Opinion
Docket No. 59605.
Decided September 2, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Janice M. Joyce, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Derrick A. Carter) for defendant on appeal.
Defendant was convicted by a jury of breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305. On April 21, 1981, defendant was sentenced to 7-1/2 to 15 years imprisonment. Defendant appeals as of right raising two issues for review.
First, defendant contends that the trial court committed error requiring reversal in its instructions to the jury. This objection was not raised below. In the absence of manifest injustice, failure to make timely objection to a jury instruction precludes appellate review. People v Dixon, 84 Mich. App. 675, 685; 270 N.W.2d 488 (1978); People v Sherman Hall, 77 Mich. App. 456; 258 N.W.2d 517 (1977). Since defendant was found guilty as charged, it cannot be assumed that the instructions were not prejudicial. Therefore, we will review the issue despite the defendant's failure to object. People v Handley, 101 Mich. App. 130; 300 N.W.2d 502 (1980); People v Harmon, 54 Mich. App. 393; 221 N.W.2d 176 (1974).
We turn now to the merits of defendant's appeal. The trial court instructed the jury on two charges, (1) breaking and entering an occupied dwelling with intent to commit larceny and (2) attempted breaking and entering an occupied dwelling with intent to commit larceny. MCL 750.92, 750.110; MSA 28.287, 28.305. The court stated:
"Now, you have a right to find the defendant guilty of breaking and entering an occupied dwelling with intent to commit larceny, or not guilty of that count. If you find that the defendant, not guilty of the county [sic], you may pass and consider the second count: namely, attempt to break and enter occupied dwelling with intent to commit larceny therein. And, you will find him either guilty on that count, or not guilty on that count.
"To repeat, consider whether he is guilty on the count as charged: breaking and entering occupied dwelling with intent to commit larceny. If you find the defendant not guilty of that count, go to the second count. If you find him guilty of that count, then you do not go to the second count. If you found him not guilty, then go to the second count: attempt to commit breaking and entering occupied dwelling with intent to commit larceny, therein."
This instruction undoubtedly left the jury with the mistaken impression that they had to acquit the defendant on the principal charge before they could consider the attempt charge.
It is well established that an instruction which conditions the jury's right to consider the lesser included offenses upon a finding that the defendant is not guilty of the principal charge, constitutes error requiring reversal. People v West, 408 Mich. 332; 291 N.W.2d 48 (1980); People v Hurst, 396 Mich. 1; 238 N.W.2d 6 (1976). This Court has previously held that such instructions are coercive and that they unduly structure the jury's deliberative process. People v Ronald L Johnson, 74 Mich. App. 250, 258; 253 N.W.2d 722 (1977) (T.M. BURNS, J., dissenting); People v Ray, 43 Mich. App. 45; 204 N.W.2d 38 (1972). Applying these principles to the case at bar, we conclude that defendant's conviction must be reversed.
In light of today's holding, the second issue raised by defendant, concerning the right of allocution, is moot and will not be reviewed. LaBello v Victory Pattern Shop, Inc, 351 Mich. 598; 88 N.W.2d 288 (1958); but, see People v Berry, 409 Mich. 774; 298 N.W.2d 434 (1980).
Reversed.