People v. Blachura

265 N.W.2d 348, 81 Mich. App. 399, 1978 Mich. App. LEXIS 2142

• Court: Michigan Court of Appeals
• Decided: February 22, 1978
• Docket: Docket 29403
• Status: Published

Opinions

Allen, J.

We agree with all of Judge Holbrook, Jr.’s dissenting opinion except his ultimate conclusion that the defendant’s conviction must be reversed because the trial judge allowed his court clerk to read the defendant’s theory of the case to the jury. We agree that error occurred, but believe the error was harmless. People v Robinson, 386 Mich 551; 194 NW2d 709 (1972), MCLA 769.26; MSA 28.1096, GCR 1963, 529.1.

It is not error per se to allow the clerk to read some or all of the instructions when the judge is experiencing voice problems. At least two circuit judges in Michigan have undergone throat surgery or are handicapped by voice problems and have their clerks read all of the instructions. In the present case, there is no evidence that the trial judge was not in fact suffering from a severe cold which affected his voice. Finding that he could not continue, he might have taken a brief recess until he recovered. In retrospect, that would have been the preferred course. Alternatively, he might have allowed his clerk to read some other portion of the instructions, and we would probably not find error. The problem, as Judge Holbrook, Jr., points out, is that he selected the worst possible moment to defer to his clerk. For that reason, we must agree that the judge erred.

However, the trial judge carefully explained to the jury the reason for the substitution and cautioned them that the instructions should be accepted as if he had read them. Further, the court instructed the clerk to "sound like me”. Under these circumstances we cannot believe the trial judge was sub silentio signaling the jury that the defendant’s theory was to be given little weight. And review of the record convinces us beyond a reasonable doubt that — in this case — the result would have been the same even if the disputed procedure had not been followed. People v Robinson, supra.

Defendant raises three issues which Judge Holbrook, Jr., correctly felt required no discussion because of his finding of reversible error on the question discussed above. We refer to defendant’s issues II, III and VI.¹ In People v Blachura, 396 ; 242 NW2d 390 (1976), the Supreme Court dismissed defendant’s appeal of this Court’s decision in People v Blachura, 59 Mich App 664; 229 NW2d 877 (1975). We are precluded from going further on issue II. As to issue VI, the alleged error occurred when the grand jury foreman, in response to a question by the prosecutor, testified as to why the grand jury called the defendant.

"Q. (By Mr. Newcomer, continuing): Mr. Reynolds, can you tell us why you felt that the line of questioning that you asked Mr. Blachura was material to the inquiry regarding the Drain Commission Office?

"A. Yes. At that point in time I think we had a conflict in the minds of the jurors whether in fact Mr. Barry and Mr. Nicholes had an interest in the M-59 property.

"MR. NEWCOMER: I have no further questions.”

This three-line response by the foreman does not violate MCLA 767.19; MSA 28.959 when that statute is literally read. Assuming, arguendo, that the foreman’s response violated the spirit of the statute, viz.: total protective secrecy of the grand jury proceedings, we find such error harmless. Cf. People v Kert, 304 Mich 148; 7 NW2d 251 (1943).

Issue III, while not demanding reversal of defendant’s conviction, does require remanding to the trial court for further findings as to costs. As a condition of defendant’s probation, defendant was required to "pay costs in the amount of $1,000 for each count, or a total of $5,000”. Under MCLA 771.3; MSA 28.1133, the trial court had the power to assess costs. But costs must bear a reasonable relationship to the expenses of prosecution. People v Teasdale, 335 Mich 1; 55 NW2d 149 (1952), People v Barber, 14 Mich App 395; 165 NW2d 608 (1968). In the instant case there is no indication that the costs levied were reasonably related to the expense of the prosecution. On this issue the record is blank. Therefore, this cause is remanded for findings with regard to the taxed costs. In all other respects, the defendant’s conviction and sentence is affirmed.

Affirmed and remanded in accordance with this opinion.

D. R. Freeman, J., concurred.

1 The three issues are stated in defendant’s brief as follows:

"II. Whether this court erred when in People v Blachura, 59 Mich App 664 (1975), it reversed the trial court’s discretionary grant of a motion for a new trial?”

“III. Whether the trial court erred in taxing costs in the amount of $5,000.00 against Leon Blachura when the amount bears no reasonable relationship to the true expense of the prosecution?”

“VI. Whether the trial court committed reversible error by allowing the foreman of the grand jury to testify to an opinion expressed by the individual members of the grand jury, in violation of MCLA 767.19; MSA 28.959?”