Docket No. 56023.
Argued May 7, 1975 (Calendar No. 10).
Decided December 18, 1975.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Donald A. Burge, Prosecuting Attorney, and Stephen M. Wheeler, Chief of Appellate Division, for the people.
Daudert Barron for defendant.
T.G. KAVANAGH, C.J.
Defendant was arrested for larceny in a building, MCLA 750.360; MSA 28.592, after walking out of a store in Kalamazoo with a box containing a tape recorder, unconcealed, under his arm. Defendant testified that he saw a friend (Van Johnson) in the store who was overburdened with packages. The friend handed the box to defendant and asked him to carry it out to his car, and then give him a ride home. When defendant left the store, he was apprehended, could not produce a sales receipt for the tape recorder and was arrested. The friend did not testify at trial.
Defendant was convicted by a jury and sentenced to imprisonment. The Court of Appeals affirmed.
On appeal to this Court defendant alleges that it was error for the trial court to instruct the jury on aiding and abetting when neither party had requested such an instruction, that theory had not been advanced at trial, and there was no opportunity to argue the matter to the jury.
The gist of defendant's argument is not that the instruction given on aiding and abetting incorrectly stated the law, but rather that no instruction on aiding and abetting was justified by the evidence and the trial judge did not inform counsel before closing arguments that such instruction would be given. Therefore, defendant had no opportunity to rebut that charge, or to submit instructions on aiding and abetting. Defense counsel objected to the instruction immediately, but that objection was overruled.
The prosecution argues that it was defendant's own testimony and defense counsel's closing argument which justified the aiding and abetting instruction. It is contended that by testifying that Van Johnson had handed him the tape recorder, defendant himself provided evidence of a concert of action.
To counter appellant's contention that the error consisted of not informing counsel before closing argument of the court's intention to instruct on aiding and abetting, the prosecution alleges that it was in fact defendant's closing argument that necessitated the instruction. Defense counsel argued to the jury that Van Johnson might have stolen the tape recorder, if it was stolen at all, and that defendant did not know anything about it. That possibility, according to defense counsel's argument to the jury, "should be ruled out before you can find Robert Mann guilty of anything".
The prosecution contends that such a statement was an incorrect statement of the law, leaving the jury with the belief that if they found that Johnson stole the recorder, they would be required to acquit the defendant. This argument, the prosecution claims, required the court to correct that erroneous impression, and tell the jury that they could find that the two acted in concert and thereby still convict defendant of larceny.
MCLA 768.29; MSA 28.1052 states:
"It shall be the duty of the judge to control all proceedings during the trial * * *. The court shall instruct the jury as to the law applicable to the case * * *."
If the instruction given correctly states the law as applied to the case, the fact that counsel objects to its being given does not control. People v Chamblis, 395 Mich. 408; 236 N.W.2d 473 (1975). "Neither the defense nor the prosecution has the option of precluding the court from carrying out this duty [of correctly instructing on the law] in hopes of forcing an `all or nothing' verdict." Id.
Michigan has, by statute, abolished all common-law distinctions between principals and accessories. MCLA 767.39; MSA 28.979 states:
"Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense."
A person who aids and abets is guilty as a principal.
Defendant argues that it was not the theory of the prosecution nor the defense that defendant was an accessory, but rather that defendant himself committed the offense. The same argument was made in 1892 in People v Wright, 90 Mich. 362; 51 N.W. 517 (1892), wherein the defendant claimed that the court erred by instructing on aiding and abetting, when the information was for the offense of keeping a bawdy house. The Court held:
"Our statute * * * provides that one who aids or abets in the commission of a felony may be indicted, tried, and punished as principal * * *. The charge of keeping a bawdy-house may be supported by proof that the respondent aided or assisted others in the commission of the offense." Id. at 364.
A case which dealt with a similar contention was People v McKeighan, 205 Mich. 367; 171 N.W. 500 (1919). Appellant in McKeighan alleged that the information was insufficient because it charged him only as a principal, and thus he was not given notice of the exact nature of the charge, as the proofs indicated his involvement was as an accessory. The Court held that the information was sufficient to warrant conviction, stating: "He who aids and abets is now a principal". Id. at 371.
Defendant in the instant case alleges that there was not sufficient evidence of a crime on the part of another to warrant an instruction on aiding and abetting. In People v Palmer, 392 Mich. 370, 378; 220 N.W.2d 393 (1974), we reaffirmed the rule that a person may be prosecuted for aiding and abetting without regard to the conviction or acquittal of the principal. "[Aiding and abetting] comprehends all words or deeds which may support, encourage or incite the commission of a crime." The conviction of the principal is not necessary to convict an accessory. What must be proven, however, is that the crime was committed by someone, and that the defendant either committed or aided and abetted the commission of that crime.
Just as in other areas of jury instruction regarding which offenses might be considered by the jury, there must be evidence on the record to support such a charge. In this case, defendant himself hypothesized that Van Johnson might have stolen this tape recorder. If the jury believed that, they would not be required to acquit the defendant. Rather they could find that defendant and Johnson acted in concert and thus defendant would still be guilty of the offense. There was evidence on the record to support such a conclusion and thus the court properly instructed to that effect.
In People v Murray, 72 Mich. 10, 16; 40 N.W. 29 (1888), this Court said:
"Without any requests from counsel it is the duty of the circuit judge to see to it that the case goes to the jury in a clear and intelligent manner, so that they may have a clear and correct understanding of what it is they are to decide, and he should state to them fully the law applicable to the facts. Especially is this his duty in a criminal case. In this case it was not so done. Too much reliance is often placed upon counsel by the court in this respect for requests; but this should not be done. The court must do its duty in a criminal case, whether counsel do so or not. It is to the court that the accused has a right to look to see that he has a fair trial."
We also reject defendant's contention that it was not proper to give the instruction without first informing counsel so that closing arguments might be shaped accordingly. In this case, counsel were not informed of the proposed instruction until after closing arguments were completed.
GCR 1963, 516.1 states:
"1. Request for Instructions. At or before the close of the evidence, any party may, or at any time the court reasonably directs, the parties shall, file written requests that the court instruct the jury on the law as set forth in the request. A copy of such requested instruction shall be served on the adverse parties in accordance with Rule 107. The court shall inform counsel of its proposed action on the requests prior to their arguments to the jury, and, subject to the provision of subrule 516.3, shall instruct the jury after the arguments are completed. The court may make such comments on the evidence, the testimony, and the character of the witnesses as in its discretion the interests of justice require."
One method of resolving this issue is to point out that this rule speaks only to requested instructions.
"The court is required to inform counsel of its proposed action on the requests prior to their arguments to the jury. Sub-rule 516.1. The obvious purpose of this provision is to enable counsel to know which requests will be granted or denied, in order to argue the facts in the light of the law as the court will charge the jury.
"While requested instructions serve important functions in assisting the court to formulate its charge, the judge's power to instruct the jury is not limited to the mechanical acceptance or rejection of requested instructions. The court, of its own motion, may and should formulate instructions on issues in the case which were not covered by requests. The court may reject a request as not properly stating the law and still formulate a correct charge on the same subject if it is an issue which should go to the jury." 2 Honigman Hawkins, Michigan Court Rules Annotated (2d ed), p 565 (emphasis added).
FR Crim P 30 is identical to GCR 1963, 516.1 concerning the question presented. The issue raised in the instant case was discussed in United States v Shirley, 435 F.2d 1076, 1078 (CA 7, 1970). In Shirley, during closing arguments, defense counsel emphasized the conflict in testimony and in effect "he told the jury that if it believed the defendant's denial of his involvement in the theft, a not guilty verdict was required". Following the arguments, the district judge notified counsel that he intended to add a clarifying sentence to his charge. Defense counsel objected, stating that his closing argument would have taken account of the added instruction had he known it was to be given, although he did not deny that the added instruction was "technically and abstractly" correct.
The Seventh Circuit held that the giving of the instructions was proper:
"Rule 30 of the Federal Rules of Criminal Procedure provides in relevant part that, `The court shall inform counsel of its proposed action upon the [instruction] requests prior to their arguments to the jury, * * *.' Although we recognize the necessity of assuring compliance with the rule so that counsel may effectively plan their arguments to the jury, United States v Bass, 425 F.2d 161, 163 (CA 7, 1970), the rule is not so inflexible as to restrict the trial judge in giving a supplemental or modified instruction designed to prevent the jury from becoming confused and deciding the case on a false basis. Because much of the evidence concerned who stole the cars or arranged their theft, there was a likely chance, particularly in light of defense counsel's argument, that the jury might not understand the offense charged in the indictment."
We agree with that result and the reasons given therefor.
The conviction is affirmed.
LEVIN, COLEMAN, and FITZGERALD, JJ., concurred with T.G. KAVANAGH, C.J.
LINDEMER and RYAN, JJ., took no part in the decision of this case.
I concur with the results reached in the Chief Justice's opinion, but I would make two points.
First, as the prosecutor argues, the record in this case does indeed show that the court's instruction on aiding and abetting was required by the character of defendant's final argument, and without that final argument the court's instruction on aiding and abetting would not have been apposite. So the law of this case on the court giving instructions without notifying counsel before their final arguments is limited by the facts in this case.
Second, to review the law on counsel being advised, ordinarily counsel should be informed of instructions before closing arguments are completed in order to permit these arguments to be shaped accordingly. GCR 1963, 516.1 applies this requirement to requested instructions. The logic behind this requirement, however, is equally applicable to sua sponte instructions. Thus, the trial court may and should formulate its own instructions where the requests do not adequately cover issues in the case. However, where these issues were raised prior to closing argument, these too should be reviewed with counsel "in order to argue the facts in the light of the law as the court will charge the jury". 2 Honigman Hawkins, Michigan Court Rules Annotated (2d ed), p 565. There is no good reason why the jury should get the benefit of an argument couched in terms of, and related to, the instructions it will receive only when those instructions have been requested by counsel.
Where, however, in the course of closing argument, counsel raises a brand new issue, an exception to this principle is mandated. Thus, in United States v Shirley, 435 F.2d 1076 (CA 7, 1970), cited by my Brother the Chief Justice, counsel himself inserted the theory while delivering his closing argument, thus making it necessary for the trial judge to modify his charge to the jury. Since the situation which created the need for the new instruction did not arise until closing argument, it would have been impossible for the trial judge to notify counsel prior to that argument. This is precisely the situation before us today, and the reason why I find, under the facts before us, no error was committed.