People v. Fordham , 132 Mich. App. 70 ( 1984 )


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  • 132 Mich. App. 70 (1984)
    346 N.W.2d 899

    PEOPLE
    v.
    FORDHAM

    Docket No. 62870.

    Michigan Court of Appeals.

    Decided February 7, 1984.

    Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Janice M. Joyce Bartee, Assistant Prosecuting Attorney, for the people.

    Robert E. Slameka for defendant.

    Before: D.E. HOLBROOK, JR., P.J., and R.M. MAHER and P.R. JOSLYN,[*] JJ.

    PER CURIAM.

    Defendant was convicted by a jury of armed robbery, MCL 750.529; MSA 28.797, and felony-firearm, MCL 750.227b; MSA 28.424(2). Sentenced to from 20 to 40 years imprisonment on the armed robbery conviction and a mandatory 2-year term on the felony-firearm conviction, he appeals as of right.

    On October 2, 1981, three young men, each carrying a gun, burst into Vincent's Inn. The owner, Vincent Borowski, was pushed into a side room and struck on the head. When he tried to stand up, he was kicked and shot in the hip. He was then shot at again, the bullet grazing his head. One of the men then removed his wallet. Elizabeth Borowski, the owner's daughter, was also in the bar, along with a regular patron, Joyce Perry. While her father was lying wounded in the side room, Ms. Borowski was pulled from her hiding place in the kitchen. She testified that as she came out of the kitchen she saw the defendant standing near the cash register. Then she observed *74 defendant walk into the back room. Ms. Borowski told the men that the money was in the cash drawer, but that there was very little. One of the men then kicked her in the head. Subsequently, the men emptied the cash register and left. Shortly thereafter, defendant was arrested.

    Defendant maintains that the trial court made several errors in its instructions to the jury. He argues that the court improperly instructed the jury on the elements of armed robbery. The elements of an armed robery are: (1) an assauht committed by the accused upon the victim; (2) a felonious taking of property from the victim; and (3) presence of a dangerous weapon or an object fashioned to make the victim reasonably believe it to be a dangerous weapon. People v Vannoy, 106 Mich. App. 404; 308 NW2d 233 (1981). The defendant argues that the trial court incorrectly instructed the jury on the first element inasmuch as it failed to properly define an assault. The trial court defined assault in the following manner:

    "An assault is putting another person in fear. I have advised you that pointing a weapon at someone is putting that person in fear, telling that person that something was going to happen to them. That's an assault."

    An assault is an attempted battery or "an unlawful act which places another in reasonable apprehension of receiving an immediate battery". People v Sykes, 117 Mich. App. 117, 120; 323 NW2d 617 (1982). (Emphasis added.) Thus, the trial court's instruction omitted an essential element of an assault and, hence, a necessary element of armed robbery. This is reversible error.

    The defendant also alleges that the trial court erred in failing to instruct on the specific intent *75 element of armed robbery. Armed robbery is a specific intent crime. People v Peery, 119 Mich. App. 207, 214; 326 NW2d 451 (1982). It must be established that the defendant possessed a larcenous intent. People v Fisk, 62 Mich. App. 638, 643; 233 NW2d 684 (1975). The trial court instructed the jury that, to convict defendant of armed robbery, they must find he "intended to deprive the owner of the use and value of his property". That is an incomplete statement of the necessary intent. Larcenous intent is the intent "to deprive the owner of his property permanently". People v Wilbert, 105 Mich. App. 631, 639; 307 NW2d 388 (1981). (Emphasis added.) This is also reversible error, People v Peery, supra, p 214.

    The defendant did not request correct instructions nor object to the instructions given by the court. Although generally appellate review is precluded absent a request for an instruction, "[r]eview is not precluded when the trial court fails to instruct on an essential element of the crime * * *". People v Wolak, 110 Mich. App. 628, 634; 313 NW2d 174 (1981). Therefore, we reverse defendant's conviction for armed robbery. Because the instructional errors could have influenced the jury's finding that defendant committed or attempted to commit a felony, see MCL 750.227b; MSA 28.424(2), we reverse defendant's conviction for felony-firearm as well.

    We now address those of defendant's remaining allegations of error that may arise at the new trial.

    Of the alleged instructional errors, only one may come up at the retrial. Defendant contends that the trial court should have sua sponte instructed the jury on the so-called Davenport rule: "the prosecution has the burden of proving `that there *76 is no innocent theory possible which will, without violation of reason, accord with the facts'". People v Davenport, 39 Mich. App. 252, 256; 197 NW2d 521 (1972). The Davenport rule, however, applies only where the people's case depends entirely upon circumstantial evidence. Id. In the present case, the people introduced direct evidence. Thus, the Davenport rule does not apply and the jury should not have been instructed as to its terms.

    Moving beyond the defendant's alleged instructional errors, we address first defendant's contention that his convictions for armed robbery and felony-firearm run afoul of the Double Jeopardy Clause. On the authority of Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 NW2d 793 (1979), we reject that contention.

    Defendant has raised a number of other issues that may arise at the new trial. He argues that his confession was coerced because it was made before he was arraigned. He also asserts that the line-up, in which he was identified, was improper and that the witness's in-court identification of the defendant has no independent basis. The defendant, however, did not raise these issues below. The defendant should have requested a Walker[1] hearing to determine the voluntariness of his confession and a Wade[2] hearing to determine the propriety of the line-up. In the absence of such evidentiary hearings, we decline to address defendant's claims of error.

    Defendant's final two allegations of error are: (1) the trial court erred in allowing the testimony of a witness who had violated the court's sequestration order; and (2) the trial court erred in finding *77 that the prosecutor showed due diligence in attempting to produce a res gestae witness. The trial court's actions were in response to peculiar factual situations and, as such, are unlikely to be repeated at the new trial. Therefore, we decline to address the issues.

    Reversed and remanded.

    P.R. JOSLYN, J. (dissenting).

    I respectfully dissent. The majority would reverse these two felony convictions under the claims that the court improperly instructed the jury in two specific areas. First, the court did not tell the jury that the element of assault must contain the word immediate battery. Second, the court failed to instruct that armed robbery is a specific intent crime and particularly that the intent to permanently deprive the owner of his property was not instructed upon. I would concur with the result if these elements were placed at issue before the fact finder, especially since there are standard jury instructions. The record reflects that the question of whether there was an assault was literally taken away from the fact finder without objection. The court while instructing said, "I have advised you that pointing a weapon at someone is putting that person in fear, telling that person that something was going to happen to them. That's an assault".

    I cannot concur with the majority that the failure to give the specific intent instruction mandates reversal in this case. The proof of a larceny was overwhelming, in fact, so are the proofs as to armed robbery. Further, the defense was that of identity and not diminished capacity. Defendant interposed no objection to the offered instructions, either prior to or after they were given to the jury. The absence of timely objection at trial precludes *78 appellate review of claimed error in the absence of manifest injustice. People v Branner, 53 Mich. App. 541; 220 NW2d 183 (1974), lv den 392 Mich. 814 (1974).

    The trial court's failure here to instruct on the elements of larceny as it relates to the specific intent necessary to convict did not constitute manifest injustice and defendant's failure to object to the jury instructions precludes him from challenging the validity of the instructions on appeal. See People v Petrosky, 286 Mich. 397, 401; 282 N.W. 191 (1938); People v Rabb, 112 Mich. App. 430, 435; 316 NW2d 446 (1982). In Petrosky, the trial court failed to define larceny any better than was done here. The trial judge indicated that it "was [a] taking with intent to steal and appropriate property to one's own use". The Supreme Court held that the instructions were not erroneous where the evidence at trial negated any inference that the articles were taken with the owner's consent. Here the facts before the jury negated any inference other than that whoever assaulted the victim intended to permanently deprive him of his property.

    I would concur with the conclusions reached as to the other issues raised. The claims of the defendant as to the nonproduction of the res gestae witness is without merit and no prejudice occurred in the technical violation of the order of sequestration.

    The convictions should be affirmed.

    NOTES

    [*] Circuit judge, sitting on the Court of Appeals by assignment.

    [1] People v Walker (On Rehearing), 374 Mich. 331; 132 NW2d 87 1965).

    [2] United States v Wade, 388 U.S. 218; 87 S. Ct. 1926; 18 L. Ed. 2d 1149 (1967).