People v. Johnson

• Decision Date: 28 January 1982
• Docket Number: Docket No. 51423
• Citation: 314 N.W.2d 794,112 Mich.App. 41
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles F. JOHNSON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 794

314 N.W.2d 794

112 Mich.App. 41

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles F. JOHNSON, Defendant-Appellant.

Docket No. 51423.

Court of Appeals of Michigan.

Submitted Oct. 7, 1981.

Decided Dec. 16, 1981.

Released for Publication Jan. 28, 1982.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert L. Kaczmarek, Pros. Atty., and Gregory E. Meter, Asst. Pros. Atty., for the people.

Dwan & Schmidt, P. C., Saginaw, for defendant-appellant.

Before ALLEN, P. J., and KELLY and KELLEY, ^* JJ.

PER CURIAM.

Defendant was convicted by jury of carrying a concealed weapon, M.C.L. § 750.227; M.S.A. § 28.424. Prior to sentencing, defendant was charged with violation of the habitual offender statute, M.C.L. § 769.10; M.S.A. § 28.1082, for a third offense. At this time, defendant pled guilty to violation of the habitual offender statute for a second offense. He was thereupon sentenced to serve a minimum of 21/2 years to a maximum of 71/2 years in prison and appeals as of right.

Defendant was arrested during a raid on a pool hall in Saginaw which was prompted by reports to the police of illegal gambling on the premises. A police officer testified that when he announced the arrest, defendant, whose back was turned, reached into his "waist band area", removed a revolver by the butt, and dropped it to the floor.

Defendant testified in his own defense and denied being in possession of a weapon that night.

During the course of deliberations, the jury reported that it was "hung" on the concealed weapon charge. The court reinstructed the jury on the process of reaching a verdict, on the charges and the information, and on the elements of the concealed weapon charge. Defendant raises three issues on appeal.

I.

Defendant first contends that the trial court committed error requiring reversal in instructing the deadlocked jurors that, if they did not reach a verdict, it would be the duty of another jury no more intelligent and no more informed than they to decide the case. Defendant argues that this instruction constituted error because it was unlawfully coercive in light of the Supreme Court's holding in People v. Sullivan, 392 Mich. 324, 220 N.W.2d 441 (1974), and cases which have followed it.

In arguing that the trial court's instructions to the deadlocked jury coerced the jury into returning a guilty verdict, defendant applied the wrong standard, ignoring the proper "substantial departure" from ABA standard jury instruction 5.4 ¹ mandated by the Supreme Court in Sullivan.

In Sullivan, the Supreme Court thoroughly discussed the subject of the supplemental Allen charge, the instruction to a deadlocked jury, so- called because the instruction received the approval of the United States Supreme Court in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896).

The Sullivan Court found that there was an inherent danger in the possibility that the Allen charge may be worded coercively and so applied in some cases. To eliminate this danger of coercive effect, the Court ruled that from the date of the Sullivan opinion ABA jury standard 5.4 would be adopted as the deadlocked jury instruction and that any substantial departure therefrom shall be grounds for error requiring reversal. Sullivan, supra, 392 Mich. 341, 220 N.W.2d 441.

The ABA jury standard 5.4, adopted by the Sullivan Court, reads as follows:

"Length of deliberations; deadlocked jury.

"(a) Before the jury retires for deliberation, the court may give an instruction which informs the jury:

"(i) that in order to return a verdict, each juror must agree thereto;

"(ii) that jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without violence to individual judgment;

"(iii) that each juror must decide the case for himself, but only after an impartial consideration of the evidence with his fellow jurors;

"(iv) that in the course of deliberations, a juror should not hesitate to reexamine his own views and change his opinion if convinced it is erroneous; and

"(v) that no juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of his fellow jurors, or for the mere purpose of returning a verdict.

"(b) If it appears to the court that the jury has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction as provided in subsection (a). The court shall not require or threaten to require the jury to deliberate for an unreasonable length of time or for unreasonable intervals.

"(c) the jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement." Id., 392 Mich. 335, 220 N.W.2d 441.

There has been some confusion as to the application of this standard. In People v. Harman, 98 Mich.App. 541, 543, 296 N.W.2d 303 (1980), a panel of this Court, in a per curiam opinion, declared that Sullivan stated that a claim of coercion must be determined on a case-by-case basis. The Court went on to apply a coercion analysis and conceded that the facts of Harman did not indicate that the jury was coerced by the "hung jury" instructions. In alleging jury coercion in the instant case, defendant has urged this Court to adopt the Harman reading of Sullivan.

In a more recent decision, this Court declared that the other decisions of the Court of Appeals which have suggested that deadlocked jury instructions given in post-Sullivan trials are to be examined on a case-by-case basis for their coercive effect, Harman, being among them, were wrongly decided. People v. Allen, 102 Mich.App. 655, 659, 302 N.W.2d 268 (1981). The Allen panel reasoned that the Supreme Court in Sullivan 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, the ABA instruction 5.4, which was to be the only instruction used in the future. Because the rule was made prospective, Allen -type charges in trials occurring before Sullivan were still subject to a case-by-case coercion analysis, but the only case-by-case inquiry necessary in trials taking place after Sullivan would involve whether the instruction given was a "substantial departure" from the ABA charge. Id., 659, 302 N.W.2d 268.

This reasoning is consistent with a post-Sullivan holding in People v. Dupie, 395 Mich. 483, 493, 236 N.W.2d 494 (1975). There the Court, faced with resolution of a deadlocked jury instruction in a pre-Sullivan case, stated that where the propriety of a pre-Sullivan supplemental instruction is to be decided, the Sullivan Court had indicated that the presence or absence of coercion would be determined on a case-by-case basis but that the prospectively adopted ABA jury standard 5.4 would cover the circumstance of supplemental Allen charges arising after the decision in Sullivan.

We conclude that People v. Allen, supra, correctly decided that the proper standard for determining the propriety of post-Sullivan deadlocked jury instructions is the "substantial departure" test articulated in Sullivan, and in Dupie and not the coercion standard urged by defendant and improperly applied in Harman.

Therefore, because the trial in the instant case occurred after the Sullivan opinion, a determination of this issue properly involves whether the trial court's instructions to the jury substantially departed from the ABA jury instruction 5.4 mandated by Sullivan. A review of the record indicates that such a departure did not occur.

In his charge to the jury, given before the jury departed to deliberate, the trial judge gave the ABA standard jury instruction 5.4 almost verbatim. According to the ABA standard instruction, after the jury has heard the instruction and has been unable to agree, the court may require the jury to continue their deliberations and may give or repeat an instruction previously given. In the instant case, the trial court chose not to reinstruct on the entire 5.4 instruction but only reminded the jury to reexamine the questions with proper regard and consideration for the opinions of the other jurors, to keep an open mind to the other arguments in points of view, and to make every reasonable effort to reach a verdict. The reinstructions indicate that the trial court was more concerned with attempting to facilitate a solution to the problems of the jury by rereading the information, by reinstructing on the elements of the charged crime and by answering specific questions of the jurors.

Mention by the trial court of the jury's quality and fitness relative to another jury does not negate the instructions on proper deliberation, impartial consideration, and adherence to honest conviction which are at the heart of the ABA standard instruction. The trial court's mention of another jury did not suggest that the present jury should take a different approach in their deliberations nor did it weaken the effect of the previous ABA standard instruction on the jury. Therefore, we hold that the court's mention of the possibility of a successor jury was not a departure from the proper instruction mandated in Sullivan and given by the trial court in the instant case, and, thus, no error arose as a result of these comments. The error which occurred in People v. Goldsmith, 411 Mich. 555, 309 N.W.2d 182 (1981), is certainly not present here, and we find that the trial court's instructions were not coercive.

Plaintiff also argues that this issue has not been preserved on appeal because defendant failed to object to the instruction at trial. The same argument was posed in Goldsmith. Despite a failure to object, the issue still involves whether the error...