People v. Stephens
People v. Stephens
Opinion of the Court
Defendants Ronald Stephens and Jesse Smith, tried jointly by a jury on a charge of felony murder, MCL 750.316; MSA 28.548, were convicted of the lesser included offense of second-degree murder, MCL 750.317; MSA 28.549, and sentenced to terms of 40 to 60 years in prison. Their appeals have been consolidated.
Although each defendant raises several issues, we find reversible error in a common issue; i.e., failure to instruct on a defense theory of the case. A short summary of the facts is necessary.
The prosecution’s principal witness, Donald
Webster testified that after they were in the store for a few minutes, he, Stephens, and the fourth person agreed to leave without committing the robbery. Stephens then called to Smith to leave, whereupon Smith motioned the three to remain. According to Webster, while the three men were at the door, preparing to leave, they heard a shot. Webster then ran from the store.
A Detroit police officer testified that he took a statement from defendant Smith shortly after his arrest. In the statement Smith admitted shooting the proprietor of the store, but stated that he shot because the man had started to pull a gun on him and he (Smith) feared that the man was about to shoot him. Smith denied intending to rob the store and denied announcing a holdup before the deceased started to pull his gun.
The officer also took a statement from defendant Stephens. In that statement Stephens admitted that he was armed and intending to rob a store along with three other men. The four entered one store but left without committing a robbery, and then they entered a bookstore. After looking around for a few minutes, Stephens stated, he heard a shot, whereupon the four men then ran from the store.
A trial judge is required by court rule to give instructions on the theories of the parties if they are requested and supported by some evidence. GCR 1963, 516.7. This requirement holds even if the factual evidence disputing the theory is overwhelming:
"Defendant’s testimony, taken together with his written request to charge, entitled him to an instruction regarding accidental homicide. The fact that the evidence of defendant’s guilt was overwhelming does not excuse the trial judge’s failure to comply with the court rule. Even the most guilty defendant is entitled to have the trial judge tell the jury what his theory of defense is. Particularly, this is true where defense counsel expressly so requests in writing. Even when the evidence of guilt is overwhelming, such error is not harmless; the guilty verdict must be overturned and the case remanded for a new trial.” People v Savoie, 75 Mich App 248, 251; 255 NW2d 11 (1977).
The request for an instruction on abandonment should have been given. There was evidence presented (Donald Webster’s testimony) that defendant Stephens had, by his own volition, decided to exit the bookstore before any criminal act was committed. While the law in Michigan is unclear on whether abandonment is a defense to an attempt,
Similarly, the instruction on self-defense should have been given in regard to defendant Smith. The statement taken from Smith, and introduced by the prosecution, gave sufficient factual support for a self-defense claim. Even though the prosecution may be correct that self-defense is not a defense to felony murder,
On remand, a renewed request for an instruction on manslaughter should be ruled upon in light of the Supreme Court’s recent opinion in People v Van Wyck, 402 Mich 266; 262 NW2d 638 (1978).
The convictions are reversed and remanded.
Pursuant to Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968), neither statement mentioned the name of the other codefendant when admitted at trial. Because of our disposition of the case, we will not at this time discuss the issue of whether the method used to "Brutonize” the statements was sufficient.
See generally, 22 CJS, Criminal Law, § 76, pp 234-235.
Michigan Proposed Criminal Jury Instructions, § 16:1:16.
Dissenting Opinion
(dissenting). I respectfully dissent.
With respect to defendant Stephens, reversal is based on failure to give an instruction regarding abandonment.
Defendants Smith and Stephens, and two others, Donald Webster and Franklin Fleming, a juvenile, decided to rob a store; defendant Smith armed himself with a handgun and defendant Stephens with a small, sawed-off shotgun; they went to rob a Goodwill store, but changed their minds and decided a book store would be the target to rob.
After being in the store for several minutes,
The argument is that Webster’s testimony indicates that defendant Stephens, Webster and Fleming, abandoned the intent to rob the book store.
In general, I accept the statement of facts of my distinguished colleagues. However, I do not agree that there was evidence of abandonment before any criminal act was committed. In my opinion, entry into the book store by defendant Stephens, with intent to rob while armed with a sawed-off shotgun concealed inside his pant leg, constituted the completed offense of attempted armed robbery or conspiracy to commit armed robbery.
I would agree with the trial court that it was legally too late for defendant Stephens to abandon his criminal intent. Furthermore, Webster’s testimony that when defendant Smith signalled him (Webster) and defendant Stephens to hold on (stay in the store), they did stay in the store for two to three more minutes during which time defendant Smith shot and killed the storekeeper, would, in my opinion, defeat any proposition that there was sufficient evidence of abandonment to require an instruction regarding abandonment. The fact that defendant Stephens, still armed with his sawed-off shotgun, did not leave the store, although he had plenty of time to leave, destroys any inference of abandonment. If he had testified, a fact issue
With respect to defendant Smith, reversal is based on failure to give a self-defense instruction.
Like Stephens, defendant Smith did not testify. His claim of self-defense rests upon the testimony of a police officer who testified regarding a statement Smith made after he was arrested.
Under these circumstances, denial of a self-defense instruction did not constitute error.
This case is clearly distinguishable from People v Savoie
Contrary to my able colleagues, I would vote to affirm the convictions.
A police officer testified, without objection, as to a statement allegedly made by defendant Stephens which statement does not indicate any claim of abandonment of the robbery.
But not if he testified the same as in his alleged statement to the police officer.
Defendant Smith first made an oral statement, the police officer wrote it down and defendant Smith signed it. Then, defendant Smith made a second oral statement, the police officer wrote it down, but defendant Smith refused to sign. It is the second statement upon which the subsequent claim of alleged self-defense rests.
People v Savoie, 75 Mich App 248; 255 NW2d 11 (1977).
Reference
- Full Case Name
- People v. Stephens; People v. Jesse Smith
- Cited By
- 7 cases
- Status
- Published