People v. Lyons, Docket No. 90598

• Decision Date: 22 December 1987
• Docket Number: Docket No. 90598
• Citation: 416 N.W.2d 422,164 Mich.App. 307
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph LYONS, Defendant-Appellant. 164 Mich.App. 307, 416 N.W.2d 422
• Court: Court of Appeal of Michigan — District of US

Page 422

416 N.W.2d 422

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph LYONS, Defendant-Appellant.

Docket No. 90598.

164 Mich.App. 307, 416 N.W.2d 422

Court of Appeals of Michigan.

Submitted March 9, 1987.

Decided Nov. 3, 1987.

Released for Publication Dec. 22, 1987.

[164 MICHAPP 308] Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William F. Delhey, Prosecuting Attorney, and Kirby W. Tabby, Assistant Prosecuting Attorney, for the people.

Margaret M.S. Noe, Adrian, for defendant.

Before SAWYER, P.J., and McDONALD and SZYMANSKI, ^* JJ.

SZYMANSKI, Judge.

Following a jury trial, defendant was convicted of third-degree criminal sexual conduct, M.C.L. Sec. 750.520d(1)(c); M.S.A. Sec. 28.788(4)(1)(c). Defendant was sentenced to three to fifteen years in prison. He appeals as of right and we reverse.

On April 16, 1985, complainant went to defendant's Ypsilanti apartment. There she drank several beers and smoked a marijuana cigarette. A number of individuals, including defendant, were present during the course of the evening. At one point, complainant sniffed from a small vial containing "rush." She immediately felt light-headed and soon thereafter requested that someone call her boyfriend to pick her up. Complainant then lost consciousness on a couch in defendant's apartment.

Sometime thereafter, she regained consciousness to find defendant sitting behind her on the couch with his hands underneath her shirt, touching one of her breasts. Complainant passed out again, and, when she regained consciousness, she saw defendant wearing only his underwear, standing in front of a window. Defendant approached complainant and began to undo her pants. Complainant[164 MICHAPP 309] attempted to get up but was too weak and passed out again. When she regained consciousness, her pants were off, and defendant was lying on top of her having sexual intercourse.

Defendant denied having intercourse with complainant and stated he saw her leave the apartment earlier that evening. Defendant contended that complainant accused him of rape because she was angry over money she had misplaced.

During the first day of deliberations, the jury gave the bailiff a note which stated: "The jury cannot reach a decision. What does the judge suggest?" Without consulting either party, the judge instructed the bailiff to inform the jury to "keep on working." The bailiff did so. Following his conviction, defendant moved for a new trial. One of the grounds raised was the judge's communication with the jurors. The court denied defendant's motion for a new trial.

Defendant argues that a new trial is warranted due to the judge's communication with the jury, directing it to continue deliberating. We agree.

In Michigan there is a strict rule prohibiting communication with a deliberating jury outside of the courtroom and the presence of counsel. Rushing v. Wayne Co., 138 Mich.App. 121, 150, 358 N.W.2d 904 (1984), accord, People v. Cain, 409 Mich. 858, 294 N.W.2d 692 (1980), rev'g 94 Mich.App. 644, 288 N.W.2d 465 (1980). In Cain, supra, the bailiff took to the judge a note from the jury which inquired whether the verdict need be unanimous. 94 Mich.App. at 645, 288 N.W.2d 465. At the judge's direction, the bailiff told the jury their verdict had to be unanimous. The Supreme Court summarily reversed defendant's conviction in lieu of granting leave for the reasons stated in Judge (now Justice) M.F. Cavanagh's dissent below. Judge Cavanagh noted that the strict rule prohibiting any communication [164 MICHAPP 310] with the jury outside of the courtroom and the presence of counsel had not been relaxed in Michigan and was grounds for a new trial regardless of whether the communications or instructions were prejudicial. 94 Mich.App. at 647, 288 N.W.2d 465.

We believe that the instant case mirrors Cain, supra, and preempts all other considerations. We do not agree with the prosecution that defendant need show prejudice before a new trial is granted. The prosecution cites for support People v. Sullivan, 392 Mich. 324, 220 N.W.2d 441 (1974), and People v. Hardin, 421 Mich. 296, 365 N.W.2d 101 (1984). However, both Sullivan and Hardin involved supplemental charges given to a hung jury. Sullivan, supra, adopted standard jury instruction 5.4 of the American Bar Association. Hardin, supra, refined the Court's ruling in Sullivan, supra, and examined whether the departure from the American Bar Association's standard jury instruction 5.4 required reversal. We believe these cases are inapplicable to a resolution of defendant's claim. Following the Supreme Court's summary reversal in Cain, supra, no prejudice need be shown in the instant case.

In light of our decision we decline to discuss the merits of defendant's ineffective assistance of counsel claim.

Defendant's third-degree criminal sexual conduct conviction is reversed. The trial court erred in failing to grant defendant's motion for a new trial. Remand for a new trial is proper in the instant case due to the judge's communication with jurors outside of the courtroom and the presence of counsel.

Reversed and remanded for a new trial.

McDONALD, J., concurred.

[164 MICHAPP 311] SAWYER, Presiding Judge (concurring).

I reluctantly concur.

I agree with the majority that the Supreme Court's decision in People v. Cain, 409 Mich. 858, 294 N.W.2d 692 (1980), which adopted the dissenting opinion by Judge (now Justice) Cavanaugh in People v. Cain, 94 Mich.App. 644, 288 N.W.2d 465 (1980), controls the case at bar and that reversal is, therefore, required. Nevertheless, I write separately to express my displeasure with such a mandated result in the instant case and to urge the Supreme Court to reexamine whether error requiring reversal always occurs when a court officer communicates ex parte with a jury during deliberation.

While I cannot disagree with the proposition that an invitation into the jury room must be looked upon with great concern and should not be ordinarily permitted and, when it does happen, reviewed with great skepticism, I cannot agree with the proposition that such an invasion can never be considered harmless. The rigid rule of requiring reversal whenever there is any contact with the jury, without inquiring into the question of prejudice to the defendant, serves no...