People v. Trammell, Docket No. 23654

• Decision Date: 22 July 1976
• Docket Number: Docket No. 23654
• Citation: 70 Mich.App. 351,247 N.W.2d 311
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Q. B. TRAMMELL, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 311

247 N.W.2d 311

70 Mich.App. 351

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Q. B. TRAMMELL, Defendant-Appellant.

Docket No. 23654.

Court of Appeals of Michigan.

July 22, 1976.

Released for Publication Dec. 14, 1976.

David Harris, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Patricia J. Boyle, App. Chief Asst. Pros. Atty., Don W. Atkins, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P.J., and KAUFMAN and CAMPBELL, ^* JJ.

PER CURIAM.

Defendant Q. B. Trammell was tried by a jury in Recorder's Court for the City of Detroit, Judge Joseph E. Maher presiding. The defendant was charged with murder in the first degree, contrary to M.C.L.A. § 750.316; M.S.A. § 28.548. On January 17, 1975, the jury returned a verdict of guilty as charged.

On the evening of October 26, 1969, defendant went to the residence of his girlfriend, Minnie Jean King, at 2926 Bewick in the City of Detroit. The defendant testified that upon his arrival, he met Miss King and they then proceeded to her upstairs flat. He further testified that he was confronted by Sonny Tilton, Miss King's eldest son, when he reached the upstairs flat.

Claiming that an argument arose between him and Sonny Tilton, defendant testified that Mr. Tilton attacked him with a gun. The defendant stated that during the ensuing struggle the gun was fired repeatedly, though later denied having any knowledge that anyone had been wounded as a result of the incident. Miss King was struck and fatally wounded.

An autopsy performed on the body of the deceased, Miss King, indicated that five gunshot wounds had been inflicted.

On appeal, defendant claims that his theory of the case was not explained to the jury, even though supported by the evidence. The trial court did instruct on an accident theory. However, defendant asserts that error occurred when the court failed to instruct on self-defense as well. We do not agree.

GCR 1963, 516.7 provides:

'It is the duty of the court to present to the jury the issues in the case and the theories of the parties. At the close of the evidence each party Shall submit to the court a statement of the issues and his theory of the case as to each issue. The statement shall be concise and narrative in form. It shall be submitted in addition to requests for instructions submitted under sub-rule 516.1. The statement shall set forth as issues only those disputed propositions of fact which are supported by the evidence. The statement of the theory may include those claims supported by the evidence or admitted. The Court need not give any statement to the jury in the form submitted if the court presents to the jury the material substance of the issues and of the theories of each party.' (Emphasis added.)

This rule makes the duty imposed on a trial court contingent upon the parties' submission to the court of their theories of the case. Since defendant in the instant case neither requested the trial court to instruct on a self-defense theory of the case nor submitted any statement of his theory, we find that no duty arose on the part of the court to instruct concerning this theory of the case.

Moreover, GCR 1963, 516.2 provides:

'No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider the verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.'

Thus, when no objection is raised to alleged errors in jury instructions, the verdict will not be set aside on the basis of those errors unless they have resulted in a miscarriage of justice, People v. Szymarek, 57 Mich.App. 354, 356--357, 225 N.W.2d 765 (1975); People v. Wheat, 55 Mich.App. 559, 563, 223 N.W.2d 73 (1974).

Further, instructional error will not occasion a miscarriage of justice unless the incorrect instruction pertains to a basic and controlling issue in the case. People v. Neumann, 35 Mich.App. 193, 196, 192 N.W.2d 345 (1971).

M.C.L.A. § 768.29; M.S.A. § 28.1052 provides:

'Sec. 29. It shall be the duty of the judge to control all proceedings during the trial * * * The failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury...