People v. Rodriguez

103 Mich. App. 161 | Mich. Ct. App. | 1981

Lead Opinion

R. H. Campbell, J.

Defendant was charged with first-degree murder, contrary to MCL 750.316; MSA 28.548. On October 23, 1979, he was convicted of second-degree murder, contrary to MCL 750.317; MSA 28.549. He was sentenced to a term of life imprisonment and appeals as of right.

At the close of the prosecution’s proofs, the trial court instructed the jury to pay close attention because, "this Judge is not inclined after you go into deliberation to have testimony read back in any way”. On appeal, defendant contends that the instruction resulted in reversible error. We agree. See People v Howe, 392 Mich 670; 221 NW2d 350 (1974), and People v Smith, 396 Mich 109; 240 NW2d 202 (1976).

Defendant also contends that the trial court erred in denying defense counsel’s motion for a forensic center evaluation to determine the issue of defendant’s competency to stand trial. Since a review of the record indicates that the trial court did not exercise its discretion in summarily denying defendant’s motion, we find reversible error. People v Farmer, 53 Mich App 133; 218 NW2d 836 (1974), MCL 330.2020; MSA 14.800(1020), GCR 1963, 786.2(b), 786.3(a).

Since defendant’s other claim of error, that the prosecutor erred in eliciting certain rebuttal testimony, was not objected to at trial, the issue has not been preserved for appellate review.

Reversed and remanded for a new trial consistent with this opinion.

T. M. Burns, J., concurred.

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Dissenting Opinion

M. F. Cavanagh, P.J.

(dissenting). I must respectfully dissent from my brothers’ conclusion that defendant’s conviction must be reversed.

I do not read the trial court’s statement to the jury as foreclosing the opportunity for the jury to have testimony reread. In both People v Howe, 392 Mich 670; 221 NW2d 350 (1974), and People v Smith, 396 Mich 109; 240 NW2d 202 (1976), the trial judge completely foreclosed the opportunity of having testimony reread. That is not the case here. This comment did not completely foreclose the opportunity, came at the close of the people’s proofs and not at the time the jury was instructed, and clearly was intended to impress upon the jurors the importance of their paying attention to the testimony.

As to the competency motion, I do not consider the defendant’s responses of 'T can’t remember”, and "No comment”, and his midtrial statement that the victim may have had a gun, which surprised his attorney, to be sufficient to render the defendant incompetent, that is, "incapable * * * of assisting in his defense in a rational or reasonable manner”. MCL 767.27a; MSA 28.966(11). The defendant had been .found competent in two previous evaluations. I find no abuse of discretion in the trial court’s denial of the motion. People v Nelson Johnson, 58 Mich App 473; 228 NW2d 429 (1975).

As I find no merit in the third issue raised on appeal, I would affirm.