People v. Harvey
Decision Date | 16 February 1983 |
Docket Number | Docket No. 57751 |
Citation | 121 Mich.App. 681,329 N.W.2d 456 |
Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fred Lee HARVEY, Defendant-Appellant. 121 Mich.App. 681, 329 N.W.2d 456 |
Court | Court of Appeal of Michigan — District of US |
[121 MICHAPP 683] 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 V.J. BRENNAN, P.J., and HOLBROOK and ERNST, * JJ.
Following a jury trial, the defendant was convicted of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. Defendant was sentenced to a prison term of 6 to 15 years and appeals as of right.
The trial resulting in the conviction from which defendant appeals was the second in this case. In the first trial, the jury indicated that it could not reach unanimous agreement and the trial judge [121 MICHAPP 684] sua sponte declared a mistrial. Defendant's sole claim of error on appeal is that the mistrial was improperly declared and, therefore, the second trial was barred by the prohibition against double jeopardy.
Defendant claims that because the jury failed to reach a verdict after the trial court allegedly abused its discretion in refusing the jury's request that certain portions of the testimony be read back, manifest necessity did not exist as would have justified declaration of a mistrial and retrial was barred by double jeopardy. The people maintain that the trial court did not err in refusing a request by the jury that it considered unreasonable under the circumstances, and that the declaration of a mistrial was justified in any event.
When the jury requests repetition of trial testimony, the reading and extent of the reading is a matter confided to the sound discretion of the trial court. A trial court cannot simply refuse to grant a jury request but must exercise its discretion to assure fairness and to refuse unreasonable requests. However, the court may ask the jury to resume deliberations with the knowledge that their request would be reviewed again if needed. People v. Howe, 392 Mich. 670, 675-676, 221 N.W.2d 350 (1974). Also, see People v. Henry Smith, 396 Mich. 109, 240 N.W.2d 202 (1976); People v. Joseph, 114 Mich.App. 70, 318 N.W.2d 609 (1982); People v. Bonner, 116 Mich.App. 41, 321 N.W.2d 835 (1982).
We find that in the present case, the trial court did not abuse its discretion in denying the jury's request.
During the first trial, the jury was instructed and began deliberations at approximately 3:30 p.m. The jury returned to the courtroom at 5:25 p.m. and the following exchange occurred:
The jury was directed to return at 9:30 the following morning.
The transcript of proceedings on the next day begins with a statement by the trial court, at approximately 9:40 a.m., denying the jury's request to have the complainant's testimony and that of a police officer read back to them:
The jury left the courtroom at 9:45 a.m. After deliberating for approximately one-half hour, the jury again returned to the courtroom announcing it was deadlocked:
The trial court's response to the jury indicates that the court found that the request was unreasonable at that time. The trial court did not foreclose the possibility of having the testimony read at a later time. The court told the jury that not all requests are denied, but at that time the rereading of certain testimony might place too much emphasis upon it. In addition, it was not a long trial, and the court stated that at that time the jury should deliberate further. People v. Solomon, 82 Mich.App. 502, 508-509, 266 N.W.2d 453 (1978). Thus, the court was exercising its discretion.
Further, the testimony requested by the jury in the instant case, that of the complainant and a [121 MICHAPP 688] police officer, was not the testimony of key witnesses as the defendant claims. The central issue in this case was identification. Neither the complainant nor the police officer could identify the defendant as the man who committed the robbery. Several other witnesses testified as to their observations, including one witness who positively identified the defendant and noted the defendant's license plate. Under these circumstances, we find that the trial court considered the jury's request and exercised its discretion in denying the request as unreasonable at that time. Therefore, there was no error.
We next consider whether the trial court was justified in declaring a mistrial.
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