People v. Pollick, Docket No. 99608
| Decision Date | 12 April 1995 |
| Docket Number | Docket No. 99608 |
| Citation | 531 N.W.2d 159,448 Mich. 376 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, Cross-Appellee, v. David Michael POLLICK, Defendant-Appellee, Cross-Appellant. |
| Court | Michigan Supreme Court |
Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Richard Thompson, Pros. Atty., Joyce F. Todd, Chief, Appellate [448 Mich. 377] Div., and Richard H. Browne, Asst. Pros. Atty., Pontiac, for people.
State Appellate Defender by Richard B. Ginsberg, Detroit, for defendant.
The defendant was convicted of assault with intent to murder, but the Court of Appeals reversed the conviction on the ground that the circuit court improperly instructed the jury. We reverse the judgment of the Court of Appeals and reinstate the judgment of the circuit court.
I
In late 1989, defendant David Pollick was in the second year of a relationship with a woman named Danyeil Lewis. They were arguing, and Ms. Lewis had indicated her desire to end the relationship.
On November 17, 1989, the defendant delivered a lengthy letter to Ms. Lewis. In an effort to persuade her to continue the relationship, he wrote that he would kill himself by driving an automobile across the center line. In this manner, he would take not only his own life, but also the life of someone else.
After receiving the letter, Ms. Lewis went to the home of a person who lived on Rochester Road in Oakland County. The defendant soon came to the Rochester Road house and borrowed Ms. Lewis' car. A few minutes later, the defendant telephoned Ms. Lewis to say that there would be an accident in front of the house on Rochester Road within ten minutes.
As promised, the defendant drove south on Rochester Road, crossed the center line, and collided with an oncoming car approximately two hundred feet from the house where Ms. Lewis was [448 Mich. 378] staying. 1 The driver of the other car was seriously injured. The accident occurred within two hours of the time the defendant delivered the letter to Ms. Lewis.
The defendant was charged with assault with intent to murder. M.C.L. § 750.83; M.S.A. § 28.278. During the jury trial of this matter, the defendant acknowledged that he had stated his intention to commit suicide, but denied intending to harm anyone else. 2
The jury was instructed on the charged offense of assault with intent to murder, as well as the lesser offenses of assault with intent to commit great bodily harm less than murder, 3 and assault with a dangerous weapon. 4 After deliberating thirty-nine minutes, the jury found the defendant guilty of assault with intent to murder.
The circuit court sentenced the defendant to serve 10 to 20 years in prison. Following a remand in the Court of Appeals, the circuit
court denied the defendant's motion for new trial. 5The Court of Appeals reversed the defendant's conviction on the ground that the circuit court had improperly instructed the jury. 6 The prosecutor has applied for leave to appeal. 7
[448 Mich. 379] II
After explaining the elements of the assault offenses, the circuit court instructed the jury regarding how it was to conduct its deliberations. Defense counsel did not object when the court told the jury:
You should give [this case] your most careful consideration. You must not decide this case by reason of sympathy, fear or prejudice. You must not be influenced by any of those emotions, but solely by a sense of justice and your obligations under your oaths. Take the evidence, and weigh it conscientiously, carefully and thoroughly.
If you are satisfied beyond a reasonable doubt, and to a moral certainty that the People have proven their case as the Court has defined it for you, you may find the defendant guilty of Assault With Intent to Commit Murder.
If you fail to convict or acquit, or are unable to agree whether to convict or acquit on that offense, you may then consider the lesser included offenses of Assault With Intent to do Great Bodily Harm Less Than Murder or Felonious Assault.
If you are not satisfied beyond a reasonable doubt and to a moral certainty that the People have proven their case as the Court has defined it for you, you must find the defendant not guilty of all charges.
Take the case under advisement, members of the jury, and do your duty under your oaths. You have nothing to do in this case but determine the guilt or innocence of the defendant. You are the sole judges of the facts. The Court has given you the law, but you are absolute in the ream [sic, realm?] of fact. You must, as I said, consider all of the evidence. Do not go outside the evidence, but take what has been offered, the competent evidence in the case.
Now, there are four possible verdicts. You may find the defendant:
[448 Mich. 380] Guilty of Assault With Intent to Commit Murder; or
Not Guilty.
Your first duty upon retiring is to select a foreperson.
Your second duty is to agree upon a unanimous verdict. [Emphasis supplied.]
As noted above, the Court of Appeals reversed the defendant's conviction. It did so on the ground that the concluding statement ("Your second duty is to agree upon a unanimous verdict") was a substantial departure from a jury instruction that this Court approved in People v. Goldsmith, 411 Mich. 555, 309 N.W.2d 182 (1981), and People v. Hardin, 421 Mich. 296, 365 N.W.2d 101 (1984). 8 The Court of Appeals explained:
Reversal is required because the trial court instructed the jury in this case that it had a duty to reach a unanimous verdict. People v. Goldsmith, 411 Mich. 555, 309 N.W.2d 182 (1981); People v. Davis, 135 MichApp 602; 354 N.W.2d 274 (1984). The instruction given here was a substantial departure from ABA standard jury instruction 5.4 approved in Goldsmith, supra, and People v. Hardin, 421 Mich 296; 365 N.W.2d 101 (1984). Here, the jury was informed at the beginning of the instruction
that it was their "job" to decide the case, 9 that they "must decide," and that it was their "duty to agree upon a unanimous verdict." They were not instructed concerning what they should [448 Mich. 381] do if they failed to agree or told that no juror should surrender his or her honest conviction or belief solely for the purpose of obtaining a unanimous agreement. We conclude that the instruction given here was a substantial departure and, accordingly, reversal is requiredIII
In People v. Sullivan, 392 Mich. 324, 220 N.W.2d 441 (1974), the circuit court gave a so-called Allen 10 charge to a jury that apparently was deadlocked. While finding the instruction neither coercive per se nor coercive in the situation that arose in Sullivan, this Court adopted the American Bar Association's Minimum Standard for Criminal Justice 5.4. Id. at 341-342, 220 N.W.2d 441. Here is the current version of that ABA standard: 11
(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:
(i) that in order to return a verdict, each juror must agree thereto:
(ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;
(iii) that each juror must decide the case for himself or herself but only after an impartial consideration of the evidence with the other jurors;
(iv) that in the course of deliberations, a juror should not hesitate to reexamine his or her own [448 Mich. 382] views and change an opinion if the juror is convinced it is erroneous; and
(v) that no juror should surrender his or her honest conviction as to the weight or effect of the evidence solely because of the opinion of the other jurors, or for the mere purpose of returning a verdict.
(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in paragraph (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.
(c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement.
This Court concluded its Sullivan opinion by saying that "prospectively from the date of this opinion, the ABA standard jury instruction 5.4 as set forth herein is adopted by this Court," and that "[a]ny substantial departure therefrom shall be grounds for reversible error." 12 392 Mich. at 342, 220 N.W.2d 441.
In Goldsmith, the circuit court added the following paragraph to a proper instruction that was given before the jury began deliberating:
[411 Mich. at 558, 309 N.W.2d 182.]
[448 Mich. 383] This Court characterized that addition as "a substantial departure" from the approved instruction:
In Sullivan, this Court indicated that substantial departures from the ABA standard instruction would be reversible error.
We conclude that the instruction given in the instant case was a substantial departure. Part of the instruction given in this case is essentially a call for the jury, as part of its civic duty, to reach a unanimous verdict and contains the message that a failure to reach a verdict constitutes a failure of purpose. Nothing in the standard instruction sanctions such a charge and we conclude that the giving of such an instruction was reversible error. [411 Mich. at 560-561, 309 N.W.2d 182.]
Hardin concerned several instructions...
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...the jury had already indicated that it was deadlocked, at that point, there was "a greater coercive potential." See People v. Pollick , 448 Mich. 376, 385, 531 N.W.2d 159 (1995). Instead of simply instructing the jury to continue its deliberations after lunch, the trial court twice admonish......
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