Opinion
No. 113209.
March 23, 1999.
In lieu of granting leave to appeal, the judgment of the Court of Appeals is vacated, and the matter is remanded to the Court of Appeals for further consideration. MCR 7.302(F)(1). In this case, the Court of Appeals held that the trial court's instructions were in error because they failed to differentiate between manslaughter and second-degree murder. The Court of Appeals noted that the defendant failed to object to the instructions but found reversal and a remand for new trial to be necessary in order to avoid a manifest injustice. This was so, according to the Court of Appeals, because there was evidence to support the manslaughter instruction under a theory of "imperfect self-defense". Our examination of the trial court record, however, reveals that at no time was "imperfect self-defense" ever advanced by the defendant as a defense theory. Nor was the trial court ever asked to give an instruction on "imperfect self-defense". The defendant did advance a theory of "lawful self-defense" thus, asking the jury to acquit him. It appears that the defendant's theory for reducing criminal responsibility from second-degree murder to manslaughter was that he acted in the heat of passion based on adequate provocation. Accordingly, this case is remanded to the Court of Appeals for it to reconsider whether, in spite of the defendant's lack of objection to the trial court's instructions, a manifest injustice occurred because the defendant was entitled to a proper jury instruction on manslaughter based on a theory other than "imperfect self-defense". Our resolution of this matter should not be construed as a ruling that "imperfect self-defense" is recognized as a theory which would reduce murder to manslaughter. Jurisdiction is not retained. Court of Appeals No. 198858.