People v. Bell, Docket No. 153710

• Decision Date: 07 March 1995
• Docket Number: Docket No. 153710
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark Lamont BELL, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 167

530 N.W.2d 167

209 Mich.App. 273

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark Lamont BELL, Defendant-Appellant.

Docket No. 153710.

Court of Appeals of Michigan.

Submitted Dec. 15, 1994, at Detroit.

Decided March 7, 1995, at 9:20 a.m.

Released for Publication April 17, 1995.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Brian T. Moody, Asst. Pros. Atty., for the People.

Rose Mary C. Robinson, Detroit, for defendant on appeal.

Before CORRIGAN, P.J., and MARK J. CAVANAGH and ROOT, ^* JJ.

PER CURIAM.

Defendant was convicted of first-degree felony murder, M.C.L. § 750.316; M.S.A. § 28.548, and assault with intent to do great bodily harm less than murder, M.C.L. § 750.84; M.S.A. § 28.279, following a third jury trial, the first trial having been declared a mistrial and the second having been declared a partial mistrial. He was sentenced to prison terms of life without parole for the murder conviction, five to ten years for the assault conviction, and two years (to be served consecutively) for his conviction at his second trial of possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). Defendant appeals as of right and we affirm.

First, defendant contends that he was denied his right to a fair trial by the substitution of a judge during jury deliberations.

The original judge, Judge John A. Murphy, presided over jury selection, opening statements, the trial, closing arguments, and the charging of the jury. Judge Murphy also reinstructed the jury as requested. Then, Judge James R. Chylinski substituted for Judge Murphy, who was ill, and he twice reinstructed the jury pursuant to their requests for clarification.

MCR 6.440(A) provides for the substitution of a judge during a jury trial:

If, by reason of death, sickness, or other disability, the judge before whom a jury trial has commenced is unable to continue with the trial, another judge regularly sitting in or assigned to the court, on certification of having become familiar with the record of the trial, may proceed with and complete the trial. [Emphasis added.]

In the present case, the record does not reflect that Judge Chylinski had familiarized himself with the details of the trial. While it is clear that an off-the-record discussion was held, it is not at all clear that the object of that discussion was the court's familiarization with the facts of the case. Hence, it appears that the court rule was not complied with.

Automatic reversals are not favored, however. People v. McCline, 442 Mich. 127, 134, n. 10, 499 N.W.2d 341 (1993). In that case, a new judge was substituted after jury selection but before opening arguments or the introduction of any testimony, although the original judge was not disabled. Our Supreme Court held that, because the defendant failed to demonstrate prejudice, the substitution constituted harmless error. We, therefore, must next determine whether the error was harmless in the present case.

Defendant asserts that he was prejudiced because Judge Chylinski's second reinstruction of the jury omitted the element of malice required to support the murder element of a felony-murder conviction. We disagree.

Jury instructions are to be read as a whole rather than extracted piecemeal to establish error. People v. Dabish, 181 Mich.App. 469, 478, 450 N.W.2d 44 (1989). Even if somewhat imperfect, there is no error if the instructions fairly presented the issues to be tried and sufficiently protected the defendant's rights. People v. Wolford, 189 Mich.App. 478, 481, 473 N.W.2d 767 (1991).

Judge Murphy twice, and Judge Chylinski once, correctly instructed the jury that, to be found guilty of felony murder, defendant must have acted with the intent to kill, or to do great bodily harm, or knowingly created a very high risk of death or great bodily harm knowing that death or such harm was the likely result of his actions. CJI2d 16.4(3); People v. Aaron, 409 Mich. 672, 733, 299 N.W.2d 304 (1980). Then, in response to the jury's request for clarification of whether, to prove felony murder, it is necessary that the victim of the felony and the murder victim be one and the same, Judge Chylinski gave the following example:

I could be in a bank robbing the tellers, and all of a sudden the door opens and here comes some person to do bank business, and if I turn around and shoot that person and kill them, that killing would be in the perpetration of a robbery.

That example contains no reference to the perpetrator's intent. However, it was not incumbent upon Judge Chylinski to reiterate the malice requirement, because that element already had been explained at length and it was not the subject of the jury's request for clarification.

When read as a whole, the instructions given in this case by both judges fairly presented the issues and sufficiently protected defendant's rights. Wolford, supra; Dabish, supra.

Thus, defendant has failed to demonstrate that he was prejudiced by the substitution, which took place only after the jury had already been instructed at length by the judge who presided over the trial. Accordingly, any lack of familiarity with the record on Judge Chylinski's part does not warrant reversal. See McCline, supra.

Next, we reject defendant's assertion that the evidence was insufficient to convict him of felony murder. Viewed in a light most favorable to the prosecution, the evidence was sufficient to justify a rational trier of fact in finding guilt beyond a reasonable doubt. People v. Wolfe, 440 Mich. 508, 513, 489 N.W.2d 748 (1992). In particular, there was circumstantial evidence to support the inference that defendant intended to commit armed robbery at the time the homicide occurred. People v. Brannon, 194 Mich.App. 121, 125, 486 N.W.2d 83 (1992); People v. Reddick, 187 Mich.App. 547, 551, 468 N.W.2d 278 (1991); People v. Bowers, 136 Mich.App. 284, 297, 356 N.W.2d 618 (1984).

Defendant's argument that the trial court should have ascertained on the record whether he intelligently and knowingly waived his right to testify is without merit. The court has no such duty. People v. Harris, 190 Mich.App. 652, 661-662, 476 N.W.2d 767 (1991).

We also reject defendant's contention that he was prejudiced by the court's failure to conduct a Wade ¹ hearing regarding identification. Defendant has presented no evidence that his identification was, as he claims, "tainted by suggestive and impermissible pretrial procedures."

Next, we find no merit to defendant's claim that the venire was tainted by prejudicial questioning relating to the prospective jurors' experiences as crime victims. First, the questioning was necessary to determine whether a prospective juror should be excused. See People v. Tyburski, 196 Mich.App. 576, 581, 494 N.W.2d 20 (1992), aff'd 445 Mich. 606, 518 N.W.2d 441 (1994); People v. Taylor, 195 Mich.App. 57, 59, 489 N.W.2d 99 (1992). Secondly, defendant himself used the information elicited to reach conclusions regarding juror impartiality.

Defendant's next assertion, that the prosecutor exceeded the scope of voir dire, is unpreserved for review, in light of defendant's failure to object, his expression of satisfaction with the...