People v. Perry, Docket No. 51182

• Decision Date: 21 July 1982
• Docket Number: Docket No. 51182
• Citation: 321 N.W.2d 719,115 Mich.App. 533
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mildred Vernell PERRY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 719

321 N.W.2d 719

115 Mich.App. 533

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mildred Vernell PERRY, Defendant-Appellant.

Docket No. 51182.

Court of Appeals of Michigan.

Submitted Dec. 3, 1981.

Decided April 22, 1982.

Released for Publication July 21, 1982.

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

Carl Ziemba, Detroit, for defendant-appellant on appeal.

Before DANHOF, C. J., and J. H. GILLIS and BRONSON, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, and conspiracy to commit murder in the second degree, M.C.L. Sec. 750.157a; M.S.A. Sec. 28.354(1) and M.C.L. Sec. 750.317; M.S.A. Sec. 28.549. She was sentenced to two concurrent terms of life imprisonment. Defendant appeals as of right.

Defendant's conviction arose from the shooting death of her husband, Rothbe Elwood Perry. Defendant was tried with one of her codefendants, Robert Jackson. Although tried together, defendant and Jackson had separate juries. Two other codefendants, Michael White and Chare (a/k/a Charles) Knight, had their cases severed from that of Perry and Jackson.

Some of the issues raised by defendant are similar to those raised in her codefendant's appeal, People v. Jackson, 114 Mich.App. ---, 319 N.W.2d 613 (1982). With regard to these issues, we reach the same result as reached in Jackson. Therefore, defendant's conviction of conspiracy to commit second-degree murder is vacated.

Defendant also raises a number of issues which were not addressed in Jackson. However, few of these additional issues merit discussion and none of them merit reversal of her conviction for second-degree murder.

In her first issue, defendant argues, inter alia, that there was not sufficient evidence to convict her in that the trial court reporter did not record the preliminary examination testimony of a witness, Chare Knight, and did not record the contents of various tape recordings played to the jury. Alternatively, defendant argues that she has been denied a right to appellate review because of the inadequacy of the trial transcript.

We find defendant's arguments to be without merit. Knight's testimony at the preliminary examination was transcribed at the time it was given and this transcript was incorporated, by reference, into the trial transcript when it was read to the jury. Defendant's contention that a determination cannot be made from the trial transcript as to which portion of the preliminary examination testimony was read at trial is without merit. Our review of the trial transcript leads us to conclude that the entire preliminary examination testimony of Chare Knight was read to the jury. ¹ While the better practice may have been to re-transcribe the preliminary examination testimony as it was read at the trial, we cannot say that reversible error occurred because this was not done. In this regard, a strong argument could be made that defense counsel waived re-recording by the court reporter of the preliminary examination testimony since the parties obviously had to be aware that the court reporter was not recording the preliminary examination testimony. See, generally, People v. Lee, 391 Mich. 618, 627-631, 218 N.W.2d 655 (1974).

We also reject defendant's claim that reversal is required because the court reporter failed to transcribe four tape recordings--exhibits # 83, # 78, # 152 and # 152A.

To begin with, defendant's assignment of error with regard to exhibits # 152 and 152A is without merit in that those tapes were only played in front of her codefendant's jury, not hers.

Exhibit # 83 was made by witness Sylvia Perkins and was offered by codefendant Jackson for purposes of impeachment. Defendant's counsel originally objected to this tape's introduction, but withdrew that objection when he was presented with a transcript of the tape recording. Following the playing of exhibit # 83, Perkins testified as to the tape's contents.

Exhibit # 78 consisted of a phone call made by witness Helen Lohman. This phone call was made by Lohman at the urging of a police officer in an attempt to identify the voice of someone who had been telephoning threats to defendant. Defendant's trial counsel objected to the playing of exhibit # 78, but withdrew this objection after the tape was played in court without the jury being present.

Exhibits # 83 and # 78 are apparently in the possession of the prosecutor who, on appeal, asserts that they were available to defendant upon request, but that defendant never requested these exhibits.

On appeal, defendant does not allege any specific prejudice because of the omitted transcription of exhibits # 83 and # 78. She only raises the lack of transcription as error. Our review of the record indicates that the purposes for which exhibits # 83 and # 78 were admitted were collateral to a determination of defendant's guilt and both tapes were admitted without objection. Under the facts of this case we do not find that reversal is required because the contents of exhibits # 83 and # 78 were not transcribed.

Defendant next assigns error to the circumstances surrounding a re-reading of Knight's preliminary examination testimony to the jury after the jury had retired for deliberation. More particularly, defendant assigns error to the fact that the re-reading of Knight's preliminary examination testimony was not transcribed by the court reporter and to the fact that neither the trial judge nor defense counsel was present during this re-reading.

In analyzing this issue we note at the outset that the trial judge and counsel agreed as to which portions of the preliminary examination testimony were to be re-read to the jury--apparently all of the transcript except for a legal colloquy (which is not specified) by the attorneys at the preliminary examination. Also, although defense counsel was not present at the re-reading (because he was involved in another trial) he did provide for other members of his staff (investigators) to be present at the re-reading. Finally, no objection to any aspect of this procedure was made at the trial level.

For the reasons stated in our analysis of the first issue, we do not find that reversal is required because the preliminary examination testimony was not recorded when re-read to the jury.

As to the absence of the trial judge during the re-reading of the preliminary examination testimony, the general rule is that the judge's absence during a trial will not constitute reversible error unless prejudice has resulted to the defendant. See People v. Morehouse, 328 Mich. 689, 44 N.W.2d 830 (1950), cert. den. 341 U.S. 922, 71 S.Ct. 739, 95 L.Ed. 1355 (1950); People v. Clyburn, 55 Mich.App. 454, 222 N.W.2d 775 (1974). In the instant case, the absence of the trial judge occurred during jury deliberations, during which time the jury was re-read testimony from an available transcript. Defense counsel agreed to the re-reading with knowledge that the trial judge would not be present. On appeal, defendant does not make any specific allegation of prejudice but asserts that the judge was absent during a critical determination of the evidence. In light of trial cou...