People v. France
| Decision Date | 12 September 1990 |
| Docket Number | Docket Nos. 84104,84324 |
| Citation | 436 Mich. 138,461 N.W.2d 621 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. LaNathan FRANCE, also known as LaNathan H. France, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Earl Lee PANNELL, Defendant-Appellant. |
| Court | Michigan Supreme Court |
George B. Mullison, Bay County Pros. Atty. by Martha G. Mettee, Asst. Pros. Atty., Bay City, John D. O'Hair, Pros. Atty., Wayne County, Timothy A. Baughman, Chief of Research, Training and Appeals, Joseph A. Puleo, Asst. Pros. Atty., Detroit, for the People.
State Appellate Defender Office by F. Michael Schuck, Asst. Defender, Detroit, for France.
State Appellate Defender Office by Derrick A. Carter, Asst. Defender, Detroit, for Pannell.
We granted leave to appeal in these two cases, consolidated for purposes of this appeal, to review the strict rule requiring reversal of a conviction in the event of communication with a deliberating jury outside the courtroom and the presence of counsel. 1
Communication with a deliberating jury is prohibited by MCR 6.414(A). 2 Any communication with a jury not in conformance with the court rules has been, and continues to be, discouraged by this Court. However, the realities of trial practice lead us to the determination that the harsh rule of automatic reversal goes beyond the limits necessary to safeguard the right of a defendant to a fair trial. Therefore, today we modify the rule of automatic reversal. 3
The linchpin of the new rule centers on a showing of prejudice. For purposes of this rule, we broadly define prejudice as "any reasonable possibility of prejudice."
We find that communication with a deliberating jury can be classified into one of three categories: substantive, administrative, or housekeeping. Upon appeal, it is incumbent upon a reviewing court to first categorize the communication that is the basis of the appeal. This will necessarily lead to the determination of whether a party has demonstrated that the communication was prejudicial, or that the communication lacked any reasonable prejudicial effect. 4
Substantive communication encompasses supplemental instructions on the law given by the trial court to a deliberating jury. A substantive communication carries a presumption of prejudice in favor of the aggrieved party regardless of whether an objection is raised. The presumption may only be rebutted by a firm and definite showing of an absence of prejudice.
Administrative communications include instructions regarding the availability of certain pieces of evidence and instructions that encourage a jury to continue its deliberations. An administrative communication carries no presumption. The failure to object when made aware of the communication will be taken as evidence that the administrative instruction was not prejudicial. Upon an objection, the burden of persuasion lies with the nonobjecting party to demonstrate that the communication lacked any prejudicial effect. Alternatively, a reviewing court, upon its own volition, may find that an instruction which encourages a jury to continue its deliberations was prejudicial to the defendant because it violated the ABA Standard Jury Instruction 5.4(b), 5 as adopted by this Court in People v. Sullivan, 392 Mich. 324, 220 N.W.2d 441 (1974).
Housekeeping communications are those which occur between a jury and a court officer regarding meal orders, rest room facilities, or matters consistent with general "housekeeping" needs that are unrelated in any way to the case being decided. A housekeeping communication carries the presumption of no prejudice. First, there must be an objection to the communication, and then the aggrieved party must make a firm and definite showing which effectively rebuts the presumption of no prejudice.
We conclude that the instructions in each of the cases at bar fall into the category of administrative communication, except the typewritten definition of second-degree criminal sexual conduct which was a substantive communication. With regard to the administrative communications in each case, the defense counsel waived objection when made aware of the instructions. With regard to the substantive communication in Pannell, the prosecution effectively overcame the presumption of prejudice to the defendant. Furthermore, the note written by the trial court was in conformance with the Sullivan rule and included in the record. We find that the record evidence indicates that neither defendant has suffered "any reasonable possibility of prejudice" as a result of the communications.
Accordingly, we reverse the decision of the Court of Appeals in France and affirm the decision of the Court of Appeals in Pannell.
At the conclusion of a September, 1985, jury trial, LaNathan France was convicted of armed robbery 6 and of breaking and entering an occupied dwelling with intent to commit larceny. 7 The jury acquitted him of second-degree criminal sexual conduct. 8 He was sentenced to serve a term of from twenty to forty years in prison for armed robbery, and a concurrent term of from ten to fifteen years in prison for breaking and entering.
Moments after the jury left the courtroom to begin its deliberations, the trial court asked defense counsel, "[a]ny objection, if [the jurors] ask for the exhibits, just to send them into them by way of the bailiff ...?" Defense counsel said he did not object.
While the jury was deliberating, the trial court several times indicated that there had been contact between the bailiff and the jury. On each occasion, defense counsel stated that he had no objection.
The first of these conversations began when the trial court explained that the jury had sent out a note asking for a diagram of the victim's house, as well as the exhibits that had been produced by the prosecution. The trial court stated, The trial court then stated that the other exhibits had been given to them. Defense counsel responded: "[n]o objection to the handling [of] the diagram in the manner in which you did, your Honor."
Later in the day, the trial court stated that it had received a note from the jury asking for a further definition of criminal sexual conduct. The trial court reported that it had given the jury a written instruction in a form that was approved by the defense counsel. Defense counsel stated on the record that the recitation of the trial court was correct. 9
Finally, the trial court said that the jury had requested a police report. He told counsel that "the response to [the jurors] was that [the police report] was marked but was not received in evidence; and, therefore, we were not able to give them that." Defense counsel's response was the same: "[n]o objection to that, your Honor."
In the Court of Appeals, France presented many claims of error. Believing one had merit, the Court of Appeals declined to discuss the others.
The Court of Appeals followed the strict rule prohibiting communication with a deliberating jury outside the courtroom and the presence of counsel, People v. Cain, 409 Mich. 858, 294 N.W.2d 692 (1980), and reversed the conviction of the defendant. 10 The Court based its decision solely on the doctrine of stare decisis. 11 Judge Beasley signed the unanimous opinion and added a separate concurrence in which he urged this Court to "revisit and reverse" the automatic reversal rule stated in Zaitzeff v. Raschke, 387 Mich. 577, 198 N.W.2d 309 (1972).
The prosecution sought leave to appeal, which we granted on June 30, 1989. 12
Earl L. Pannell went to trial in November, 1985, on eight counts of first-degree criminal sexual conduct. 13 At the conclusion, a jury found him not guilty of three of the eight counts. With regard to the remaining five counts, Pannell was convicted of the lesser offense of third-degree criminal sexual conduct. 14 He was sentenced to five concurrent terms of from ten to fifteen years in prison.
The jury was instructed near the end of the day on November 12, 1985. The next morning, the jury began deliberating, and, at 10:30 a.m., it asked the court for "[p]ictures, police report, [and the victim's] statement." In the absence of defense counsel, the judge directed the bailiff to give the jury the photographs that were admitted into evidence. However, the court waited to respond to the request for the police report and the victim's statement until defense counsel appeared at 12:20 p.m. At this time, the matters were placed on the record. Both parties agreed that neither the police report nor the victim's statement should be sent to the jury because the items were not admitted into evidence. Furthermore, defense counsel had no objections to the jury receiving the photographs. The jury was excused that afternoon at 4:30 p.m. without reaching a verdict.
The following morning, November 14, 1985, at 10:38 a.m., the jury sent a note to the judge which read, "we can not reach an agreement." Without consulting counsel, the judge immediately replied with a note which read, "[c]ontinue your deliberations...." At 12:12 p.m. that afternoon, the jury sent out a second note which stated, "[m]ay we see the hammers?" Again, without consulting counsel, the judge directed the bailiff to give the jury the hammers that were entered into evidence as exhibits. 15 When the attorneys returned to the courtroom at 12:20 p.m. the same afternoon, the judge summarized the above occurrences for the record. 16 Here again, there was no objection to the judge sending the jury the exhibits that were entered into evidence, in this instance the hammers.
However, defense counsel wanted to place on the record an...
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...Court in People v. France, that ex parte remarks are nearly always improper, but only sometimes involve critical stages. 436 Mich. 138, 461 N.W.2d 621, 631-32 (1990). Compare People v. Arnold, 477 Mich. 852, 720 N.W.2d 740 (2006) (denial of counsel at sentencing, a critical stage, "is struc......
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...And of course, trial courts have always been the gatekeepers for protecting the secrecy of jury deliberations. People v. France , 436 Mich. 138, 150, 461 N.W.2d 621 (1990) ("The secrecy of the deliberations of the jury is a responsibility of the trial judge.") (quotation marks and citation ......
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