People v. Goldsmith
| Decision Date | 24 August 1981 |
| Docket Number | No. 64326,64326 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, Cross-Appellee, v. Almer Kelly GOLDSMITH, Defendant-Appellee, Cross-Appellant. |
| Court | Michigan Supreme Court |
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Atty., Appeals, and Timothy L. Cronin, Asst. Pros. Atty., Detroit, for the people.
Kim Robert Fawcett, Asst. State Appellate Defender, Detroit, for defendant.
The issue presented in the instant case is whether reversible error was committed by delivery of a jury charge which deviated from the ABA instruction adopted by this Court in People v. Sullivan, 392 Mich. 324, 220 N.W.2d 441 (1974). 1 We hold that the giving of this instruction was a substantial deviation from that approved in Sullivan and therefore the reversal of the defendant's convictions by the Court of Appeals was proper. However, we issue this opinion to make it clear that a proper Sullivan instruction may be given as part of the main charge to the jury.
Following the closing of proofs, near the conclusion of his main charge to the jury, the trial judge instructed the jury in part as follows:
No objection was posed to this portion of the charge at trial. Following approximately four hours of deliberation, the jury returned a verdict finding defendant guilty of the two offenses charged in the information, assault with intent to murder and possession of a firearm in the commission of a felony. M.C.L. § 750.83; M.S.A. § 28.278; M.C.L. § 750.227b; M.S.A. § 28.424(2).
On appeal, the defendant argued that the trial judge's instructions were erroneous since they operated to coerce the jury to return a verdict. In a two-to-one decision, the Court of Appeals reversed defendant's convictions. 94 Mich.App. 155, 288 N.W.2d 372 (1979).
The panel's majority found the instructions given in the instant case to be erroneous, interpreting a prior decision of this Court, People v. Sullivan, supra. The majority premised its conclusion upon two grounds. First, insofar as the judge's instruction in this case paralleled the charge approved in Sullivan, the instruction was given at an inappropriate time. The panel in this case concluded that the Sullivan instruction may not be given during the original jury charge but, rather, may be delivered only where the jury has indicated it is deadlocked. Second, the majority held that the instruction given in this case substantially departed from the charge approved in Sullivan.
In Sullivan, this Court disapproved further use of the Allen charge, Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896), and adopted the American Bar Association Standard Jury Instruction 5.4 as the charge to be given in situations where a jury may be deadlocked. 2 Although the facts of Sullivan involved an Allen -like charge delivered to a deadlocked jury, we did not intend to limit the use of the approved ABA charge to deadlock situations. The preface to the instruction provides, "Before the jury retires for deliberation, the court may give an instruction which informs the jury". Therefore, a trial judge may deliver the ABA charge to the jury prior to commencement of the jury's deliberations.
The purposes served by delivering the ABA charge prior to deliberations are twofold. First, the jury is instructed that their verdict must be unanimous. Second, the jurors are provided with some guidance concerning their duties during deliberations. While they are obligated to deliberate with the goal in mind of reaching an agreement, the instruction also emphasizes that no juror need surrender his honest convictions concerning the evidence solely for the purpose of obtaining a unanimous agreement.
Further, the effect of delivering the ABA charge prior to deliberations differs from its effect when given in a deadlock situation. When given during the original instructions, the ABA charge's coercive impact upon the jury is greatly diminished. 3 At this juncture, the instruction is one of many charges delivered to the jury. It tends to give guidance as to each juror's duty and responsibility during deliberations. At this point, the jury has not yet indicated any difficulty in reaching a verdict. There exists no "minority" faction among the jurors who might feel prodded by the charge to reach a verdict by surrendering their honest convictions. These considerations lead us to conclude that delivery of the ABA instruction during the main charge to the jury is proper.
The final issues to be resolved are whether the instruction delivered in the present case substantially departed from the ABA instruction approved in Sullivan, and if so, whether reversal is warranted. The first portion of the trial judge's instruction parallels the charge approved in Sullivan. However, the judge added the following:
In Sullivan, this Court...
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