*1 PEOPLE v AUSTIN 16, 1994, Rapids. May at Grand De- Docket No. 143504. Submitted April cided at 9:40 a.m. jury in David N. Austin was convicted a the Charlevoix Court, J., Pajtas, Circuit Richard M. of two counts of first- conduct, following rejection degree criminal sexual court’s plea pursuant guilty a of a that the defendant had оffered prosecutor, plea agreement with the because the was not offering pleas until after the cutoff date for the of such offered scheduling previously contained in the court’s entered order. defendant, separate procеedings, pleaded guilty of After the in being fourth-degree criminal sexual conduct and of an habitual imprisonment he was sentenced to two terms life first-degree criminal sexual conduct convictions and fourth-degree years’ imprisonment for the one to two appealed. sexual conduct conviction. The defendant Appeals The Court of held: procedure apply 1. The rules of civil in criminal cases. MCR 2.401(B)(1)(b)provides may scheduling that a trial court enter a setting processing order- time limitations for the of a case. to enter the had required any guilty plea order that be entered in the order. MCR before the date set forth accept guilty provides that a court refuse to a defendant’s plea "pursuant Despite nonbinding to the rules.” staff suggesting guilty that a court can refuse to a plea only comply fails with the rules in where permitting a trial court to refuse to rule, any applicable including violation of order, properly the failure to with a entered is consistent with the intent of MCR 6.002 that the court rules relating proсedure to criminal "are to be construed to secure administration, simplicity procedure, fairness and unjustifiable expense delay.” elimination of refusing The trial court did not abuse its discretion References 2d, 545, 553; Appeal Am Criminal Law 486. Jur and Error §§ § Error; Law; Appeal Guilty Plea. See ALR Index under Criminal Austin newspaper learning juror grant of a mistrial admitted after defendant, because it is clear article article, only knowledge juror had heard had firsthand article, portion not communicated a small had about jurors, had bаsed had to the other what little he heard *2 rather the contents in the case the evidence decision on prejudiced, Accordingly, was not the defendant the article. properly a to order mistrial. the trial court refused any possibility the that trial cоurt not foreclose 3. The did clearly testimony jury The court have reread it. could transcription of the jury for a that the could wait indicated tape recording testimony, testi- audio of that hear the victims’ testimony. rely memory mony, Be- its collective making jury without а reached a verdict cause rely request, it is that it decided on its collective obvious memory. pursue particular line not to a 4. The defendant determined opportunity questioning to rule had the before the court precluded by concerning questiоning was whether that line of question Accordingly, rape-shield whether law. appeal. rape-shield applicable was not law was prosecutor Although improper it to ask 5. was prosecu- credibility witnesses, resulting questioning any prejudice from that tion сautionary by appropriate instruc- have been cured an could appel- object precludes at the failure to trial tion. late review. proportionate imposed in this were 6. The life sentences case the offenses and the оffender. Remanding trial in order to have 7. this case to the court report presentence challenged is deleted from information expressly it necessary, that stated imposing challenged considering information was not sentence. Affirmed. Doctorоff, C.J., dissenting, con- stated the defendant’s court was without should be reversed because victions refuse the defen- under rules to guilty plea. a The failure to offer accordance dant’s by is not one order entered court a plea. accept guilty fоr which a can refuse a reasons Guilty Scheduling — — — Law Pleas Court Rules Criminal Orders. may order enter a criminal case a A trial op Opinion the Court date;
requiring any guilty plea by particular be made a a guilty plea is offered trial court refuse to a making aftеr the date fixed order for the (MCR 2.401[B][l][b], 6.301[A]). such Credibility Preserving — — — 2. Criminal Law Evidence Ques- tion. improper during It is for a to ask a criminal defendant credibility cross-examination to comment witnesses; question- because the of such ing objection timely cautionary can be cured and a instruction, object questioning precludes the failure to to such appellate review. Kelley, Attorney General, Frank J. L. Thomas Casey, May, General, Solicitor Richard W. Prose- cuting Attorney, Molner, and William E. Assistant Attorney people. General, for thе Appellate Penny (by
State Defender R. Beard- slee), for the defendant on *3 Taylor C.J.,
Before: M. G. Doctoroff, JJ. Harrison,* Following jury trial, defendant was
Taylor, first-degree convicted of two counts of criminal 28.788(2) 750.520b(l)(f); conduct, sexual (l)(f), MCL MSA sexually assaulting thirteen-year-old two girls. Subsequently, pleaded guilty of being offense, an habitual secоnd MCL 28.1082, and, case, 769.10: MSA in an unrelated he pleaded fourth-degree guilty sexual 28.788(5)(l)(a). 750.520e(l)(a); conduct, MCL MSA Defendant was sentenced to two life terms for the first-degree criminal sexual conduct convictions years’ imprisonment and to one to two fourth-degree criminal sexual conduct conviction. appeals right. Defendant as of We affirm. first that * judge, sitting Appeals by assignment. Circuit the Court Opinion of the Court plea agreement reject authority ar- to lacked before and defendant rived at disagree. trial. We accept plea, trial refused to
The disagreement the wisdom of of a agreement only plea, was reached but because day well trial, June which was before one after trial court’s plea May 13, 1991, cutoff date set 11, 1991. of March order 6.301(A), Accоrding may refuse MCR a court to "pursuant plea a defendant’s 6.001(D) provides the rules rules.” MCR procedure apply Further, cases. to criminal civil 2.401(B)(1)(b) that a MCR establishes trial setting limita- enter a order time Reading processing tions for the of a case. together, сlear the trial court had rules it is into that was entered forth in the order. after date set 2.401(B)(1)(b). MCR interpretation MCR note that this harmony is in with MCR which these rules "are to be construed
states procedure, simplicity fairness in adminis- of secure unjustifiable tration, ex- and the elimination pense delay.” Furthermore, this construction 6.301(A) recognizes au- MCR court’s thority Dowell, its docket. See control In this 554; reached a defendant and agreement day trial, more one one before May 1991, The 13, cutoff date. after the month defendant’s trial court’s refusal agreement control, its eliminated enhanced docket *4 expense delay, unjustifiable was, there- proper. fore, interpretation asserts that our 6.301(A) com- staff
MCR is not accord with 209 Mich Opinion op the Court suggests A, ment to subrule which that a trial rejеct court has no unless the 6.301(B) plea requires consent, the court’s MCR (C), comply or the fails to with rules Although 6.300. the staff comments great interpreting are of rules, assistance they dispositive meaning are "not on the Michigan Martin, Webster, the rules.” Dean & p Practicе, Court Rules hi. Because we believe the construction advanced in the staff comment comport MCR does not with the directive adopt articulated in MCR we decline it. court, discretion, We hold that a trial in its that fails to applicable court rules.
Defеndant next denying abused its discretion in his motion for a juror mistrial after a admitted he learned of a newspaper regarding article defendant. We dis- agree. jurors exposed newspaper
When have been they articles in which are involved, defendant, оther acts of the controlling consideration is whether there has been to the defendant. If there has been prejudice, the defendant is not entitled People Flinnon, new trial or a mistrial. 78 App 380, 391; In this prejudiced juror defendant was not when one be- inadvertently portion came aware of a small newspaper contents of a article defen- juror newspaper dant. The did not read the article firsthand, did not communicate the contents of the jurors, article to the other and based his decision in the case on all of the evidence rather solely newspaper on the contents of the article. Accordingly, we conclude that the trial court did *5 569 Opinion of the Court denying defendant’s its in not abuse discretion motion for a mistrial. argument the defendant’s requiring reversal fore- error
court committed testimony rereading closing any possibility jurors during See Rob- deliberations. the bins, App 616; 347 NW2d Contrary assertion, trial court the to defendant’s jury possibility of the review- not the did ing transcripts. foreclose requested jury tran- After the gave scripts testimony, the the victims’ options. jury informed the three The court the (1) jury hours for the court it wait two could: requested transcript reporter produce (2) testimony, listen to three hours’ testi- worth (3) tape recording, mony use the on an audio memory try jury’s recall thе collective important requested testimony. parts The jury judge gave at 2:08 instructions to jury p.m. jury returned to the room and The then p.m. jurors Evidently 3:32 a verdict at reached memory rely their collective con- decided to testimony. The court’s articula- strue victims’ possibility options tion of the did foreclose rereading testimony. jury Id. at argues that trial court Defendant invoking rape-shield abused its discretion 28.788(10), 750.520j; law, to exclude MSA MCL to fabricate a victim’s motive evidence charges failing an in-camera hear- hold ing constitutional ramifications consider the this issue decline to address exclusion. We appeal. preserved for it has not been Despite failure to defendant’s requirement, rape-shield statute’s notice hearing the rele- in-camera to determine held аn vance of evidence and whether such evidence 750.520j(2); MSA MCL would be admissible. Opinion of the Court 28.788(10)(2). However, the court did not rule on admissibility the dant of this evidence because defen- pursue ques-
stated, "I will not this line of tioning, your Honor.” Because the court did not admissibility rulе on evidence, of this the issue has not been that the committed requiring repeatedly requiring
error reversal *6 credibility defendant of each of the to comment prosecution’s disagree. witnesses. We object prose- Because defendant failed to to the questiоns, cutor’s this issue has not been appeal. Accordingly, appellate for allegedly improper review of these by prosecutor remarks is precluded unless failure to review the issue would miscarriage justice. People result in a v Gon- App zales, 526, 178 Mich 534-535; 228 NW2d 444 (1989). Supreme Our Court has stated that it is im- proper for a to ask a defendant credibility People Buckey, 1, witnesses. v 424 17; Mich 378 (1985). NW2d 432 Like defendant in this Buckey defendant failed to raise in objection urged court the Court stated that a Id. at 18. The
timely objection by defense any prejudice, by counsel could have cured either precluding questioning, by causing such giving appropriate cautionary of an instruc- Buckey tion. Id. Court, Like the we fail to discern by questions. how defendant was harmed Id. Any possible at 17. in this case could request hаve been cured for a curative in- struction. we hold that no miscar- riage justice would result from our failure to review this issue. argues
Defendant next imposing abused its discretion in the maximum People 571 by Doctoroff, Dissent disagree. Because law. We authorized sentence sentencing an is habitual defendant apply. Cutchall, guidelines v 200 not do (1993). App 396, 409-410; 666 504 NW2d Mich Nevertheless, must an offender’s sentence habitual proportionality. principle Peo (1990); ple 1 Milbourn, 650; 461 Mich NW2d v 435 342, 463 Finstrom, 345-346; v (1990). his Given defendant’s NW2d tory psychological impact these crimes victims, that the sentences had on the imposed we conclude proportionate and the to the offenses were offender.
Finally, is entitled he in order to have chal- case remanded have the lenged presentence from deleted information light report. find this error harmless express on the record trial court’s statement passing the information was considered People Fisher, 4; n sentence. Affirmed. *7 J.,
M. G. Harrison, concurred. (dissenting). respectfully I dis- C.J. Doctoroff, Michigan Supreme for the reason that sent Court ment through clearly indicated, the staff com- has 6.301(A), to MCR that a trial reject only pleas not in those that are conformance subchapter remaining provisions 6.300, with Pleas. Because there allegations are no agreement violated evidence i.e., court rules in accuracy, lacked voluntariness was without agreement into entered day trial. I would reverse before
defendant on by Doctoroff, Dissent defendant’s convictions and remand to the trial guilty plea court for the entrance of a in confor- plea agreement mance with the and for resentenc- ing.