People v. Smith, 57632

• Decision Date: 29 March 1976
• Docket Number: No. 57632,57632
• Citation: 396 Mich. 109,240 N.W.2d 202
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Henry Lamont SMITH, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 202

240 N.W.2d 202

396 Mich. 109

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Henry Lamont SMITH, Defendant-Appellant.

No. 57632.

Supreme Court of Michigan.

March 29, 1976.

Carl Ziemba, Detroit, for appellant.

Timothy A. Baughman, Detroit, for appellee.

PER CURIAM.

The trial judge instructed the jury:

'Now before you go in, I will not reread any testimony, so don't ask for that. If there is a question of law, all you will have to do is rap on the door and I will bring you back out and explain that to you. A question of law, but not a question of fact. Do we understand that? All right. Will you kindly step inside the jury room.'

The jury convicted defendant of armed robbery. On appeal, defendant argues that the trial judge's instruction was reversible error. The Court of Appeals agreed that the instruction was erroneous in light of People v. Howe, 392 Mich. 670, 221 N.W.2d 350 (1974):

'If it is error for a trial court to refuse a jury's request for a rereading of particular excerpts of testimony on the ground that undue emphasis might be placed on the same (Howe), a fortiori, it is error where the trial court, before the jury has retired to consider its verdict, completely forecloses the possibility of having any testimony reread. This is what happened in the case at bar, and accordingly we find that the trial court erred in failing to recognize that it had such discretion and, therefore, in failing or refusing to exercise it.' 65 Mich.App. 95, 99, 237 N.W.2d 199, 200 (1975).

The Court of Appeals nevertheless affirmed because they found the error harmless. They found no 'confusion or ambiguity as to the testimony of witnesses', noted that the jury reached its verdict in less than 2 hours, and concluded that the 'totality of circumstances * * * convinces us that no miscarriage of justice occurred'. 65 Mich.App. 100, 237 N.W.2d 201.

Although we agree with the Court of Appeals that it was error on the part of the trial judge to completely foreclose the opportunity of having testimony reread, Howe, supra, we do not agree that the harmless error doctrine can be applied to this factual situation. Pursuant to GCR 1963, 853.2(4), in lieu of leave to appeal, we reverse defendant's conviction and remand to the trial court for further proceedings.

Since the judge specifically foreclosed any rereading, it is impossible for one not present in the jury room to know if in fact the jury needed testimony read back to it 'to resolve a disagreement or correct a memory failure'. Howe, supra, 392 Mich. 670, 676, 221 N.W.2d 350, 352. Although we pointed out potential sources of ambiguity in Howe,...