People v. Mays

• Decision Date: 20 February 1980
• Docket Number: No. 63472,63472
• Citation: 288 N.W.2d 207,407 Mich. 619
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Grady MAYS, Defendant-Appellant. 407 Mich. 619, 288 N.W.2d 207
• Court: Michigan Supreme Court

Page 207

288 N.W.2d 207

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Grady MAYS, Defendant-Appellant.

No. 63472.

407 Mich. 619, 288 N.W.2d 207

Supreme Court of Michigan.

Feb. 20, 1980.

Grady Mays, in pro. per.

PER CURIAM.

Defendant was convicted of first-degree criminal sexual conduct, a violation of M.C.L. § 750.520b(1)(e); M.S.A. § 28.788(2)(1)(e), and was sentenced to serve from 10 to 20 years imprisonment. The Court of Appeals affirmed. We consider this case upon defendant's request for a review pursuant to Administrative Order 1977-4, 400 Mich. lxvii.

Over defense objection at trial, the court's jury instruction included the following statement:

"The first lesser included offense which you may consider, If you find the defendant not guilty of first-degree sexual conduct, you may consider whether the prosecutor has proven beyond a reasonable doubt the elements of criminal sexual conduct in the second degree." (Emphasis supplied.)

The court instructed on the lesser included offenses of criminal sexual conduct in the second degree, assault with intent to commit criminal sexual conduct involving sexual penetration, assault with intent to commit criminal sexual conduct in the second degree, and felonious assault.

Defense counsel objected:

"* * * The court has written out a verdict form. I believe both counsel have reviewed it. The form reflects: 'Not guilty, first-degree criminal sexual conduct,' and then states 'lesser included offenses' and then lists them. I object to the fact that lesser included offenses are listed separately. I think it's compounded in this case for two reasons. The Court at one time stated upon reviewing that document that the first choice was 'not guilty of anything'; then 'guilty of first-degree criminal sexual conduct'; and the Court went on to say 'or guilty of one of the lessers,' at which time she read the four or five lesser includeds. This compounded with the fact the Court earlier stated that the first lesser included I should quote that quote, 'First lesser included: if you should find the Defendant not guilty of criminal sexual conduct,' at which time the Court then went on to list the lesser includeds. The basic objection, I think, is I think the Court is definitely pointing out to the jury they are lesser charges and, secondly, giving them the impression they need to consider the main charge and find him not guilty of that before considering the lesser includeds. I think that's contrary to the law here in Michigan. * * *

"THE COURT: The record may indicate that you made that objection verbally to the Court before the instruction was given so that protects you in that regard. * * *"

On appeal defendant argued that the instructions given had the effect of telling the jury the order in which they were to consider lesser included offenses. The people responded that even if the instruction given did suggest consideration in a particular order, that alone did not constitute reversible error. They claimed that the trial court did not tell the jury that they must unanimously find defendant not guilty of the charged offense before considering lesser included offenses.

In People v. Hurst, 396 Mich. 1, 10, 238 N.W.2d 6, 10 (1976), this Court considered a similar contention:

"In instructing the jury the judge said:

" 'If you find either of the defendants not guilty of the charge of manslaughter then you should proceed to determine whether that defendant not guilty of the crime of manslaughter is guilty of the crime of assault and battery.'

"We agree with Hurst that this instruction improperly interfered with the jury's deliberations by requiring agreement of all twelve jurors to acquit the accused of the charged offense before considering a lesser offense.

"Under the judge's instruction, even if the jurors were 11 to 1 for acquittal and a significant number of jurors desired to discuss the possibility of convicting the defendant of a lesser offense, consideration of a lesser offense could not begin unless the one juror holding out for conviction were dissuaded from that view.

"The instruction is unrealistic and improper."

The error noted in Hurst, outlined by counsel's explicit objection, is apparent on this record. Proper jury consideration of lesser included offenses was impeded by the trial court's manner of instructing.

It is not error to suggest an order of consideration of offenses. The judge may suggest to the jury that it consider the charged offense first and it would be helpful to suggest that consideration be given to offenses with a "greater" number of elements before considering those with a "lesser" number.

In this respect an instruction will not be deemed erroneous unless the instruction or manner of giving it conveys the impression that there must be acquittal on one charge before consideration of another. ¹

Pursuant to GCR 1963, 853.2(4), in lieu of granting leave to appeal, we reverse the defendant's conviction and remand this case for new trial.

WILLIAMS, LEVIN, KAVANAGH, FITZGERALD, RYAN and MOODY, JJ., concur.

COLEMAN, Chief Justice (To affirm).

Defendant-Appellant Grady Mays was convicted by a jury of first-degree criminal sexual conduct contrary to M.C.L. § 750.520b(1)(e); M.S.A. § 28.788(2) (1)(e).

In the course of giving jury instructions at trial, the court informed the jury that defendant was charged with first-degree criminal sexual conduct, and then proceeded to outline the elements of that offense. The court next stated that the jury could consider lesser included offenses, and prefaced a description of the elements of each lesser included offense by the following statement: "The first lesser included offense which you may consider, If you find the defendant not guilty of first-degree criminal sexual conduct * * *" (emphasis supplied). The lesser included offenses charged included criminal sexual conduct in the second degree, assault with intent to commit criminal sexual conduct involving sexual penetration, assault with intent to commit criminal sexual conduct in the second degree, and felonious assault. After presenting the elements of the lesser included offenses charged, the court directed the jury to reach a unanimous verdict. The jury foreman was handed a verdict sheet listing the possible verdicts for use during deliberations. At the close of the instructions, defense counsel registered an objection to the lesser included offense instruction, which, in his estimation, gave the jurors "the impression they need to consider the main charge and find (defendant) not guilty of that before considering the lesser includeds".

The Court of Appeals affirmed defendant's conviction in a memorandum opinion, released May 31, 1979, from which defendant appeals. The per curiam opinion would dispose of this matter by reversing and remanding in lieu of granting leave to appeal, pursuant to GCR 1963, 853.2(4), on the authority of People v. Hurst, 396 Mich. 1, 238 N.W.2d 6 (1976). I would affirm the conviction.

I.

The question presented is whether the trial court's instruction to the jury that it could consider lesser included offenses if it found defendant not guilty of first-degree criminal sexual conduct constitutes reversible error.

Defendant contends on appeal that the trial court's instruction required the jury to agree unanimously to acquit defendant on the principal offense charged before it could consider lesser included offenses and that this represented reversible error entitling defendant to a new trial.

The prosecutor urges a finding that the trial court did not err in instructing the jury with regard to possible verdicts. The instruction permissibly emphasizes that in addition to a principal charge there are lesser included offenses which may be considered. A trial judge may direct the jury to consider the verdicts in a particular order. The prosecutor agrees, as do I, that it would be error for a trial judge to require a unanimous agreement of innocence to a higher charge before deliberation on lesser included offenses may begin, but states that because the court's instruction in the instant case did not require unanimity, there is no reversible error.

II.

The issue here presented is similar to that in Hurst, supra. In Hurst, three of the four participating Justices agreed with Hurst's assertion that the jury instruction which directed the jury to consider a lesser included offense "(i) f you find either of the defendants not guilty of the charge of manslaughter", was "unrealistic and improper". They said that the instruction impermissibly infringed upon the role of the jury in conducting deliberations. The plurality set forth an extreme hypothetical situation in which the jurors believed there must be a unanimous vote to acquit and so were deadlocked, voting 11 to 1 for acquittal. From this hypothetical, the plurality opinion reasoned that the instruction given would require a lone juror holding out for conviction to be dissuaded from his or her view before consideration of lesser included offenses could begin, even should a significant number of the other jurors desire to discuss the possibility of convicting the defendant of a lesser included offense. From jury instructions requiring a unanimous vote to Convict, I find it unrealistic to attribute to any reasonable juror the mental leap to a belief that a unanimous vote is required to Acquit. Although it is true that the Hurst plurality expressed disapproval of the instruction, it expressly declined to decide whether such an instruction would constitute reversible error. Thus, Hurst does not purport to supply the definitive answer to this case.

III.

The Court of Appeals has considered comparable instructional issues on numerous occasions. Two lines of cases are apparent. One finds that an instruction which requires unanimous agreement of innocence on the principal offense before deliberations on lesser included offenses may commence constitutes...