Opinion
Docket No. 28804.
Decided September 21, 1977. Leave to appeal applied for.
Appeal from Recorder's Court of Detroit, James A. Hathaway, J. Submitted June 16, 1977, at Detroit. (Docket No. 28804.) Decided September 21, 1977. Leave to appeal applied for.
Douglas Beard was convicted of unarmed robbery. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Don W. Atkins, Assistant Prosecuting Attorney, for the people.
John C. Louisell (Carl Ziemba, of counsel), for defendant on appeal.
Defendant and a companion were charged with armed robbery of a party store on December 30, 1975, in the City of Detroit. Defendant's companion entered a plea of guilty to a charge of armed robbery, while defendant stood trial and was convicted by a jury of unarmed robbery, MCLA 750.530; MSA 28.798. He was sentenced on April 16, 1976, to 10 to 15 years in prison and appeals as of right.
Defendant assigns two errors to the trial court. First, he claims that the trial court's instruction to the jury to consider each of the seven lesser included offenses was unduly restrictive and coercive, causing prejudice to the defendant. We cannot agree.
Besides the fact that it was defense counsel who requested jury instructions on armed robbery and six lesser included offenses, defense counsel failed to object to the instructions as given in the instant case. Absent a showing of manifest injustice, this Court will not reverse a defendant's conviction on the basis of an unobjected-to error. People v Cain, 67 Mich. App. 433; 241 N.W.2d 233 (1976). Defendant did not show how the instruction given by the trial court prejudiced his rights.
Next, defendant contends that the trial court's instruction to the jury regarding specific intent in effect relieved the prosecution of the burden of proving one of the elements of the crime charged, viz., intent.
The trial court instructed the jury as follows:
"You cannot read the Defendant's mind. You cannot tell what was in his mind or in his heart except by the circumstances, by his appearance, by his conduct, by what he said, what he did, and how he acted.
"You have a right to draw reasonable logical inferences from the facts. It is presumed members of the jury, that a reasonable being intends the ordinary consequences of his voluntary acts.
"While it is true that we cannot perform cranial surgery and look into a man's mind, we judge what is in his mind, what his intentions are, by the way in which he acts, by what he says, what he does at a given time or place, or under any given set of circumstances.
"You do this in your every day lives, I'm sure. People act toward you or in your presence in a certain way, or they speak in a certain way, or they respond to a given situation in a certain way. On the basis of a whole lifetime of experience you say that if he is acting this way, he must mean, he must intend, such and such.
"What you are doing in that situation is that you are drawing inferences of intent. You are inferring what the person's intent was from the way he acted.
"You are allowed to do this as you sit as jurors. Indeed, you must do it as you sit as jurors, in order to determine the question of intent that is before you.
"In this regard you have a right to draw reasonable logical inferences from the facts which are before you, and also in this regard you must presume that a reasonable man intends the ordinary and natural consequences of his voluntary acts. That is when a man does something that causes something else to happen, you can presume that he intends that result if it was a natural and probable consequence of the act." (Emphasis supplied.)
The underscored portions of the instruction may be interpreted as impermissibly shifting the burden of proof from the prosecutor to the defendant. It is also possible to read them as general statements of law, guides rather than commands. When an allegedly erroneous instruction is subject to two or more interpretations, it is logical to read the instructions in their entirety to determine if the trial court resolves the ambiguity by other comments it makes and instructions it gives. See, generally, People v Benevides, 71 Mich. App. 168; 247 N.W.2d 341 (1976).
We are well aware that the "read as a whole" rule has been severely distorted and abused. Too often, courts have used the rule as a talismanic formula for reaching the result they wished to reach, unmindful of whether the context was a proper one in which to employ the rule. Justifying their decisions under the guise of reading instructions as a whole, courts have affirmed criminal convictions when at least part of the instructions have been patently erroneous. Such use of the rule contravenes the Supreme Court's long-standing doctrine of reversing convictions in cases in which the trial court has given conflicting instructions, one erroneous and the other without error. See, e.g., People v Eggleston, 186 Mich. 510; 152 N.W. 944 (1915), People v Burkard, 374 Mich. 430; 132 N.W.2d 106 (1965).
However, as noted above, logic convinces us that this case presents one of those situations in which the "read as a whole" rule should be used as a mechanism for resolving ambiguities in the trial court's language. In this context, use of the rule is not inconsistent with cases such as People v Eggleston, supra, People v Burkard, supra, and the conflicting instructions doctrine they espouse.
Read as a whole, the instructions in this case do not shift the burden of proof from the prosecution to the defendant. It is true that Michigan courts have stated that specific intent cannot be presumed as a matter of law from specific acts of the defendant. People v Smith, 67 Mich. App. 145; 240 N.W.2d 475 (1976), People v Jordan, 51 Mich. App. 710; 216 N.W.2d 71 (1974), People v Pepper, 389 Mich. 317; 206 N.W.2d 439 (1973). But mere use of the word "presumption" or its equivalent does not mandate reversal. People v Smith, supra, at 152.
What is significant in the present case and what distinguishes it from cases in which the instruction on presumption of intent has been found erroneous, is that the trial court did not instruct the jury that intent was presumed from the defendant's acts as a matter of law. The instruction does not mislead the jury into believing that as a matter of law defendant had the necessary intent. Read in its entirety, the instruction permitted but did not require the jury to find that defendant had the specific intent to commit unarmed robbery. See People v Rivera, 61 Mich. App. 427; 232 N.W.2d 727 (1975). The jury was allowed to consider all elements of the crime and could infer or presume specific intent if it so chose. Consequently, we find no reversible error.
Affirmed.