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12/18/75 PEOPLE v. HENRY

December 18, 1975

PEOPLE
v.
HENRY



T. G. Kavanagh, C. J. Williams, Coleman, and Fitzgerald, JJ., concurred with T. G. Kavanagh, C. J. Levin, Lindemer, and Ryan, JJ., took no part in the decision of this case.

SYLLABUS BY THE COURT

1. -- Lesser Included Offenses -- Instructions to Jury -- Affirmative Exclusion.

The affirmative exclusion doctrine will no longer be followed in considering appeals from failure to instruct the jury on lesser included offenses; the distinction between "affirmative exclusion" and "exclusion by implication" serves no good purpose, because if a jury is not instructed on lesser included offenses, such offenses are for all practical purposes excluded from the jury's consideration.

2. -- Lesser Included Offenses -- Instructions to Jury.

A failure to instruct on lesser included offenses will not be regarded as reversible error, with the sole exception of first-degree murder cases, absent a request for such instruction before the jury retires to consider its verdict.

3. Trial -- Instructions to Jury -- Duty to Instruct.

It is the duty of the trial Judge, without any requests from counsel, to see to it that a 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 the Judge should state to them fully the law applicable to the facts.

4. -- Defendant Testifying -- Impeachment -- Prior Convictions -- New Trial.

A hearing by the sentencing Judge or his successor is the appropriate forum for resolving a post-trial issue of whether reversible error was committed when a prosecutor sought to impeach a defendant's credibility by bringing prior convictions to the jury's attention where those convictions were allegedly obtained in the absence of counsel as well as a post-sentence issue of whether a defendant is entitled to resentencing because prior convictions allegedly obtained in the absence of counsel were considered by the trial court in imposing sentence; in those cases in which the former issue is raised during the trial, such a hearing should be held before the trial is completed so that it can be determined at that time whether the challenged testimony may properly be considered by the court or jury.

5. -- Defendant Testifying -- Impeachment -- Prior Convictions -- Preserving Question.

Defendant's contention that the use of prior convictions for the purpose of impeaching his credibility was reversible error was not preserved for appeal where no objection was made at trial.

6. -- Sentences -- Pending Charges.

Consideration of pending charges by the sentencing court does not require resentencing where there was no evidence on the record that the recitation of these charges was inaccurate, there was no showing that the court drew false inferences from the presentence report, and the language of the sentencing Judge indicates that he was cognizant that these were merely charges, not convictions.

The opinion of the court was delivered by: Kavanagh

Edward Henry, Jr., was convicted by a jury in the Berrien Circuit Court, Karl F. Zick, J., of breaking and entering with intent to commit larceny. Defense counsel made no request for instructions on lesser included offenses and expressly acknowledged that such instructions were not appropriate, given defendant's theory of the case. The Court of Appeals, R. B. Burns, P. J., and Targonski, J. (Levin, J., Dissenting), affirmed, applying the rule that a reversal is required only where there is no request for instruction on lesser offenses, there is evidence on the record to support a conviction on a lesser offense so that, if requested, it would have been error to refuse to instruct on it, and the court affirmatively excludes consideration of lesser offenses by the jury. Defendant appeals. Held:

1. A failure to instruct on lesser included offenses ordinarily will not be regarded as reversible error absent a request for such instruction.

2. With the sole exception of first-degree murder cases, failure of the trial court to instruct on lesser included offenses will not be regarded as reversible error, absent requests for such instructions before the jury retires to consider its verdict.

3. A hearing by the sentencing Judge or his successor is the appropriate forum for resolving a post-trial issue of whether reversible error was committed when a prosecutor sought to impeach a defendant's credibility by bringing to the jury's attention prior convictions where those convictions were allegedly obtained in the absence of counsel as well as a post-sentence issue of whether a defendant is entitled to resentencing because prior convictions allegedly obtained in the absence of counsel were considered by the trial court in imposing sentence. In those cases in which the former issue is raised during the trial, such a hearing should be held before the trial is completed so that it can be determined at that time whether the challenged testimony may properly be considered by the court or jury.

4. The use of prior convictions for the purpose of impeaching his credibility was not reversible error where the trial Judge's discretion to exclude them was not invoked by objection made at trial.

5. Consideration of pending charges by the sentencing court does not require resentencing where there was no evidence on the record that the recitation of the charges was inaccurate, there was no showing that the court drew false inferences from the presentence report, and the language of the sentencing Judge ...


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