People v. Williams , 47 Mich. App. 392 ( 1973 )

47 Mich. App. 392 (1973) 209 N.W.2d 471

PEOPLE
v.
WILLIAMS

Docket No. 14045.

Michigan Court of Appeals.

Decided May 24, 1973.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Leonard Meyers, Assistant Prosecuting Attorney, for the people.

Robert F. Mitchell, Jr., and Thomas J. Olejnik, for defendant on appeal.

Before: V.J. BRENNAN, P.J., and DANHOF and BASHARA, JJ.

V.J. BRENNAN, P.J.

Defendant was charged with assault with intent to murder (MCLA 750.83; MSA 28.278) and convicted by a jury in the Wayne County Circuit Court of assault with intent to commit great bodily harm less than murder (MCLA 750.84; MSA 28.279). She appeals as of right and raises two arguments.

Her first argument is that her conviction is void because it is based on a jury verdict which has no legal meaning. When the court asked the foreman of the jury for their verdict, he responded as follows:

"We find the defendant guilty of a lesser charge of assault with felonious intent — with the intent to do great bodily harm."

The trial court then proceeded to clarify the verdict of the jury. He established that their verdict was in fact that defendant was guilty of assault with intent to do great bodily harm less than murder. The trial court also polled the jury to verify the verdict. In a similar situation, this Court recently held as follows:

"The verdict of the jury has to be clear. It is a matter of right that a defendant have a proper record made of the exact offense of which he has been convicted. People v Stuart, 274 Mich. 246 (1936). In circumstances where the foreman's statement of the jury's decision is not clear, the trial court has an obligation to ascertain the real verdict of the jury. Rabior v Kelley, 194 Mich. 107 (1916); Standard Oil Co. v Gonser, 331 Mich. 29 (1951). The trial court's questioning of the foreman simply clarified the verdict. People v Fleish, 306 Mich. 8 (1943); People v Jenkins, 23 Mich. App. 39 (1970). The jury was properly polled. We find no prejudicial error." People v Holliday, 44 Mich. App. 210, 216 (1972).

We likewise find no prejudicial error.

Defendant's second argument is that she was denied her right to counsel at a "critical stage" of the proceedings in that her attorney waived his presence at the time the verdict was returned because his presence was required in another courtroom. While in one sense of the word, the verdict is the most "critical" portion of the trial, we do not feel defendant's argument is well taken. We have held that a "critical stage",

"* * * is understood to mean prosecutorial activity which has some effect on the determination of guilt or innocence which could properly be avoided, or mitigated, by the presence of counsel." People v Killebrew, 16 Mich. App. 624, 627 (1969).

While the absence of counsel is not a practice we would encourage, we find no prejudicial error requiring a reversal on the facts of this case.

Affirmed.

All concurred.