People v. Small

• Decision Date: 06 January 1983
• Docket Number: Docket No. 55478
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fletcher Darnell SMALL, Defendant-Appellant. 120 Mich.App. 442, 327 N.W.2d 504
• Court: Court of Appeal of Michigan — District of US

Page 504

327 N.W.2d 504

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fletcher Darnell SMALL, Defendant-Appellant.

Docket No. 55478.

120 Mich.App. 442, 327 N.W.2d 504

Court of Appeals of Michigan.

Submitted June 2, 1982.

Decided Oct. 18, 1982.

Released for Publication Jan. 6, 1983.

[120 MICHAPP 444] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert E. Weiss, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., and Edwin R. Brown, Asst. Pros. Atty., for the People.

Carl H. Leiter, Flint, for defendant-appellant.

Before R.B. BURNS, P.J., and MacKENZIE and ROOT ^*, JJ.

R.B. BURNS, Presiding Judge.

Defendant was charged, together with two other men, with committing first-degree felony murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, first-degree criminal sexual conduct, M.C.L. Sec. [120 MICHAPP 445] 750.520b(1)(d); M.S.A. Sec. 28.788(2)(1)(d), unarmed robbery, M.C.L. Sec. 750.530; M.S.A. Sec. 28.798, and breaking and entering an occupied dwelling with intent to commit a felony, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305. Defendant and a codefendant were convicted of first-degree felony murder following a jury trial. The third individual was tried separately and convicted of felony murder.

Defendant's conviction arose out of a brutal and bizarre attack on an 86-year-old woman. Defendant and his companions entered the victim's home before 1 a.m. on May 17, 1980, where they beat, tortured, and sexually abused her for nearly four hours. Two days later the victim died. Defendant raises five issues on appeal, none of which merit reversal.

Defendant first claims that the trial court erred when it submitted tape-recorded instructions to the jury for use in deliberations and that part of the instructions were not reproduced on the tape. The propriety of submitting tape-recorded instructions to the jury is a novel question before this Court. However, in Wagner v. State, 76 Wis.2d 30, 250 N.W.2d 331 (1977), the Supreme Court of Wisconsin upheld a trial court's contemporaneous tape recording of the jury charge for the jury's use in the jury room over the defendant's objection. We agree with the Supreme Court of Wisconsin that such a practice is not to be encouraged, but that it did not constitute reversible error. The better practice, if the trial court is faced with voluminous instructions and considers it too burdensome to repeat them, would be to contemporaneously tape-record the instructions when given in open court, then call the jury back into the courtroom to replay the instructions if the court deems it necessary. This practice would provide a record [120 MICHAPP 446] of the specific purpose to which the tape recordings were applied.

Defendant claims that different portions of the charge may be emphasized in the jurors' minds, and that the requirement that they consider the charge as a whole is not met when the jury may play back portions of the instructions in the jury room. However, a reasonable analogy can be made to written instructions, which certainly pose the same potential problem. In People v. Medrano, 101 Mich.App. 577, 583-584, 300 N.W.2d 636 (1980), we found no error in the trial court's use of written instructions where the defendant made no showing that the original oral instructions were faulty. In the instant case, defendant is unable to demonstrate any prejudice from the tape-recorded instructions. Therefore, no error can be found.

Regarding the alleged missing portions of the tape, the record reflects that the unrecorded remarks were only introductory statements made by the trial judge. The purpose of instructions is to enable the jury to understand and apply the law to the facts of the case. People v. Lambert, 395 Mich. 296, 304, 235 N.W.2d 338 (1975), People v. Rone (On Second Remand), 109 Mich.App. 702, 212, 311 N.W.2d 835 (1981). The judge's introductory remarks, therefore, were not crucial, and no error resulted based on their absence.

Defendant next claims that the trial court erroneously denied his motion for a separate trial. The decision to grant or deny such a motion is vested by statute in the trial court's discretion. M.C.L. Sec. 768.5; M.S.A. Sec. 28.1028. A defendant must affirmatively show inconsistencies or antagonism between the codefendants' defenses. People v. Hurst, 396 Mich. 1, 238 N.W.2d 6 (1976); People v. Gunter, 76 Mich.App. 483, 257 N.W.2d 133 (1977). We find no [120 MICHAPP 447] abuse of discretion here, especially because defendant was unable at trial to demonstrate any prejudice which would result from a joint trial. People v. Kramer, 108 Mich.App. 240, 256, 310 N.W.2d 347 (1981).

Defendant next claims that the trial court abused its discretion in denying his motion for a change of venue. Statutory authority provides for such a change, M.C.L. Sec. 762.7; M.S.A. Sec. 28.850, but the decision of the trial court will not be overruled on appeal absent a clear abuse of discretion. People v. Prast, 105 Mich.App. 744, 747, 307 N.W.2d 719 (1981). Defendant cannot meet his burden of showing that the jurors had any preconceived opinions regarding his guilt. People v. Marsh, 108 Mich.App. 659, 669, 311 N.W.2d 130 (1981). Thus, no abuse of discretion is evident.

Defendant also alleges that the trial court failed to instruct the jury on premeditation. However, premeditation is not an element of first-degree felony murder. M.C.L. Sec. 750.316; ...