People v. White, Docket No. 77615

• Decision Date: 06 August 1985
• Docket Number: Docket No. 77615
• Citation: 144 Mich.App. 698,376 N.W.2d 184
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Raynal WHITE, Defendant-Appellant. 144 Mich.App. 698, 376 N.W.2d 184
• Court: Court of Appeal of Michigan — District of US

Page 184

376 N.W.2d 184

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Raynal WHITE, Defendant-Appellant.

Docket No. 77615.

144 Mich.App. 698, 376 N.W.2d 184

Court of Appeals of Michigan.

Submitted March 7, 1985.

Decided Aug. 6, 1985.

Released for Publication Nov. 12, 1985.

[144 MICHAPP 699] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Asst. Pros. Atty., and Margaret G. Hornstein, Asst. Pros. Atty., for the people.

Carl Ziemba, Detroit, for defendant-appellant.

[144 MICHAPP 700] Before ALLEN, P.J., and GRIBBS and GILLESPIE, ^* JJ.

PER CURIAM.

The defendant was found guilty by a jury of first-degree murder and possession of a firearm during the commission of a felony. M.C.L. Sec. 750.316; M.S.A. Sec. 28.548; M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant appeals and presents two questions on appeal. We affirm.

The defendant claims that his constitutional right to an impartial jury was violated when the jury began their deliberations before final arguments and before jury instructions. The defendant cites People v. Hunter, 370 Mich. 262, 121 N.W.2d 442 (1963), in support of his position. In Hunter, the Supreme Court held that it is reversible error to instruct jurors that they can discuss the case as testimony is coming in but that they are to refrain from arriving at a verdict until after all the evidence is in and the jury is instructed on the law. The facts of this case are distinguishable from Hunter. Here, after the jury selection, and prior to opening statements of counsel, the trial judge gave preliminary instructions to the jury, which included a clear instruction on their responsibility not to discuss the case with one another or other persons until it was properly submitted to them. In addition, the court informed the jury that, if they had any questions, they must direct them to the judge in writing and not discuss them with their fellow jurors. The judge further informed the jurors that answers would be given only to those questions which the law allowed him to answer. Prior to closing arguments and jury instructions, ten questions were propounded to the court in writing by the jurors. Defendant infers from the asking of questions that the jury had already [144 MICHAPP 701] begun its deliberations prior to closing arguments and final instructions. If that were a correct inference, the defendant's reliance on Hunter and other cases cited in defendant's brief would be well founded. However, there is no other basis on the record from which one can infer that the jury had actually begun its deliberations except the propounded questions. This Court has previously ruled that the asking of questions by the jury does not prove that jurors discussed the case among themselves, particularly where, as here, the trial court has specifically charged the jurors in its preliminary instructions on the proper procedure to ask questions during the trial and the jurors have, in fact, followed the judge's charge. No inference can be drawn from this record that the jury actually had begun its deliberations or had had any conversations regarding the facts of the case. There is nothing to suggest that the jury was doing anything except following the court's instruction. In the absence of evidence indicating that conversations actually occurred or that defendant was otherwise prejudiced, there is no error. People v. Scott, 55 Mich.App. 739, 223 N.W.2d 330 (1974), Clapham v. Yanga, 102 Mich.App. 47, 300 N.W.2d 727 (1980).

The second issue raised by defendant involves the jury's request during deliberations to hear the testimony of one of the witnesses during the trial. It appears from the record that the procedure in the trial court in this case and in other cases involves a dual system of recording testimony. The official record is a stenotype record and, in addition, the court reporter also electronically records on tape the testimony of witnesses. The court, prior to the jury deliberations, had informed the jury of the dual recording system so they were aware of the taped recording of all testimony. [144 MICHAPP 702] During their deliberations, they specifically requested that the tape of one of the witnesses' testimony be played back to them. In response to the request, the court reporter, prosecutor and defense counsel listened to the tape of the requested testimony and recommended to the judge that the court reporter take the tape and the recording machine into the jury room and play the tape for the jury. The judge agreed to this procedure and, prior to implementing it, he instructed the jury as to the procedure and specifically instructed them that they were not to deliberate or discuss anything with each other during the playing of the tape, that they were not to have any communication whatsoever with the court reporter during the playing of the tape and, finally, that they were not to take any notes, but were merely to sit and listen to the tape from beginning to end.

The prosecutor and defense counsel agreed to the procedure on the record and defense counsel indicated that he had discussed the procedure with the defendant and that the defendant was in agreement with the procedure. The procedure as outlined was carried out and, after the tape was played, the court reporter informed the court that the court's instructions had been followed.

The jury then resumed their deliberations and later returned their guilty verdict. The question that defendant raises is whether the procedure for the playing of the tape to the jury in absence of the trial judge, defense counsel, prosecutor and the defendant deprived the defendant of his constitutional right to due process and a fair trial as well as his constitutional right to assistance of counsel and to be present at all stages of the proceedings against him.

An analysis of this question should start with the rule of People v....