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Michigan Supreme Court Lansing, Michigan 48909 ____________________________________________________________________________________________
C hief Justice Justices

Maura D. Cor rigan

Opinion
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee--Cross-Appellant,
v CLINTON WAYNE REESE,
Defendant-Appellant--Cross-Appellee.
____________________________________ BEFORE THE ENTIRE BENCH
WEAVER, J.


Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. Stephen J. Markman

____________________________________________________________________________________________________________________________

FILED JULY 9, 2002


No.

117891


Defendant was convicted by a jury in the Kent Circuit
Court of armed robbery. MCL 750.529. He was sentenced as an
MCL 769.12. The


habitual offender to life imprisonment.

issue presented is whether the trial court erred in refusing
to give a requested instruction on unarmed robbery. Applying


the analysis of People v Cornell, 466 Mich ___; ___ NW2d ___
(2002) to the facts of this case, we conclude that the trial
court did not err in refusing to give the requested


instruction because the element differentiating armed robbery


from

unarmed

robbery--namely,

whether

the

perpetrator

was


armed--was not disputed. conviction.


Therefore, we affirm defendant's


Defendant's conviction stems from an incident occurring
September 27, 1997, at a Wesco gas station in Kent County.
Michelle Livernois, an employee who was working at the gas
station at the time of the robbery, testified that at


approximately 3:45 p.m., a bald, stocky man entered the gas
station wearing a nylon over his face and a green and white
sweatshirt turned inside out. Livernois was standing behind He was holding a knife. the counter and had Ms.
just


finished dropping some money in the safe.

She testified that


she recognized the man immediately as a previous customer.
Although she did not know his name, she recalled that on
previous occasions he had purchased beer and Pall Mall


cigarettes. She later identified defendant as the perpetrator
after he was taken into police custody.
Ms. Livernois testified that after defendant entered the
store, he pushed her against the wall and began taking money
from the register. After about ten seconds, Ms. Livernois was
able to escape and run out of the gas station, across the
street to the Hot `N Now. She returned to the station after


she observed defendant run across Daniel Street into a yard.
She and her co-worker, Chris McCune, then reentered the store
2


and waited for the police to arrive.

Ms. Livernois stated


that approximately $1,095 was taken from the register.
Mr. McCune testified that when defendant entered the
store carrying a knife, he was on the "customer side" of the
counter fixing a cigarette display rack.1 store to a pay phone to call 911. He ran out of the


He then got into a truck


with one of the customers who was present at the gas station.2
They followed the defendant for a few minutes before Mr.
McCune returned to the gas station.
Michael Noren and his girlfriend, Sabina Borowka, stopped
at the Wesco gas station to buy a pair of sunglasses. As he


was driving into the station, he observed defendant crouching
near a wall. After making their purchases and returning to


their car, an employee ran out of the gas station, screaming
that he had been robbed. Mr. Noren observed defendant run out
of the store and over to Daniel Street. He testified that


defendant's hands were full, and he was trying to shove things
into his pocket as he ran. as he ran. A few things dropped to the ground


Mr. Noren and Ms. Borowka went around to the south


side of the station, where they observed money on the ground


Mr. McCune also identified defendant after he was taken
into custody.
Mr. McCune got into the truck before he completed the
call to 911. Another customer picked up the phone and
finished the call.
3

2

1

and a knife sitting in the dirt.

He and Ms. Borowka stayed


near the knife until the police arrived.
Vivian Shepard, the manager of the gas station, explained
that the gas station had eight cameras that recorded twenty four hour surveillance of the gas station. The jury was shown
the video tape of the robbery while Ms. Shepard explained what
was happening on the tape. Ms. Shepard testified that the


tape showed Ms. Borowka looking at sunglasses and paying for
her purchase. Ms. Livernois was behind the register


completing a safe drop and Mr. McCune was near a display of
cigarettes. The perpetrator entered the gas station wearing
Ms. Shepard


a blue hat with a red button on the top.3

testified that as the perpetrator entered the store, one could
observe a stick-like object--the knife--in his hand.
Paulette VanKirk testified that as she drove into the gas
station to get gas, she observed defendant run out of the
station shoving money into his pocket. The money was falling
She


to the ground, but defendant did not stop to pick it up.

and Mr. McCune followed defendant for a few minutes in her
Laura Clark, a fifth grader who lived in the area where
defendant was apprehended, testified that at about 4:00 or
4:30 p.m., she observed a black man kneel by the raspberry
bushes in their yard and throw his gloves there. A short time
later, Laura informed her mother, who went outside to check
the area near the raspberry bushes. She discovered a blue
hat, some nylons, and a pair of gloves. The next day, after
learning about the robbery of the Wesco gas station, Mrs.
Clark called the police, who came and retrieved the items.
4

3

truck down a dead-end street.

After she turned around, she


let Mr. McCune out at the station and continued to follow
defendant. She observed defendant enter the parking lot of
She then flagged down two


Diemer's Motors, a car dealership.

police officers who were approaching the area and told them
that the Wesco gas station had been robbed and that she had
observed the suspect in the parking lot.
Defendant was eventually discovered in a home near the
car dealership. Robert Neuman, who resided in the home,


testified that he heard defendant trying to get into his home.
Defendant was perspiring. Neuman let defendant come inside.


Defendant told him that he had been robbed at knife-point by
two white men. Defendant used the bathroom and telephone
Defendant was wearing a green and


while in Neuman's home.

white sweatshirt when he entered the home, but changed into
one of Neuman's Express Autowash shirts that were drying in
the bathroom.4 About ten to fifteen minutes after defendant


entered his home, police officers arrived and asked Neuman to
come. After Neuman came out of the house, the officers asked
He eventually came out and was


defendant to come out. apprehended.


At trial, defense counsel requested the court to instruct


The green and Neuman's bathroom.


4

white

sweatshirt

was

found

in

Mr.


5


the jury on unarmed robbery. request, stating:


The trial court denied the


You did [request an unarmed robbery
instruction], and I concluded not to. The
prosecutor objected, and I agreed with his
objection that on these facts that was not a
reasonable assessment of the evidence, but would
merely have opened the door to compromise somewhere
between guilty and not guilty. And while juries
have the right to exercise leniency and to find
someone guilty of less than they are in fact guilty
of, if that's the situation, we're not to invite
it, which I think would have been done in this
case. But your objection is duly noted.
Defendant appealed, arguing that the trial court erred in
refusing the instruction on unarmed robbery. decision,5 conviction.6 the Court of Appeals whether In a two-to-one
defendant's
on a


affirmed an

Questioning

instruction

necessarily included lesser offense should be required where
a rational view of the evidence would not support a conviction
under the instruction, the Court of Appeals agreed that
existing precedent required it to hold that the trial court
had erred in refusing the instruction on the necessarily
lesser included offense of unarmed robbery. The Court of


Appeals urged this Court to adopt the federal model and apply
a "rational view of the evidence standard" to all requests for
lesser included instructions. Id. at 633.


5

One judge concurred in the result only.
242 Mich App 626; 619 NW2d 708 (2000).
6

6

Despite the error, the Court of Appeals determined that
reversal was not required because the error was harmless. The
Court of Appeals the explained of that the there knife. was no dispute


concerning

existence

Uncontroverted


eyewitness testimony demonstrated that the perpetrator of the
robbery used a knife, that a knife was found in an area where
the perpetrator had dropped some items, and that a stick-like
or knife-like object was observable on the tape from the
video-surveillance camera.
This Court granted leave "on the issue of the standard to
be used by the trial court in determining whether necessarily
lesser included offense instructions must be given when


requested."

The order instructed the parties to


specifically address whether MCL 768.32 prevents the Supreme Court from adopting the federal model for necessarily lesser included offense instructions and, if it does, whether such prohibition violates Const 1963, art 6,

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Michigan Law