People v. Wilson

• Decision Date: 16 February 1983
• Docket Number: Docket No. 53430
• Citation: 329 N.W.2d 513,122 Mich.App. 1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary Sullivan WILSON, Defendant-Appellant. 122 Mich.App. 1, 329 N.W.2d 513
• Court: Court of Appeal of Michigan — District of US

Page 513

329 N.W.2d 513

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary Sullivan WILSON, Defendant-Appellant.

Docket No. 53430.

122 Mich.App. 1, 329 N.W.2d 513

Court of Appeals of Michigan.

Submitted Oct. 6, 1982.

Decided Dec. 8, 1982.

Released for Publication Feb. 16, 1983.

[122 MICHAPP 1] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., Appeals, and A. George Best, II, Asst. Pros. Atty., for the People.

Mark R. Hall, Detroit, for defendant-appellant.

Before DANHOF, C.J., and KAUFMAN and RILEY, JJ.

PER CURIAM.

Defendant was convicted of assault with intent to do great bodily harm less than murder in violation of M.C.L. Sec. 750.84; M.S.A. Sec. 28.279, following a jury trial. He was sentenced to serve from 6 1/2 to 10 years in prison. Defendant appeals his conviction as of right.

[122 MICHAPP 2] The only issue defendant presents on appeal which merits discussion is his claim that the trial court failed to properly instruct the jury concerning his theory of the case. With respect to this issue, defendant appears to confuse two distinct concepts. He argues that a trial court is required to instruct sua sponte on defendant's theory of the case and the law as it relates thereto.

It is well-established that, where the theory presented to the jury by defendant is a central issue in defendant's trial, the trial court is required to instruct the jury as to the law on that issue even if defendant fails to request such an instruction. People v. Ora Jones, 395 Mich. 379, 394, 236 N.W.2d 461 (1975); People v. Stanley Jones, 69 Mich.App. 459, 461, 245 N.W.2d 91 (1976); People v. Morris, 99 Mich.App. 98, 297 N.W.2d 623 (1980); People v. Newman, 107 Mich.App. 535, 537, 309 N.W.2d 657 (1981); People v. Hearn, 100 Mich.App. 749, 753, 300 N.W.2d 396 (1980); People v. Rone (On Second Remand), 109 Mich.App. 702, 713, 311 N.W.2d 835 (1981); People v. Paquette, 114 Mich.App. 773, 779, 319 N.W.2d 390 (1982); People v. Jansson, 116 Mich.App. 674, 685-687, 323 N.W.2d 508 (1982). At least one panel of this Court has relied on these opinions to conclude that the trial court is also required to sua sponte present to the jury defendant's theory of the case. People v. Gayton, 81 Mich.App. 390, 394, 265 N.W.2d 344 (1978). With this conclusion we cannot agree. The law by which a case is to be decided is distinguishable from a party's theory. People v. Robinson, 79 Mich.App. 145, 162, 261 N.W.2d 544 (1977). The duty of the trial court to present a party's theory is governed by GCR 1963, 516.7:

"(a) The court shall present to the jury the issues in [122 MICHAPP 3] the case and, if a party requests after the close of the evidence, that party's theory of the case.

"(b) After the close of the evidence each party shall submit in writing to the court a statement of the issues and, if a party makes a request under subrule .7(a), his theory of the case as to each issue. * * * The theory may include those claims supported by the evidence or admitted." (Emphasis supplied.)

In our opinion, the trial court is not required to present defendant's theory to the jury unless defendant makes a request for the same. People v. Trammel, 70 Mich.App. 351, 353-354, 247 N.W.2d 311 (1976); People v. Samuel Smith, 85 Mich.App. 404, 414, 271 N.W.2d 252 (1978), rev'd. in part on other grounds, 406 Mich. 945, 277 N.W.2d 642 (1979); People v. Peery, 119 Mich.App. 207, 326 N.W.2d 451 (1982).

In the present case, defendant does not claim that a legally recognized defense was presented concerning which the trial court inadequately instructed the jury. Rather, he merely claims that reversal is required because the trial court failed to sua sponte...