People v. Pannell

• Decision Date: 27 September 1988
• Docket Number: Docket No. 92623
• Citation: 170 Mich.App. 768,429 N.W.2d 233
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Earl Lee PANNELL, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 233

429 N.W.2d 233

170 Mich.App. 768

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Earl Lee PANNELL, Defendant-Appellant.

Docket No. 92623.

Court of Appeals of Michigan.

Submitted Dec. 1, 1987.

Decided Aug. 17, 1988.

Released for Publication Sept. 27, 1988.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Criminal Div., Research, Training and Appeals, and Joseph A. Puleo, Asst. Pros. Atty., for the People.

State Appellate Defender by Derrick A. Carter, Detroit, for defendant-appellant on appeal.

Before SULLIVAN, P.J., and CYNAR and TAYLOR, ^* JJ.

PER CURIAM.

Defendant was charged with eight counts of criminal sexual conduct, first degree, M.C.L. Sec. 750.520b; M.S.A. Sec. 28.788(2), convicted by a jury of five counts of criminal sexual conduct, third degree, M.C.L. Sec. 750.520d; M.S.A. Sec. 28.788(4), and sentenced to ten to fifteen years in prison. Defendant appeals his convictions as of right. We affirm.

The trial judge included in his instructions the American Bar Association standard jury instruction 5.4, which instructs the jury about the conduct of deliberations. This instruction was adopted by our Supreme Court in People v. Sullivan, 392 Mich. 324, 341-342, 220 N.W.2d 441 (1974). After the instructions were given, the jury was dismissed for the day and began deliberations the next morning. On the second day of deliberations at 10:38 a.m., the jurors sent a note to the trial judge stating that they could not reach an agreement. Without consulting counsel, the trial judge sent back a note instructing the jury, "continue your deliberations." The judge's note was placed in the court file. At 12:12 p.m., the jury requested an exhibit. At 12:20 p.m., the trial judge called the attorneys to the courtroom and informed them, on the record, of the jury's note and his response. At 12:26 p.m., the jury returned the verdict.

This Court granted defendant leave to file a supplemental brief requesting reversal under People v. Lyons, 164 Mich.App. 307, 416 N.W.2d 422 (1987), because the trial judge communicated with the deliberating jury off of the record and without informing counsel.

We conclude that the instant case is distinguishable from the case in Lyons and that the trial judge's note to the jury does not require reversal of defendant's convictions.

In Lyons, the jury sent the trial judge a note stating that it could not reach a verdict and asking for suggestions. The trial judge ordered the bailiff to tell the jury to "keep on working." The decision in Lyons was based on People v. Cain, 409 Mich. 858, 294 N.W.2d 692 (1980), reversing 94 Mich.App. 644, 288 N.W.2d 465 (1980). In Cain, as in Lyons, the trial judge sentthe bailiff to orally answer the jury's question. In both cases, it was impossible to know what was said to the jury by the bailiff, and, consequently, to determine whether there was any prejudice to the defendants' rights.

By contrast, the trial judge in this case sent a written note to the jury which was included in the lower court file. We agree with the prosecutor that the judge's instruction to the jury to "continue your deliberations" was consistent with the ABA Instruction 5.4, which was approved by our Supreme Court in People v. Sullivan, supra. While the trial judge should have proceeded on the record and in the...