Opinion
Docket Nos. 14433, 14434.
Decided September 27, 1973. Leave to appeal denied, 391 Mich. 792.
Appeal from Livingston, Paul R. Mahinske, J. Submitted Division 2 June 6, 1973, at Detroit. (Docket Nos. 14433, 14434.) Decided September 27, 1973. Leave to appeal denied, 391 Mich. 792.
Thurman Justice and William C. Skelding were convicted of breaking and entering with intent to commit larceny. Defendants appeal. Affirmed and defendant Justice's sentence modified.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Thomas J. Kizer, Jr., Prosecuting Attorney, for the people.
Lawrence R. Greene, for defendants on appeal.
Defendants, William C. Skelding and Thurman Justice, were charged with breaking and entering with intent to commit larceny. MCLA 750.110; MSA 28.305. On April 15, 1972, a jury found both defendants guilty. On May 9, 1972, defendant Skelding was sentenced to serve 2-1/2 to 10 years and defendant Justice was sentenced to serve 7-1/2 to 10 years.
Defendant Skelding raises a single issue in this appeal: Is it reversible error when the trial court fails to instruct the jurors sua sponte that they might ask questions of the witnesses?
Defendant Skelding first complains that a preliminary instruction to the jurors by the court was a statement that the jurors had no right to question witnesses. The instruction read:
"So that we can understand each other also, do not engage any of us in any conversation during the lunch recess or breaks, overnight recesses, any of that business."
We disagree. The clear import of this statement by the trial judge was that everything pertaining to the trial had to take place in the courtroom. The trial court was explaining that no discussion of the proceedings was to take place during recesses outside the courtroom.
Defendant relies on People v Heard, 388 Mich. 182, 188; 200 N.W.2d 73, 76 (1972), which held inter alia:
"We hold that the questioning of witnesses by jurors, and the method of submission of such questions, rests in the sound discretion of the trial court. The trial judge may permit such questioning if he wishes, and we hold that it was error for the judge to rule that under no circumstances might a juror ask any questions." (Emphasis supplied.)
Heard, supra, only stated that it was error to instruct the jurors that questions were totally precluded. Defendant Skelding never requested the court to permit questions nor did he object at trial to the statement complained of on this appeal. Both the questioning and the method of submission of the questions are matters within the sound discretion of the trial court. There is no requirement in Heard requiring that the court sua sponte instruct the jurors of the possibility of questions. The defendant who wishes a jury appraised of this possibility may invoke the court's discretion by request. We find no error.
Defendant Justice contends that the trial court should have directed a verdict of not guilty by reason of insanity, that the prosecutor improperly introduced evidence of defendant's prior criminal record, and that his sentence of 7-1/2 to 10 years is in violation of the guidelines set forth in People v Tanner, 387 Mich. 683; 199 N.W.2d 202 (1972).
Our careful review of the entire record and transcript discloses conflicting evidence upon the issue of sanity. Viewing this evidence in the light most favorable to the prosecution we find sufficient evidence to present a question for the jury. See People v Stoddard, 48 Mich. App. 440; 210 N.W.2d 470 (1973); People v English, 29 Mich. App. 36; 185 N.W.2d 139 (1970), leave den, 384 Mich. 823 (1971). The jury decided the question of sanity adverse to defendant and we find no error.
A careful reading in context of the testimony of defendant's psychiatric expert discloses no impermissible reference to prior convictions. The psychiatrist first indicated that defendant was a psychopathic person and then described such a person as constantly and frequently in trouble. The prosecutor did not ask any questions pertaining to prior convictions. The prosecutor simply asked if the psychiatrist was aware of the background of the defendant in terms of previous activity. This information was relevant to support the psychiatrist's description of defendant as a person constantly in trouble. The questions and answers in this situation cannot be construed as improper questions pertaining to prior convictions of the defendant.
The convictions of defendant Skelding and Justice are affirmed.
Defendant Justice's contention that his sentence of 7-1/2 to 10 years violates the guidelines in Tanner, supra, is correct. The issue has been properly preserved for review, People v Montgomery, 43 Mich. App. 205; 204 N.W.2d 82 (1972).
Pursuant to GCR 1963, 820.1(7), the minimum sentence heretofore imposed is set aside. People v Tanner, supra. The minimum sentence is corrected to provide for a minimum of six years and eight months.
Convictions affirmed. Defendant Justice's sentence modified.