PEOPLE OF MI V NORMAN DOYLE IRISHAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
May 12, 2000
Calhoun Circuit Court
LC No. 98-000780-FH
NORMAN DOYLE IRIS
Before: Owens, P.J., and Murphy and White, JJ.
Defendant appeals of right from his jury conviction of retail fraud in the first degree, MCL
750.356c; MSA 28.588(3), assault with a dangerous weapon (felonious assault), MCL 750.82; MSA
28.277, and third-degree fleeing and eluding police officers, MCL 750.479(a)(3); MSA 28.747(1)(3).
Defendant was sentenced to a prison term of 12 to 24 months for retail fraud in the first degree, 24 to
48 months for assault with a dangerous weapon, and 24 to 60 months for fleeing and eluding in the third
degree. We affirm.
Defendant contends that the trial court erred when instructing the jury on the felonious assault
charge by failing to define “dangerous weapon” and by failing to tell the jury that it had to find that
defendant intended to use his car as a dangerous weapon. Specifically, he argues that such failure
denied him the right to have the jury determine the existence of all elements of the offense. We disagree.
Defense counsel did not object to the judge’s instructions at trial; therefore, this issue is forfeited
unless defendant demonstrates plain error that affected his substantial rights. People v Carines, 460
Mich 750, 763-764; 597 NW2d 130 (1999). “[A]n error in omitting an element [from criminal
instructions] would be an error of constitutional magnitude.” Id. at 761, citing United States v
Gaudin, 515 US 506, 510; 115 S Ct 2310; 132 L Ed 2d 444 (1995). A trial court must instruct the
jury concerning the law applicable to the case, and should fully and fairly present the case to the jury in
an understandable manner. People v Daoust, 228 Mich App 1, 14; 577 NW2d 179 (1998). Jury
instructions are reviewed in their entirety to see if they fairly present the issues to be tried and sufficiently
protect a defendant’s rights, and, if they do, such instructions do not create error, even if somewhat
While the judge did not specifically instruct the jury that it had to find that the car was a
dangerous weapon and also failed to specify that the jury had to find that defendant intended to use the
car as a weapon, the instructions, read as a whole, had the same effect. The judge instructed the jurors
that they had to find that defendant intended either to injure the victim or to make the victim reasonably
fear an immediate battery, and that defendant did so with an automobile. In order for the jury to find
that defendant was guilty under the instructions given, it necessarily found that defendant used the
automobile as a dangerous weapon. This Court has previously found that a motor vehicle may be used
as a dangerous weapon. People v Wardlaw, 190 Mich App 318, 319-320; 475 NW2d 387 (1991);
People v Sheets, 138 Mich App 794, 799; 360 NW2d 301 (1984). At trial, defendant did not
contend that striking a police officer with his car did not constitute use of an automobile as a dangerous
weapon, or that the officer was not hit by the vehicle; rather, defendant claimed that he did not intend to
strike the officer with his vehicle, but that contact was made because the police officer “wasn’t smart
enough to lean back.” The jury rejected defendant’s explanation and thus concluded that defendant
intentionally used his automobile to strike the police officer. Because the instructions as a whole fairly
presented the issues to be tried and sufficiently protected defendant’s rights, no error occurred.
Therefore, this claim of error has been forfeited. Carines, supra.
Next, defendant argues that the trial court erred when instructing the jury as to the fleeing and
eluding charge by referring to “a police officer” rather than specifically naming the police officers
involved. Specifically, he argues that such failure denied him the right to notice, a unanimous verdict,
and due process. We disagree.
Defendant failed to object to this issue and so has forfeited it unless he can show a plain error
that affected substantial rights. Carines, supra. The fleeing and eluding instructions, like the assault
instructions discussed above, must be reviewed in their entirety to see if they fairly presented the issues
to be tried and sufficiently protected the defendant’s rights. Daoust, supra.
Significantly, the court did name police officers Marlow and Tuyls in its instructions to the jury at
the beginning of trial.1 Subsequently, the jurors were instructed to consider all of the instructions
together. Then the judge gave the fleeing and eluding instructions out of CJI2d 13.6c, almost verbatim.
The judge also instructed the jurors that a “verdict in a criminal case must be unanimous” and that “[i]n
order to reach a verdict it is necessary that each of you agree on that verdict.” Defendant nevertheless
argues that the preliminary instructions, in which the judge specifically named officers Marlow and Tuyls,
and the subsequent instructions, in which the judge used the general term “police officer,” are
conflicting. In fact, the instructions, although differing in this one respect, are perfectly consistent.
Furthermore, it is unreasonable to suggest that defendant was not reasonably notified of the
charges against him. The information in the fleeing and eluding charge against defendant was accurate
and named Officers Marlow and Tuyls specifically. In his closing argument, defendant’s counsel noted
to the jury that Officers Marlow and Tuyls, as well as other police officers, allegedly followed defendant
as he evasively drove his vehicle. Defendant did not contend that the driver of his car did not attempt to
elude the police; rather, defendant claimed that he was not driving the car at that time. Moreover, the
right to reasonable notice of charges is a practical one, not a technical one. This Court recently
described the right to notice in People v Darden, 230 Mich App 597, 601-602; 585 NW2d 27
Contrary to defendant’s arguments, the constitutional notice requirement is not
some abstract legal technicality requiring reversal in the absence of a perfectly drafted
information. Instead, it is a practical requirement that gives effect to a defendant’s right
to know and respond to the charges against him. Here, defendant does not argue that
he was misled regarding the nature or severity of the charges against him; clearly, the
information in this case was sufficient to give him notice regarding the events that formed
the basis of those charges. [Footnote omitted.]
Taken as a whole, the jury instructions as given by the judge fairly presented the issues and
sufficiently protected defendant’s rights, Daoust, supra, so that any imperfection in them did not
constitute plain error. Therefore, this issue has also been forfeited. Carines, supra.
/s/ Donald S. Owens
/s/ William B. Murphy
/s/ Helene N. White
The judge, reading Count III to the jurors, explained that the charge was that defendant:
being the driver of a motor vehicle to whom was given a visual or audible signal by
hand, voice, emergency light, or siren by Allen Marlow and/or James Tuyls, police
officers who were in full uniform, acting in lawful performance of their duty, directing the
defendant to bring his motor vehicle to a stop, did willfully fail to obey such direction by
attempting to flee or elude the officer, in an area where the speed limit was 35 miles per
hour or less. That’s commonly known as fleeing a police officer in the third degree.