People v. Harris

• Decision Date: 28 November 1972
• Docket Number: No. 1,Docket No. 13052,1
• Citation: 204 N.W.2d 734,43 Mich.App. 746
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Percy HARRIS, Jr., Defendants-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 734

204 N.W.2d 734

43 Mich.App. 746

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Percy HARRIS, Jr., Defendants-Appellant.

Docket No. 13052.

Court of Appeals of Michigan, Division No. 1.

Nov. 28, 1972.

Released for Publication March 9, 1973.

Justin C. Ravitz, Philo, Maki, Cockrel, Robb, Spearman & Cooper, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Patricia J. Boyle, Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and FITZGERALD and J. H. GILLIS, JJ.

J. H. GILLIS, Judge.

The defendant was convicted by a jury of felonious assault, contrary to M.C.L.A. § 750.82; M.S.A. § 28.277, and appeals. The errors asserted on appeal relate solely to defendant's right to be present at critical stages of his trial; specifically: during inquiries into possible jury tampering. Hence it is unnecessary to repeat here the facts surrounding the alleged crime.

During the jury deliberations, it was reported to the trial court that defendant had been seen exiting a restroom shortly after the jury foreman left the same restroom. The trial court decided that a hearing was necessary to determine whether there was any misconduct as a result of the possible contact between the defendant and the jury foreman. A hearing with a separate record was held, during which testimony was taken from five witnesses. All of the testifying witnesses, including the defendant, were sequestered.

During the testimony of the first four witnesses at the special hearing, the jury remained in the jury room. Prior to the questioning of the last witness, the jury members, except the foreman, were sent home for the weekend. The foreman was told to wait in the judge's chambers. At the conclusion of the testimony, the judge determined that there was insufficient evidence to conclude that there had been any misconduct on the part of the foreman. The trial judge then went into his chambers, where he remained, together with the jury foreman, for approximately ten minutes without the presence of defendant or his attorney. No record was made of this conversation.

At the hearing on the motion for new trial, the jury foreman testified that on the day in question he waited in the judge's chambers alone for approximately one-self hour after the other jurors were sent home. The judge then returned to chambers and told him of the report of possible contact between him and the defendant, and asked him whether that report was true. The ensuing conversation included a request by the foreman to have the testimony of several witnesses read back to the jury.

The trial judge largely corroborated the foreman's account, but, though admitting he had little recall as to the contents of the conversation, he denied that he had questioned the foreman about the incident. There was, as noted, no record made of the conversation.

Defendant asserts error in his exclusion from the special hearing and from the judge's conversation with the jury foreman.

That a hearing on the issue of undue influence of a juror is a critical stage of trial at which defendant has a right to be present was clearly stated in People v. Medcoff, 344 Mich. 108, 117, 73 N.W.2d 537 (1955), and more recently in People v. Nickopoulos, 40 Mich.App. 146, 151, 198 N.W.2d 691 (1972), and People v. Palmer, 28 Mich.App. 624, 628, 185 N.W.2d 94 (1970). Where that right is denied, injury is presumed, and defendant is not required to show that he was prejudiced by being excluded from the hearing.

The people and contend that defendant waived his right to be present at the hearing, because his attorney, who was present, failed to object to the defendant's absence.

It is doubtful that defendant or his counsel may effectively waive defendant's right to be present at all critical stages of his trial. As was stated in the oft-cited case of Hopt v. Utah, 110 U.S. 574, 579, 4 S.Ct. 202, 204, 28 L.Ed. 262, 265 (1883):

'We are of (the) opinion that it was not within the power of the accused or his counsel to dispense with (the) statutory requirement as to his personal presence at the trial. * * * That which the law makes essential in proceeding involving the deprivation of life or liberty cannot be dispensed with, or affected the consent of the accused, Much less by his mere failure, when on trial and in custody, to object to unauthorized methods.' (Emphasis supplied.)

Even if defendant or his counsel were competent to waive this fundamental right, a waiver cannot be implied from a mere failure to object.

'It has been pointed out that 'courts indulge every reasonable presumption against waiver' of fundamental constitutional rights and what we 'do not presume acquiescence in the loss of fundamental rights.' A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.' Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461, 1466 (1937). Se...