Defendant was convicted of first-degree felony murder, MCL 750.316; MSA 28.548, and assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, following a third jury trial, the first trial having been declared a mistrial and the second having been declared a partial mistrial. He was sentenced to prison terms of life without parole for the murder conviction, five to ten years for the assault conviction, and two years (to be served consecutively) for his conviction at his second trial of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant appeals as of right and we affirm.
First, defendant contends that he was denied his right to a fair trial by the substitution of a judge during jury deliberations.
The original judge, Judge John A. Murphy, pre
MCR 6.440(A) provides for the substitution of a judge during a jury trial:
If, by reason of death, sickness, or other disability, the judge before whom a jury trial has commenced is unable to continue with the trial, another judge regularly sitting in or assigned to the court, on certification of having become familiar with the record of the trial, may proceed with and complete the trial. [Emphasis added.]
In the present case, the record does not reflect that Judge Chylinski had familiarized himself with the details of the trial. While it is clear that an off-the-record discussion was held, it is not at all clear that the object of that discussion was the court’s familiarization with the facts of the case. Hence, it appears that the court rule was not complied with.
Automatic reversals are not favored, however.
People v McCline,
Defendant asserts that he was prejudiced because Judge Chylinski’s second reinstruction of the jury omitted the element of malice required to
Jury instructions are to be read as a whole rather than extracted piecemeal to establish error.
People v Dabish,
Judge Murphy twice, and Judge Chylinski once, correctly instructed the jury that, to be found guilty of felony murder, defendant must have acted with the intent to kill, or to do great bodily harm, or knowingly created a very high risk of death or great bodily harm knowing that death or such harm was the likely result of his actions. CJI2d 16.4(3);
People v Aaron,
I could be in a bank robbing the tellers, and all of a sudden the door opens and here comes some person to do bank business, and if I turn around and shoot that person and kill them, that killing would be in the perpetration of a robbery.
That example contains no reference to the perpetrator’s intent. However, it was not incumbent upon Judge Chylinski to reiterate the malice requirement, because that element already had been explained at length and it was not the subject of the jury’s request for clarification.
When read as a whole, the instructions given in this case by both judges fairly presented the issues
Thus, defendant has failed to demonstrate that he was prejudiced by the substitution, which took place only after the jury had already been instructed at length by the judge who presided over the trial. Accordingly, any lack of familiarity with the record on Judge Chylinski’s part does not warrant reversal. See McCline, supra.
Next, we reject defendant’s assertion that the evidence was insufficient to convict him of felony murder. Viewed in a light most favorable to the prosecution, the evidence was sufficient to justify a rational trier of fact in finding guilt beyond a reasonable doubt.
People v Wolfe,
Defendant’s argument that the trial court should have ascertained on the record whether he intelligently and knowingly waived his right to testify is without merit. The court has no such duty.
People v Harris,
We also reject defendant’s contention that he was prejudiced by the court’s failure to conduct a Wade 1 hearing regarding identification. Defendant has presented no evidence that his identification was, as he claims, "tainted by suggestive and impermissible pretrial procedures.”
Next, we find no merit to defendant’s claim that
Defendant’s next assertion, that the prosecutor exceeded the scope of voir dire, is unpreserved for review, in light of defendant’s failure to object, his expression of satisfaction with the jury, and his failure to demonstrate prejudice.
People v White,
Next, defendant argues that the court did not clearly and fully define the concepts of the burden of proof and reasonable doubt. Considered as a whole, however, the jury instructions were adequate to protect defendant’s rights. Wolford, supra; Dabish, supra.
Finally, defendant contends that the state lacked jurisdiction to prosecute him because more than 180 days elapsed between his second and third trials, citing MCL 780.131; MSA 28.969(1) and MCR 6.004(D). He alleges that the delay amounted to approximately 209 days.
The 180-day rule does not require trial to be commenced within 180 days, but obligates the prosecution to take good-faith action during the 180-day period and thereafter to proceed to ready the case against the prison inmate for trial.
People v Crawford,
Moreover, the purpose, of the 180-day rule is to dispose of untried charges against prison inmates so that sentences may run concurrently.
People v Smith,
We conclude that the 180-day rule .was not violated and that the court did not lose jurisdiction to try defendant.
Affirmed.
Notes
United States v Wade,