People v. Stephens , 84 Mich. App. 250 ( 1978 )

D. C. Riley, J.

Defendants Ronald Stephens and Jesse Smith, tried jointly by a jury on a charge of felony murder, MCL 750.316; MSA 28.548, were convicted of the lesser included offense of second-degree murder, MCL 750.317; MSA 28.549, and sentenced to terms of 40 to 60 years in prison. Their appeals have been consolidated.

Although each defendant raises several issues, we find reversible error in a common issue; i.e., failure to instruct on a defense theory of the case. A short summary of the facts is necessary.

The prosecution’s principal witness, Donald Webster, testified that on the date in question he, defendants Smith and Stephens, and one other person, embarked on a plan to commit a robbery. The four men entered one store, but subsequently abandoned the planned robbery and left the store. Shortly thereafter, they entered a second store with the intent to rob the cash register.

Webster testified that after they were in the store for a few minutes, he, Stephens, and the fourth person agreed to leave without committing the robbery. Stephens then called to Smith to leave, whereupon Smith motioned the three to remain. According to Webster, while the three men were at the door, preparing to leave, they heard a shot. Webster then ran from the store.

A Detroit police officer testified that he took a statement from defendant Smith shortly after his arrest. In the statement Smith admitted shooting the proprietor of the store, but stated that he shot because the man had started to pull a gun on him and he (Smith) feared that the man was about to shoot him. Smith denied intending to rob the store and denied announcing a holdup before the deceased started to pull his gun.

The officer also took a statement from defendant Stephens. In that statement Stephens admitted that he was armed and intending to rob a store along with three other men. The four entered one store but left without committing a robbery, and then they entered a bookstore. After looking around for a few minutes, Stephens stated, he heard a shot, whereupon the four men then ran from the store.¹

Defendant Stephens, in writing, requested an instruction on abandonment. Defendant Smith requested instructions on self-defense and manslaughter. None of these requested instructions were given.

A trial judge is required by court rule to give instructions on the theories of the parties if they are requested and supported by some evidence. GCR 1963, 516.7. This requirement holds even if the factual evidence disputing the theory is overwhelming:

"Defendant’s testimony, taken together with his written request to charge, entitled him to an instruction regarding accidental homicide. The fact that the evidence of defendant’s guilt was overwhelming does not excuse the trial judge’s failure to comply with the court rule. Even the most guilty defendant is entitled to have the trial judge tell the jury what his theory of defense is. Particularly, this is true where defense counsel expressly so requests in writing. Even when the evidence of guilt is overwhelming, such error is not harmless; the guilty verdict must be overturned and the case remanded for a new trial.” People v Savoie, 75 Mich App 248, 251; 255 NW2d 11 (1977).

The request for an instruction on abandonment should have been given. There was evidence presented (Donald Webster’s testimony) that defendant Stephens had, by his own volition, decided to exit the bookstore before any criminal act was committed. While the law in Michigan is unclear on whether abandonment is a defense to an attempt,² Stephens was not convicted of felony murder because of an attempted armed robbery. He was convicted as an aider and abettor to second-degree murder. The jury should have been instructed that a theory of Stephens’ defense was that he had abandoned any joint effort with Smith prior to the shooting.

Similarly, the instruction on self-defense should have been given in regard to defendant Smith. The statement taken from Smith, and introduced by the prosecution, gave sufficient factual support for a self-defense claim. Even though the prosecution may be correct that self-defense is not a defense to felony murder,³ it clearly is a defense to second-degree murder. Notwithstanding the other prosecution evidence, the requested instruction should have been given in connection with the instruction on second-degree murder. People v Savoie, supra.

On remand, a renewed request for an instruction on manslaughter should be ruled upon in light of the Supreme Court’s recent opinion in People v Van Wyck, 402 Mich 266; 262 NW2d 638 (1978).

The convictions are reversed and remanded.

Bashara, J., concurred.

1 Pursuant to Bruton v United States, 391 US 123; 88 S Ct 1620; 20 L Ed 2d 476 (1968), neither statement mentioned the name of the other codefendant when admitted at trial. Because of our disposition of the case, we will not at this time discuss the issue of whether the method used to "Brutonize” the statements was sufficient.

2 See generally, 22 CJS, Criminal Law, § 76, pp 234-235.

3 Michigan Proposed Criminal Jury Instructions, § 16:1:16.