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12/18/75 PEOPLE v. DUPIE

December 18, 1975

PEOPLE
v.
DUPIE



J. W. Fitzgerald, J. T. G. Kavanagh, C. J., and Williams and Levin, JJ., concurred with Fitzgerald, J. Lindemer and Ryan, JJ., took no part in the decision of this case. M. S. Coleman, J. (concurring in part; Dissenting in part).

SYLLABUS BY THE COURT

Opinion of the Court

1. Robbery -- Unarmed Robbery -- Specific Intent -- Instructions to Jury.

Instructions to the jury on the crime of unarmed robbery were not so deficient on the element of specific intent as to mislead the jury or leave them in doubt about their responsibility where, on several occasions during the course of giving instructions, the Judge stated that one of the elements of unarmed robbery was the "felonious" taking of property from the person or in the presence of the complainant (MCLA 750.530).

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

Failure to instruct on lesser included offenses in a trial for unarmed robbery was not reversible error where the defendant did not request instructions on lesser included offenses.

3. -- Circuit Court -- Infants -- Jurisdiction.

The circuit court had jurisdiction to try a defendant for the crime of unarmed robbery committed when he was 17 years old, where he was charged in the circuit court and there was no question of waiver from the probate court (Const 1963, art 6, § 13; MCLA 712A.2).

4. -- Presentence Report.

A defendant was not entitled as a matter of right to inspect the presentence report when he was sentenced prior to the effective date of the new court rule providing for inspection of that report (GCR 1963, 785.12).

5. -- Evidence -- Sufficiency -- Elements of Crime.

Evidence was sufficient to sustain a verdict of guilt beyond a reasonable doubt where testimony of the complainant supplied ample evidence upon each element of the crime of unarmed robbery.

6. -- Instructions to Jury -- Deadlocked Jury.

A supplemental charge to the jury after the trial court had learned that the jury was deadlocked was not so inherently coercive as to mandate reversal where the trial court expressed concern that individual jurors should not "compulsively" abdicate individual judgment in favor of unanimity but rather bring in a verdict based upon "honest belief" cognizant of the need for Dispositional unanimity.

7. -- Effective Assistance of Counsel -- Evidentiary Hearing.

A case is remanded for an evidentiary hearing on whether or not there was such ineffective assistance of counsel as would entitle the defendant to a new trial where, upon appeal, defendant alleged that he was denied effective assistance of trial counsel and the record does not permit determination whether the asserted error was sufficient to warrant a new trial.

Opinion Concurring in Part and Dissenting in Part

Coleman, J.

See 1-6.

8. -- Effective Assistance of Counsel -- Evidentiary Hearing.

A case should not be remanded for a post-trial evidentiary hearing on whether there was such ineffective assistance of counsel as would entitle the defendant to a new trial because one witness was not called by defense counsel to testify at trial where a hearing was held on a motion for a new trial at which testimony was taken by appellate counsel concerning trial counsel's failure to call ...


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