Opinion
Docket No. 89230.
Decided April 6, 1987.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of the Criminal Division Research, Training and Appeals, and Olga Agnello, Assistant Prosecuting Attorney, for the people.
Richard E. Rosenberg, for defendant on appeal.
Following a jury trial, defendant was convicted of attempted unauthorized driving away of a motor vehicle, MCL 750.413; MSA 28.645; MCL 750.92; MSA 28.287. He appeals as of right.
Defendant first contends that the trial court erred so as to require reversal in denying his codefendant's counsel's request to ask prospective jurors during voir dire "if they were to vote now how they would decide." Defendant should have stated on the record that he joined in the request in order to preserve the issue for appeal. However, in reviewing the substance of the issue, we conclude that reversal is not required.
The scope of voir dire examination of prospective jurors is within the discretion of the trial judge and his decision will not be set aside absent an abuse of that discretion. People v Harrell, 398 Mich. 384, 388; 247 N.W.2d 829 (1976). In this case, the trial judge stated that he denied the request because the prospective jurors had indicated that they would follow the law given to them regardless of their feelings. This was sufficient reason to deny the request. See McNabb v Green Real Estate Co, 62 Mich. App. 500, 505; 233 N.W.2d 811 (1975), lv den 395 Mich. 774 (1975); 2 Honigman Hawkins, Mich. Court Rules Annotated (2d ed), p 466. The trial court's other inquiries as to the jurors' preconceived opinions or prejudices were adequate to afford counsel information necessary to intelligently exercise peremptory challenges and challenges for cause. McNabb, supra.
Defendant also contends that he did not receive effective assistance of counsel because his trial counsel failed to timely move to exclude evidence of defendant's prior convictions, failed to make any substantive opening statement, failed to make any substantive closing statement, allowed his client to take the witness stand with no preparation, and absented himself during final jury instructions. To the extent defendant's claim depends on facts not of record, it is incumbent on him to make a testimonial record at the trial court in connection with a motion for a new trial which evidentially supports his claim and which excludes hypotheses consistent with the view that his trial lawyer represented him adequately. People v Ginther, 390 Mich. 436, 443; 212 N.W.2d 922 (1973); People v Lawson, 124 Mich. App. 371, 373; 335 N.W.2d 43 (1983). Since defendant failed to move for a new trial or an evidentiary hearing on his claims of ineffective assistance of counsel and since such a hearing would be necessary with respect to the first four claims, this Court is unable to review those claims. Defendant may wish to request a Ginther hearing below.
With respect to defendant's final claim of ineffective assistance of counsel, the record indicates that the defendant waived his right to trial counsel's presence during jury instructions and agreed to be represented by codefendant's counsel. Cf. People v Gamble, 124 Mich. App. 606, 609; 335 N.W.2d 101 (1983), lv den 417 Mich. 1100.38 (1983). Hence that claim is without merit.
Affirmed.