People v. Van Wyck

• Decision Date: 08 November 1976
• Docket Number: Docket No. 20435
• Citation: 72 Mich.App. 101,249 N.W.2d 311
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Bruce VAN WYCK, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 311

249 N.W.2d 311

72 Mich.App. 101

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Bruce VAN WYCK, Defendant-Appellant.

Docket No. 20435.

Court of Appeals of Michigan.

Nov. 8, 1976.

Released for Publication Jan. 27, 1977.

Harold M. Street, Muskegon, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James K. Miller, Pros. Atty., Donald A. Johnston III, Chief Appellate Atty., Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C.J., and D. E. HOLBROOK and MUNRO, ^* JJ.

MUNRO, Judge.

The defendant was convicted by a circuit court jury of second-degree murder in violation of M.C.L.A. § 750.317; M.S.A. § 28.549. He was sentenced to serve a term of life imprisonment. Defendant appeals from that conviction as of right.

One meritorious issue is raised on appeal. The defendant contends that it was error for the trial court to deny his request for an instruction to the jury on the elements of voluntary manslaughter. The record shows that the trial court charged the jury, then instructed them to retire for the purpose of selecting a foreman only. They were not, he instructed, to begin deliberations until directed by him to do so. After the jury had so retired, the trial court asked counsel if there were any objections to the charge as delivered.

The prosecutor in his brief argues first that the request for an instruction was not timely and second that the instruction was not warranted, there having been no evidence introduced to support a verdict of manslaughter.

In support of the former proposition the prosecutor cites GCR 1963, 516.1, which reads Inter alia:

'Request for Instructions. At or before the close of the evidence, any party may, or at any time the Court reasonably directs, the parties shall, file written requests that the Court instruct the jury on the law as set forth in the request. A copy of such requested instructions shall be served on the adverse parties in accordance with Rule 107. The court shall inform counsel of its proposed action on the requests prior to their arguments to the jury, and, subject to the provisions of sub-rule 516.3, shall instruct the jury after the arguments are completed. The court may make such comments on the evidence, the testimony, and the character of the witnesses as in its discretion the interests of justice require.'

Because the record discloses no order of the trial court directing submission of written requests to charge, the language pertinent to this case is 'any party may', which is merely permissive and will not operate to foreclose the defendant the relief he seeks.

More on point is GCR 1963, 516.2:

'Objections. 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.'

The key language is 'to consider the verdict'. In this case the jury was asked to retire for the two-fold purpose of election of a foreman and to remove them from the courtroom while the trial court considered objections to the charge. Certainly this would be a pointless gesture if all objections so entertained were dismissed as untimely. We are of the opinion that defense counsel's request was not so late as to deny the defendant full appellate review of this issue. See People v. Fountain, 392 Mich. 395, 221 N.W.2d 375 (1974). ¹

It remains then to determine the propriety of the defendant's request for instructions on manslaughter.

'The duty of the trial judge to instruct on lesser included offenses is determined by the evidence. People v. Phillips, 385 Mich. 30, 187 N.W.2d 211 (1971). If evidence has been presented which would support a conviction of a lesser included offense, refusal to give a requested instruction is reversible error. Id. at 36, 187 N.W.2d 211. People v. Hamilton, 76 Mich. 212, 42 N.W. 1131 (1889).

'If the lesser offense is one that is necessarily included within the greater, the evidence will always support the lesser if it supports the greater.' People v. Ora Jones, 395 Mich. 379, 390, 236 N.W.2d 461, 465 (1975).

A crime is necessarily included within a greater crime if all...