People v. Allensworth

257 N.W.2d 81, 401 Mich. 67, 1977 Mich. LEXIS 159

• Court: Michigan Supreme Court
• Decided: August 29, 1977
• Docket: Docket 59228
• Status: Published

Opinions

Per Curiam.

A jury convicted defendant and two others of the 1971 first-degree felony murder of William Thigpen, Jr., in the City of Detroit. After the Court of Appeals affirmed defendant’s conviction in People v Herbert Brown, 45 Mich App 505; 206 NW2d 730 (1973), defendant asked the Court to consider by a delayed appeal the issue whether the trial court reversibly erred in instructing the jury that the parties had agreed that the victim died during the perpetration, or attempted perpetration, of a robbery and that first-degree felony murder as a matter of law had been proved. The Court of Appeals held in an unpublished per curiam opinion dated October 15, 1976 that defendant’s failure to object to this instruction at trial was fatal to his argument on appeal. We disagree.

Charles Dexter testified that defendant and a woman entered his apartment at 2900 West Boston Boulevard to purchase cocaine. While defendant was leaving, three other men burst into the apartment with guns drawn. Defendant then pulled a gun and demanded money, drugs, jewelry, and other valuables. Dexter testified that during the course of this incident he witnessed defendant fire the single shot that killed Thigpen.

In final argument, defense counsel contended that defendant fled from Dexter’s apartment when the three men entered, that his client did not kill Thigpen and that Dexter, an admitted dope dealer, was not worthy of belief.

During the course of her jury instructions, the trial judge informed the jury that she was not going into the elements of the crime charged in detail because:

"[T]here is agreement here among all of the parties about the fact that there was a robbery or attempted robbery in the apartment of Charles Dexter at 2900 West Boston Boulevard, and that in the accomplishment or attempted accomplishment of the robbery William Thigpen was killed. * * *

"I instruct you, you may accept as a matter of fact, and there need be no deliberation on your part with respect to it, Murder in the First Degree was committed in the killing of William Thigpen on April 13th, 1971, at 2900 West Boston Boulevard, City of Detroit.

"So, the principal fact in question to be decided by you is whether or not the defendants, * * * or one of them did in fact commit the unlawful killing.”

Defendant here complains that this unobjected-to instruction impermissibly removes from the jury’s consideration the element of robbery or attempted robbery.

In People v Reed, 393 Mich 342, 349; 224 NW2d 867 (1975), we attested to our belief that the right of the jury to determine all elements of the offense is fundamental:

"Once a plea of not guilty is entered, the defendant 'has an absolute right to a jury determination upon all essential elements of the offense. * * * [Furthermore, in a situation wherein an understandingly tendered waiver is not forthcoming from the defendant, under no circumstances may the trial court usurp this right by ruling as a matter of law on an essential element of the crime charged.’ United States v England, 347 F2d 425, 430 (CA 7, 1965)” (emphasis added).

Although the defendant in Reed did lodge an objection to the instruction, that objection was not critical. As the foregoing quotation reveals, our emphasis was on the trial judge’s responsibility in charging. In saying that the instruction to the jury must include all elements of the crime charged, we relied upon People v Liggett, 378 Mich 706, 714; 148 NW2d 784 (1967), which discussed the trial judge’s responsibility for instructions "even in the absence of request”. Here we have at most an implied waiver and not "an understandingly tendered waiver” from the defendant.

Reed, too, answers the prosecutor’s argument that the harmless error rule should apply. The Court said:

"We find that the right of the jury to determine all elements of an offense is so fundamental a right that the harmless error rule is not appropriate where the judge invades that province. There is a difference between commenting on the evidence and making a finding of fact for the jury. When the trial judge, as in the instant case, instructs that an essential element of a criminal offense exists, as a matter of law, we will ñnd reversible error. ” 393 Mich at 351 (emphasis added).

The instant trial judge’s instruction removed the element of the felony and the element of death from the jury’s consideration. She said there was an "agreement” that a robbery or attempted robbery had occurred and Thigpen had been killed as a result of it. There was no agreement.

Pursuant to GCR 1963, 853.2(4), in lieu of leave to appeal, we reverse the Court of Appeals and remand the case to the Recorder’s Court for the City of Detroit for a new trial.

Kavanagh, C. J., and Williams, Levin, and Fitzgerald, JJ., concurred.