PEOPLE OF MI V PEDRO FERNANDEZ
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 2, 1998
Plaintiff-Appellee,
v
No. 200980
Lenawee Circuit Court
LC No. 96-006914 FH
PEDRO FERNANDEZ,
Defendant-Appellant.
Before: Murphy, P.J., and Gribbs and Gage, JJ.
PER CURIAM.
Defendant appeals as of right from his jury trial conviction of felonious assault, MCL 750.82;
MSA 28.277. Defendant was sentenced to two to six years’ imprisonment. We affirm.
Defendant first argues that the trial court should have sua sponte instructed the jury on the use of
non-deadly force in self-defense, CJI2d 7.22. We disagree. Jury instructions are reviewed by this
Court in their entirety to determine whether the trial court committed error requiring reversal. People v
Piper, 223 Mich App 642, 648; 567 NW2d 483 (1997). Jury instructions must be read as a whole
rather than extracted piecemeal to establish error. Even if somewhat imperfect, jury instructions do not
create error if they fairly presented the issues for trial and sufficiently protected the defendant's rights.
Id. Here, in the absence of an objection or request for CJI2d 7.22, the trial court did not err by failing
to sua sponte give that instruction. Defendant's rights were adequately protected by the general self
defense instruction given by the trial court regarding the use of deadly force. The trial court fairly
presented to the jury the issues for trial and sufficiently protected defendant’s rights. Piper, supra at
648.
Alternatively, defendant argues that he was denied effective assistance of counsel by trial
counsel's failure to object to the instructions as given or to request the instruction on non-deadly force in
self-defense. We decline to review this argument because it was not identified in defendant’s statement
of questions presented. MCR 7.212(C)(5); People v Yarger, 193 Mich App 532, 540 n 3; 485
NW2d 119 (1992). In any case, we are satisfied that defendant is not entitled to relief regarding this
claim. People v Poole, 218 Mich App 702, 717-718; 555 NW2d 485 (1996).
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Defendant next argues the trial court committed two evidentiary errors which require reversal.
We disagree as to both issues. Whether to admit evidence is within the sound discretion of the trial
court and will not be disturbed on appeal absent an abuse of discretion. People v Lugo, 214 Mich
App 699, 709; 542 NW2d 921 (1995). Reversal may not be predicated on an erroneous evidentiary
ruling unless a substantial right was affected. MRE 103(a); People v Travis, 443 Mich 668, 686; 505
NW2d 563 (1993).
There is no merit to defendant’s claim that, when the trial court precluded testimony by inmate
Jones about the availability of weapons in prison, defendant was denied his right to present a defense.
Defendant testified that Rodriguez had a weapon and that defendant was afraid. However, Jones did
not see Rodriguez with a weapon and testified that he had never actually seen an inmate with a weapon.
Thus, Jones’ testimony was not relevant to whether defendant honestly and reasonably believed
Rodriguez would kill or seriously injure him at the time of the incident. Therefore, testimony regarding
the availability of weapons in prison was properly excluded and defendant was not denied his right to
present a defense.
Nor did the trial court err when it admitted evidence of an out-of-court statement of another
inmate. Here, the alleged hearsay was Rodriguez’ testimony of statements made to him by Garcia
indicating that defendant had a weapon. The testimony was offered to show the effect of the statements
on Rodriguez and his subsequent actions in response to the statements, namely, walking toward a prison
guard. Such a statement, offered to show the effect of the statement on the hearer, is not hearsay and
was properly admitted. People v Flaherty, 165 Mich App 113, 122-123; 418 NW2d 695 (1987);
People v Eggleston, 148 Mich App 494, 502; 384 NW2d 811 (1986). Further, the trial court gave a
cautionary instruction concerning the proper use of the challenged testimony.
In addition, the evidence that defendant had a weapon was clearly established during trial by
defendant’s own testimony on direct examination. Therefore, Rodriguez’ testimony was cumulative and
any evidentiary error on this issue would be harmless beyond a reasonable doubt. Flaherty, supra at
165 Mich App 123.
Affirmed.
/s/ William B. Murphy
/s/ Roman S. Gribbs
/s/ Hilda R. Gage
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