People v. Booker

• Decision Date: 20 December 1994
• Docket Number: 147466,Docket Nos. 117973
• Citation: 208 Mich.App. 163,527 N.W.2d 42
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert BOOKER, Jr., Defendant-Appellant (After Remand).
• Court: Court of Appeal of Michigan — District of US

Page 42

527 N.W.2d 42

208 Mich.App. 163

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert BOOKER, Jr., Defendant-Appellant (After Remand).

Docket Nos. 117973, 147466.

Court of Appeals of Michigan.

Submitted Sept. 15, 1994, at Detroit.

Decided Dec. 20, 1994, at 9:15 a.m.

Released for Publication Feb. 21, 1995.

[208 Mich.App. 165] Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Carl J. Marlinga, Pros. Atty., Robert J. Berlin, Chief Appellate Lawyer, and Edward L. Graham, Asst. Pros. Atty., for People.

State Appellate Defender by Anne Yantus, and Madelaine P. Lyda, Farmington Hills, for defendant on appeal.

Before SAWYER, P.J., and FITZGERALD and EVELAND, ^* JJ.

AFTER REMAND

PER CURIAM.

Following a jury trial, defendant was convicted of voluntary manslaughter, M.C.L. § 750.321; M.S.A. § 28.553, possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2), and possession of a short-barreled shotgun, M.C.L. § 750.224b; M.S.A. § 28.421(2). Defendant [208 Mich.App. 166] was sentenced to concurrent prison terms of seven to fifteen years for voluntary manslaughter and two to five years for possession of a short-barreled shotgun, and to a consecutive prison term of two years for the felony-firearm conviction. Following a remand by this Court for resentencing, defendant was resentenced to identical terms. The cases were consolidated on appeal. Defendant appeals as of right.

Defendant was originally charged with first-degree, premeditated murder, M.C.L. § 750.316; M.S.A. § 28.548, felony-firearm, and possession of a short-barreled shotgun as a result of the shooting death of Eddie Calvert.

Following six days of trial, the jury returned guilty verdicts of voluntary manslaughter, possession of a short-barreled shotgun, and felony-firearm after five hours of deliberation. When the jury was polled, the foreperson expressed doubt regarding whether the verdict should be voluntary or involuntary manslaughter. ¹ After concluding the polling, the trial court excused the jury and later questioned the juror regarding the nature of her doubt. Defense counsel objected to the trial court's conduct and requested a mistrial based on the lack of a unanimous jury. The trial court denied the motion, accepted the verdict, and discharged the jury on January 27, 1989

[208 Mich.App. 167] On February 8, 1989, defendant moved for dismissal. On February 12, 1989, the foreperson wrote to the trial court and indicated that she might have reached a verdict of not guilty of voluntary manslaughter had she deliberated further. According to the juror, the jury compromised because the jurors were tired and were uncertain whether the trial court would have required them to deliberate during the evening and throughout the weekend to reach a verdict.

Defendant was sentenced on March 3, 1989. On March 6, 1989, a hearing was held on defendant's motion for dismissal or for a new trial. In an order dated August 4, 1989, the trial court denied defendant's motion.

I

Defendant first claims that the trial court erred in failing to order further deliberations by the jury when the foreperson expressed her doubts and that he is entitled to reversal of his voluntary manslaughter conviction.

MCR 6.420(C), which governs the acceptance of a verdict in a criminal case, provides:

Before the jury is discharged, the court on its own initiative may, or on the motion of a party must, have each juror polled in open court as to whether the verdict announced is that juror's verdict. If polling discloses the jurors are not in agreement, the court may (1) discontinue the poll and order the jury to retire for further deliberations, or (2) either (a) with the defendant's consent, or (b) after determining that the jury is deadlocked or that some other manifest necessity exists, declare a mistrial and discharge the jury.

The comment prepared by the staff of the Supreme Court for Rule 6.420 notes:

[208 Mich.App. 168] Subrule (C) is consistent with the jury polling procedure set forth in MCR 2.512, but is modified to address constitutional concerns applicable in criminal jury trials. See People v. Hall, 396 Mich 650, 654-655 [242 N.W.2d 377] (1976).

The option in subrule (C) permitting the court to "discontinue the poll and order the jury to retire for further deliberations" requires the court to cut off the polling as soon as disagreement is disclosed. The court should not allow the polling to continue because of its potentially coercive effect. Nor, for the same reason, should the court question the jury to determine where the jury stands numerically. See People v. Wilson, 390 Mich. 689 [213 N.W.2d 193] (1973).

If when a jury is polled, one juror expresses disagreement with the verdict, the jury must be sent out for further deliberations. People v. Bufkin, 168 Mich.App. 615, 617, 425 N.W.2d 201 (1988); Wayne Co. Prosecutor v. Detroit Recorder's Court Judge, 64 Mich.App. 408, 235 N.W.2d 799 (1975).

In Bufkin, supra, a juror responded, upon a poll of the jury that returned a verdict of

not guilty, that the verdict was not her verdict. Defense counsel requested further deliberations, while the prosecutor argued that the court was required to declare a mistrial on the ground that the jury had revealed the state of its deliberations. The trial court did not accept the verdict and granted the mistrial. This Court reversed, holding that MCR 2.512(B)(3) expressly provides that the jury must be sent out for further deliberation and because there was no manifest necessity for the granting of a mistrial. The panel remanded for entry of an unconditional dismissal because the prohibition against double jeopardy barred retrial

In Wayne Co. Prosecutor, supra, a juror stated that she did not agree with the verdict upon the poll of the jury, which returned a verdict of not [208 Mich.App. 169] guilty by reason of insanity. There, the trial court, over the prosecutor's objection, bound the juror to her previous vote, accepted the verdict, and discharged the jury. This Court reversed, finding that the trial court should have instructed the jury to deliberate further. In addition, the panel sua sponte declared a mistrial because the jury was unable to reach a verdict and remanded the case for a new trial. ²

In the present case, the trial court clearly erred in accepting a verdict that was not unanimous. The trial court also erred in inquiring into the nature of the juror's doubt. Such an inquiry is impermissibly coercive. Cf. People v. Wilson, 390 Mich. 689, 213 N.W.2d 193 (1973) (trial court's inquiry into the numerical division of the jury is impermissibly coercive). The trial court should have instructed the jury to deliberate further upon the jury foreperson's expressed indecision with respect to the category of manslaughter. MCR 2.512(B)(3).

The prosecutor contends that a general verdict of manslaughter could properly be accepted because the manslaughter statute, M.C.L. § 750.321; M.S.A. § 28.553, provides for but one degree of manslaughter, and permits the same punishment for a conviction of voluntary or involuntary manslaughter. The prosecutor relies on People v. Fullwood, 51 Mich.App. 476, 481, 215 N.W.2d 594 (1974), in support of his argument. In Fullwood, the Court stated:

A general verdict of guilty is erroneous when the offenses charged are separate and distinct in character, provable by substantially different evidence,[208 Mich.App. 170] and punishable by different penalties. 51 Mich.App. at 481, 215 N.W.2d 594.

The Court held that a general verdict of first-degree murder was not erroneous because, even though the jury did not specify whether the defendant committed premeditated murder or felony murder, the evidence was sufficient to sustain a conviction under either theory. See also People v. Embree, 68 Mich.App. 40, 241 N.W.2d 753 (1976).

In contrast to Fullwood and Embree, which were both first-degree murder cases, a general verdict of manslaughter would have been erroneous in this case. Although both voluntary and involuntary manslaughter involve the killing without malice of another, the offenses are separate and distinct, People v. Townes, 391 Mich. 578, 589, 218 N.W.2d 136 (1974), and, as stated in People v. Daniels, 172 Mich.App. 374, 379-380, 431 N.W.2d 846 (1988), are provable by substantially different evidence:

The manslaughter statute, MCL 750.321; MSA 28.553, incorporates two common-law categories of manslaughter, involuntary and voluntary. People v Richardson, 409 Mich 126, 134, n 8; 293 NW2d 332 (1980). These categories are distinguishable, each defining crimes originating out of circumstances often quite different from the other. Id., p 136, 293 N.W.2d 332.

On the one hand, involuntary manslaughter has been defined as

"the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty." [People v. Scott, 29 Mich.App. 549, 551, 185 N.W.2d

576 (1971), quoting People v. Ryczek, 224 Mich. 106, 110, 194 N.W. 609 (1923).]

[208 Mich.App. 171] The usual situations in which involuntary manslaughter arises are either when death results from a direct act not intended to produce serious bodily harm or when death results from criminal negligence. Richardson, supra, p. 136 [293 N.W.2d 332]. By contrast, voluntary manslaughter shares all the elements of murder except malice. Proof of provocation or other mitigating circumstances is necessary to return a verdict of voluntary manslaughter when there has been an intentional homicide. [Citations omitted.]

Clearly, voluntary manslaughter is an intentional killing (mitigated by heat of passion), whereas involuntary manslaughter is an unintentional killing. According to the prosecution's theory, the shooting was intentional and premeditated,...