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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v REGINALD DALE LIGHT, Defendant-Appellant.

UNPUBLISHED August 28, 2007

No. 270211 Oakland Circuit Court LC No. 05-204084-FC

Before: Davis, P.J., and Schuette and Borrello, JJ. PER CURIAM. Defendant was charged with felony murder (murder committed in the perpetration of a robbery), MCL 750.316(1)(b), and first-degree premeditated murder, MCL 750.316(1)(a). Following a jury trial, defendant was convicted of felony murder, MCL 750.316(1)(b), and the lesser offense of second-degree murder, MCL 750.317. Defendant was sentenced, as a second habitual offender, MCL 769.10, to life in prison for both convictions. We affirm defendant's conviction and sentence for felony murder, but are mandated to vacate defendant's conviction and sentence for second-degree murder, and remand for correction of the judgment of sentence. This appeal arises from defendant's convictions for the death of Freddie Healey in April 1996. Mr. Healey was found face down on the floor of his clothing store business, with his hands handcuffed behind his back, with multiple stab wounds in his chest, and one incise wound on his neck. In 2004, using technology that was more advanced than the technology that was available in 1996, defendant's DNA was matched to several blood samples taken from the scene on the day Healey's body was discovered. Furthermore, defendant gave statements to police officers implicating himself in the robbery of defendant. At the conclusion of defendant's trial and while the jury was deliberating, the trial court received a note from the jury asking, "If he is found innocent of this, can [sic] be charged with a lesser murder charge or is then [sic] a double-jeopardy in effect?" Defense counsel waived defendant's presence for the purpose of addressing this question and answer. After consulting with the attorneys, the trial judge sent the following note into the jury: Your job is to decide upon the possible verdict presented to you based upon evidence and the instructions. I have given you instructions on the law in this case. Those instructions do not address double jeopardy. That is because that -1-


issue has no bearing on the decision you must make in this case. You must not speculate on what affect, if any, other laws may have on this case. Shortly thereafter, the jury returned with their verdicts. Defendant's first argument is that his constitutional and statutory right to be present during his trial was violated by the giving of a supplemental instruction to the jury outside of his presence. This issue is not properly preserved for review because defense counsel did not object to defendant's absence when the trial judge received a note from the jury and discussed the response with counsel. People v Pipes, 475 Mich 267, 277; 715 NW2d 290 (2006). The record reveals that defense counsel waived his client's presence for the purpose of addressing and answering the question. As such we treat this claim as an unpreserved claim of constitutional error, which are reviewed for plain error. People v Carines, 460 Mich 750, 763-764; 597 NW2d 130 (1999). To avoid forfeiture: 1) an error must have occurred, 2) the error must be clear or obvious, 3) and the error must have affected substantial rights, meaning it affected the outcome of the trial. Id. at 763 (citation omitted). A criminal defendant has a statutory and constitutional right to be present in the courtroom at every stage of his trial where substantial rights might be adversely affected, including during the instructions to the jury. US Const, Am VI; Const 1963, art 1,

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