People v. Benberry
| Decision Date | 28 May 1970 |
| Docket Number | Docket No. 7330,No. 1,1 |
| Citation | 180 N.W.2d 391,24 Mich.App. 188 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lawrence BENBERRY, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Perry W. Lewis, Detroit, for appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Luvenia D. Dockett, Asst. Pros. Atty., for appellee.
Before T. M. BURNS, P.J., and LEVIN and DAVIDSON, * JJ.
On August 25, 1967, defendant called the Detroit police. He told them that he had shot and killed a Mr. Bennie McCormick by mistake. The defendant stated that while he was visiting at the flat of a Mr. Edward Prince, he heard footsteps on the back stairs. The defendant said that he thought a burglar might be trying to break in, as the flat was on the second floor and since it was about 5:00 a.m. He further stated that with that in mind, he mistakenly shot and killed his friend, Bennie McCormick, as he opened the apartment door.
Defendant was taken to police headquarters. After being advised as to his rights, he made a statement.
Preliminary examination was held on September 5, 1967, and defendant was bound over to Recorder's Court for trial on a charge of murder in the second degree. M.C.L.A. § 750.317 (Stat.Ann.1954 Rev. § 28.549). Defendant was found guilty by a jury on April 15, 1968, and was sentenced to serve from eight to twenty years in prison.
On appeal, defendant seeks to raise five issues for our consideration.
Did the lower court fail to properly supervise the procedure whereby a written statement was taken into the jury room?
Defendant's signed and sworn affidavit states that the jury foreman came out of the jury trial room and requested a written copy of defendant's oral admissions. The court granted the request and the prosecutor handed the foreman a written statement. This statement was not read by either the judge or defense counsel. The defendant asserts that there is no assurance that the paper given the foreman was his statement about the shooting which had been admitted into evidence. He says it could have been a written copy of his oral admission relating to the use of narcotics which was present in the court room but had not been admitted into evidence because of its prejudicial nature. Therefore, defendant contends he was denied the right to be confronted by his accusers and due process of law.
There is nothing in the trial transcript to substantiate defendant's contention that the unadmitted admission concerning the use of narcotics was given to the jury. Defendant by his affidavit only says that the admission concerning narcotics might have been the document sent into the jury, not that it was the document. It is within the discretion of the trial court in a criminal case to permit papers and documents to be taken to the jury room for consideration of the jury. People v. De Frenn (1929), 247 Mich. 698, 226 N.W. 710; People v. La Londe (1917), 197 Mich. 76, 163 N.W. 490. However, it would have been error to permit a jury to take with them, during deliberation, matter which was not admitted into evidence. People v. Krueger (1968), 99 Ill.App.2d 431, 241 N.E.2d 707. This claim, however, was advanced for the first time on appeal. It has not been the subject of a motion for new trial, and the defendant never sought an evidentiary hearing on this issue.
Therefore, since there is nothing in the record to support defendant's speculations as to the possibility that the document which was given the jury was anything other than what the judge directed to be given to it, there is nothing before us to review for possible error.
Was the introduction of narcotics testimony, in the course of the trial proceedings, prejudicial to the defendant?
The defendant contends that the introduction of evidence concerning the use of narcotics by the prosecutor was so prejudicial that it denied him a fair and impartial trial. The trial judge ruled that the portions of defendant's statement relating to narcotics was not to be read into evidence. However, the prosecution did ask questions about narcotics and thereby, according to defendant, denied him a fair trial.
Defense counsel's objection was sustained, however, when Mr. Prince was asked if he knew whether defendant used narcotics. Counsel did not object when the same question was asked as to other parties involved. It is the duty of the defense to make timely objections so that the questions may be presented for appeal. People v. Dodson (1967), 9 Mich.App. 123, 155 N.W.2d 876. Since timely objection to this line of questioning was not made, the question is not properly before us.
Did the lower court err when it failed to rule on the defendant's motion for a mistrial?
The defendant argues that the trial judge was under a duty to rule on his motion for a mistrial when allegedly prejudicial testimony concerning narcotics was introduced into the jury trial proceedings. The defendant further urges that the effect of the failure to rule on a motion has been held to be equivalent to an adverse ruling and was therefore, renewable on appeal. People v. Sartori (1912), 168 Mich. 308, 134 N.W. 200.
We are unpersuaded by the people's argument that the defendant did not put his objection to the testimony in the form of a motion. However, a review of the situation in context convinces us that the trial judge did not abuse his discretion in denying a mistrial under the circumstance that the question put to Prince regarding Benberry's use of narcotics was answered in the negative by Prince. The sequence was:
'Q. Do you know whether Lawrence Benberry used narcotics?
Mr. Long: (defendant's counsel): All right, now I'm going to object to that.
A. No sir.
The Court: The objection is sustained.
Mr. Long: I think it ought to be declared a mistrial. That's the most prejudicial thing I have ever heard.
The Court: Well, there's been no answer to it. The jury will disregard the question. There is no evidence here that Mr. Benberry is involved in narcotics. The jury should disregard it.'
If the answer had been, 'Yes, Benberry was a narcotics user,' a different question might be presented.
Under this circumstance presented to us here, the trial judge did not err in failing to declare a mistrial.
Did the lower court err when it failed to properly instruct the jury on...
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