PEOPLE
v.
MURPHY
Docket No. 58782.
Michigan Court of Appeals.
Decided June 7, 1983.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William F. Delhey, Prosecuting Attorney, and David A. King, First Assistant Prosecuting Attorney, for the people.
*381 Jean L. King, for defendant on appeal.
Before: T.M. BURNS, P.J., and ALLEN and CYNAR, JJ.
PER CURIAM.
On February 18, 1981, defendant was convicted by a jury of carrying a concealed weapon. MCL 750.227; MSA 28.424. Defendant was sentenced to one year and four months to five years in prison. She appeals as of right, claiming error in four respects.
Defendant first argues that the trial judge erred in his instructions to the jury. At trial, defense counsel requested that the judge instruct the jury on mixed direct and circumstantial evidence by giving CJI 3:1:10. The judge agreed to give the instruction except for subparagraph (7) of CJI 3:1:10 which at that time read:
"If the evidence is open to two reasonable constructions, one indicating guilt and the other innocence, it is your duty to accept the construction indicating innocence."
Apparently, the Washtenaw circuit bench believes this subparagraph does not correctly state the law of Michigan. The judge instead instructed:
"The prosecution does not have to specifically disprove every reasonable hypothesis consistent with defendant's guilt [sic innocence]. Such an innocent hypothesis must be of a compelling nature that it creates a reasonable doubt in your mind."
Defendant's failure to object to the above instruction will not bar appellate review if a manifest injustice will result. People v Wright, 408 Mich. 1, 30, fn 13; 289 NW2d 1 (1980). Under the first prong of the two-pronged harmless error test, *382 see People v Swan, 56 Mich. App. 22; 223 NW2d 346 (1974), lv den 395 Mich. 810 (1975), these instructions were not so offensive that they could never be deemed harmless. Under the second prong, the direct evidence that defendant was carrying a.22 caliber pistol and the circumstantial evidence that bullet holes and shell casings were found where the shooting occurred are overwhelming proof that defendant was carrying a weapon. The "reasonable" hypothesis defense counsel put forth was that defendant may have carried a blank starter pistol. Defendant argues that the instructions as given interfered with the jury's duty to properly weigh this hypothesis. In light of the evidence, absence of this instruction would not have raised a reasonable doubt in the mind of a single juror. Any error was, therefore, harmless beyond a reasonable doubt.
Although we consider any error to be harmless in this case, the issue illustrates the danger of ad hoc modification of standard criminal jury instructions. This is not a case where the court simply refused to give a paragraph of the standard instructions which was otherwise amply covered by other instructions to the jury. This case presents an instruction which was itself confusing, even ignoring the judge's accidental use of the word "guilt" instead of "innocence".
Next, it is argued that the prosecutor improperly commented on defendant's failure to take the stand. The comment was a reference to the fact that only defendant would know where the gun was. Again, defendant failed to object. This Court is therefore limited to determining whether a manifest injustice will result. Under the standards of Swan, supra, such an indirect inference that defendant had exercised her right to remain silent, *383 in conjunction with the fact that defense counsel repeatedly mentioned the lack of a weapon at trial, does not amount to such an offensive act that it could never be deemed harmless. Moreover, in light of the overwhelming evidence, i.e., the unrefuted testimony of three witnesses that they saw defendant with a .22 caliber pistol, and the fact that the judge instructed the jury that they could not consider defendant's failure to take the stand in reaching their verdict, any error was harmless beyond a reasonable doubt.
Defendant also argues that Washtenaw County Local Court Rule 2(b), providing for reassignment of a defendant to the judge who had presided over any prior offense by the defendant, is void, having never been approved. Further, she says that in any event the rule is prejudicial. Defendant claims it impaired her right to elect a bench trial.
Defendant's failure to object to the reassignment at trial precludes review of this claim of error unless defendant can show that she was prejudiced by the reassignment. Defendant has made no showing of actual bias or prejudice. Such showing is required for purposes of disqualification of a judge under GCR 1963, 912.2. People v White, 411 Mich. 366, 386; 308 NW2d 128 (1981). Similarly, there has been no showing of actual bias, prejudice or misconduct on the record to sustain a claim that her right to a bench trial was impaired. People v Irwin, 47 Mich. App. 608; 209 NW2d 718 (1973), lv den 390 Mich. 803 (1973). There was, accordingly, no prejudice or error in invoking Washtenaw County Local Court Rule 2(b).
Finally, defendant asserts that failure to instruct on the lesser misdemeanor offense of reckless or wanton use of a firearm without due caution or circumspection was error, denying her a *384 fair trial. Pursuant to People v Chamblis, 395 Mich. 408, 429; 236 NW2d 473 (1975), a trial court may not instruct on a lesser included offense for which the maximum incarceration period is one year or less when the charged offense is punishable by more than two years incarceration. The Supreme Court has recently abrogated the Chamblis rule, but the new rule is to have prospective application beginning in February 1983. For instructions given prior to that time, Chamblis governs. See People v Stephens, 416 Mich. 252; 330 NW2d 675 (1982). The offense of reckless or wanton use of a firearm without due caution or circumspection falls within the Chamblis rule. There was no error in refusing to instruct on the lesser offense.
Affirmed.