327 N.W.2d 504 | Mich. Ct. App. | 1982
PEOPLE
v.
SMALL
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Robert E. Weiss, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and Edwin R. Brown, Assistant Prosecuting Attorney, for the people.
Carl H. Leiter, for defendant on appeal.
Before: R.B. BURNS, P.J., and MacKENZIE and L.C. ROOT,[*] JJ.
R.B. BURNS, P.J.
Defendant was charged, together with two other men, with committing first-degree felony murder, MCL 750.316; MSA 28.548, first-degree criminal sexual conduct, MCL *445 750.520b(1)(d); MSA 28.788(2)(1)(d), unarmed robbery, MCL 750.530; MSA 28.798, and breaking and entering an occupied dwelling with intent to commit a felony, MCL 750.110; MSA 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 submitted tape-recorded instructions to the jury is a novel question before this Court. However, in Wagner v State, 76 Wis 2d 30; 250 NW2d 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 court-room to replay the instructions if the court deems it necessary. This practice would provide a record *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 NW2d 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 NW2d 338 (1975), People v Rone (On Second Remand), 109 Mich. App. 702, 712; 311 NW2d 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. MCL 768.5; MSA 28.1028. A defendant must affirmatively show inconsistencies or antagonism between the codefendants' defenses. People v Hurst, 396 Mich. 1; 238 NW2d 6 (1976); People v Gunter, 76 Mich. App. 483; 257 NW2d 133 (1977). We find no *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 NW2d 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, MCL 762.7; MSA 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 NW2d 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 NW2d 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. MCL 750.316; MSA 28.548. The statute operates to elevate all murders committed in the perpetration or attempted perpetration of an enumerated felony to first-degree murder. People v Aaron, 409 Mich. 672, 734; 299 NW2d 304 (1980). Defendant need only have acted with malice, defined as an intent to inflict great bodily harm or acting with wanton and willful disregard of the likelihood that his behavior is likely to cause death or great bodily harm. Aaron, supra, 733. Thus, no premeditation is necessary. Accord, People v Wimbush, 45 Mich. App. 42, 47; 205 NW2d 890 (1973), lv den 390 Mich. 770 (1973). The jury was fully instructed on malice, so there is no merit in this issue.
Next defendant claims reversible error occurred when the judge stated that "the prosecution has *448 introduced evidence of statements it claims were made by either one of the defendants". No objection was made to this instruction at the trial. Thus, review is precluded absent manifest injustice. GCR 1963, 516.2; People v Anglin, 111 Mich. App. 268, 285; 314 NW2d 581 (1981). Defendant has failed on appeal to show a manifest injustice in the giving of that instruction. Thus, no relief can be granted on the basis of this issue.
Finally, defendant cites no authority for his claim that transcripts of certain pretrial and bench conferences must be made available for his review. This issue is therefore abandoned. People v Slager, 105 Mich. App. 593, 600; 307 NW2d 376 (1981).
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
