People v. Pruitt

• Decision Date: 10 December 1970
• Docket Number: Docket No. 8434,No. 2,2
• Citation: People v. Pruitt, 185 N.W.2d 57, 29 Mich.App. 230 (Mich. App. 1970)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ernest PRUITT, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 57

185 N.W.2d 57

29 Mich.App. 230

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Ernest PRUITT, Defendant-Appellant.

Docket No. 8434.

Court of Appeals of Michigan, Division No. 2.

Dec. 10, 1970.

Released for Publication April 2, 1971.

Jon H. Kingsepp, Royal Oak, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., Thomas G. Plunkett, Pros.Atty., for plaintiff-appellee.

Before LEVIN, P.J., and T. M. BURNS and HUGHES^*, JJ.

T. M. BURNS, Judge.

Defendant, Ernest Pruitt, was arrested January 26, 1969, on charges of breaking and entering an occupied dwelling house ¹ and robbery armed.²The robbery armed charge was dropped and a charge of assault with intent to rob and steal while being unarmed ³ was added.Defendant was convicted by a jury on both counts on September 15, 1969.On October 13, 1969, defendant was sentenced to serve six to ten years on each count with proper credit for time served.

At the trial, defendant did not introduce any proofs.The defendant did, however, request an instruction on his right not to take the witness stand during the trial.The defendant requested the court to instruct the jury that the defendant's failure to testify in his own behalf could create no presumption of guilt nor is it to be considered by the jury during their deliberations.

No reference was made at the trial to the fact that the defendant did not testify.The trial judge, therefore refused to give the instruction, stating:

'I prefer not to comment upon the fact whatsoever, however, rather than bring it before the jurors' minds.'

Defendant contends that the trial court's refusal to give the requested instruction is reversible error.

The right of a defendant not to testify at his own trial is, of course, a basic and fundamental constitutional right.⁴Defendant contends, therefore, that it was the trial court's duty to make the requested instruction under M.C.L.A. § 768.29(Stat.Ann.1954 Rev. § 28.1052) which provides in part:

'The court shall instruct the jury as to the law applicable to the case * * *.The failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused.'

Defendant contends that his right not to testify at his trial is part of 'the law applicable to the case', ⁵ and that the failure to give the instruction is, therefore, error.

Although we agree that defendant's right not to take the stand is part of 'the law applicable to the case', we find that defendant has the right to have the instruction given even without the above quoted statutory provision.In People v. Provost(1906), 144 Mich. 17, 23, 107 N.W. 716, 718, the trial court had refused to give an instruction substantially like the one requested in the case at bar.The Supreme Court stated:

'Where such 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.'⁶

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 people contend, however, that the error committed by the trial court can be shown to be harmless.The Supreme Court of the United States fashioned the harmless error rule in Chapman v. California(1967), 386 U.S. 18, at p. 24, 87 S.Ct. 824, at p. 828, 17 L.Ed.2d 705, reh. den.386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241, where the court stated:

'* * * before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.'

Our state statute does not require us to impose a different standard.⁷In the case at bar, witnesses testified that they discovered the defendant in their home shortly before six o'clock on a Sunday morning.They also testified that he assaulted one of the occupants and was shot by another, but escaped.

A short time later the defendant stopped at a nearby gas station and asked for help.The attendant, who also identified the defendant at trial, called the police, who upon their arrival, took the defendant to the hospital.

At the hospital, a bullet was removed from the defendant.A ballistics expert was able to determine that the bullet was fired from the gun of one of the witnesses.

Therefore, although we would reverse if the evidence was less overwhelming, we are convinced beyond a reasonable doubt that the instructional error did not contribute to the defendant's conviction.

Affirmed.

*JULIAN E. HUGHES, Circuit Judge for the County of Berrien, appointed by the Supreme Court for the hearing month of October, 1970 pursuant to § 306 P.A.1964, No. 281.

1C.L.1948 § 750.110, as amended by P.A.1968, No. 324, § 1(Stat.Ann.1970 Cum.Supp. § 28.305).

2M.C.L.A. § 750.529(Stat.Ann.1970 Cum.Supp. § 28.797).

3M.C.L.A. § 750.88(Stat.Ann.1962 Rev. § 282.283).

4U.S.Const. am. 5;Const.1963, art. 1, § 17.

5In addition to the constitutional provisions, Michigan also has a statute which provides:

'A defendant in any criminal case or proceeding shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.'M.C.L.A. § 600.2159(Stat.Ann.1962 Rev. § 27A.2159).

6It should be also noted that in Provost, as here, no reference had been made to defendant's failure...