447 N.W.2d 157 (Mich.App. 1989), 102213, People v. Malone

Docket NºDocket No. 102213.
Citation447 N.W.2d 157, 180 Mich.App. 347
Opinion JudgePER CURIAM.
Party NamePEOPLE of the State of Michigan, Plaintiff-Appellee, v. Norman Lee MALONE, Defendant-Appellant.
Attorney[180 Mich.App. 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.
Judge PanelBefore HOOD, P.J., and WAHLS and NEFF, JJ.
Case DateJuly 21, 1989
CourtCourt of Appeal of Michigan (US)

Page 157

447 N.W.2d 157 (Mich.App. 1989)

180 Mich.App. 347

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.

Norman Lee MALONE, Defendant-Appellant.

Docket No. 102213.

Court of Appeals of Michigan.

July 21, 1989

Submitted Feb. 14, 1989.

Released for Publication Oct. 26, 1989.

Page 158

[180 Mich.App. 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 Mich.App. 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

Page 159

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 Mich.App. 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 Mich.App. 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

Page 160

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...

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49 practice notes
  • 396 S.E.2d 760 (W.Va. 1990), 19303, State v. Schoolcraft
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • July 25, 1990
    ...E.g., State v. Butler, 207 Conn. 619, 543 A.2d 270 (1988); People v. Perri, 381 Ill. 244, 44 N.E.2d 857 (1942); People v. Malone, 180 Mich.App. 347, 447 N.W.2d 157 (1989); State v. Marco, 220 Neb. 96, 368 N.W.2d 470 (1985); State v. Burgos, 200 N.J.Super. 6, 490 A.2d 316 (1985), cert. denie......
  • 489 N.W.2d 514 (Mich.App. 1992), 123271, People v. Vettese
    • United States
    • Michigan Court of Appeals of Michigan
    • October 5, 1992
    ...and all the facts and circumstances, including the particular language used by the trial court, must be considered. People v. Malone, 180 Mich.App. 347, 352, 447 N.W.2d 157 (1989). As a general rule, jurors may not impeach their verdicts by affidavits. People v. Pizzino, 313 Mich. 97, 20 N.......
  • 540 N.W.2d 728 (Mich.App. 1995), 133436, People v. Turner
    • United States
    • Michigan Court of Appeals of Michigan
    • December 18, 1995
    ...court, must be considered to determine whether the defendant was denied a fair trial. People v. Malone, Page 740 80 Mich.App. 347, 352, 447 N.W.2d 157 (1989). In the midst of deliberations, in response to a question from the jury, the trial court instructed the jury as follows: Ladies and g......
  • 630 N.W.2d 633 (Mich.App. 2001), 214701, People v. McCray
    • United States
    • Michigan Court of Appeals of Michigan
    • May 8, 2001
    ...and that the impeachment was proper because the inconsistent alibis reflected on the defendant's credibility. Id. In People v. Malone, 180 Mich.App. 347, 354, 447 N.W.2d 157 (1989), this Court relied on Von Everett in allowing use of the defendant's notice of alibi defense for the purpose o......
  • Request a trial to view additional results
49 cases
  • 396 S.E.2d 760 (W.Va. 1990), 19303, State v. Schoolcraft
    • United States
    • West Virginia Supreme Court of Appeals of West Virginia
    • July 25, 1990
    ...E.g., State v. Butler, 207 Conn. 619, 543 A.2d 270 (1988); People v. Perri, 381 Ill. 244, 44 N.E.2d 857 (1942); People v. Malone, 180 Mich.App. 347, 447 N.W.2d 157 (1989); State v. Marco, 220 Neb. 96, 368 N.W.2d 470 (1985); State v. Burgos, 200 N.J.Super. 6, 490 A.2d 316 (1985), cert. denie......
  • 489 N.W.2d 514 (Mich.App. 1992), 123271, People v. Vettese
    • United States
    • Michigan Court of Appeals of Michigan
    • October 5, 1992
    ...and all the facts and circumstances, including the particular language used by the trial court, must be considered. People v. Malone, 180 Mich.App. 347, 352, 447 N.W.2d 157 (1989). As a general rule, jurors may not impeach their verdicts by affidavits. People v. Pizzino, 313 Mich. 97, 20 N.......
  • 540 N.W.2d 728 (Mich.App. 1995), 133436, People v. Turner
    • United States
    • Michigan Court of Appeals of Michigan
    • December 18, 1995
    ...court, must be considered to determine whether the defendant was denied a fair trial. People v. Malone, Page 740 80 Mich.App. 347, 352, 447 N.W.2d 157 (1989). In the midst of deliberations, in response to a question from the jury, the trial court instructed the jury as follows: Ladies and g......
  • 630 N.W.2d 633 (Mich.App. 2001), 214701, People v. McCray
    • United States
    • Michigan Court of Appeals of Michigan
    • May 8, 2001
    ...and that the impeachment was proper because the inconsistent alibis reflected on the defendant's credibility. Id. In People v. Malone, 180 Mich.App. 347, 354, 447 N.W.2d 157 (1989), this Court relied on Von Everett in allowing use of the defendant's notice of alibi defense for the purpose o......
  • Request a trial to view additional results