People v. Hardin

• Decision Date: 01 June 1984
• Docket Number: Docket No. 70736
• Citation: 421 Mich. 296,365 N.W.2d 101
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Tyrone Victor HARDIN, Defendant-Appellee. ,
• Court: Michigan Supreme Court

Page 101

365 N.W.2d 101

421 Mich. 296

The PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Tyrone Victor HARDIN, Defendant-Appellee.

Docket No. 70736, June Term, 1984.

Calendar No. 7.

Supreme Court of Michigan.

Argued June 7, 1984.

Decided Dec. 28, 1984.

Released for Publication Feb. 1, 1985.

David H. Sawyer, Kent County Pros. Atty., Timothy K. McMorrow, Chief Appellate Atty., Grand Rapids, for plaintiff-appellant.

George S. Buth, Grand Rapids, for defendant-appellee.

RYAN, Justice (for reversal).

We are asked to refine further our decision in People v. Sullivan, 392 Mich. 324, 220 N.W.2d 441 (1974), in which we adopted, prospectively, ABA standard jury instruction 5.4 for use as supplemental instructions to deadlocked juries. In Sullivan, we renounced future use of the "Allen" charge, Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896); we adopted ABA standard jury instruction 5.4; and we asserted that "[a]ny substantial departure [from ABA standard jury instruction 5.4] shall be grounds for reversible error." 392 Mich. at 341-342, 220 N.W.2d 441.

The opinion for affirmance holds that the deviation from ABA standard jury instruction 5.4 in this case constitutes a "substantial departure," and it would affirm the Court of Appeals reversal of the defendant's conviction. We disagree, and we therefore reverse the judgment of the Court of Appeals and reinstate the defendant's conviction.

I. Facts

Defendant was charged with assault with intent to murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2), and carrying a concealed weapon, M.C.L. Sec. 750.227; M.S.A. Sec. 28.424.

In the early afternoon hours of October 30, 1979, Grand Rapids Police Officer John Kuipers, after hearing a dispatch report concerning an armed robbery, began to follow a Buick with three people inside, one of whom wore clothing similar to that described in the dispatch. Although Officer Kuipers activated the overhead lights on the police cruiser and sounded the horn, the Buick sped up. Kuipers chased the Buick for several minutes, and he eventually rammed it with the police cruiser. After Kuipers got out of the car, all three occupants of the Buick began firing guns at Kuipers.

Two of the occupants, later identified as Henry Thomas and Michael Long, ran from the car. The remaining occupant, later identified as defendant Tyrone Victor Hardin, was apprehended. At trial, defendant Hardin did not testify, although he did present a defense essentially to the effect that, although he was in the car, he did not do any shooting, and, in fact, had attempted to get the driver of the car to stop during the chase.

The jury began deliberation at 2:26 p.m. on August 27, 1980, and rendered its verdict on August 29, 1980, at 11:50 a.m. Between the time the jurors began deliberating and the time they rendered their verdict, the jury was returned to the courtroom on five occasions and given additional or supplemental instructions. The jury found the defendant guilty of the lesser included offense of assault with intent to do great bodily harm less than murder, M.C.L. Sec. 750.84; M.S.A. Sec. 28.279, carrying a concealed weapon, and felony-firearm. He was sentenced to the mandatory two-year term for felony-firearm, two and one-half to five years for carrying a concealed weapon, and six and one-half to ten years for the assault with intent to do great bodily harm less than murder.

Defendant appealed to the Court of Appeals. A divided Court of Appeals panel reversed the convictions. 121 Mich.App. 355, 328 N.W.2d 416 (1982). This Court granted leave, 417 Mich. 1040, 335 N.W.2d 467 (1983), "limited to the question of whether the supplemental instructions given the jury substantially departed from the American Bar Association's recommended standard jury instructions to be given to a 'dead locked' jury. See People v Sullivan, 392 Mich 324; 220 NW2d 441 (1974)."

II. Jury Instructions

The sole issue, which concerns the supplemental jury instructions given after the jury initially retired for deliberation, is better understood if we set forth, in some detail, the events that transpired.

The closing statements by counsel were completed during the morning of August 27, 1980. The trial judge began giving jury instructions at 1:36 p.m., and he concluded at 2:20 p.m., at which time the jury retired. At 2:23 p.m., the jury was returned to the courtroom in order to give the jury additional instructions relative to codefendant Thomas. The jury then retired at 2:25 p.m., and commenced deliberations at 2:26 p.m. The jury again returned to the courtroom at 5:39 p.m. without having rendered a verdict, and they recessed for the day. The jurors agreed to meet at 9:30 a.m. the next morning.

Although it is unclear exactly when the jury began deliberations the next day, August 28, 1980, they were returned to the courtroom at 10:25 a.m. The trial judge read aloud a statement the jurors had submitted to him--"We are confused on the judge's instructions regarding intent." The judge reread instructions regarding intent. The jury commenced deliberations at 10:30 a.m., but they were returned to the courtroom at 2:19 p.m. At that time, the following occurred:

"The Court: Members of the jury, I have the foreman's question. And it reads as follows: 'We cannot come to a decision. Is it possible for me as foreman to speak to the Judge?'

"I should inform you, Madam Foreman, it is not proper for the Court to communicate with any of you except as a whole. And I can answer any questions that you do have. I gather you are having a problem reaching a decision. And so let me read some additional instructions to you because you have heard all the facts that there are in this case. And I am sure with consideration and thought, that you will be able to arrive at a verdict. But we have some instructions I will give you in addition to those I have given you before.

"All of the facts have been presented to you. You have heard the arguments of excellent counsel on both sides. And so there is nothing more to be presented other than what there has been here up until now. It is your duty to consult with your fellow jurors and to deliberate with a view to reaching an agreement, if you can do so without violating your own judgment. Before deciding the case, give impartial consideration to the view of your fellow jurors. This means you should give respectful consideration to one another's views, talk over differences of opinion in a spirit of fairness and frankness.

"It is natural that differences of opinion will arise. When they do, each of you should not only express your own opinion, but also the facts and reasons upon which you base it. By reasoning the matter out, it is often possible for all the jurors to agree.

"In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if you are convinced that it is wrong. However, none of you should surrender your honest conviction as to the weight and the effect of the evidence or the lack of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.

"I have also told you do not concern yourselves during the trial or in your deliberations with what the penalty might be if you should find the defendant guilty. The question of guilt and the question of penalty are decided separately. It is the duty of the Judge to fix the penalty whenever a defendant is found guilty. Possible penalties should not influence your decision.

"Now, with that, I am going to ask that you return to the jury room. But before you do so, why don't you take a 15-minute break and go down and get some refreshments, if you want to, and return to the jury room in 15 minutes and see if you can't give further consideration to this. Thank you very much."

This will be referred to as the "first instruction."

The jury then retired at approximately 2:22 p.m. The trial judge inquired of counsel whether there were any objections, and was told there were none. The jury again was returned to the courtroom at 3:48 p.m. Although the record does not indicate that the jury had posed any question, the trial judge gave the following instruction ("second instruction"):

"The Court: Members of the jury, I realize again you have not reached a verdict on all of the charges here involved. And I am sorry to feel I have to do this, but I feel you must give further consideration to this before I can accept a verdict. You have indicated you have not reached a verdict on both defendants on all of the charges. You have got all of the facts there are, and so you will just have to keep on deliberating and see if you can't reach a verdict. And so if you would like to go downstairs again, I will let you do that. No? Then please see if you can't reach a verdict. You have been out, in effect, probably six or seven hours. And I think you have read often about juries being out considerably longer than that when they have reported a verdict. So I am just going to ask you to please go back. I can read the same instructions, but it would just be the same. So I will ask you to please try. If there is any exhibit that you want, we can get that for you. I guess that is as much as I can tell you. Thank you."

The jury then retired at 3:50 p.m.

However, at 5:16, the jury was again returned to the courtroom, where the following ("third instruction") occurred:

"The Court: Members of the jury, once again I realize you have indicated you were having trouble in reaching a verdict. But Madam Foreman, if I gave you a few more minutes, do you think you could arrive at a verdict?

"The Foreman: (Indicating negatively.)

"The Court: Madam Foreman, let me ask you this. Without indicating where you stand on anything, have you been able to agree on the verdict on the charges on either one of the defendants?

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