People v. Hardin

• Decision Date: 24 January 1983
• Docket Number: Docket No. 55791
• Citation: 121 Mich.App. 355,328 N.W.2d 416
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Tyrone Victor HARDIN, Defendant-Appellant. 121 Mich.App. 355, 328 N.W.2d 416
• Court: Court of Appeal of Michigan — District of US

Page 416

328 N.W.2d 416

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

Docket No. 55791.

121 Mich.App. 355, 328 N.W.2d 416

Court of Appeals of Michigan.

Submitted June 29, 1982.

Decided Nov. 17, 1982.

Released for Publication Jan. 24, 1983.

[121 MICHAPP 357] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., David H. Sawyer, Pros. Atty., and Carol S. Irons, Chief Appellate Asst. Pros. Atty., for the People.

George S. Buth, Grand Rapids, for defendant-appellant on appeal.

Before KELLY, P.J., and MAHER and TAHVONEN, ^* JJ.

MAHER, Judge.

After a jury trial, defendant was convicted of assault with intent to do great [121 MICHAPP 358] bodily harm less than murder, M.C.L. Sec. 750.84; M.S.A. Sec. 28.279, carrying a concealed weapon, M.C.L. Sec. 750.227; M.S.A. Sec. 28.424, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). He appeals as of right.

The jury began deliberating defendant's fate at 2:26 p.m. on August 27, 1980, and returned on that same day at about 5:39 p.m. without having reached a verdict. The jury returned the following morning at 9:30 a.m. At 10:25 a.m., pursuant to a request by the jury, the judge re-read the appropriate instruction dealing with intent. The jury again left the courtroom at about 10:30 a.m. and deliberated until about 2:19 p.m., whereupon they returned to the courtroom after informing the judge that they had not reached a verdict. The foreman asked to speak with the judge. This request was denied, and the judge gave the following instruction to the jury:

"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. [121 MICHAPP 359] 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."

The jury thereupon left the courtroom only to return at 3:48 p.m., whereupon the judge stated:

"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 [121 MICHAPP 360] 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 for the fourth time, but returned at 5:16 p.m. without having reached a verdict. The judge thereupon told the jury:

"Then I am sorry. And I think you are learning being a juror is a very difficult job, as any type of judging is. But I am going to ask that you retire now. And we will recess the matter until 9:30 tomorrow morning and ask you all report here promptly at 9:30. Perhaps after a night's sleep and breakfast in the morning, you will be able to come back and reach a verdict.

"In the meantime, let me caution you try not to discuss it, and take it off your minds, and wait until you get back here in the morning. Maybe with a refreshed mind in the morning, you will be able to reach a verdict. You may retire. Be sure you sign out before you leave.

"Thank you. And have a pleasant evening."

On the following morning, August 29, 1980, at about 11:50 a.m., the jury returned to the courtroom and announced that it had found the defendant guilty of three crimes.

We reverse.

In People v. Allen, 102 Mich.App. 655, 302 N.W.2d 268 (1981), lv. den. 411 Mich. 870, 306 N.W.2d 101 (1981), this Court declared that in People v. Sullivan, 392 Mich. 324, 220 N.W.2d 441 (1974), the Supreme Court

"intended to announce a prophylactic rule eliminating the necessity of future appellate inquiry into the coercive effect of any number of possible variants on the Allen charge. One form was approved, and the Court [121 MICHAPP 361] clearly indicated its intent that only that form be used in the future. Because the new rule was made prospective, Allen-type charges in trials occurring before Sullivan were still subject to a case-by-case analysis, but the only case-by-case inquiry necessary in trials taking place after Sullivan involves whether the instruction given is a 'substantial departure' from the ABA charge." Allen, supra, 102 Mich.App. pp. 658-659, 302 N.W.2d 268.

Thus, any language employed by the trial court aimed at encouraging the jury to reach a...