People v. Rhinehart

245 N.W.2d 763, 70 Mich. App. 390, 1976 Mich. App. LEXIS 860

• Court: Michigan Court of Appeals
• Decided: August 3, 1976
• Docket: Docket 23013, 23533
• Status: Published

Opinions

Bashara, P. J.

We adopt the facts from the dissenting opinion and concur that defendant Rhinehart’s conviction must be reversed because the trial judge erroneously submitted the issue of entrapment to the jury.

However, we disagree that the conviction of defendant Pente should be reversed. Although Pente had initially requested an instruction on duress, the trial judge indicated on the record that the attorneys and the court had reached an agreement that Pente’s requested instruction would not be given. No objection was made on the trial court’s failure to give any instruction on duress. The issue was not preserved for appeal and we will not reverse where ho miscarriage of justice is shown. MCLA 769.26; MSA 28.1096.

The reading of the information and applicable statute by the trial judge constitutes a sufficient instruction to the jury on the basic elements of the offense charged. People v Kruper, 340 Mich 114, 122-123; 64 NW2d 629 (1954), People v Cardenas, 21 Mich App 636; 176 NW2d 447 (1970), lv den, 383 Mich 820 (1970). The jury was clearly instructed on Pente’s theory of duress. We can only conclude that the jury, if it believed Pente, understood that if Pente was coerced to act, he could not have the mens rea to commit the crime in question.

The defendant erroneously argues that the prosecutor’s opening statement made an improper reference to a prior narcotics sale made by the defendant. Such evidence was admissable in the prosecutor’s case in chief to show motive, intent or a common scheme or plan. MCLA 768.27; MSA 28.1050, People v Valoppi, 61 Mich App 470; 233 NW2d 41 (1975), People v Wood, 44 Mich App 99; 205 NW2d 66 (1972), lv den 390 Mich 758 (1973). The probative value of the evidence outweighed its prejudice to the defendant. People v DerMartzex, 390 Mich 410; 213 NW2d 97 (1973), People v Spillman, 63 Mich App 256; 234 NW2d 475 (1975).

Defendant further assigns a number of errors to the instructions given by the trial judge. The failure to object to the instructions precludes reversal unless it affirmatively appears that the errors complained of resulted in a miscarriage of justice. MCLA 769.26; MSA 28.1096; GCR 1963, 516.2. Our review of the record and instructions as a whole discloses no miscarriage of justice. People v Hammack, 63 Mich App 87; 234 NW2d 415 (1975), People v Sanford, 65 Mich App 101; 237 NW2d 201 (1975), People v Timothy Washington, 43 Mich App 150; 203 NW2d 744 (1972).

Defendant’s final contention is that the trial judge, by his own subsequent admission, was not sufficiently apprised of the nature of the narcotic involved to intelligently pass sentence. We agree.

Pente was sentenced on the morning of November 15, 1974. Later that day co-defendant Rhine-hart was scheduled to be sentenced. At Rhine-hart’s sentencing the court indicated it did not have a complete report on phencyclidine and suggested postponing sentencing two weeks. If the trial judge believed he was incapable of intelligently passing sentence on Rhinehart because of lack of knowledge of phencyclidine, the same infirmity would apply to Pente. Accordingly, we remand for resentencing of Pente by a different judge.

The conviction of Rhinehart is reversed. The conviction of Pente is affirmed and remanded for resentencing.

D. F. Walsh, J., concurred.