People v. Rohrer

• Decision Date: 15 March 1989
• Docket Number: Docket No. 91806
• Citation: 436 N.W.2d 743,174 Mich.App. 732
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Robert ROHRER, Defendant-Appellant. 174 Mich.App. 732, 436 N.W.2d 743
• Court: Court of Appeal of Michigan — District of US

Page 743

436 N.W.2d 743

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Richard Robert ROHRER, Defendant-Appellant.

Docket No. 91806.

174 Mich.App. 732, 436 N.W.2d 743

Court of Appeals of Michigan.

Submitted Nov. 15, 1988.

Decided Feb. 21, 1989.

Released for Publication March 15, 1989.

[174 MICHAPP 733]Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol.Gen., Donald E. Martin, Pros.Atty., Robert B. Ebersole, Chief Appellate Atty., and Susan L. LeDuc, Asst. Pros.Atty., for the people.

State Appellate Defender by Fred E. Bell, for defendant-appellant on appeal.

Before SHEPHERD, P.J., and GRIBBS and ALLEN, ^* JJ.

ALLEN, Judge.

We are asked to decide whether discussions by the jury held prior to the close of proofs and in violation of instructions by the trial court not to hold such discussions constitute grounds for a new trial.The question raised is of first impression in Michigan.Defendant was convicted by jury of one count of criminal sexual misconduct in the third degree, M.C.L. Sec. 750.520d;M.S.A. Sec. 28.788(4).Sentenced on September 18, 1985, to two to fifteen years in prison, he appeals as of right contending that juror misconduct denied him his constitutional right to a fair trial.We affirm.

Based upon allegations by the complainant that she had been raped, defendant was arrested on June 21, 1984, and charged with six counts of first-degree criminal sexual conduct.At trial complainant testified that on June 16, 1984, defendant picked her up at her home at about 10:00 p.m. and [174 MICHAPP 734] drove her to the Mayfield Bar in East Lansing; that about 1:30 a.m. they left the bar but instead of taking her home the defendant drove to an isolated area near Lake Lansing where he pulled out a knife and, after forcing her to undress, forced her to engage in acts of oral, vaginal and anal sex.Additionally, she testified that the defendant inserted a flashlight in her vagina.At about 5:00 a.m. defendant drove complainant home.

Defendant testified in his own behalf.He stated that he and complainant had dated from time to time since 1982 and had engaged in sexual relations.He testified that after leaving the Mayfield Bar he asked complainant to spend the night with him at his house, but that complainant had declined the offer and suggested going to a nearby park and having sexual relations.He explained that once there he and the complainant did have oral and vaginal sex but did not have anal sex.He admitted inserting a flashlight into complainant's vagina, but stated complainant did not object to this act and that when she complained of pain he withdrew the flashlight.However, he admitted that he did not seek complainant's consent prior to the act.

The jury returned a verdict of not guilty of five counts of first-degree criminal sexual conduct and guilty of one count of the lesser offense of third-degree criminal sexual conduct regarding the flashlight incident.Following sentencing, Judge Michael Harrison, the trial judge, received a letter from David Sucha, jury foreman in defendant's trial, complaining that one of the jurors, James R. Nuttall, had misrepresented himself at voir dire and that during jury deliberations Nuttall revealed to the other jurors that he was personally acquainted with three women who had been raped.It appears from the record that during voir dire [174 MICHAPP 735] juror Nuttall informed the trial court that his niece had been molested approximately one week earlier but told the court that this would not preclude him from fairly and impartially deciding defendant's case.Defense counsel did not move to have Nuttall removed from the jury.Following impaneling of the jury, Judge Harrison instructed that the jurors should not discuss the case amongst themselves until after the conclusion of proofs.

On October 30, 1985, Judge Harrison held a hearing regarding the Sucha allegations.At this hearing Sucha repeated the statements made in his letter and further stated that Nuttall appeared to be more of an advocate of punishment for criminal sexual conduct than the other jurors.Sucha stated that eventually he challenged Nuttall with respect to his attitude, following which Nuttall had a complete change of attitude and became more receptive to discussing the issues based on the facts.Sucha also stated that despite the trial court's instruction the jurors routinely discussed the evidence in the case prior to the closing of proofs.Also, during deliberations, a copy of Life magazine with a cover story about date rape was found in the jury room.

Nuttall testified that at voir dire he did not mention the incident relating to two friends who had been raped as teenagers because the incident had occurred long ago and did not come to his mind during voir dire.He explained that he recalled the incident later on in jury deliberations and only brought the matter up to make a point.He denied having any bias against defendant and stated that he decided to find defendant guilty on the single count of third-degree criminal sexual conduct based on his assessment of the testimony.

In a detailed opinion delivered from the bench, [174 MICHAPP 736] Judge Harrison denied defendant's motion for a new trial.The court stated that it found Mr. Nuttall to be unbiased in regard to his references to his friends' rape when they were teenagers, those rapes having occurred long before Nuttall became acquainted with his friends.As to the magazine, Judge Harrison stated it was a story of a woman who fabricated an incident of a rape and why she did it.The court stated that, after reading the article, if there were any prejudice at all, it would be prejudice to the prosecution.Regarding the verdict of guilty on the issue of the flashlight incident, the court concluded:

"He was asked whether he had had permission to do that, and his answer was that he had not really had permission.That is a rape.There is no question at all that that constitutes a rape.The mere fact that one has permission to essentially have intercourse does not give permission to use an object in the process.That is what the court recalls Mr. Rohrer's testimony to have been."

I

Defendant argues that his conviction must be reversed because the jury violated the express admonitions of the trial judge not to discuss the case until proofs were closed, the error being particularly harmful because the discussions concerned individual juror positions on relevant issues in the case.We find no Michigan case law directly on point.In all of the cases relied upon by the defendantthe trial court either (1) failed to instruct the jury not to discuss the case, or (2) actually encouraged the jury to discuss the case during trial, People v. Hunter, 370 Mich. 262, 121 N.W.2d 442(1963);People v. Blondia, 69 Mich.App. [174 MICHAPP 737] 554, 245 N.W.2d 130(1976), or (3) gave the impression that the jury could discuss the case during trial, People v. Feldman, 87 Mich.App. 157, 274 N.W.2d 1(1978).In the instant casethe trial court expressly informed the jury it should not discuss the case until all proofs were in.

Thus, the issue presented is one of first impression.Is reversal required where a jury violates the trial court's express instruction not to discuss the case?Other jurisdictions have discussed the issue.See Anno: Propriety & effect of jurors' discussion of evidence among themselves before final submission of criminal case, 21 A.L.R. 4th 444.Review of that annotation discloses that, although there are cases to the contrary, generally, where a court has instructed the jury not to discuss the case during trial, a violation of the court's instruction per se is not a ground for a new trial.The proper remedy is for the court to review the alleged violation to determine whether or not the jurors' impartiality had been affected by the jurors' discussion.A new trial is justified only where the trial court finds the defendant to have been prejudiced.

In People v. Gilyard, 124 Ill.App.2d 95, 260 N.E.2d 364(1970), cert. den., 402 U.S. 911, 91 S.Ct. 1388, 28 L.Ed.2d 652(1971), the defendant's conviction of armed robbery was upheld where, in violation of the court's order, seven jurors discussed certain exhibits introduced in evidence.The court polled the jurors and found that their impartiality had not been affected.In United States v. Klee, 494 F.2d 394(CA 9, 1974), an appeal from a verdict of guilty for wilful failure to file federal income tax returns was sustained even though eleven of fourteen jurors discussed the case during recess and nine jurors expressed premature opinions regarding the defendant's guilt.The court held that the test for reversal was whether or not [174 MICHAPP 738] the misconduct had prejudiced the...