People v. Harris

• Decision Date: 30 April 1974
• Docket Number: Docket No. 16120,No. 1,1
• Citation: 52 Mich.App. 739,218 N.W.2d 150
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William HARRIS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 150

218 N.W.2d 150

52 Mich.App. 739

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William HARRIS, Defendant-Appellant.

Docket No. 16120.

Court of Appeals of Michigan, Division No. 1.

April 30, 1974.

Released for Publication June 4, 1974.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Leonard Meyers, Asst. Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and QUINN and O'HARA,* JJ.

QUINN, Judge.

A jury convicted defendant of armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797. He was sentenced and he appeals.

Defendant first contends that it was reversible error for the trial court to instruct the jury on defendant's choice not to testify after he specifically requested that such an instruction not be given. In support of this contention, defendant cites People v. Pruitt, 29 Mich.App. 230, 185 N.W.2d 57 (1970); People v. Abernathy, 29 Mich.App. 558, 185 N.W.2d 634 (1971); People v. Moore, 39 Mich.App. 329, 197 N.W.2d 533 (1972).

We decline to accept the foregoing authorities as controlling precedent supporting defendant's contention that it is reversible error to instruct the jury on a defendant's right not to testify when a defendant has specifically requested that the instruction not be given. The inception of the reasoning advanced in support of defendant's position is found in dictum in Pruitt, supra.

In Pruitt, defendant offered no proofs but requested an instruction on his right not to testify. This Court held it was error not to give the requested instruction. The Pruitt court properly found that a defendant's right not to testify is part of 'the law applicable to the case', and that M.C.L.A. § 768.29; M.S.A. § 28.1052 mandated the giving of the instruction.

Although this finding decided the issue conclusively, the Pruitt court continued to discuss it. After quoting:

'Where such (a) request to charge has been made, we find no authority warranting its refusal. The contention of respondent in this case is founded both upon reason and authority. A respondent is protected in his right under the statute to elect not to testify. A jury, upon his request, should be informed of that right, to prevent the creation in their minds of any presumption of guilt by reason of his silence. The court was in error in refusing to give the request as presented.'

from People v. Provost, 144 Mich. 17, 23, 107 N.W. 716, 718--719 (1906), the Pruitt court concluded:

'Therefore, there is no discretion in the trial court when requested to give an instruction similar to the one requested here and the court's refusal to give the instruction is error. The choice as to whether such an instruction is to be given to the jury is the defendant's and not the trial court's.'

The final sentence of the last quotation was not only unnecessary and not supported by the authority relied on, but it was extremely unfortunate. This is the language which gives rise to defendant's contention that he has a choice as to whether or not an instruction on his right not to testify shall be given.

When a defendant does not testify, M.C.L.A. § 768.29 requires that an instruction...