PEOPLE v. REESE, 242 Mich. App. 626

Bandstra, C.J. Defendant appeals as of right from his conviction by a jury of armed robbery, MCL 750.529; MSA 28.797. The trial court sentenced defendant as an habitual offender, MCL 769.12; MSA 28.1084, to life imprisonment. Defendant contends that (1) the trial court erred in failing to provide a requested jury instruction with respect to unarmed robbery, MCL 750.530; MSA 28.798, and (2) his sentence was disproportionate.

Although we question whether an instruction regarding a necessarily included lesser offense should be required in a case in which a rational view of the evidence would not support a finding of guilt under this instruction, we agree that, under applicable precedents, the trial court erred in failing to give such an instruction. However, we further conclude that the error was harmless. In addition, we conclude that defendant’s sentence was not disproportionate. Accordingly, we affirm. This case arises from the robbery of a Kentwood gas station.

One of its employees testified at trial that a man wearing a nylon stocking over his face robbed the station at knifepoint. The employee, together with one of the people with whom she worked, identified defendant as the robber. The gas station manager, in reviewing a video surveillance tape for the jury, pointed out a stick-like object in the robber’s hand. An additional witness testified that he found a knife in an area outside the gas station where the robber had dropped some money.

During closing arguments, defense counsel did not argue that the witnesses erred in testifying that the perpetrator possessed a knife or at least a knife-like object during the incident. Instead, counsel argued that (1) the eyewitnesses had been mistaken in identifying defendant as the perpetrator, and (2) the prosecution did not prove that the perpetrator used or threatened to use violence in committing the theft, since no witnesses testified that the perpetrator referred to the knife or put it to anyone’s throat.

Defense counsel requested a jury instruction with respect to unarmed robbery, MCL 750.530; MSA 28.798. The trial court denied the request, saying that an unarmed robbery instruction was not warranted under a reasonable assessment of the evidence and that such an instruction would merely invite the jury to exercise leniency by finding defendant “guilty of less than [he was] in fact guilty of.” Defendant contends that the trial court erred in refusing to give the requested instruction. A trial court must instruct the jury with respect to necessarily included lesser offenses upon a request for such instructions.

People v Jones, 395 Mich 379, 390; 236 NW2d 461 (1975). A necessarily included lesser offense is one that must be committed as part of the greater offense; in other words, it would be impossible to commit the greater offense without first having committed the lesser. People v Bailey, 451 Mich 657, 667; 549 NW2d 325 (1996), amended 453 Mich 1204 (1996). Unarmed robbery is a necessarily included lesser offense of armed robbery, with the distinguishing element being the use of a weapon or an

article used as a weapon. People v Chamblis, 395 Mich 408, 424; 236 NW2d 473 (1975), overruled in part on other grounds People v Stephens, 416 Mich 252; 330 NW2d 675 (1982); People v Garrett, 161 Mich App 649, 652; 411 NW2d 812 (1987). Applying these precedents here, we conclude that the trial court erred in this case by failing to instruct the jury with respect to the necessarily included lesser offense of unarmed robbery.

Although our current case law compels the conclusion that the trial court erred, we note that other jurisdictions have different rules regarding when the duty to instruct with respect to lesser included offenses arises. In the federal courts, for example, an instruction regarding a lesser included offense need be given only if it is rationally supported by the evidence. See Sansone v United States, 380 US 343, 351; 85 S Ct 1004; 13 L Ed 2d 882 (1965); Arcoren v United States, 929 F2d 1235, 1243-1244 (CA 8, 1991).

In United States v Walker, 75 F3d 178, 180 (CA 4, 1996), the court explained this principle as follows: More specifically, to receive a lesser-included offense instruction, the proof of the element that differentiates the two offenses must be sufficiently in dispute that the jury could rationally find the defendant guilty of the lesser offense but not guilty of the greater offense.

To be sufficiently in dispute, we have held that the testimony on the distinguishing element must be sharply conflicting, or that the conclusion as to the lesser offense must be fairly inferable from the evidence presented. [Citation omitted.] Conversely, “[w]hen the evidence taken as a whole does not provide a rational basis for the jury to find the elements necessary to support the lesser-included offense instruction, the trial court may properly exclude such an instruction.” Arcoren, supra at 1244.

A number of states have either followed the federal rule or adopted a similar view of when an instruction regarding necessarily included offenses should be given.

See State v Kinnane, 79 Hawaii 46, 49; 897 P2d 973 (1995) (adopting similar rule under state law); Dishman v State, 352 Md 279, 303; 721 A2d 699 (1998) (following federal model); State v Swafford, 109 NM 132, 136; 782 P2d 385 (1989) (following federal model); State v Phipps, 331 NC 427, 457; 418 SE2d 178 (1992), citing State v Drumgold, 297 NC 267, 271; 254 SE2d 531 (1979) (“[T]he trial court need not submit lesser included degrees of a crime to the jury ‘when the State’s evidence is positive as to each and every element of the crime charged and there is no conflicting evidence relating to any element of the charged crime.’ ”); Commonwealth v White, 490 Pa 179, 183-184; 415 A2d 399 (1980) (adopting rule similar to federal model).

The Michigan Supreme Court has adopted an approach with respect to cognate lesser included offenses that is similar to this approach. A cognate lesser included offense is one that shares several elements with and is of the same class or category of the higher offense but that may contain some elements not found in the higher offense. Bailey, supra at 668.

In the context of cognate lesser included offenses, our Supreme Court stated: [I]t is neither necessary nor sound policy to require the trial court to blind itself to uncontroverted proof of an element of the greater crime that would necessarily raise a defendant’s culpability to that of the more serious crime, if all elements common to the two offenses were found to be proven beyond a reasonable doubt.

Where a defendant admits activity that, as a matter of law, constitutes proof of the distinguishing element, the basis for instruction on the lesser crime evaporates. [Id. at 671.] In addition, our Supreme Court has adopted the federal model for determining whether an instruction regarding a lesser included offense should be given, without regard to whether the lesser offense is a cognate lesser included offense or a necessarily included lesser offense, when the lesser offense is a misdemeanor and the greater offense is a felony. See Stephens, supra at 262-263.

The Court has limited this type of analysis, however, to the two situations outlined above; the trial court is to instruct regarding necessarily included lesser felony offenses without regard to the evidence. Bailey, supra at 668; People v Beach, 429 Mich 450, 463-465; 418 NW2d 861 (1988). We see no sound basis for allowing the trial court to determine if the evidence rationally supports an instruction regarding a lesser offense in these situations, while disallowing such a determination in the context of necessarily included lesser felony offenses.

Indeed, the Court’s statement from Bailey, supra at 671, that it is unsound policy to “require the trial court to blind itself to uncontroverted proof of an element of the greater crime” applies with as much force to necessarily included lesser felony offenses as it does to cognate lesser included offenses and to lesser included misderheanor offenses.

At worst, had the jurors been properly instructed under our current law here, they could have found defendant to have been unarmed notwithstanding the fact that there was no evidence or argument suggesting that he was not carrying a knife, as we will discuss more fully below. At the very least, such an instruction would have led to confusion as jurors pondered an offense option that was directly contrary to the facts presented.

Our Supreme Court has been urged in the past to apply a “rational view of the evidence standard” to all requests for lesser included offense instructions, see Bailey, supra at 667, and the Court recently stated that “we are prepared in a more appropriate case to consider adopting the federal model regarding lesser offense instructions.” People v Perry, 460 Mich 55, 61, n 17; 594 NW2d 477 (1999).

Considering the facts here, as well as the prosecutor’s argument in favor of the federal rule, we conclude that this case presents an appropriate occasion for our Supreme Court to consider adopting the federal model with regard to necessarily included lesser offense instructions. We urge the Supreme Court to hold that such an instruction need be given only if it is supported by a rational view of the evidence.

Under a “rational view of the evidence” standard, we would hold that the trial court did not err in refusing to instruct the jury with regard to unarmed robbery, because under Walker, supra at 180, and Bailey, supra at 671, the evidence did not support a logical inference that the robber was unarmed and because defense counsel referred on more than one occasion to the knife, essentially conceding that the perpetrator, if he committed a robbery offense at all, committed armed robbery.

Indeed, no one contradicted the eyewitnesses’ testimony that the robber used a knife during the robbery, and defense counsel argued in closing that the eyewitnesses’ testimony was unreliable because they were excited from seeing “that individual coming in and see[ing] what they believe[d] to be a knife in his hands.” Defendant simply did not make the existence of a knife a disputed issue in the case but instead focused on (1) the witnesses’ alleged misidentification of the perpetrator and (2) the alleged lack of violence because the knife was neither referred to, threateningly or otherwise, nor put to anyone’s throat during the crime.

However, we are, of course, bound by the Supreme Court precedents discussed above and therefore hold that the trial court erred in failing to instruct the jury with respect to unarmed robbery. Despite the trial court’s error, however, reversal is unwarranted. The failure to instruct with regard to a necessarily included lesser offense is subject to harmless error analysis. People v Mosko, 441 Mich 496, 501-503; 495 NW2d 534 (1992).

Under People v Carines, 460 Mich 750, 774; 597 NW2d 130 (1999), the standard of review for a preserved nonconstitutional error is whether the error “more probab[ly] than not” affected the outcome of the proceedings, whereas the standard for a preserved constitutional error is whether “the beneficiary of the error has established that it is harmless beyond a reasonable doubt.” We need not decide whether the error in this case was constitutional or nonconstitutional, because even under the more restrictive constitutional standard, reversal is not warranted.

In Mosko, supra at 505-506, the distinguishing element between the higher offense (first-degree criminal sexual conduct) and the necessarily included lesser offense (third-degree criminal sexual conduct) was the presence of a particular familial relationship. In holding the trial court’s failure to instruct with regard to third-degree criminal sexual conduct harmless, the Supreme Court stated: At no point during this litigation has there been any dispute regarding that familial relationship.

While the prosecution always bears the burden of proving the elements of an offense beyond a reasonable doubt, the fact that the defense acknowledges the familial relationship can appropriately be considered in a harmless error analysis. [Id. at 506.] In the instant case, as in Mosko, no witness disputed the distinguishing (aggravating) element, the existence of the knife.

Indeed, the record in this case shows (1) uncontroverted eyewitness testimony that the perpetrator of the robbery used a knife, (2) uncontroverted eyewitness testimony that a knife was found in an area where the perpetrator dropped some items, and (3) the presence of a knife-like or stick-like object seen on the videotape taken from the surveillance camera. Moreover, defense counsel acknowledged that the eyewitnesses saw “what they believe[d] to be a knife in [the peipetrator’s] hands.” Accordingly, under Mosko, the failure to instruct regarding the lesser offense was harmless error.

Defendant additionally argues that the trial court erred in sentencing him to life imprisonment. We review sentencing decisions for an abuse of discretion. People v Hansford (After Remand), 454 Mich 320, 323-324; 562 NW2d 460 (1997); People v Fetterley, 229 Mich App 511, 525; 583 NW2d 199 (1998). If the principle of proportionality is violated, an abuse of discretion has occurred. People v Milbourn, 435 Mich 630, 635-636, 654; 461 NW2d 1 (1990). The court properly considered both the seriousness of the offense and the criminal background and circumstances of the offender during sentencing.

Hansford, supra at 325-326. Although defendant contends that a life sentence was inappropriate because no one was physically harmed during the robbery, the fact that no one was hurt appears to be simply a matter of luck. Defendant held a long, sharp knife in front of him during the robbery, made inherently threatening gestures to the victims, and frightened them. Defendant also yelled at one victim to “come here” and then told another to “shut up,” pushing her up against a wall, before getting to the cash register.

With regard to the background and circumstances of the offender, the court noted that defendant frequently put people at great risk. Defendant’s nine prior felony convictions, including convictions of armed robbery, assault with intent to rob while armed, larceny from a person, and burglary, demonstrate that defendant is not someone who is able to conform to the law. The fact that defendant has served five prison sentences and has returned to crime each time he was released bolsters that conclusion.

The court evaluated this information and told defendant that “it tells me you are one of the few people who truly are incorrigible,” noting that defendant had shown a pattern of committing a crime, going to prison, and then committing another crime upon release. There is no abuse of discretion in the imposition of a sentence where “an habitual offender’s underlying felony, in the context of his previous felonies, evidences that the defendant has an inability to conform his conduct to the laws of society.” Hansford, supra at 326.

The court found that defendant was “exactly the person for whom the habitual-offender statute was intended.” We agree. In light of the seriousness of the offense, defendant’s extensive criminal history, and defendant’s demonstrated lack of rehabilitative potential, the life sentence imposed did not constitute an abuse of discretion. We affirm. O’Connell, J., concurred. Fitzgerald, J. I concur in the result only.

The closest defense counsel came during closing arguments to challenging the existence of the knife was his statement, in questioning the lack of fingerprint analysis, that “[i]f, in fact, this man held the knife, would there have been fingerprints on it?” Defense counsel did not argue that the eyewitnesses were mistaken in identifying a knife or at least a knife-like object.

To the contrary, counsel argued that the eyewitnesses’ testimony was unreliable because they were excited from seeing “that individual coming in and seepng] what they believe[d] to be a knife in his hands.” We recognize that a court generally has no duty to instruct the jury sua sponte regarding all lesser included offenses. See People v Henry, 395 Mich 367, 374; 236 NW2d 489 (1975). We recognize that the “federal model” at issue in Perry was the federal rule disallowing cognate lesser included offense instructions, not the necessarily included lesser offense instruction at issue here.

Perry, supra at 61, n 17; see, Beach, supra at 464 (“The federal courts, by contrast, do not recognize cognate lesser included offenses. FR Crim P 31(

c) limits instructions in federal criminal prosecutions to necessarily included offenses only.”). We question whether, in effect, our Supreme Court has already adopted the federal model. As we will discuss more fully below, the Court held in People v Mosko, 441 Mich 496; 495 NW2d 534 (1992), that it is harmless error to fail to instruct regarding a necessarily included lesser offense if the element distinguishing a higher offense from the necessarily included lesser offense is not at issue.

It would seem that this harmless error analysis would apply to any case where a rational view of the evidence would not support a finding of the necessarily included lesser offense. Thus, while failure to provide a necessarily included lesser offense instruction upon request would be error, it would always be harmless error if the facts would not rationally support a finding of the necessarily included lesser offense.

We note that if the eyewitnesses were led by the perpetrator to believe that the object he held was a knife — even if the object was not in fact a knife — a conviction of armed robbery was nonetheless appropriate. See MCL 750.529; MSA 28.797 (conviction of armed robbery appropriate if perpetrator used “any

article used or fashioned in a manner to lead the person . .. assaulted to reasonably believe it to be a dangerous weapon”).