PEOPLE OF MI V ROBERT ALLEN DRISCOLL
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
February 5, 2009
Plaintiff-Appellee,
v
No. 281468
Cheboygan Circuit Court
LC No. 07-003622-FH
ROBERT ALLEN DRISCOLL,
Defendant-Appellant.
Before: Talbot, P.J., and Bandstra and Gleicher, JJ.
PER CURIAM.
Defendant appeals as of right his jury trial convictions of larceny in a building, MCL
750.360, stealing or retaining a financial transaction device, MCL 750.157n(1), and possession
or control of another’s financial transaction device with intent to use, deliver, circulate, or sell,
MCL 750.157p. Defendant was sentenced as a third habitual offender, MCL 769.11, to
concurrent prison terms of 25 months to 8 years for each conviction. We affirm. This appeal has
been decided without oral argument pursuant to MCR 7.214(E).
I. Factual History
On February 1, 2007, defendant and David Hayes walked to a bar in Cheboygan to drink
beer and shoot pool. They stopped along the way so that Hayes could withdraw $40 from an
ATM machine. While at the bar, Hayes returned from the restroom to find that defendant was
gone. Later that night, Hayes discovered that his checkbook, which contained his ATM card and
PIN number, was missing. A surveillance photo of a nearby ATM machine revealed defendant
using Hayes’s ATM card to withdraw $100 at approximately 11:21 p.m., while Hayes was still at
the bar.
Defendant argues that the trial court denied him a fair trial by permitting a juror to ask an
inappropriate question and by answering the question in a prejudicial manner. He also contends
that the trial court erred by allowing the prosecutor to communicate directly with the juror, and
that the prosecutor committed misconduct by doing so. Specifically, defendant challenges the
following dialogue, which transpired between the juror, the trial court, and the prosecutor:
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THE COURT: Okay. Thank you.
Then the next phase of the case, since the evidence is now completed, would be
the closing arguments of counsel and -JUROR MCENEANY: Could I ask a question?
THE COURT: Okay.
JUROR MCENEANY: On one of the pictures of Robert it only showed one side.
I’m just curious if the side that they showed if he’s got a tattoo on that side, too –
on the right side.
THE COURT: Well, the evidence is in. There is [sic] pictures –
JUROR MCENEANY: Could he turn his head?
THE COURT: Well, I think there is pictures in that were taken on February 8th
and you’re going to have to just base it on what’s in.
JUROR MCENEANY: Okay.
THE COURT: I understand what you’re saying.
JUROR MCENEANY: And that ATM place I just seen one side.
THE COURT: Okay. Okay.
Mr. Kaiser, on behalf of the People?
MR. KAISER: Thank you, Your Honor.
I guess I can’t ignore the most recent question from the juror. People’s 10, which
is the photograph that Officer Hartman said he got from live scan would show you
the right side of the defendant’s neck.
JUROR MCENEANY: Oh, okay. That’s an actual picture of what he’s got on his
neck right now.
MR. KAISER: I can’t get into that.
THE COURT: I guess we can’t do a dialogue here. He’s doing closing argument.
I understand it’s a natural tendency to want to do that.
MR. KAISER: Officer Hartman did testify that these photos were generated, I
think, in early April of this year.
JUROR MCENEANY: Okay.
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II. Standard of Review
Because defendant failed to object to any of these alleged errors in the trial court, our
review is limited to plain error affecting his substantial rights. People v Carines, 460 Mich 750,
763, 774; 597 NW2d 130 (1999). Consequently, defendant must demonstrate that error
occurred, that the error was plain, and that it affected the outcome of the lower court proceeding.
Id.
III. Analysis
In support of defendant’s argument that the trial court denied him a fair trial by allowing
the juror’s question, he relies on MCR 6.414(E), which provides:
The court may, in its discretion, permit the jurors to ask questions of
witnesses. If the court permits jurors to ask questions, it must employ a procedure
that ensures that inappropriate questions are not asked, and that the parties have
the opportunity to object to the questions.
As an initial matter, we note that defendant’s reliance on this provision is misplaced because it
clearly pertains to the questioning of witnesses. Here, the juror did not ask a question of a
witness. Rather, the juror posed the question immediately before closing arguments, after the
proofs had been presented, and no witness was testifying at the time. It is unclear from the
record to whom the question was directed. Thus, MCR 6.414(E) lacks applicability here.
A trial court has wide discretion regarding the conduct of trial. People v Conley, 270
Mich App 301, 307; 715 NW2d 377 (2006). To demonstrate trial court bias against a defendant,
the record should be reviewed as a whole, and portions of the record should not be taken out of
context. People v Paquette, 214 Mich App 336, 340; 543 NW2d 342 (1995). A trial court’s
conduct pierces the veil of judicial impartiality, thereby denying the defendant a fair and
impartial trial, where its conduct or comments unduly influence the jury. Id.
A review of the record demonstrates that the trial court properly exercised its discretion
in responding to the juror’s question. The challenged verbal exchange reveals that the trial court
did not anticipate the juror’s inquiry and responded appropriately by directing the juror to rely on
the evidence that had been admitted. The trial court’s response to the question did not prejudice
defendant. In addition, the trial court did not permit the prosecutor to communicate directly with
the juror, as defendant contends. Rather, after the court responded to the juror’s question, the
court asked the prosecutor to begin his closing argument. At the beginning of his argument, the
prosecutor directed the jury to the particular exhibit that answered the juror’s question, and the
juror interjected by posing another question. At that point, the trial court again properly
exercised its discretion and informed the juror that it could not allow a dialogue. The prosecutor
then resumed his closing argument. The record shows that the trial court responded
appropriately, and that its conduct and comments did not prejudice defendant or unduly influence
the jury. Paquette, supra at 340.
Defendant also contends that the prosecutor committed misconduct by communicating
directly with the juror who asked the question. However, the record does not support this
contention and, to the contrary, shows that the prosecutor did not communicate directly with the
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juror. Rather, the prosecutor merely identified, at the beginning of his closing argument, which
exhibit was responsive to the juror’s question. The prosecutor’s statement was not directed to
the individual juror as evidenced by the trial court’s response to the juror’s second inquiry. The
court remarked that it could not allow a dialogue and that the prosecutor was attempting to give
his closing argument. Thus, the record does not support defendant’s contention that the
prosecutor committed misconduct by communicating directly with the juror.
Defendant next argues that trial counsel’s failure to object to the juror’s question and
alleged prosecutorial misconduct denied him the effective assistance of counsel. Because
defendant failed to raise this issue in a motion for a new trial or evidentiary hearing1 in the trial
court, and this Court denied his motion to remand, our review is limited to errors apparent on the
record. People v Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004).
As previously discussed, the trial court properly responded to the juror’s questions and
the prosecutor did not communicate directly with the juror in pointing out which exhibit
answered the juror’s first inquiry. Thus, defendant has not established prejudice because the
result of the proceeding would not have been different had defense counsel objected. People v
Toma, 462 Mich 281, 302-303; 613 NW2d 694 (2000). Further, counsel cannot be deemed
ineffective for failing to make futile objections. People v Ackerman, 257 Mich App 434, 455;
669 NW2d 818 (2003).
Affirmed.
/s/ Michael J. Talbot
/s/ Richard A. Bandstra
/s/ Elizabeth L. Gleicher
1
See, People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
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