326 N.W.2d 514 | Mich. Ct. App. | 1982
PEOPLE
v.
WASHINGTON
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Peter D. Houk, Prosecuting Attorney, Janis L. Bough, Chief Appellate Attorney, and Susan K. Marshall, Assistant Prosecuting Attorney, for the people.
P.E. Bennett, Assistant State Appellate Defender, for defendant on appeal.
Before: M.J. KELLY, P.J., and M.F. CAVANAGH and P.R. JOSLYN,[*] JJ.
PER CURIAM.
Defendant was convicted by a jury of breaking and entering a motor vehicle with the intent to steal property having a value of not less than $5, MCL 750.356a; MSA 28.588(1). Defendant was also convicted in a nonjury trial of being an habitual offender, MCL 769.12; MSA 28.1084. He was sentenced to from 2-1/2 to 20 years in prison. Defendant appeals as of right.
During its deliberations the jury requested eight photographs which were used at a photographic *375 showup when the complainant originally identified defendant. Subsequently, the court informed counsel:
"We had one question from the jury, the question read, as follows: `May we see the eight male pictures that were used to question.'
"I instructed the court bailiff to tell the jury that they were not exhibits, were not part of the record, and were not evidence, and they could not have them. And that was the instruction given, gentlemen."
Neither counsel objected.
In People v Cain, 409 Mich. 858; 294 NW2d 692 (1980), rev'g 94 Mich. App. 644; 288 NW2d 465 (1980), the Supreme Court reaffirmed the strict rule prohibiting any communication with the jury outside of the courtroom and the presence of counsel while the jury is deliberating.
In Cain, the following occurred during deliberations:
"[T]here was a knock on the jury room door. The bailiff answered the door and was handed a note. In the note the jury asked whether the verdict had to be unanimous. The bailiff took the note to the judge who read it and told the bailiff to tell the jurors that their verdict had to be unanimous. The bailiff returned to the jury room, knocked on the door and opened it. Standing in the doorway, not entering the jury room, he told the jurors that their verdict had to be unanimous." People v Cain, 94 Mich. App. 644, 645; 288 NW2d 465 (1980).
The Supreme Court held this to be reversible error.
Being bound by the doctrine of stare decisis, Hutson v Royal Oak, 28 Mich. App. 393, 395; 184 NW2d 558 (1970), we reverse defendant's conviction and remand for a new trial.
*376 Defendant also contends that the trial court abused its discretion in ruling that evidence of two of defendant's five prior convictions would be admissible at defendant's trial. The decision to allow impeachment by evidence of prior convictions is within the discretion of the court, People v Jackson, 391 Mich. 323; 217 NW2d 22 (1974), and the rule envisions a balancing of the competing factors outlined in People v Crawford, 83 Mich. App. 35; 268 NW2d 275 (1978). On retrial the court shall articulate the factors considered in making a determination on the admissibility of evidence of defendant's convictions in accordance with MRE 609(a)(2).
Defendant's motion for peremptory reversal is denied as being moot.
Reversed and remanded.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
