Opinion
Docket No. 30999.
Decided May 9, 1978. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Gerald D. Lostracco, Prosecuting Attorney, for the people.
Reid Reid, P.C. (by Joseph D. Reid and Lawrence J. Emery), for defendant.
Before: BASHARA, P.J., and M.J. KELLY and ALLEN, JJ.
Defendant appeals his conviction by a jury of first-degree felony murder, MCL 750.316; MSA 28.548, and two counts of assault with intent to murder, MCL 750.83; MSA 28.278. Evidence was introduced by the prosecution to show that the charges arose from the perpetration of a larceny by defendant and his wife.
While stopped at a gas station, defendant's wife went into the station and took money from the cash register. In their attempt to escape, defendant and his wife were subdued by the station owner. He took them back into the station and telephoned the sheriff's office for assistance.
Other persons had gathered inside the station as a result of the disturbance. Before the sheriff arrived, defendant obtained a gun from his wife. According to the testimony of those in the station, defendant displayed the weapon and threatened to use it if anyone attempted to stop his escape. Unfortunately, someone made such an attempt. The resulting gunfire left one person dead and two others wounded.
Defendant contends that he should not have been bound over for trial because there was insufficient evidence presented at the preliminary examination as to his intent to kill. It is unnecessary to entangle ourselves in the differing perspectives of this Court on the mens rea element of felony murder. We find that the foregoing witness testimony as to defendant's demeanor at the station, which was presented at the preliminary examination, was sufficient to establish the requisite elements of the charge under either People v Till, 80 Mich. App. 16; 263 N.W.2d 586 (1977), or People v Fountain, 71 Mich. App. 491; 248 N.W.2d 589 (1976). See People v Paille #2, 383 Mich. 621; 178 N.W.2d 465 (1970), People v Carr, 370 Mich. 251; 121 N.W.2d 449 (1963).
After the selection of the jury, but prior to the presentation of any evidence, defense counsel learned that one of the jurors was acquainted with an investigating officer who was to testify at trial. A voir dire of that juror was held in camera with the prosecutor, defendant, and defense counsel present. The juror explained the nature of that acquaintance and unequivocally disavowed that it would influence her determination of the case. Defense counsel expressed his satisfaction in allowing the juror to continue as a member of the jury.
At the conclusion of the trial the juror greeted the officer in question with an embrace. Thereafter, defendant made a motion for new trial on the grounds of juror misconduct, which was denied. Defendant claims that the motion should have been granted, since his right to a jury trial was prejudiced by the participation of a biased juror.
Claims of juror misconduct or bias are entitled to the strictest scrutiny, because of the significant character of the right to trial by an impartial jury. Even against such a standard, however, we are unable to discern any impairment of this valuable right under the instant circumstances. The testifying officer was formerly employed and resided at the farm of the juror's parents. She saw him only on the occasion of visits to her parents' home. The juror's affirmation of her impartiality leads us to conclude that the trial judge, who was in a superior position to observe her demeanor on voir dire, made a proper ruling. See United States v Russo, 480 F.2d 1228 (CA 6, 1973), cert den, 414 U.S. 1157; 94 S Ct 915; 39 L Ed 2d 109 (1974).
The testimony of one of the assault victims was introduced at trial by means of a video taped deposition taken at the hospital where the witness was confined for treatment of his injuries. Defendant objected to its admission on the grounds that the hospital setting made it unduly prejudicial. The claim of undue prejudice and irregularities in the deposition procedure specified in GCR 1963, 315 are urged on appeal.
Notably, defendant does not contend that the deposition contained inaccuracies or alterations or that it introduced inadmissible material into evidence. Consequently, we will not find it to be inadmissible merely because the procedures outlined by the court rule were not followed with absolute precision. Those procedures are designed to assure the substantive integrity of the deposition and will not form a basis for contending prejudicial error, absent some allegation challenging that integrity.
Here, the defendant and defense counsel were present at the taking of the deposition. The objections made during the deposition were ruled upon by the trial court, and inadmissible material was excluded. As to the hospital environment, the trial court concluded that any resulting prejudice was significantly outweighed by the substantive value of the testimony and the importance in affording the jury an opportunity to observe the witness's demeanor. We do not find an abuse of discretion in that ruling.
Defendant's remaining contentions warrant no further discussion than to state that they are without merit on the basis of the record presented.
Affirmed.