People v. Larry

• Decision Date: 01 October 1987
• Docket Number: No. 91672,91672
• Citation: 412 N.W.2d 674,162 Mich.App. 142
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Quinton Lee LARRY, Defendant-Appellant. 162 Mich.App. 142, 412 N.W.2d 674
• Court: Court of Appeal of Michigan — District of US

Page 674

412 N.W.2d 674

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Quinton Lee LARRY, Defendant-Appellant.

No. 91672.

162 Mich.App. 142, 412 N.W.2d 674

Court of Appeals of Michigan.

Submitted May 5, 1987.

Decided Aug. 3, 1987.

Released for Publication Oct. 1, 1987.

[162 MICHAPP 145] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief Asst. Pros. Atty., and Don W. Atkins, Asst. Pros. Atty., for the people.

Sheldon B. Greenblatt, Warren, for defendant on appeal.

Before BEASLEY, P.J., and HOOD and BORRADAILE, ^* JJ.

BORRADAILE, Judge.

Defendant appeals as of right his conviction of criminal sexual conduct in the second degree, M.C.L. Sec. 750.520c; M.S.A. Sec. 78.788(3). Defendant was tried before a jury in Detroit Recorder's Court and sentenced to from ten to fifteen years in the State Penitentiary.

During the early morning hours of June 29, 1985, the complainant, an eleven-year-old girl, was asleep in her bed with her sister when a man entered her room, tripped on some clothes and fell against her bed. She woke up and looked at his face. The man put some covers on her and left the room. He returned about a minute later, got on top of her, and grabbed her buttock. She managed to struggle free and call her mother at which time the man ran out of her room. He ran toward the back door, while the complainant ran toward her mother's room near the front of the house.

The complainant woke her stepfather. He and her cousin searched the house but did not find anyone and the stepfather went back to bed. Shortly after returning to bed, the complainant's [162 MICHAPP 146] stepfather heard a noise in the basement and called the police. Complainant described the man to her mother and stepfather as someone they knew from the neighborhood. She said that he had a green Cadillac and wore a hat that had the words "Get Paid" on it. At trial the girl's mother testified that she recognized the description of the man. The police arrived at the complainant's house at approximately 6:45 a.m. and found a basement window open and the screen removed. The police, with the complainant and her mother, went over to the house where the complainant said the man lived. The mother went in and got the name "Quinton" from a young girl in the house. The police subsequently arrested the defendant and placed him in a line-up. The complainant picked out the defendant with no hesitation.

The defendant, on appeal, has raised a number of questions concerning, among other things, the prosecutor's comments in final argument, the trial court's decisions regarding the competency of witnesses and the production of evidence, the trial court's interruption of defense counsel during cross-examination, the final instructions to the jury, the identification procedure, and sentencing. We affirm.

I

The issue which requires the greatest discussion relates to the trial judge's failure to give in full the language from Criminal Jury Instruction 3:1:18 concerning the jury's procedures in deliberations and verdict. The trial judge, after advising the jury that the matter of punishment was not within the province of the jury, stated:

"When you retire to the Jury Room, you will elect a foreperson who will preside over your [162 MICHAPP 147] deliberations and who will be your spokesperson in court.

"Upon the count in the Information charging Criminal Sexual Conduct in the Second Degree, you may find the defendant guilty or you may find him not guilty.

"And I am confident you know that in order to render a verdict, your decision will have to be unanimous.

"And I would again remind you this matter is not to be discussed except when you are all assembled in the Jury Deliberation Room."

Before the jury was sent out to deliberate, the trial judge inquired of each counsel if there were any omissions or misstatements and both indicated that there were none.

Defendant claims that because five of the jurors had previously served on other juries they would influence the other jurors by reason of their experience. Defendant contends that the trial judge erred so as to require reversal by failing to advise the jurors that they must not sacrifice their own independent judgment for the sake of unanimity. Defendant admits that the jury was polled, but claims that the record is silent as to juror peer pressure.

Defendant argues that the instruction should have been the same as that contained in People v. Sullivan, 392 Mich. 324, 220 N.W.2d 441 (1974), which was made applicable to nondeadlocked juries in People v. Goldsmith, 411 Mich. 555, 309 N.W.2d 182 (1981); People v. Janice Davis, 135 Mich.App. 602, 354 N.W.2d 274 (1984).

In People v. Hardin, 421 Mich. 296, 313, 365 N.W.2d 101 (1984), the Supreme Court, when dealing with the issue raised in this case, stated:

"There is absolutely no indication in People v [162 MICHAPP 148] Sullivan that coercion is not a relevant inquiry. In Sullivan, we simply held that the coercive effect of an Allen [Allen v United States, 164 US 492; 17 SCt 154; 41 LEd 528 (1896) ] charge can be eliminated. Moreover, our statement to the effect that substantial departure from ABA instruction 5.4 shall be grounds for reversible error does not eliminate the relevancy of coercion to the ascertainment of whether the departure is 'substantial.'

"Indeed, in People v Goldsmith, 411 Mich 555, 309 NW2d 182 (1981) (per curiam), this Court impliedly recognized that even ABA instruction 5.4 was somewhat coercive. We issued the opinion in People v Goldsmith to make it clear that a proper Sullivan instruction may be given as part of the main charge to the jury. We asserted that the effect of delivering the ABA charge prior to deliberations differed from its effect when given in a deadlocked situation. 'When given during the original instructions, the ABA charge's coercive impact upon the jury is greatly diminished.' Id., p 559 ." (Emphasis changed.)

We might note that in People v. Petrella, 424 Mich. 221, 277, 380 N.W.2d 11 (1985), our Supreme Court has said:

"Moreover, we remind the bench and bar once again that the Michigan Criminal Jury Instructions do not have the official sanction of this Court. Their use is not required, and trial judges are encouraged to examine them carefully before using them, in order to insure their accuracy and appropriateness to the case at hand."

The Sullivan case, supra, dealt solely with a supplemental instruction relating to a jury which had deadlocked or appeared to be having problems arriving at a verdict. The Sullivan Court discussed the ABA Project on Minimum Standards for Criminal[162 MICHAPP 149] Justice, noting the standards relating to trial by jury were approved by the House of Delegates in 1968. Section 5.4, which is set forth in Sullivan, supra, 392 Mich. at p. 335, 220 N.W.2d 441, is substantially the same language as contained in CJI 3:1:18. We might note that the Criminal Jury Instruction Committee on August 5, 1985, added CJI 3:1:18A, dealing with a deadlocked jury, which adds some additional language indicating that the jury has returned from deliberations with an inability to reach a verdict.

The tentative draft of the ABA Project on Minimum Standards for Criminal Justice printed in May, 1968, has little discussion other than to say that, as to section 5.4(a),

"for the reasons set forth in the commentary to section 5.4(b), infra, the advisory committee has concluded that the instruction commonly referred to as the Allen charge, or 'dynamite' charge should not be given to a jury which has been unable to agree after some deliberations. Nonetheless, it is most appropriate for the court to instruct the jury initially as to the nature of its duties in the course of deliberations, and section 5.4(a) so provides. The standard does not require the use of any particular language, but does identify the five points on which the jury might properly be advised."

The ABA committee notes that the instruction proposed is similar to instruction 8.11 of Jury Instructions and Forms for Federal Criminal Cases, 27 FRD 97-98 (1961), which in addition to the language proposed in 5.4(a) indicated: "You are not partisans. You are judges--judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case." The committee goes on to note that the charge proposed makes no reference to a minority and instead requires that all [162 MICHAPP 150] jurors consult with one another. The committee felt that the proposed instruction did not have the coercive impact of the Allen charge. The committee notes that in Burroughs v. United States, 365 F.2d 431 (C.A.10, 1966), the practice provided for in section 5.4(a) was recommended. However, we note that in the Burroughs case the defendant challenged the trial court's instruction because the court put a limit on the length of time for deliberation by the jury. The issue was raised as to the coerciveness of the instruction in that case.

The same issue was dealt with in People v. Janice Davis, supra, where a challenge was raised as to the coercive effect of the original instruction by the trial judge. While the panel dealt with the language of CJI 3:1:18 in referring to the ABA proposed instruction, we are satisfied that this case is distinguishable from the Janice Davis case because there was no coercion in the instruction given by the trial judge.

In State v. Watkins, 99 Wash.2d 166, 175, 660 P.2d 1117 (1983), the Washington Supreme Court dealt with the ABA standards and specifically standard 5.4, noting in a footnote: "An instruction similar to the ABA recommendation is set forth in WPIC 1.04, which recommends that the instruction be given in every case before the jury retires." No note as to use is provided by the Criminal Jury Instruction committee in CJI 3:1:18 and we cannot find error in this case based on the failure of the trial judge to give the instruction where it is quite...