People v. Bethea , 65 Mich. App. 375 ( 1975 )

65 Mich. App. 375 (1975) 237 N.W.2d 336

PEOPLE
v.
BETHEA

Docket No. 18158.

Michigan Court of Appeals.

Decided November 10, 1975.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Bruce A. Barton, Prosecuting Attorney, and James M. Justin, Assistant Prosecuting Attorney, for the people.

Jessica R. Cooper, Assistant State Appellate Defender, for defendant.

Before: QUINN, P.J., and D.E. HOLBROOK and D.F. WALSH, JJ.

PER CURIAM.

On April 30, 1973 defendant was found guilty by a jury in Jackson County Circuit Court of manslaughter, MCLA 750.321; MSA 28.553. On May 30, 1973 she was sentenced to a term of from 5 to 15 years in prison.

At trial there was ample evidence introduced showing that defendant fired the shotgun blast which resulted in the victim's death. That evidence was not contested. Defendant entered a defense of insanity, and one of self-defense. Defendant's brief on appeal raises several issues which we now proceed to consider.

I

Was defendant denied a fair trial because of prosecutorial misconduct, namely alleged attempts to elicit inadmissible testimony during the trial, and prejudicial remarks concerning the facts and law of the case made during closing argument?

Upon an examination of the record we find that defendant was not denied a fair trial because of claimed prosecutorial misconduct. The questions asked by the prosecutor of the psychiatrist were not to elicit evidence of guilt, but to examine the basis of defendant's sanity. They were therefore admissible under People v Stevens, 386 Mich. 579; 194 NW2d 370 (1972). Even though the psychiatrist was not asked to testify as to any actual statements made by the accused concerning the crime, we note that even these may be admissible under certain circumstances. People v Schrantz, 50 Mich. App. 227; 213 NW2d 257 (1973). The questions asked by the prosecutor in this case were well within the scope of admissibility. As to the prosecutor's closing argument, we hold that any statements made therein were related to the evidence in the case and therefore proper. People v Berthiaume, 59 Mich. App. 451; 229 NW2d 497 (1975).

II

Were the trial judge's instructions on intent, malice, provocation, insanity, and self-defense erroneous and misleading?

No objection was made to the instructions as given by the trial judge. In the absence of objection, an instruction will not be subject to appellate review, unless a miscarriage of justice occurs. People v McGuire, 39 Mich. App. 308; 197 NW2d 469 (1972), People v Miller, 35 Mich. App. 627; 192 NW2d 517 (1971). We find no miscarriage of justice in the record, and decline further comment upon the objection that defendant's appellate counsel raises for the first time on appeal.

III

Was it error to permit a lay witness to make certain observations concerning defendant's sanity?

The admissibility of the testimony complained of is governed by People v Wright, 58 Mich. App. 735; 228 NW2d 807 (1975), People v Alsteens, 49 Mich. App. 467; 212 NW2d 243 (1973). The record discloses no error, especially in view of the fact that, in addition to the testimony of the lay witness in question, both sides introduced expert testimony on the issue of sanity. The witness in question was sufficiently acquainted with defendant and had an adequate opportunity to observe her. We also point out that his testimony was effectively limited by cross-examination.

IV

Was there sufficient evidence regarding premeditation to bind defendant over for trial on first-degree murder?

Unless a clear abuse of discretion has been demonstrated, neither the trial court nor an appellate court should substitute its judgment for the judgment of an examining magistrate. People v Stinson, 58 Mich. App. 243; 227 NW2d 303 (1975). In the absence of a motion to quash the information prior to arraignment or prior to impanelling the jury, a claim of legally insufficient evidence is not preserved for appellate review. People v Keshishian, 45 Mich. App. 51; 205 NW2d 818 (1973). Nevertheless, we rule that there was sufficient evidence before the examining magistrate from which premeditation could be inferred. We also rule that there was sufficient evidence of premeditation to submit the question to the jury. People v Meier, 47 Mich. App. 179; 209 NW2d 311 (1973).

V

Was defendant denied effective assistance of counsel at trial?

This issue, as raised in this case, is totally frivolous. We mention it only to discourage its overuse. A close examination of the record reveals no mistake of any import by defense counsel. Defendant received an excellent defense below. Perhaps appellate counsel may have done certain things differently had she represented defendant at trial, but that is not grounds for reversal.

We have examined defendant's other allegations of error and find them to be without merit.

Affirmed.