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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v SIDNEY DARRIEL MARTIN, Defendant-Appellant.

UNPUBLISHED October 24, 2000

No. 217559 Ingham Circuit Court LC No. 98-073178-FH

Before: Wilder, P.J., and Smolenski and Whitbeck, JJ. PER CURIAM. Defendant was convicted by a jury of first-degree criminal sexual conduct, MCL 750.520b(1)(a); MSA 28.788(2)(1)(a). Defendant received a sentence of 15 to 30 years' imprisonment. He appeals as of right from his conviction. We affirm. Defendant first argues that the prosecutor's questioning of potential jurors during voir dire denied defendant an impartial jury. During voir dire, the prosecutor asked the potential jurors if they or any of their family were members of the Michigan Militia. Because defense counsel did not object to the prosecutor's question at trial, defendant raises this issue for the first time on appeal. Where a defendant fails to timely and specifically object to a prosecutor's allegedly improper conduct, this Court will only review the defendant's claim for plain error. People v Schutte, 240 Mich App 713, 720; 613 NW2d 370 (2000). Further, "[n]o error requiring reversal will be found if the prejudicial effect of the prosecutor's comments could have been cured by a timely instruction." Id. at 721. Defendant argues that the prosecutor's question implied that defendant was a member of the Michigan Militia, and therefore biased the jury against him. Our review of the record reveals no indication that the prosecutor's question biased the jury. Rather, we believe that the prosecutor's question was legitimately posed to discern jury bias. "The purpose of voir dire is to elicit enough information for development of a rational basis for excluding those who are not impartial from the jury." People v Tyburski, 445 Mich 606, 618; 518 NW2d 441 (1994). We conclude that no plain error occurred. Even if we accepted defendant's argument that the prosecutor's question was improper, any error could have been cured by a timely instruction. Therefore, defendant is not entitled to relief on this issue.

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Defendant next argues that the trial court committed error requiring reversal by utilizing electronically pre-recorded jury instructions. Because defense counsel failed to object to the jury instructions at trial, the alleged error is unpreserved, and we review this issue for plain error. People v Carines, 460 Mich 750, 764-765; 597 NW2d 130 (1999). "To avoid forfeiture under the plain error rule, three requirements must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, 3) and the plain error affected substantial rights." Id. at 763, citing United States v Olano, 507 US 725, 731-734; 113 S Ct 1770; 123 L Ed 2d 508 (1993). Defendant argues that this Court has strongly disapproved the use of electronically recorded jury instructions, citing People v Cavanaugh, 127 Mich App 632, 641-643; 339 NW2d 509 (1983) and People v Small, 120 Mich App 442, 445-446; 327 NW2d 504 (1982). However, defendant fails to acknowledge two separate court rules, effective on September 1, 1998, which expressly permit a trial court to provide electronically recorded instructions during jury deliberations. MCR 2.516(B)(5); MCR 6.414(G). Because the case law on which defendant relies pre-dates the adoption of these court rules, we do not find that authority controlling here. Instead, we must examine the language of the court rules to determine whether the trial court committed error requiring reversal. MCR 2.516(B)(5) provides: Either on the request of a party or on the court's own motion, the court may provide the jury with (a) a full set of written instructions, (b) a full set of electronically recorded instructions, or (c) a partial set of written or recorded instructions if the jury asks for clarification or restatement of a particular instruction or instructions or if the parties agree that a partial set may be provided and agree on the portions to be provided. If it does so, the court must ensure that such instructions are made a part of the record. [Emphasis added.] Further, MCR 6.414(G) provides: The court may permit the jury, on retiring to deliberate, to take into the jury room a writing, other than the charging document, setting forth the elements of the charges against the defendant and any exhibits and writings admitted into evidence. On the request of a party or on its own initiative, the court may provide the jury with a full set of written instructions, a full set of electronically recorded instructions, or a partial set of written or recorded instructions if the jury asks for clarification or restatement of a particular instruction or instructions or if the parties agree that a partial set may be provided and agree on the portions to be provided. If it does so, the court must ensure that such instructions are made a part of the record. [Emphasis added.]

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Neither rule expressly addresses whether the trial court may pre-record instructions and play that electronic recording during the initial jury instructions. Rather, the rules seem to address those materials which the trial court may provide for the jury's review during deliberations. Nevertheless, both rules provide that the court "may provide the jury with . . . a f ull set of electronically recorded instructions," as long as those instructions "are made a part of the record." Because the plain language of MCR 2.516(B)(5) and MCR 6.414(G) does not expressly prohibit the trial court from pre-recording jury instructions, we do not believe that the trial court committed plain error. Defendant next argues that the trial court committed error requiring reversal because the electronically recorded instructions incorrectly stated that defendant was charged with more than one crime. "Jury instructions are to be read as a whole rather than extracted piecemeal to establish error. Even if somewhat imperfect, there is no error if the instructions fairly presented the issues to be tried and sufficiently protected the defendant's rights." People v Bell, 209 Mich App 273, 276; 530 NW2d 167 (1995), internal citations omitted. The transcript of the jury instructions provides as follows: Many things are not evidence and you must be careful not to consider them as such. I will now describe some of the things that are not evidence. The fact that the Defendant is charged with a crime and is on trial is not evidence. Likewise, the fact that he is charged with more than one crime

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