People v. Cooks

• Decision Date: 01 January 1994
• Docket Number: Docket No. 97114,No. 11,11
• Citation: 446 Mich. 503,521 N.W.2d 275
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Ricky COOKS, Defendant-Appellee. Calendar,
• Court: Michigan Supreme Court

Page 275

521 N.W.2d 275

446 Mich. 503

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Ricky COOKS, Defendant-Appellee.

Docket No. 97114.

Calendar No. 11, Jan. Term, 1994.

Supreme Court of Michigan.

Argued Jan. 12, 1994.

Decided Aug. 29, 1994.

Frank J. Kelley, Atty. Gen., Thomas L.Casey, Sol. Gen., John D. O'Hair, Pros. Atty., County of Wayne, Timothy A. Baughman, Chief of Research Training and Appeals, Carolyn M. Breen, Asst. Pros. Atty., Detroit, for the people.

William R. Stackpoole, Detroit, for defenant.

OPINION

ROBERT P. GRIFFIN, Justice.

In this case, defendant was charged with one count of first-degree criminal sexual conduct, ¹ but testimony elicited from the complainant at trial referred to three incidents of sexual penetration. Although the jury was instructed in general terms that its verdict must be unanimous, defendant's conviction of second-degree criminal sexual conduct was vacated by the Court of Appeals because the trial court refused to instruct the jurors that unanimous agreement about a specific act of penetration is required for conviction. Because materially identical evidence was offered with respect to each of the alleged acts of penetration and there is no reason to believe the jury was confused or disagreed about the basis of defendant's guilt, we conclude that the trial court did not err, and we reverse the decision of the Court of Appeals.

I

Charging defendant with one count of first-degree criminal sexual conduct, the information alleged that "on or about Jan, 1989," defendant "[d]id engage in sexual penetration, to wit: anal intercourse with the complainant, a person under 13 years of age, contrary to sec. 750.520B(1) M.C.L.A." Complainant was ten years of age at the time of the alleged acts.

The complainant testified that in January 1989, she and her four siblings lived with their cousin, Joanne Burris, in a house in Detroit. Defendant and George White lived in the basement of the home.

Complainant stated that Ms. Burris was away from the home during the day for a week in January 1989 to cook at a church revival. ² Although she could not remember the specific date, the child recalled that on Monday morning during this week, she and defendant were alone in the home. Defendant allegedly approached complainant from behind while she was cleaning the living room and began fondling her breast and vagina. Defendant then began kissing her, whereupon he turned her around and pushed her against a wall. While holding her arms for approximately five minutes, the child believed defendant penetrated her anus with his penis. ³

Complainant testified to a second similar sexual assault by defendant that allegedly occurred the next morning as she was cleaning her room. She stated that defendant approached her and again began fondling her breasts and vagina while trying to kiss her. After defendant turned the victim and forced her against a wall, she believed that defendant again penetrated her anus with his penis. ⁴ The victim then testified to a third act of anal penetration by defendant that allegedly occurred the next day under similar circumstances. While the child was folding clothes in the dining room, defendant approached her, began fondling her breasts and vagina, then forced her against a wall. She testified that she then felt what she believed to be defendant's penis penetrate her anus. ⁵

Although these incidents allegedly occurred in January 1989, complainant did not inform Joanne Burris, her legal guardian, of the sexual assaults until Easter Sunday in March 1989, because she thought she would "get[ ] in trouble." When, later that evening, Burris took the victim to the hospital, the examining physician found no medical evidence of sexual penetration. Defendant denied all the allegations, he did not testify, and the defense rested without calling any witnesses.

At the close of proofs, defense counsel requested the trial judge to give the following special instruction: "Members of the jury, you must be unanimous as to which specific act of penetration occurred, if any, before you can find the Defendant guilty of CSC in the first degree."

While declining to give the requested instruction, the trial court's instructions to the jury included the following:

The evidence in this case must convince you, beyond a reasonable doubt, that the crime occurred on or about January, 1989, within the City of Detroit. The Defendant is charged with the crime of CSC in the first degree. The Defendant pleads not guilty to this charge. To establish this charge, the Prosecution must prove each of the following elements beyond a reasonable doubt:

First, that the Defendant, Ricky Cooks, engaged in a ... specific sexual act which involves some actual entry into the anal opening of [the complainant's] body.

It is alleged ... that the sexual act was committed by a penetration of the Complainant['s] ... body by the Defendant, Ricky Cooks' penis. Any such entry into the anal opening is enough.

The court explained the elements of several lesser offenses, including second-degree criminal sexual conduct, ⁶ and then instructed the jury:

If you all have agreed upon one verdict, your foreperson should mark that verdict.

* * * * * *

A verdict in a criminal case must be unanimous. In order to return a verdict, it is necessary that each of you agree upon that verdict.

The jury found defendant guilty of second-degree criminal sexual conduct. In an unpublished per curiam opinion, ⁷ the Court of Appeals reversed the conviction, citing People v. Yarger, 193 Mich.App. 532, 537, 485 N.W.2d 119 (1992).

Thereafter, we granted the prosecutor's application for leave to appeal, "limited to whether the Detroit Recorder's Court failed to instruct the jury properly with regard to its obligation to render a unanimous verdict." 444 Mich. 874, 511 N.W.2d 675 (1993).

II

While the Sixth Amendment of the federal constitution includes the right of an accused to a unanimous verdict in federal criminal prosecutions, see Andres v. United States, 333 U.S. 740, 68 S.Ct. 880, 92 L.Ed. 1055 (1948), ⁸ the United States Supreme Court has held that the Fourteenth Amendment does not mandate unanimous verdicts for convictions in noncapital criminal prosecutions in state courts. Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972); Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972). Thus, the right to a unanimous jury verdict in noncapital state criminal proceedings must be grounded in state law.

At common law, civil as well as criminal defendants were entitled to unanimous jury verdicts. See McRae v. Grand Rapids, L. & D.R. Co., 93 Mich. 399, 53 N.W. 561 (1892). ⁹ This right was preserved by the ratifiers of the original Michigan Constitution, ¹⁰ and the current version of the state constitution maintains the unanimity requirement, albeit in criminal prosecutions only. ¹¹

In order to protect a defendant's right to a unanimous verdict, it is the duty of the trial court to properly instruct the jury regarding the unanimity requirement. See, generally, People v. Liggett, 378 Mich. 706, 714, 148 N.W.2d 784 (1967) ("Defendant has a right to have a properly instructed jury pass upon the evidence"). In this case, we must determine whether a general unanimity instruction to the jury was adequate in light of the pattern of conduct offered as evidence of a single charged offense.

III

In finding that the trial court erred in this case, and that reversal was required, the Court of Appeals relied exclusively on Yarger, supra, and reasoned:

Error occurred because the jury was not instructed that it must unanimously agree on which of the separate act(s) was proven beyond a reasonable doubt.

* * * * * * Under Yarger, defendant is entitled to a unanimity instruction. He asked for one to be given, but it was not given. If Yarger 's holding has any meaning--and the [People v. Van Dorsten, 441 Mich. 540, 494 N.W.2d 737 (1993) ] court specifically declined to approve or disapprove Yarger (id. p. 278)--it must say that the failure to give a unanimity instruction is not always harmless.

Accordingly, we hold Van Dorsten to its facts and follow Yarger here to reverse. ¹²

Defendant agrees with the panel's application of Yarger, and points to the decisions in People v. Jenness, 5 Mich. 305 (1858), and People v. Pottruff, 116 Mich.App. 367, 323 N.W.2d 402 (1982), as additional support for an affirmance of the Court of Appeals. We disagree.

After considering the arguments presented in this appeal and carefully reviewing the relevant federal and state authority available, we reach the conclusion that a specific unanimity instruction is not required in all cases in which more than one act is presented as evidence of the actus reus of a single criminal offense. The critical inquiry is whether either party has presented evidence that materially distinguishes any of the alleged multiple acts from the others. ¹³ In other words, where materially identical evidence is presented with respect to each act, and there is no juror confusion, a general unanimity instruction will suffice.

In this regard, Yarger, Jenness, and Pottruff are distinguishable from the case at bar. Whereas at least one of the alternative alleged acts in Yarger, Jenness, and Pottruff were supported or rebutted by a materially distinct piece of evidence, the evidence presented against defendant here was materially identical with regard to all three of the alleged acts of penetration. As indicated below, we find this distinction to be dispositive.

A

The decision in United States v. Gipson, 553 F.2d 453 (C.A.5, 1977), is considered a seminal ruling regarding the need for a specific unanimity instruction when evidence of multiple acts by a defendant are placed before a jury to support a single charged offense. ¹⁴ There, the United States Court of Appeals for the Fifth Circuit reversed the defendant's conviction of "selling or...