People v. Johnson

• Decision Date: 08 May 1978
• Docket Number: Docket No. 26747
• Citation: 268 N.W.2d 259,83 Mich.App. 1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry Lee JOHNSON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 259

268 N.W.2d 259

83 Mich.App. 1

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jerry Lee JOHNSON, Defendant-Appellant.

Docket No. 26747.

Court of Appeals of Michigan.

May 8, 1978.

Released for Publication Aug. 1, 1978.

Glotta, Adelman, Dinges, Davis, Middleton & Riley, P. C., by Hugh M. Davis, Jr., Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Richard J. Pasarela, Pros. Atty., for plaintiff-appellee.

Before MAHER, P. J., and CAVANAGH and KAUFMAN, JJ.

KAUFMAN, Judge.

Defendant was convicted of one count of possession with intent to deliver marijuana and one count of possession with intent to deliver phencyclidine, in accordance with M.C.L. § 335.341(1); M.S.A. § 18.1070(41)(1). Sentenced to three years probation (the first 90 days to be spent in jail) and assessed $500 in costs, defendant appeals, raising numerous issues.

On January 16, 1975, Muskegon police officer Paul R. Lodholtz swore that an unidentified informant, who had allegedly relayed reliable information in previous undisclosed cases, had told him that he had seen a large quantity of marijuana at 2144 Apple Avenue in Muskegon. The informant had also allegedly observed two kinds of mescaline pills. On the basis of that information, a search warrant was issued.

That same day, a search was conducted. The police found 153 ounces of marijuana and 184 phencyclidine pills. A ledger book and triple beam scale were also found. Defendant's name was on the back of the scale. No mescaline was found.

Prior to trial, defense counsel argued a suppression motion. It was denied and the case was ordered to trial.

On the day of the trial, prior to the selection of the jury, defense counsel objected to the fact that all 46 proposed exhibits were exposed to view on a table in the courtroom. The trial court ordered the table removed until the jury was selected.

Prior to selection of the jury, the prosecution moved to indorse Gloria Thurkettle as a witness, arguing that she was formerly a co-defendant and allegedly an occupant of 2144 Apple Avenue. Over objection by defense counsel, the trial court granted the motion.

After the jury was selected, the table with the exhibits was returned to the courtroom. Defense counsel renewed his objection to the display as prejudicial. The trial court, noting that the exhibits were covered, denied the renewed objection.

During trial, Gloria Thurkettle was called as a witness by the prosecution. She refused to testify on Fifth Amendment grounds. The trial court ordered Ms. Thurkettle imprisoned until she decided to testify, citing her behavior as contemptuous.

At the conclusion of the prosecution's case, defense counsel moved for a directed verdict. The motion was denied.

Prior to instructing the jury, the trial court noted defense counsel's objection to its refusal to give a requested instruction on nonexclusive possession of the premises at 2144 Apple Avenue, pursuant to People v. Davenport, 39 Mich.App. 252, 197 N.W.2d 521 (1972).

The trial court instructed the jury, in part, as follows:

"If you find the Defendant guilty of Count I, your foreman or forelady will state, we, the jury, find the Defendant guilty as charged on Count I.

"If you find the Defendant not guilty on Count I, your foreman or forelady will state, we, the jury, find the Defendant not guilty on Count I.

"As to Count II, if you find the Defendant guilty of Count II, your foreman or forelady will rise and state, we, the jury, find the Defendant guilty as charged on Count II.

"If you find the Defendant not guilty on Count II, your foreman or forelady will rise and state, we, the jury, find the Defendant not guilty on Count II.

"Then, if necessary you may go to the matter of a lesser included offense.

"First possession of marijuana, and second the possession of PCP or phencyclidine.

"It is actually a matter of course that if you find the Defendant guilty of Count I that is as far as you need to go.

"If you find the Defendant guilty of Count II that is as far as you need to go.

"If you find the Defendant not guilty of either one or both Counts I and II, then you may proceed to the lesser included offenses, and report your verdict on those."

On appeal, defendant contends that the trial court's instructions coerced the jury into determining defendant's guilt or innocence on the principal charge before proceeding to consider his culpability on lesser included offenses.

To determine the validity of defendant's contention, it is necessary to remember that coercion in deliberation instructions may be either express or implied and that this Court has treated the two types in wholly different manners.

The issue of express coercion was settled by People v. Ray, 43 Mich.App. 45, 204 N.W.2d 38 (1972). In that case, the jury broke from deliberations and asked for guidance on the deliberation procedure. In response to a juror's question, "If we insist if someone insists upon taking a vote on the first charge, do we have to keep voting on that charge?", the trial court answered, "Well you have to either keep voting on the first charge until you either all find him not guilty, or all find him guilty".

This Court reversed, explaining:

"While the trial court was certainly required to say something to the jury when it requested assistance in conducting its deliberations, the requirement of unanimous agreement on defendant's innocence of the greater charge before discussion of the lesser charges is permitted is coercive, unduly restrictive and reversible." 43 Mich.App. at 50, 204 N.W.2d at 41.

The problem of implied coercion has been harder to solve. Initially, it must be asked whether implied coercion should be encouraged. Although one opinion, the majority in People v. Johnson, 74 Mich.App. 250, 253 N.W.2d 722 (1977), suggests its desirability, ¹ this Court on three occasions has specifically discouraged impliedly coercive instructions. See People v. Embry, 68 Mich.App. 667, 243 N.W.2d 711 (1976); People v. Waldron, 64 Mich.App. 648, 236 N.W.2d 732 (1975); People v. Freeman, 57 Mich.App. 90, 225 N.W.2d 171 (1974).

Any concern over implied coercion, however, must be tempered by the knowledge that due to the limitations of the spoken word, it is inevitable that some ordering of offenses will occur. One offense will always come first.

Thus, armed with the realization that no implicit coercion is an unattainable goal, but condemning the concept of implicit coercion, this Court has formulated two ways to deal with the problem.

One method is to subjectively examine instructions on a case-by-case basis to determine the potential for implicit coercion. In People v. Harmon, 54 Mich.App. 393, 221 N.W.2d 176 (1974), the trial court instructed:

" 'If you find that he did commit the act * * * of rape * * * beyond a reasonable doubt, * * * then, he is guilty of the crime charged. Before you can go or consider the lesser included offenses, you must first then determine that he did not commit that crime. If you consider that and find and are satisfied from your deliberations that he did not commit the crime as charged, then you can consider the lesser included offenses and only then. That would be the assault with intent to commit rape, assault and battery, or simple assault. If you are not satisfied beyond a reasonable doubt that he committed any of those acts, then, the verdict would be not guilty.' (Emphasis added.)" 54 Mich.App. at 394, 221 N.W.2d at 177.

This Court reversed, first noting that the prosecution "(t)acitly conced(ed) that the instruction given in this case is basically identical to that given in Ray." 54 Mich.App. at 395, 221 N.W.2d at 178. As to the purpose of People v. Ray, supra, this Court explained "Ray seeks to prevent those jurors opposed to a defendant's conviction on a higher charge from being coerced into voting for conviction by an instruction requiring acquittal of that higher charge before lesser offenses can even be considered. For example, if the jury is considering the charge of assault with intent to commit rape, and juror A is opposed to conviction, he may be coerced into changing his vote to guilty by the prospect that the lesser included offenses of assault and battery and simple assault will not even be considered unless all the remaining 11 jurors agree to acquit the defendant of assault with intent to commit rape." 54 Mich.App. at 396, 221 N.W.2d at 178.

Of course, the problem occurs when the instruction does not define the phrase "acquittal of the higher charge", affirmatively (in terms of a finding of not guilty), but rather defines it negatively (in terms of not finding defendant guilty of the higher charge). ² The negative way is thus ambiguous to the extent that it is unclear whether the jurors realize their options if they are deadlocked on the higher charge. ³

To solve the difficulty with the ambiguous type of instruction cited above, this Court had adopted the second method alluded to earlier. Consistently, this Court has read People v. Ray, supra, literally. ⁴ This procedure, aptly dubbed "a sterile 'magic language' approach" by Judge T. M. Burns, in his dissent to People v. Johnson, supra, "tends to disregard the effect of improper instructions by simply scanning them for the word 'unanimous' ". 74 Mich.App. at 258, 253 N.W.2d at 726.

We agree with the Johnson dissent that the "magic language approach" has not proven to be a workable test. Under its rubric ⁵ fall cases where the trial court did affirmatively try to avoid the possibility of coercion, e. g. People v. Morton, 77 Mich.App. 240, 258 N.W.2d 193 (1977); People v. Lopez, 65 Mich.App. 653, 237 N.W.2d 599 (1975); but, there are other cases where the "magic language" test was manipulated to reach a desired result, e. g., People v. Waldron, 64 Mich.App. 648, 236 N.W.2d 732 (1975); People v. Walker, 58 Mich.App. 519, 228 N.W.2d 443 (1975). Most significantly, the test has never...