People v. Heard, Docket No. 8120

• Decision Date: 22 March 1971
• Docket Number: No. 1,Docket No. 8120,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert HEARD, Jr., Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 24

188 N.W.2d 24

31 Mich.App. 439

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert HEARD, Jr., Defendant-Appellant.

Docket No. 8120.

Court of Appeals of Michigan, Division No. 1.

March 22, 1971.

Released for Publication June 29, 1971.

Charles Burke, Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Angelo A. Pentolino, Asst. Pros. Atty., for appellee.

Before V. J. BRENNAN, P.J., and FITZGERALD and LEVIN, JJ.

FITZGERALD, Judge.

Defendant was convicted of first degree murder ¹ and on appeal contends that his trial was only a notch better than the Dreyfus trial. Virtually nothing transpired which is not claimed to be error and the brief on appeal yields 15 issues (two of which are identical) and argues an estimated 11.

argument (by counsel other than the trial counsel and preparer of the brief), an attempt was made to reduce the matters to specificity. While many issues still remain somewhat arcane, we proceed to explore and resolve the most nearly meritorious.

The defendant first contends that under GCR 1963, 510.3(2), jury questionnaires must be kept in the courtroom during Voir dire. It appears that in recorder's court at the time of the trial, the questionnaires were kept in the jury commission office. Counsel contends that he has no way of knowing in advance from which group the jury will be selected. Therefore, if he goes to the jury commission office before Voir dire, he will have to check many more questionnaires than he would if they were kept in the courtroom.

Other than the court rule, counsel cites no authority. The rule provides:

'The attorneys shall be given a reasonable time to examine the questionnaires before being called upon to challenge for cause.'

While it might be better practice or more convenient to have the questionnaires in the courtroom, counsel did have access to them. They were available in the jury commission office before Voir dire began. Also, the trial court gave counsel time to go to the jury commission office during Voir dire. Presently, the questionnaires are kept in the building, considerably more accessible. The process at time of trial did not deprive the defendant of a reasonable opportunity to examine the questionnaires during the Voir dire and, while perhaps cumbersome, resulted in no prejudice.

The defendant further contends that it was error for the trial court to rule that the jury could not question the witness. In his opening statement, counsel for the defendant told the jury that they could submit written questions. The prosecution objected and the trial court ruled that the jury could not submit questions. The following colloquy took place:

Mr. Pillon: The Judge sits here as a referee and passes upon points of law, he makes sure we stay within our bounds, and he determines the issues, questions of law. But who decides the question of fact? You do. You decide if this occurred, what day it occurred, who did it, and everything else; because you decide questions of fact. Since that is so, let me say this to you: We lawyers get busy in a trial lots of times. We don't try to deliberately avoid anything when we have witnesses on the stand. We want you to hear all of it. But sometimes in trial of a case the prosecution or defense forgets to ask a witness something or overlooks something.

'Now, you are the trier of the facts; if there's some question that is disturbing you about some witness, and you would like to ask that witness a question, raise your hand--just raise your hand, and we will have you write it out on a piece of paper. If the Judge thinks it's a proper question, we will ask the question of the witness; because you are the trier of the facts, and you have the right to do that, as the Judge when he's the trier of the facts.'

'Mr. Lacey: I object, your Honor; this is argument. It hasn't been a proper opening statement. Now Mr. Pillon is attempting to control the exercise of this courtroom in a manner which I have never seen.

'The Court: I was going to ask Mr. Pillon his authority on that. I've never heard of that before.

'Mr. Lacey: I've never heard of that.

'Mr. Pillon: There's an English case on that.

'The Court: How old is it?

'Mr. Pillon: I don't know.

'The Court: Give me the citation. There's no case in the American jurisprudence to allow a juror to ask questions. I don't want a statement like that from any attorney.

'Mr. Pillon: I will put it right now on the record. I can see you and I are having a disagreement. When you are the trier of the fact, you ask questions of the witnesses. The jury has the same--

'The Court: This is a new theory of law in America.

'Mr. Pillon: I've done it before in Recorder's Court.

'The Court: Do you know any case anywhere in the United States--in the fifty states--or federal jurisdiction that permits this?

'Mr. Pillon: I will try and bring you back a citation after the lunch hour.'

There does not appear to be any Michigan authority on this question nor did the English case materialize after lunch. When the question has arisen, the practice has often been disapproved of and it is usually held to be within the discretion of the trial court. See Annot. 159 ALR 374.

The defendant also argues that it was error for the trial court to take the exhibits into the jury room. After ruling that the exhibits could go into the jury room, the trial court personally delivered them to the jury. Counsel for the defendant was aware of this:

(Proceedings held outside the presence and hearing of the jury.)

'The Court: Let the record reflect that all exhibits, with the exception of People's Exhibit No. 3, the wallet, and People's Exhibit No. 5, the Polish News, have been given to the jury, including Defense Exhibits A through D.

'Mr. Pillon: Let the record further show that the jury did not request these exhibits, that the Judge decided to give these exhibits to the jury and took them into the jury room himself and tendered them to the jury.

'I think that is an improper procedure; I think that jurors have to ask for them.'

Counsel now contends that the judge may have said something to the jury that was prejudicial. Since he was aware of what happened, he should have explored this question in the trial court. It was, indeed, improper for the court in the absence of the parties and their counsel to communicate with the jury after it had retired to consider its verdict, but the record reveals no manifest injustice by the brief delivery of the exhibits to the jury.

The defendant...