People v. Clyburn

• Decision Date: 11 September 1974
• Docket Number: Docket No. 18347,No. 1,1
• Citation: 55 Mich.App. 454,222 N.W.2d 775
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Wesley CLYBURN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 775

222 N.W.2d 775

55 Mich.App. 454

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Wesley CLYBURN, Defendant-Appellant.

Docket No. 18347.

Court of Appeals of Michigan, Division No. 1.

Sept. 11, 1974.

Released for Publication Nov. 8, 1974.

D. Michael Kratchman, Kratchman & Kratchman, P.C., Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Brian D. Marzec, Asst. Pros. Atty., for plaintiff-appellee.

Before BASHARA, P.J., and DANHOF and CHURCHILL,* JJ.

DANHOF, Judge.

Defendant was tried jointly with a codefendant before a jury. He was convicted of breaking and entering with intent to commit larceny, M.C.L.A. § 750.110; M.S.A. § 28.305, and sentenced to 5 to 10 years in prison. He appeals raising a number of issues which relate primarily to certain procedural aspects of his trial. We affirm.

I

On the second day of trial, one of the jurors informed the court that he was acquainted with defendant Clyburn's father. The juror explained that he was not made aware of this association until he got a telephone call from the defendant's uncle on the preceding evening. The court suggested to the juror that it might be best if he were removed from the jury, and the juror replied, 'I would rather be off of it'. Defendant's trial counsel and the defendant himself affirmatively stated on the record that they had no objection to the juror's removal. The juror was discharged and the defendant expressed his gratitude that this action had been taken. Now, defendant's appellate counsel contends that the trial court erred by excluding this juror because the information revealed by him did not constitute sufficient grounds for a successful challenge for cause.

An appellate court will hesitate to interfere with the trial court's exercise of its discretion in dismissing a juror when the reason for doing so is discovered after the jury is impaneled. The trial court is in a better position to investigate and pass upon the juror's qualifications. People v. Anglin, 6 Mich.App. 666, 674, 150 N.W.2d 532, 536 (1967), lv. den. 379 Mich. 780 (1967). The trial court's discretion is not unlimited; 'But error does not necessarily follow when the court, through abundance of caution to secure an impartial jury excuses a juror on ground not technically sufficient to support a challenge for cause, as it would in retaining one who is challenged and ought to have been rejected'. Church v. Stoldt, 215 Mich. 469, 475, 184 N.W. 469, 471 (1921).

If it is assumed that even under this standard the dismissal was improper because the grounds for a challenge for cause were insufficient, defendant's conviction will not be reversed unless it can be shown that he was prejudiced thereby. People v. Fowler, 104 Mich. 449, 451, 62 N.W. 572, 573 (1895); See v. Misfeldt, 1 Mich.App. 675, 679, 137 N.W.2d 753, 755 (1965), lv. den. 377 Mich. 702 (1966). Defendant in the case at bar cannot show that he was prejudiced; he agreed to the procedure followed by the trial court. 'On this record it is held that defendant consented to dismissal of the juror, and therefore will not be heard in contention of error'. Brandt v. Munz, 250 Mich. 172, 175, 229 N.W. 463, 464 (1930).

II

Following dismissal of the juror, the prosecution presented the rest of its case which included substantial evidence of the defendant's guilt and about which no issue is directly raised on this appeal. The defense opened with the testimony of defendant Clyburn. His counsel sought to examine defendant concerning his prior criminal convictions, a trial strategy often followed by defense attorneys who believe it less damaging to present this information to the jury before the prosecution does so in cross-examination. Defendant's responses to these questions made reference to prior juvenile offenses. The trial judge prevented further testimony concerning defendant's juvenile record, and later he assisted defense counsel in formulating a question which elicited information about a second adult conviction but which avoided discussion of any of defendant's transgressions as a minor.

On appeal, defendant contends that the court compelled his trial counsel to reveal the second conviction to the jury thereby depriving him of a fair trial. The record does not support the defendant's contention. The trial judge exerted no compulsion, he merely protected the record while aiding defense counsel in an attempt to clarify matters previously disclosed to the jury. The trial court did not depart from that standard of judicial impartiality which protects a defendant's right to a fair trial. People v. Watson, 52 Mich.App. 211, 215, 217 N.W.2d 121, 123 (1974).

III

Twice during the proceedings the trial judge absented himself from the courtroom. Defendant argues that reversible error was committed on both occasions. We do not agree.

The first absence occurred while the testimony of 3 witnesses was being read to the jury in response to their request made after they had begun deliberations. The trial judge asked the defendant and his counsel whether or not they had any objection to his remaining in chambers to attend to other court business while the reporter read the testimony. Defendant and his lawyer positively stated that they had no objection.

The trial judge also absented himself during the second day of jury deliberations to attend a funeral. He explained to all parties that he had arranged for another judge to take the verdict if one was reached during his absence. Again, the defendant and his attorney agreed to proceed under these circumstances. During the trial judge's absence, the jury did in fact reach a verdict which was taken by a substitute circuit court judge.

Despite express agreement to both absences, defendant now alleges error constituting grounds for reversing his conviction. These absences did not occur during the taking of evidence or the arguments of counsel. Although the presence of the judge in the courtroom while the trial is in progress is to be expected, his absence, even during more critical stages of the trial than those under consideration here, will not constitute reversible error unless it clearly appears that prejudice to the defendant has resulted. People v. Morehouse, 328 Mich. 689, 692, 44 N.W.2d 830, 832 (1950), cert. den. 341 U.S. 922, 71 S.Ct. 739, 95 L.Ed. 1355; People v. Margelis, 246 Mich. 459, 224 N.W. 605 (1929); People v. Kimbrough, 193 Mich. 330, 159 N.W. 533 (1916). Under the facts of this case, we do not find prejudice to the defendant; rather, we find waiver of any objection. State Highway Commissioner v. Gulf Oil Corp., 377 Mich. 309, 314, 140 N.W.2d 500, 502--503 (1966).

IV

In response to a note from the jury indicating that they had reached a verdict as to defendant Clyburn, but not as to his codefendant, a meeting...