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02/11/76 PEOPLE v. MCKENZIE

February 11, 1976

PEOPLE
v.
MCKENZIE



Appeal from Genesee, Ollie B. Bivins, Jr., J.

N. J. Kaufman, P. J., and T. M. Burns and M. F. Cavanagh, JJ.

SYLLABUS BY THE COURT

1. -- Specific Intent -- Intoxication Test -- Instructions to Jury -- Defense of Intoxication.

The proper intoxication test, when a Judge is instructing the jury in a matter where the defendant has been charged with a crime requiring a specific intent and the defendant has raised intoxication as a defense, is whether or not the intent did in fact exist, not whether or not the intent could have existed.

2. -- Instructions to Jury -- Specific Intent -- Intoxication -- Capacity Test.

Language in instructions to the jury on intoxication as a defense to a specific intent crime that creates a capacity test, such as the use of the word "incapable", is improper; but terms such as "so far", "so far overcome", and "so intoxicated", while they add to the confusion, are not improper per se.

3. -- Instructions to Jury -- Specific Intent.

A jury instruction in a trial for a specific intent crime stating that if the defendant did not have the requisite specific intent he would not be guilty is a proper instruction.

4. -- Prosecutors -- Jury -- Exchange of Greetings -- Appeal and Error.

The exchange of greetings by an assistant prosecutor with one of the jurors in the front hall of the courthouse during a defendant's trial, where the trial Judge was satisfied after questioning the assistant prosecutor that no impropriety existed and there was no showing of prejudice nor any inference of such, was not error.

5. -- Evidence -- Defendant's Statement -- Custody -- Miranda Warnings -- Harmless Error.

The introduction into evidence of a statement of a defendant, made to a police officer before the defendant was advised of his rights, in which the defendant stated that he had in fact been inside the building that he was later charged with entering illegally was not error, where the statement was made in the preliminary stages of the investigation just after the officer had arrived at the scene and before the defendant was in custody; even if the statement were inadmissible, any error would have been harmless where there was an abundance of evidence placing defendant inside the building.

6. -- Evidence -- Defendant's Statement -- Miranda Warnings -- Cross-Examination -- Defense Counsel.

The introduction into evidence of a statement of a defendant made to a police officer before the defendant was advised of his rights, in which the defendant stated his reasons for being in a building, was not reversible error, where the testimony was first elicited ...


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