Opinion
Docket No. 63802.
Decided July 14, 1983.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Timothy A. Baughman, Principal Attorney, Research, Training and Appeals, for the people.
Charles Burke, for defendant.
Before: T.M. BURNS, P.J., and R.M. MAHER and HOOD, JJ.
Defendant appeals as of right from his jury conviction of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and felony-firearm, MCL 750.227b; MSA 28.424(2).
The sole issue on appeal is whether the trial court erred in giving the jury a copy of the information to take with them into the jury room during their deliberations.
We have found no Michigan case squarely confronting this issue. However, many federal courts have concluded that the trial court has discretion to submit the indictment to the jury so long as the jury is instructed that the indictment is not to be considered as evidence of guilt. See Garner v United States, 244 F.2d 575 (CA 6, 1957), cert den 355 U.S. 832; 78 S Ct 47; 2 L Ed 2d 44 (1957); United States v Russo, 480 F.2d 1228 (CA 6, 1973), cert den 414 U.S. 1157; 94 S Ct 915; 39 L Ed 2d 109 (1974); United States v Scales, 594 F.2d 558 (CA 6, 1979), cert den 441 U.S. 946; 99 S Ct 2168; 60 L Ed 2d 1049 (1979); United States v Wedelstedt, 589 F.2d 339 (CA 8, 1978); United States v McGrady, 508 F.2d 13 (CA 8, 1974), cert den 420 U.S. 979; 95 S Ct 1408; 43 L Ed 2d 661 (1975).
The federal position comports with the approach taken by this Court to the submission to the jury of documents and exhibits that have not been admitted into evidence. Several panels of this Court have ruled that this practice does not constitute reversible error unless the error might have operated to substantially injure the defendant's case. People v Allen, 94 Mich. App. 539; 288 N.W.2d 451 (1980) (opinion of D.C. RILEY, J.); People v Talley, 56 Mich. App. 598; 224 N.W.2d 660 (1974), lv den 394 Mich. 752 (1975); People v Page, 41 Mich. App. 99; 199 N.W.2d 669 (1972).
In the present case, the trial judge instructed the jury that the information is just a formal written charge and that it is not evidence. He also instructed the jury that they were to consider in their deliberations only properly admitted evidence. The trial judge then read the charges to the jury.
It is clear that under the federal cases cited, supra, the trial court committed no error. We also conclude that furnishing the jury with a copy of the information did not substantially prejudice the defendant. The court's instructions to the jury, in particular, made it unlikely that the jury would consider the information as evidence of guilt.
Affirmed.