People v. Hagle, Docket No. 21822

• Citation: 242 N.W.2d 27,67 Mich.App. 608
• Decision Date: 08 March 1976
• Docket Number: Docket No. 21822
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas HAGLE, Defendant-Appellant. 67 Mich.App. 608, 242 N.W.2d 27
• Court: Court of Appeal of Michigan — District of US

Page 27

242 N.W.2d 27

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas HAGLE, Defendant-Appellant.

Docket No. 21822.

67 Mich.App. 608, 242 N.W.2d 27

Court of Appeals of Michigan.

March 8, 1976.

Released for Publication June 8, 1976.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

[67 MICHAPP 609] Frank J. Kelley, Atty. Gen., Robert A. [67 MICHAPP 610] Derengoski, Sol. Gen., Peter E. Deegan, Pros. Atty., for plaintiff-appellee.

Before D. E. HOLBROOK, P.J., and J. H. GILLIS and KELLY, JJ.

J. H. GILLIS, Judge.

A jury convicted defendant of delivery of a controlled substance, methylphenidate, contrary to M.C.L.A. § 335.341(1)(a); M.S.A. § 18.1070(41)(1) (a). Defendant was sentenced to a 3 1/2 to 7 year prison term, and appeals as of right.

Several allegations of error are made on appeal, the most serious of which questions the impartiality of the jury.

Shortly after the trial ended, defense counsel received an anonymous letter which charged certain improprieties had occurred during jury deliberations. Pursuant to this letter, defense counsel moved for a new trial. At a hearing which followed, the defense introduced two affidavits, one from juror William Johnston and one from defense counsel's secretary describing a conversation between herself and another member of the jury.

In his affidavit, juror Johnston stated that, at the time the jury was drawn, he did not realize that he had had any previous contact with 1430 Tenth Avenue, Port Huron, Michigan, which was the home of defendant and his only defense witness, and the location at which the drug buy was arranged. Johnston further stated that during the course of trial, when a picture of the house was admitted into evidence, he realized that the house was the same one that he had had several contacts [67 MICHAPP 611] with in recent months in his capacity as an employee of the Michigan National Bank.

Johnston's affidavit also stated:

'(6) That during the latter part of 1973 and/or early part of 1974, the undersigned William Johnston went to the 1430 Tenth Avenue, Port Huron, Michigan, address with several other members of a crew from the Michigan National Bank to board up the house in order to preserve it for the Michigan National Bank.

'(7) That to the best of the recollection of the undersigned William Johnston, he went to the residence at 1430 Tenth Avenue on three separate occasions to board up the house on behalf of the Michigan National Bank.

'(8) That on the first occasion that the undersigned William Johnston was at the house, a young girl came into the house and was looking through the mess, apparently trying to find some items. The young girl stated to William Johnston that 'her husband tore up the place last night and broke the windows,' or words to that effect. The undersigned William Johnston did not and does not know whether the young girl was the wife of Thomas Hagle or not.

'(9) That to the best of the undersigned William Johnston's recollection, on the second occasion that William Johnston was at the 1430 Tenth Avenue residence, he met an older gentleman who lived next door to the 1430 Tenth Avenue residence and the older gentleman told William Johnston that he was glad that the people were gone from the residence since his bedroom was right close to the residence and that the people there were very loud.

'(10) That on one of the occasions that the undersigned William Johnston went to the residence at 1430 Tenth Avenue on behalf of the Michigan National Bank, he requested that a Port Huron police officer go to the residence with the bank people to first go through the residence and determine whether or not anyone was there prior to Mr. Johnston and his fellow workers doing any work on the house. The police officer did go to the residence and did inspect the residence [67 MICHAPP 612] prior to the work being done on this particular occasion and no one was in the residence at the time.

'(11) That at some time, apparently later in 1973, the undersigned William Johnston ws informed by another employee of the Michigan National Bank at that time, a woman, that she lived across the street from the residence at 1430 Tenth Avenue that the bank was boarding up and that she was relieved that the people were gone from the residence since she was scared of all the things that were going on at the residence, the late night parties, and so forth, although drugs were never mentioned.

'(12) That the only matter with respect to the undersigned William Johnston's previous contracts with the residence at 1430 Tenth Avenue that the undersigned William Johnston recalls relating to the other jurors during their deliberations was the fact that he realized during the trial when the picture was put into evidence that this was the residence that he had boarded up on behalf of the Michigan National Bank.

'(13) That after the entire jury did reach its verdict in the case against Thomas Hagle, the undersigned William Johnston recalls relating to a fellow juror whose name he does not recall that the undersigned William Johnston felt the jury had reached a proper verdict in view of what William Johnston had heard about the house in his work for the Michigan National Bank.

'(14) That the two statements above referred to by William Johnston in the jury room are the only statements that William Johnston recalls making about his prior knowledge of the house during the entire period of the jury deliberations.'

Both the prosecutor and the defense counsel were present when this affidavit was taken. At the hearing on the motion, after the defense counsel presented his arguments, the prosecutor added that Johnston made one further statement which was not included in the affidavit.

[67 MICHAPP 613] 'Mr. Nickerson (Prosecutor): * * * Mr. Johnston did state at the end of our interview, when asked, that he reached his decision in this case based solely on the evidence he observed in court, and he affirmatively stated to us that any knowledge he had of the home was not taken into consideration by him in reaching a verdict on the charge.

'Isn't that correct?

'Mr. Beauchamp (Defense Counsel): I would agree that is a statement made by Mr. Johnston.'

The other affidavit was given by Barbara Haase, secretary to the defense counsel, and stated that she talked by telephone with Irvin Stewart, one of the other jurors on the case. Juror Stewart told her that juror Johnston said he had boarded up the home at 1430 Tenth Avenue in the course of his employment. She also stated that juror Stewart told her he recalled juror Johnston relating something about talking to one of the neighbors of the home at 1430 Tenth Avenue and something about the house being called a 'dope den', but that his memory was vague on these points. She also said that juror Stewart told her he did not believe that juror Johnston's remarks swayed his opinion in the matter either way.

Defense counsel also stated on the record that there was another affidavit forthcoming from another one of the jurors, Beatrice Stiles, in which juror Stiles would state that during the deliberations of the jury, juror Johnston indicated to the jury that he worked for the Michigan National Bank as a maintenance man and had been up to the house at 1430 Tenth Avenue, although he did not know at the time it was the residence of the defendant. Her affidavit would also state that juror Johnston further related that neighbors of the house at 1430 Tenth Avenue were frightened of [67 MICHAPP 614] the things that were going on at the residence, although drugs were never mentioned by Johnston.

After hearing the arguments on the motion, the trial judge denied the motion for a new trial.

To begin with, in reviewing this question on appeal, we consider only the affidavit of juror Johnston in arriving at our decision. The affidavit of Ms. Haase, secretary to defense counsel, ought to be stricken. This affidavit states that juror Johnston told juror Stewart certain things, juror Stewart told them to Ms. Haase who then wrote them down in affidavit form. Even if the statements related by Johnston to Stewart are not considered to be hearsay, ¹ the affidavit itself still constitutes double hearsay (the written sheet constitutes one level of hearsay; the statements contained in it allegedly made by Stewart to Ms. Haase constitute another level of hearsay). Because this affidavit is inadmissible in a court of law, it should not be considered here. Likewise, defense counsel's promise of another purported affidavit to come from still another juror remains, at this time, an empty one. Until it is produced for the court's consideration, it is a legal nullity.

Turning therefore to the affidavit of juror Johnston, it is important to note what this document states. Basically, Johnston swore that he was a juror in the Hagle case. On voir dire, he had no recollection of any prior dealings with either Hagle or Hagle's house. Sometime during the trial, he realized that he had visited the Hagle house three [67 MICHAPP 615] times in his capacity as a bank employee. He had engaged in the boarding up of the house. He had several conversations with neighbors, etc., as related in the affidavit. Most importantly, Johnston swore that the only thing he told his fellow jurors during deliberations was that he had boarded up the house on behalf of the bank.

Turning to the merits of defendant's claim, we must begin by examining the holding of People v. Moreland, 12 Mich.App. 483, 163 N.W.2d 257 (1968). In Moreland, supra, defendant had been convicted of breaking and entering with intent to commit larceny. On appeal, we held that affidavits produced by two jurors, stating that a certain newspaper article had been read and discussed during jury deliberations, indicated sufficient prejudice so as to allow defendant a new trial. The article discussed by the jurors

'(R)elate(d) the fact of at least one prior conviction and support(ed) a...