People v. Harvey, Docket No. 57751

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: V.J. BRENNAN
• Citation: 121 Mich.App. 681,329 N.W.2d 456
• Docket Number: Docket No. 57751
• Decision Date: 16 February 1983
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Fred Lee HARVEY, Defendant-Appellant. 121 Mich.App. 681, 329 N.W.2d 456

Page 456

329 N.W.2d 456 PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Fred Lee HARVEY, Defendant-Appellant. Docket No. 57751.
121 Mich.App. 681, 329 N.W.2d 456 Court of Appeals of Michigan. Submitted Aug. 2, 1982.
Decided Dec. 6, 1982.
Released for Publication Feb. 16, 1983.

Page 457

[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.

V.J. BRENNAN, Presiding Judge.

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:

[121 MICHAPP 685] "THE COURT: I understand the jury has some difficulty at arriving at a verdict, is this the case?

"MR. FOREMAN: Yes, Your Honor.

"THE COURT: Is it your judgment that if you deliberate a little longer that the jury can arrive at a verdict?

"MR. FOREMAN: No, sir.

"THE COURT: Is it your judgment that if the jury came back tomorrow and started redeliberating at 9:00 o'clock in the morning that the jury could arrive at a verdict?

"MR. FOREMAN: That might be possible.

"THE COURT: It could be possible?

"MR. FOREMAN: We could possibly reach a verdict.

"THE COURT: All right, I think that we will do that then."

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 COURT:] I have received a question, gentlemen, from the foreman of the jury. It reads as follows: 'We need a

Page 458

copy of Mrs. Kaywood's testimony and Officer Kars' testimony.'

"We get this request several times from different jurors who want to hear parts of some of the witnesses' testimony read to them and sometimes we do it, sometimes we do not. But mostly we don't do it for the reason that it takes testimony out of context and gives it greater weight and emphasis apart from the general flow of the testimony as it came in. And when you read part of somebody's testimony then it usually leads to the next question, well, what was the response to that question, what was the other witnesses' testimony.

"If this was a two or three week trial there might be some reason to read testimony back, but what we often [121 MICHAPP 686] do even in that case then is read other parts of testimony on the point that that witness testified to in order to give the jury then a total picture of the testimony regarding certain aspects of the case so they are not getting bits and pieces of it and getting it overly emphasized.

"So, I would make the ruling at this time that we would not give you the reading of the testimony either of Mrs. Kaywood or Officer Kars' testimony. The jury will just have to do the best they can in attempting to recall what the testimony of these witnesses and all the other witnesses in the case showed.

"Did you have any comment, Mr. Buter, at all?

"MR. BUTER [PROSECUTOR]: No, sir.

"THE COURT: Mr. Quinn?

"MR. QUINN [DEFENSE COUNSEL]: No.

"THE COURT: We would ask you then to start deliberating again please."

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:

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