People v. Lawson

• Decision Date: 09 October 1974
• Docket Number: No. 1,Docket No. 18187,1
• Citation: 223 N.W.2d 716,56 Mich.App. 100
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry LAWSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 716

223 N.W.2d 716

56 Mich.App. 100

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Larry LAWSON, Defendant-Appellant.

Docket No. 18187.

Court of Appeals of Michigan, Division No. 1.

Oct. 9, 1974.

Rehearing Denied Nov. 26, 1974.

Released for Publication Dec. 13, 1974.

Jack J. Kraizman, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, App. Div., Thomas A. Ziolkowski, Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and BRONSON and VanVALKENBURG,* JJ.

LESINSKI, Chief Judge.

The defendant, Larry Lawson, was charged with the crimes of armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797, and rape, M.C.L.A. § 750.520; M.S.A. § 28.788. A jury found the defendant guilty of armed robbery and not guilty of the crime of rape. The trial court sentenced defendant to a term of 15 to 25 years in prison. Defendant appeals as of right. He contends that the jury's verdict was based upon insufficient evidence and that the trial court coerced the verdict by giving a supplemental charge after the jury had deliberated for four hours.

The incident which resulted in defendant's conviction occurred on June 13, 1972 at about 11:35 p.m. The victims, husband and wife, were watching television in their home in the City of Detroit when two men burst through the front door. The victims testified that one of the men, whom they later identified as defendant Lawson, held a knife on them while a second man locked the house, pulled all the blinds down, and ransacked drawers for money. The men then bound, gagged and blindfolded the husband. The second man, who was never identified, took the wife upstairs to look for more money. Once there he bound and blindfolded her and raped her. Then she was raped again by the other man, whom she said she could recognize by his voice. The men remained searching briefly for valuables, then left in the victims' car. The victims freed themselves and called the police who arrived at 12:25 a.m. Among the many articles taken by the robbers was a set of rings in the wife's purse. Two days later the police arrested the defendant and found the stolen rights in his possession. At a lineup held later, both victims identified the defendant as the first man to enter their house.

At trial the defendant presented an alibi defense. He attacked the reliability of the victims' identification by showing the discrepancies between the description which the victims had given to police after the crime and his own appearance. Notably, neither victim had indicated that their assailant wore a mustache and goatee, which defendant did at the time of his arrest. Furthermore, the defendant presented as an alibi witness Mr. Nehemiah Pitts, a counselor at the YMCA's Project Alternative, the defendant's residence on the night of the crime. Mr. Pitts testified that on the night in question the defendant was present at the Project. Mr. Pitts remembered speaking to him at approximately 11 p.m. that evening. He claimed to have seen defendant again at 11:30 at the time he made a bed-check to see that none of the residents was absent. The counselor's log book for that evening did not indicate that the defendant had been found absent in violation of the 11:30 curfew. The defendant's evidence thus directly conflicted with that presented by the prosecution.

The defendant contends that the evidence against him was insufficient to support his conviction. The testimony of the victims alone tended to support a finding of each element of armed robbery, however, and also supported a finding that the defendant committed the crime. It was within the province of the jury to resolve the conflicts in the testimony and to render a verdict in accordance with their findings of facts.

After four hours of deliberation, however, the jury here was apparently having difficulty in reaching a verdict. At that point the trial court recalled them and the following exchange ensued:

'The Court: Ladies and gentlemen of the jury, I understand that you have been having some difficulty in reaching a verdict; is that correct?

'Jury Foreman: That's correct, your honor.

'The Court: Without telling the court--without indicating how many are for one side or how many for the other side, could you give me a figure that indicates--before you answer, listen carefully because I don't want you to indicate on the record how many are one way or the other, but I want to know--could you give me just numbers that indicate so--how many are on one side and how many are on the other, without telling me how you are divided--

'Mr. Reilly: Your honor, I think I have an objection--I have to object to that.

'The Court: All right, you have an objection?

'Mr. Reilly: Yes, your honor, I think if the court wants to inquire if there is any possibility of reaching a verdict, fine, but I think I have to object otherwise.

'The Court: All right, I will ask that question first; Ladies and gentlemen of the jury, do you feel that there is any possibility of reaching a verdict?

'Jury Foreman: I don't think so, your honor.

'The Court: Well, at this time, then I am going to read you some further instructions in the case this case.

'ADDITIONAL INSTRUCTIONS TO THE JURY

'The Court: Members of the jury, I respectfully tell you it is necessary for the purpose of finding a verdict that all of you agree upon that verdict. In other words when I say that the verdict has to be unanimous, it has to be 12 to nothing. It is your duty, however, to agree if possible. When conferring with each other, you should pay a proper respect to each other's opinions and examine such differences in a spirit of fairness and candor. This does not mean any member of the jury shall yield his well-grounded opinions or violate his oath. It does mean he shall not stand out in an unruly and obstinate way through mere stubbornness.

'Members of the jury should always closely scrutinize the facts from their own standpoint and a viewpoint also of the fellow members of the jury.

'While, undoubtedly, the verdict of the jury should represent the opinion of each individual juror, it by no means follows that opinions may not be changed by conferences in the jury room.

'The very object of a jury system is to secure unity by a comparison of those views. The jury should listen with deference to arguments of fellow jurors and distrust of his own judgment if he finds a large majority of the jury taking a different view of the case from what he does himself.

'I will ask the members of the jury to think along this line.

'You understand that when you sit as a jury in the case if you are unable to reach a verdict that does not mean that the case is ended. It possibly means that at some future date a different jury will have to consider the base again at another trial.

'Now, I am going to ask you to go back and to continue your deliberations and I will contact you again.

'(Jury excused and return to deliberations in the jury room at 3:06 p.m.)'

The defendant contends that the trial court committed reversible error in coercing a deadlocked jury to reach a verdict.

The first aspect of the court's action which requires scrutiny is the attempt to discover the numerical division of the jury members. Our Supreme Court has recently held such an inquiry to be reversible error in People v. Wilson, 390 Mich. 689, 213 N.W.2d 193 (1973). Such an inquiry, the Wilson court indicated, carries the improper suggestion that the numerical division at the preliminary stage of deliberation is relevant to what the final verdict will, or should, be. By establishing one viewpoint as the 'majority view,' the inquiry 'has the doubly coercive effect of melting the resistance of the minority and freezing the determination of the majority.' ¹ It places the trial court's imprimatur upon what was but a tentative result. Unfortunately, the opinion in Wilson does not clearly indicate whether that inquiry is reversible error under every set of surrounding circumstances. Although the court explicitly rejected the view that 'each case must be considered upon its own facts,' ² it seems to have relied on special facts in Wilson which rendered the trial court's inquiry particularly coercive. ³ In the instant case, the special facts of Wilson are absent. In addition, this case differs from Wilson in that defense counsel objected to the trial court's question and the question was never answered. We do not decide whether Wilson requires reversal even on the facts of the instant case. However, we do recognize the coercive tendency of the court's inquiry and consider it in conjunction with the supplemental instruction given the jury, to which defendant especially objects.

After the jury foreman had stated that there was no possibility of agreement on a verdict, the court delivered a charge to the jury in order to further their deliberations. Our Supreme Court has recently ruled, in People v. Sullivan, 392 Mich. 324, 220 N.W.2d 441 (1974), that any such charge directed to a deadlocked jury must, subsequent to August 2, 1974, be in the form approved by the ABA Project on Minimum Standards for Criminal Justice. ⁴ The charge given in the instant case varies in several particulars from the ABA recommended charge, most notably in its admonition to jurors in the minority to distrust their judgment. ⁵ This charge, if delivered today, would surely constitute reversible error under Sullivan, but, because defendant's trial occurred prior to August 2, 1974, we must determine whether the charge was unduly coercive of a verdict under the law applicable prior to that date.

Supplemental instructions to a deadlocked jury have been approved in Michigan at least since People v. Coulon, 151 Mich. 200, 114 N.W. 1013 (1908), where the Supreme Court approved a judge's charge 'that it might be a proper thing for a minority to consider with seriousness whether they might...