People v. Atkinson, Docket No. 52643

• Decision Date: 06 January 1983
• Docket Number: Docket No. 52643
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Henry ATKINSON, Jr., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 102

328 N.W.2d 102

120 Mich.App. 723

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Henry ATKINSON, Jr., Defendant-Appellant.

Docket No. 52643.

Court of Appeals of Michigan.

Submitted Oct. 6, 1981.

Decided Nov. 2, 1982.

Released for Publication Jan. 6, 1983.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., David H. Sawyer, Pros. Atty., and Carol S. Irons, Chief Appellate Asst. Pros. Atty., for the People.

George S. Buth, Grand Rapids, for defendant-appellant.

Before MAHER, P.J., and HOLBROOK and ROBINSON, JJ. ^*

MAHER, Presiding Judge.

Defendant was convicted by a jury of prison escape, M.C.L. Sec. 750.193; M.S.A. Sec. 28.390, and of being a fourth-offense habitual offender, M.C.L. Sec. 769.12; M.S.A. Sec. 28.1084, M.C.L. Sec. 769.13; M.S.A. Sec. 28.1085. Sentenced to 3 to 10 years in prison, he appeals as of right.

Defendant raises three claims of error. First, the defendant claims the trial court committed error in its instructions to the jury. Second, defendant argues that the delay between his arrest and arraignment requires reversal. Finally, defendant argues that the trial court lost jurisdiction because he was not brought to trial within the 180 days required by M.C.L. Sec. 780.131; M.S.A. Sec. 28.969(1). We concur in the results reached by Judge Robinson regarding the last two of defendant's three claims of error. We have concluded, however, that the trial court committed reversible error in its instructions to the jury.

Defendant contends that the trial court deviated improperly from ABA Standard Jury Instruction 5.4 in its charge to the jury. ¹ The ABA charge, approved in People v. Sullivan, 392 Mich. 324, 327-329, 220 N.W.2d 441 (1974), sets out permissible instructions to a jury unable to agree on a verdict.

In People v. Goldsmith, 411 Mich. 555, 309 N.W.2d 182 (1981), the Supreme Court confirmed that any substantial departure from the ABA charge is reversible error. Coercive effect is irrelevant. People v. Allen, 102 Mich.App. 655, 658-660, 302 N.W.2d 268 (1981), lv. den. 411 Mich. 870 (1981), provides the proper standard of review:

"We believe that the Supreme Court in Sullivan intended to announce a prophylactic rule eliminating the necessity of future appellate inquiry into the coercive effect of any number of possible variants on the Allen charge [ Allen v United States, 164 US 492; 17 S Ct 154; 41 L Ed 528 (1896) ]. One form was approved, and the Court clearly indicated its intent that only that form be used in the future. Because the new rule was made prospective, Allen-type charges in trials occuring before Sullivan were still subject to a case-by-case analysis, but the only case-by-case inquiry necessary in trials taking place after Sullivan involves whether the instruction given is a 'substantial departure' from the ABA charge. * * * To the extent that other decisions of this Court have suggested that deadlocked-jury instructions given in post-Sullivan trials are to be examined on a case-by-case basis for their coercive effect, we believe they were wrongly decided.

" * * * We are not concerned with whether such statements are true or whether they are coercive. Our sole inquiry is whether they represent a substantial departure from the ABA charge * * *. It makes no difference that in Sullivan the Supreme Court held that the instruction challenged in the instant case was not coercive. The trial which we are reviewing took place after Sullivan so that questions of coercion are no longer involved. The Supreme Court could not have more clearly directed that the issue is no longer one of 'coercion' but of 'substantial departure' from the ABA charge."

See also, People v. Johnson, 112 Mich.App. 41, 44-47, 314 N.W.2d 794 (1981). ²

In the case at bar, the trial court made several remarks which, taken as a whole clearly constituted a substantial departure from the ABA charge.

After deliberating for less than four hours on the escape charge, the jury indicated that it was unable to reach a unanimous verdict. In an attempt to avoid a hung jury, the trial court gave the following instructions:

"THE COURT: Mr. Foreman, we have received this note from you: 'We feel we cannot reach a unanimous decision.'

"Ladies and gentlemen of the jury, if you cannot agree on a verdict, I want to tell you what will happen. The Court will have to declare a mistrial, which means it must be retried before another twelve people at the next term of court. I cannot believe that the next jury panel will produce any twelve people who are more intelligent and more conscientious than the twelve of you. I want to re-read some of my instructions to you."

The trial court then gave several instructions which substantially conformed to the ABA charge. However, the court followed the permissible instructions with these remarks:

"THE COURT: Then I'd like to have you go back and consider what I have just said. Now, I will not keep you here past noon. I will urge you to try and decide on a verdict, because eventually, twelve people will have to decide this case, and I don't think that I have ever seen twelve nicer people than you."

Shortly thereafter, the jury returned a verdict of guilty.

These extraneous remarks clearly amount to a substantial departure from the ABA charge.

After approximately three hours of deliberation on the supplemental charge of being a fourth felony offender, the jury once again indicated that it was unable to reach a unanimous verdict. In an attempt to avoid a hung jury on this charge, the trial court made the following remarks:

"THE COURT: Mr. Foreman, would you stand, please? We have received this note from you: 'We feel a unanimous decision cannot be reached.'

"I think that somehow I've got you confused, and I wonder if there is some additional instruction that might help you, because the issue is not really that complicated. Either he is a fourth felony offender, or he is not, and let me read to you again what I read to you last week.

"If you cannot agree on a verdict, I want to tell you what will happen. The Court will have to declare a mistrial, which means that it must be re-tried before another twelve people at the next term of court. I cannot believe that the next jury panel will produce any twelve people who are more intelligent and more conscientious than the twelve of you, and, in other words, eventually, twelve Kent County residents are going to have to answer that question.

"Mr. Foreman, do you think that another forty-five minutes might be productive?"

Manifestly, these remarks constitute an even more serious departure from the ABA charge.

Under Allen, supra, any language employed by the trial court aimed at encouraging the jury to reach a decision constitutes a "substantial departure" from the ABA charge unless the ABA standard instruction "sanctions such a charge". Goldsmith, supra, 411 Mich. at 561, 309 N.W.2d 182. Coercive effect is irrelevant.

Since the ABA standard instruction does not sanction the irregular remarks made by the trial court in the case at bar, and since these remarks are aimed at encouraging the jury to reach a decision, the defendant's conviction must be reversed.

Reversed and remanded for a new trial.

HOLBROOK, J., concurred.

ROBINSON, Judge (dissenting in part, concurring in part).

I respectfully dissent. I agree with the majority that subsequent to People v. Sullivan, 392 Mich. 324, 220 N.W.2d 441 (1974), coercion is no longer the standard and that supplemental instructions which substantially depart from the ABA standard require reversal. I find that the supplemental instruction on the principal charge did not substantially depart from the approved standard.

In accordance with ABA Standard Jury Instruction 5.4(a)(i-v), ¹ the trial court encouraged the jurors to reexamine their views while admonishing them not to abandon an honest conviction for the mere purpose of returning a verdict. Additionally, as provided in instruction 5.4(b), the court made it clear that the jury would not be required to deliberate for an unreasonable length of time. ² Apparently, the majority objects to the court's statement: "I will urge you to try and decide on a verdict, because eventually, twelve people will have to decide this case and I don't think that I have ever seen twelve nicer people than you". I believe the court was merely reassuring the jury that they were as competent as anyone else to reach a verdict based on the evidence presented. There was no improper intimation that the jury had failed in its purpose. People v. Goldsmith, 411 Mich. 555, 309 N.W.2d 182 (1981). The court's additional remark was similar to that in People v. Johnson, 112 Mich.App. 41, 48, 314 N.W.2d 794 (1981), relied upon by the majority. There, the panel found no error.

Defendant's conviction for prison escape should be affirmed. I agree with the majority, however, that the supplemental instruction given by the trial court on the habitual offender charge was a substantial departure from the ABA standard and requires reversal.

Even though the majority's disposition of the supplemental instruction issue requires reversal, the Court must address defendant's two other claims of error since they are jurisdictional in nature. Defendant claims that the trial court lacked jurisdiction because he was not brought to trial within 180 days as required by the applicable statute, M.C.L. Sec. 780.131; M.S.A. Sec. 28.969(1). There has been a split of authority among the panels of this Court as to the applicability of the 180-day rule to offenses committed by a prison inmate where any sentences for such offenses would be mandatorily consecutive. This issue was recently resolved by the Michigan Supreme Court in People v. Woodruff, 414 Mich. 130, 323 N.W.2d 923 (1982), where the Court held that the 180-day rule applies to any untried charge, regardless of the nature of the punishment which may be imposed. I find, however, that the rule was not violated...