People v. Charles Williams

193 N.W.2d 331, 36 Mich. App. 195, 1971 Mich. App. LEXIS 1305

• Court: Michigan Court of Appeals
• Decided: October 1, 1971
• Docket: Docket 8194
• Status: Published

Opinions

Levin, J.

The defendant, Charles Williams, was convicted by a jury of the offense of armed robbery. MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28-.797). He appeals claiming that the evidence against him was insufficient and that the court erred in failing to charge on included offenses.

I.

Four masked bandits carrying revolvers held up a grocery store. The wife of the owner testified that during the course of the robbery the mask of one of the robbers slipped, allowing her to view his face uncovered for several seconds. She identified the defendant as that robber.

A cashier who had known the defendant for more than ten years testified that while she had mentioned to the owner’s wife after the robbery that one of the robbers resembled the defendant, she was unable to state definitely that the defendant was involved in the crime.

The other witnesses were unable to recognize the defendant.

The defendant and the woman with whom he was living testified in support of an alibi. They also testified that the defendant was wearing a goatee or beard when the crime was committed. On cross-examination, the owner’s wife did not recall the robber she identified as the defendant having a goátee or beard or a moustache.

The defendant contends that the testimony of the owner’s wife, which was the only positive identification testimony, is insufficient to convict because she was unable on cross-examination to recall whether the robber she identified as the defendant wore a moustache, goatee or beard and because her identification was influenced by the statement of the cashier shortly after the crime was committed that one of the robbers “resembled” the defendant.

The evidence that the defendant was wearing a goatee or beard at the time the offense was committed was presented through the testimony of the defendant and the woman with whom he was living, clearly interested witnesses. It was for the jury, as the trier of fact, to decide whether to credit or reject the identification testimony of the owner’s wife; whether it was accurate and based on what she saw at the time the robbery was committed or whether it was prompted by the conversation she had with the cashier following the robbery.

II.

In People v. Lemmons (1970), 384 Mich 1, as here, the defendant was convicted of armed robbery and the defense was alibi. Lemmons’ conviction was reversed by the Michigan Supreme Court because the trial judge not only failed to instruct on included offenses, but affirmatively excluded consideration by the jury of included offenses.

The judge in Lemmons had instructed the jury as follows:

“There are only two possible verdicts as to each defendant. You may find the defendant, naming them individually, guilty of robbery armed or not guilty. There are no included offenses.” (Emphasis supplied.) Lemmons, supra, p 2.

The Supreme Court ruled that the affirmative exclusion by the judge of included offenses was an “improper instruction” requiring reversal and a new trial even though Lemmons’ lawyer had made no request that the jury be instructed on included offenses.

While the trial judge in this case also affirmatively excluded included offenses,¹ we do not think we are obliged to reverse or that we would be justified in reversing and granting a new trial to the defendant Williams on that ground. In this case, in contrast with Lemmons, the defendant’s lawyer made it clear that he did not expect the court to charge on included offenses:

“The Court: Now, Mr. Creager, if I understand correctly, from talking with you before, keeping in mind your defense is alibi, plus the general denial that he was not there and never had been in the store, do you maintain there are any included offenses in this charge?

“Mr. Creager: No, because of the nature of the defense, there are no included offenses.

“The Court: In other words, due to the nature of the offense and the evidence as to what happened in the store — not by your man — the court understands you are conceding that there was a robbery armed committed by three or four persons, right?

“Mr. Creager: Eight; and I might add that a statement covering any lesser included offense would not be consistent with the defense in this case. It is the defendant’s position he was not there and that is the gist of it.”

The distinction noted in Lemmons between a judge’s failure to charge on included offenses and an affirmative exclusion should not be extended to a situation where the lawyer for the defendant agrees that there are no included offenses and additionally says that a statement covering included offenses would not be consistent with the theory of the defense. An affirmative exclusion of that which neither litigant wishes the jury to consider does not require reversal or a new trial.

To rule otherwise would mean that the policy of the law requires in every criminal case a charge as to included offenses without regard to the wishes and requests of the lawyers representing the litigants. It would mean that the distinction recognized in Lemmons between an omission and an affirmative exclusion would be untenable.²

Affirmed.

Holbrook, J., concurred in the result.

1 He advised the jury:

“Now, I don’t have to give you, members of the jury, in this case any instruction on automatic included offenses, which we have in so many eases. Why? Because in this case, due to the fact that the defense attorney is conceding and has conceded that thero was a robbery armed — although he claims the defendant was not a participant — and in view of the nature of his defense, a denial plus an alibi defense — that he was not there — and in view of all of the undisputed evidence we have heard regarding the incident that happened at the Simmons Grocery that night, it is either a case of robbery armed, or nothing. There are no included offenses because of the circumstances in this case. Lots of times in cases of this type we have included offenses of robbery unarmed, where it is not clear that the robber had a gun.”

2 See People v. Phillips (1971), 385 Mich 30, 36 reiterating the general rule that in the absence of a request, a trial court does not err by failing to instruct on included offenses.

See also People v. Riley (1971), 33 Mich App 721, commenting on Lemmons.