.

At the close of the Walker hearing the trial court denied the defendant's motion to suppress. In reviewing this ruling we look at the entire record of the Walker hearing and reach an independent conclusion. However, we give deference to the findings of the trial court since it is in a superior position to judge the credibility of the witnesses. People v Hummel, 19 Mich. App. 266, 268-270; 172 N.W.2d 550 (1969).

In reviewing the cold, typewritten transcript of the Walker hearing it is clear that there was a conflict between the two versions of the incident presented to the trial court. Since the central issue becomes one of credibility we will not disturb the trial court's findings of fact. People v Olson, 66 Mich. App. 197, 201; 238 N.W.2d 579 (1975). The trial court was not required to accept the defendant's version of the incident and we cannot say after reviewing the entire record of the Walker hearing that the trial court's finding that the defendant's statements were voluntarily made is clearly erroneous. GCR 1963, 517.1, People v Bradley, 54 Mich. App. 89, 97-98; 220 N.W.2d 305 (1974).

In instructing the jury the trial court read the statute on breaking and entering with intent to commit larceny and the information charging the defendant with breaking and entering with intent to commit larceny. It then defined the elements of breaking and entering with intent to commit larceny, including the element of intent to commit larceny, and defined the elements of attempted breaking and entering with intent to commit larceny, the only lesser included offense presented. At the close of its instructions the court stated that there were three possible verdicts: (1) "guilty, as charged, of the crime of breaking and entering"; (2) "guilty of the lesser included offense of attempted breaking and entering"; and (3) "not guilty".

The defendant alleges that two errors were committed during the instructions to the jury. First, the defendant states that the instructions inadequately informed the jury and confused the jury on the element of intent to commit larceny. Second, he claims that the trial court incorrectly failed to instruct on the lesser included offenses of breaking and entering without intent to commit a felony or larceny, MCLA 750.115; MSA 28.310, and attempted breaking and entering without intent to commit a felony or larceny. MCLA 750.92; MSA 28.287, MCLA 750.115; MSA 28.310.

In this case we are unable to discern from the record that any request was made for these two lesser included offenses. There being no request for these two lesser included offenses on the record and no objection to the trial court's failure to give them, we are precluded from finding any error. People v Herbert Smith, 396 Mich. 362; 240 N.W.2d 245 (1976), People v Henry, 395 Mich. 367, 374; 236 N.W.2d 489 (1975).

In reviewing the defendant's claim that the instructions were inadequate and confusing, we note that there was no objection to the trial court's instructions and therefore we will only review the instructions to determine if there is manifest injustice. GC R 516.2, People v Larry Smith, 31 Mich. App. 191; 187 N.W.2d 490 (1971). We also look at the instructions as a whole and not at isolated portions of the charge. People v Green, 34 Mich. App. 149, 151; 190 N.W.2d 686 (1971). If instructions are internally inconsistent, however, we will presume that the jury followed the erroneous instruction. People v Eggleston, 186 Mich. 510, 514-515; 152 N.W. 944 (1915), People v Sangster, 33 Mich. App. 712, 715; 190 N.W.2d 317 (1971).

Applying these rules of review we do not find that any manifest injustice occurred because of these instructions. Contrary to the defendant's contention, the instructions adequately informed the jury that an intent to commit a larceny was an essential element of both the charged offense and the lesser included offense. Unlike People v Miller, 35 Mich. App. 627; 192 N.W.2d 517 (1971), the trial court independently defined the element of intent to commit larceny.

In addition, these instructions are not manifestly internally inconsistent. The portion of instructions that the defendant claims negates the requirement that the jury find an intent to commit a larceny in order to find the defendant guilty when read in context does not negate that element. While not mentioning the element of intent to commit a larceny, the complained of portions of the instructions were only giving the jury the form of the verdict that they were to render. They did not negate the element of intent to commit a larceny since they referred back to the prior instructions.

The defendant's remaining allegation of error is closely related to the previous one. In returning the verdict the foreman pronounced the defendant "[g]uilty of the lesser included offense of attempted breaking and entering". The defendant argues for the first time on appeal that this verdict can be construed only to mean that the jury found the defendant guilty of the misdemeanor of attempted breaking and entering without intent to commit a felony or larceny, MCLA 750.92; MSA 28.287, MCLA 750.115; MSA 28.310, and not the felony of attempted breaking and entering with intent to commit a larceny.

It is the general rule in Michigan that the defendant cannot be convicted of a greater charge than the jury clearly states he is guilty of. Wilson v People, 24 Mich. 410, 412-413 (1872), People v Smith, 14 Mich. App. 502, 504-505; 165 N.W.2d 640 (1968), aff'd, 383 Mich. 576, 578; 177 N.W.2d 164 (1970), People v McNary, 43 Mich. App. 134, 142; 203 N.W.2d 919 (1972), modified 388 Mich. 799; 201 N.W.2d 845 (1972). However, the jury is not required to restate all the statutory language when rendering its verdict. People v Levey, 206 Mich. 129, 133; 172 N.W. 427 (1919). The primary requirement is that the defendant know and a proper record be made of the jury's verdict. People v Stuart, 274 Mich. 246, 248; 264 N.W. 359 (1936).

In this case while the verdict did not state all the statutory elements, it was clear to the defendant and on the record what crime the defendant was convicted of. The jury returned its verdict in the language of the jury form. Accord, People v Clyburn, 55 Mich. App. 454, 460-461; 222 N.W.2d 775 (1974). Furthermore, the jury was never informed that it could convict the defendant of breaking and entering without intent to commit a larceny. Accord, People v Measles, 59 Mich. App. 641, 643-644; 230 N.W.2d 10 (1975). However, it should be noted that it is better practice for the court to request the jury to return its verdict in its full statutory language, and if the jury does not, to clarify the verdict. People v Holliday, 44 Mich. App. 210, 216; 205 N.W.2d 93 (1972).

Affirmed.

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PEOPLE v. COMBS
(May 20, 1976)