People v. Malone, Docket No. 102213

• Decision Date: 26 October 1989
• Docket Number: Docket No. 102213
• Citation: 180 Mich.App. 347,447 N.W.2d 157
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Norman Lee MALONE, Defendant-Appellant. 180 Mich.App. 347, 447 N.W.2d 157
• Court: Court of Appeal of Michigan — District of US

Page 157

447 N.W.2d 157

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Norman Lee MALONE, Defendant-Appellant.

Docket No. 102213.

180 Mich.App. 347, 447 N.W.2d 157

Court of Appeals of Michigan.

Submitted Feb. 14, 1989.

Decided July 21, 1989.

Released for Publication Oct. 26, 1989.

[180 MICHAPP 349] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Paul Maloney, Pros. Atty., and David P. LaForge, Asst. Pros. Atty., for the People.

State Appellate Defender by Charles J. Booker and Chari Grove, for defendant-appellant on appeal.

Before HOOD, P.J., and WAHLS and NEFF, JJ.

PER CURIAM.

Following a jury trial, defendant was convicted of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and possession of a firearm while committing a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Defendant was sentenced to eight to fifty years of imprisonment on the armed robbery conviction. He also received the mandatory two-year [180 MICHAPP 350] sentence for his felony-firearm conviction. Defendant appeals as of right and we reverse.

I

Defendant first contends that he was denied a fair trial because the trial court, by its comments to the jury, created an atmosphere conducive to hasty deliberations.

In this case, the jury began its deliberations on the fourth day of trial at approximately 9:03 a.m. Deliberations continued throughout the day with a brief break for lunch. At approximately 5:50 p.m., outside the presence of the jury, the trial court explained to counsel its intention to determine from the jury whether deliberations should continue into the evening following a break for dinner. The trial court then called the jury into the courtroom and stated in pertinent part:

My experience has been--and I might be right, I can easily be wrong, that in most cases there's either a verdict shortly after dinner or it's hopeless, and so if shortly after dinner you have a verdict, fine. If not, I will be calling you in after a rather brief period of time and see if you people think that it might be a few more minutes or forever and if it's forever, we will just have to discharge you and send you home. If it's impossible to reach a verdict, that's unfortunate, we don't like to have that, but sometimes that's the way it is.

At 8:18 p.m., after the jury had returned from dinner, the trial court inquired of the foreman whether the jury was close to reaching a verdict. After the foreman indicated that the jury was close to a verdict, the trial court stated in pertinent part: "Close to a verdict. Okay. You have [180 MICHAPP 351] already put in a fair-sided day here and we don't want anybody beaten into submission."

In response to questioning by the trial court, the foreman indicated that additional deliberations of a half an hour would be likely to make a difference. The following exchange then occurred:

The Court: Do you understand we are not trying to beat you into it or pound on anybody until they are succumbed [sic], and if at some point in time you can't reach a verdict, as much as we'd like you to, if you can't, you can't.

Okay. Do you think another hour will help or more likely than not to get a verdict?

Foreman: Yes. Would it be in order, at the end of the hour, to send a slip to you from us if we feel we are not ready to have a consensus to give us another half an hour?

Mr. Banyon: Your Honor, I think both counsel are in agreement that the jury should be able to deliberate as long as they want.

The Court: I just want to make it clear that we are not locking them in there forever and a day, we are not going to keep up until Monday morning in that room. They [sic] only word that worries me a little more is, "consensus."

Do you understand when you are all through, in order to receive any verdict in any criminal cause, it has to be unanimous. In civil cases you can have ten out of twelve but that doesn't apply in criminal. It has to be unanimous. If it can't be unanimous, it isn't a verdict.

On that basis, why don't we let you go in there and if you come to a verdict, hit the buzzer and if at any time it becomes totally clear that a verdict is impossible, hit the buzzer, and if at any time you are simply too exhausted to go on and you are in between those two, hit the buzzer and we will last as long as you last, but you have three options, I guess: A a [sic] verdict, deadlocked, or you are just too tired to keep going.

With that, we will let you resume.

[180 MICHAPP 352] After the jury returned to the jury room to deliberate, the trial judge stated on the record that the reason he had emphasized to the jurors that he was not going to require that they continue deliberations that night was because he did not want a claim that he had coerced them into reaching a verdict.

At 9:43 p.m., the jury returned a verdict of guilty as charged.

On appeal, defendant contends that the trial court's comments led to a coerced verdict. Defendant urges that the thrust of the trial court's remarks was that, if no verdict was reached that evening, the trial would be over. Claims of coerced verdicts are reviewed on a case-by-case basis, and all of the facts and circumstances, as well as the particular language used by the trial judge, must be considered. Zeitz v. Mara, 290 Mich. 161, 166, 287 N.W. 418 (1939); People v. Pizzino, 313 Mich. 97, 103, 20 N.W.2d 824 (1945).

In People v. Strzempkowski, 211 Mich. 266, 178 N.W. 771 (1920), our Supreme Court held that the defendant was denied a fair trial because the trial court's comments, in effect, informed the jurors that if they did not agree upon a verdict, they would be discharged from further service during the term. The Court took judicial notice that such a procedure would cause humiliation to the jury panel. The Court in Strzempkowski, supra, p. 268, 178 N.W. 771, stated:

The rule as stated in 38 Cyc. p. 1762, is, we think, the only safe one to follow:

"The court may impress upon the jury the propriety and importance of coming to an agreement, and harmonizing their views, state the reasons therefor and tell them it is their duty to try to agree; but should not give instructions having a tendency to coerce the jury into agreeing on a [180 MICHAPP 353] verdict. While the court may reasonably urge an agreement, its discretion does not extend to the limit of coercion."

While we do not believe that the trial court was attempting to coerce a verdict, we are constrained to agree with defendant that the effect of the trial court's comments to the jury may have been a coerced verdict. In light of the fact that the jury was never told that it could resume deliberations on the following Monday, we believe that the trial court's comments, taken as a whole, at best were confusing and may have improperly communicated by implication that, if a verdict could not be reached that evening, the jury would be considered deadlocked and would be permanently discharged.

II

Defendant next contends that the prosecutor's use of defendant's notice of alibi to impeach his trial testimony denied defendant a fair trial.

Before trial, defendant's former attorney filed a notice of alibi defense which stated that, at the time of the alleged offense, defendant was at the home of his sister, Rosemary Malone. Defendant's notice of alibi defense listed, among others, Robert Minor and Craig Smith as alibi witnesses.

During cross-examination, defendant stated that he had not seen Craig Smith on the date of the offense. Defendant also testified that he did not even know Robert Minor. Over defendant's objection, the trial court permitted the prosecutor to impeach defendant's credibility by use of the notice of alibi, which listed Craig Smith and Robert Minor as alibi witnesses.

The trial court relied on People v. Von Everett, 156 Mich.App. 615, 402 N.W.2d 773 (1986), in ruling [180 MICHAPP 354] that the prosecutor could use the notice of alibi to impeach defendant's credibility. In Von Everett, supra, p. 624, 402 N.W.2d 773, this Court held that a notice of alibi which alleged that the defendant was in Battle Creek at the time of the charged offense was a party-opponent admission under MRE 801(d)(2)(C) and that it could be used to impeach the defendant's testimony that he was out of the state at the time of the crime. The Von Everett panel focused on the fact that the defendant's testimony directly contradicted the allegations set forth in the notice of alibi.

Defendant attempts to distinguish Von Everett on the ground that, in the instant case, defendant's alibi testimony that he was at his sister's home at the time of the crime was consistent with the notice of alibi.

The admission or exclusion of evidence is a matter for the sound discretion of the trial court. People v. Harden, 166 Mich.App. 106, 111, 420 N.W.2d 136 (1988). An abuse of discretion is found only if an unprejudiced person, considering the facts on which the trial court acted, would say that there was no justification or excuse for the ruling made. People v. Hamm, 100 Mich.App. 429, 438, 298 N.W.2d 896 (1980), lv. den. 411 Mich. 888 (1981).

The evidence allowed for impeachment purposes was relevant to the credibility of defendant and his alibi defense. The trial court in this case, therefore, did not abuse its discretion in allowing defendant to be impeached with his notice of alibi, even though the allegations therein were not wholly inconsistent with his testimony.

III

Defendant next contends that the trial court [180 MICHAPP 355] erred in admitting into evidence, over defendant's objection, items found in the search of a moving van. Before trial, defendant filed a motion challenging his arrest and seeking to suppress incriminating evidence seized during the search the moving van. Following a hearing, the trial court denied defendant's motion, finding that the search was executed pursuant to the driver's valid consent.

A trial court's decision following a suppression hearing will not be reversed by this Court...