People v. Sullivan

• Citation: 392 Mich. 324,220 N.W.2d 441
• Decision Date: 02 August 1974
• Docket Number: No. 13,13
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Oscar SULLIVAN, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 441

220 N.W.2d 441

392 Mich. 324

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Oscar SULLIVAN, Defendant-Appellant.

No. 13.

Supreme Court of Michigan.

Aug. 2, 1974.

William L. Cahalan, Wayne Co. Pros. Atty., Dominick R. Carnovale, Chief, Appellate Dept., Asst. Pros. Atty., Luvenia D. Dockett, Asst. Pros. Atty., Detroit, for plaintiff-appellee.

Irving Tukel, Southfield, for defendant-appellant.

Before the Entire Bench.

COLEMAN, Justice.

FACTS

Defendant is appealing the decision of the Court of Appeals to affirm his conviction by a jury of voluntary manslaughter. He was sentenced to two to fifteen years with the recommendation that he serve only the minimum term.

The incident occurred on Memorial Day 1971. Defendant was at the home of Mr. Ellis Samon. An argument began between Mr. Samon and a young neighbor. The youngster was ordered to leave the Samon yard. He did, returned and was again ordered to leave.

The child returned a third time accompanied by his fifteen year old brother. Mr. Samon was not present and defendant ordered the boys to leave. The older boy threw a piece of wood at defendant's car.

When again ordered to leave, the older boy said that he was going to get a gun. He went to his home and reappeared at the back door with an object which defendant claims he thought was a gun. Defendant was himself armed with a pistol. He fired and fatally wounded the boy.

At trial, it was shown that defendant owned the pistol for use in his work as a gas station attendant. He also knew that the boys had access to a weapon. Defendant claimed that his actions were taken in self-defense.

Preliminary matters and the presentation of evidence consumed four trial days. The court instructed the jury as to seven possible verdicts. The instructions cover 45 pages of transcript.

The jury deliberated four days. On three occasions the court repeated portions of its charge concerning possible verdicts. Finally, the court delivered this instruction:

'Our laws assume that in the process of deliberation and discussion it will be possible for twelve minds to meet, to reach a consensus in which all twelve participated. Now, if this assumption proves to be incorrect in case after case, our system of jury trials as we know it will have broken down and there would have to be some other system devised to replace it. Recognizing this, the high court of our State and I should have said the highest of our State and the highest court of our Nation approves of an instruction by the trial Judge concerning efforts on agreement. The only mode provided by our Constitution and laws for deciding questions of fact in criminal cases, is by the verdict of a jury. In a large proportion of cases, and, perhaps, strictly speaking, in all cases, absolute certainty cannot be attained or expected. Although the verdict to which a juror agrees must, of course, be his own verdict, the result of his own convictions, and not a mere acquiescence in the conclusion of his fellows, yet, in order to bring twelve minds to a unanimous result, you must examine the questions submitted to you with candor and with a proper regard and deference to the opinions of each other.

'You should consider that the case should, at sometime, be decided; that you are selected in the same manner, and from the same source, from which any 'Now, in order to make a decision more practicable and easier to arrive at, the law places the burden of proof on one party in a criminal case and that party is the Prosecution and as I was going to say, the Prosecution is the Prosecuting Attorney. The law imposes that burden on the Prosecution. That burden is upon the Prosecution to establish every part of its case beyond a reasonable doubt and if, at any part of it you're left with a reasonable doubt, the Defendant is entitled to the benefit of that doubt and must be acquitted.

future jury must be; and there is no reason to suppose that the case will ever be submitted to twelve men and women more intelligent, more impartial, or more competent to decide it, or that more or clearer evidence will be produced on the one side or the other. And, with this in view, it is your duty to decide the case if you can conscientiously do so without surrendering your conscientious belief.

'But, in conferring together, you ought to pay proper respect to each other's opinions and listen, with a disposition to be convinced to each other's arguments.

'And, if on the one hand if much the larger number of your panel are for a conviction, a dissenting juror should consider whether a doubt in his own mind is a reasonable one which makes no impression upon the minds of so many men equally honest, equally intelligent with himself and who have heard the same evidence, with the same attention, with an equal desire to arrive at the truth and under the sanction of the same oath.

'If, on the other hand, if a majority are for acquittal, the minority ought seriously to ask themselves whether they may not reasonably, and ought not to doubt the correctness of a judgment which is not concurred in by most of those with whom they are associated and distrust the weight of sufficiency of that evidence which fails to carry conviction to the minds of their fellows.

'Now, I ask you to try conscienciously (sic) and honestly in your own convictions, to try to arrive at a verdict. If you can arrive at a verdict in individual good conscience, do so.'

The jury left the courtroom at 11:15 a.m. At 2:35 they reached a verdict.

The Court of Appeals affirmed the conviction. Its 'review of the instruction complained to demonstrates that People v. Chivas, 322 Mich. 384 (34 N.W.2d 22) (1948) and People v. Coleman, 21 Mich.App. 193 (175 N.W.2d 308) (1970) control.'

ISSUE

Was the Allen type charge either (1) coercive per se, or (2) coercive in this particular case?

DISCUSSION

I

The instruction delivered by the court is known as an Allen charge. The earliest example is found in Commonwealth v. Tuey, 62 Mass. (8 Cush.) 1 (1851). The court approved a charge the substance of which was the same as the one quoted above. It said that this 'did nothing more than to present to the minds of the dissenting jurors a strong motive to unanimity'. The instruction was 'entirely sound, and well adapted to bring to the attention of the jury one of the means by which they might be safely guided in the performance of their duty'. Also see State v. Smith, 49 Conn. 376 (1881).

The popular name for this instruction results from the United States Supreme Court's approval of the charge in Allen v. United States, 164 U.S. 492, 17 S.Ct. 154, 41 L.Ed. 528 (1896). The charge was identical to that given in Tuey. The Court said:

'While, undoubtedly, the verdict of the jury should represent the opinion of each To date the United States Supreme Court and this Court have sanctioned the use of this instruction. Indicative is Kawakita v. United States, 343 U.S. 717, 72 S.Ct. 950, 96 L.Ed. 1249 (1952). The United States Court of Appeals for the Ninth Circuit had discussed the Allen charge. See 190 F.2d 506. The Supreme Court did not speak to this issue saying that certain allegations of error were 'either insubstantial or so adequately disposed of by the Court of Appeals that we give them no notice'.

individual juror, it by no means follows that opinions may not be changed by conference in the jury room. The very object of the jury system is to secure unanimity by comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with deference to the arguments, and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the jury-room with a blind determination that the verdict shall represent his opinion of the case at that moment or that he should close his ears to the arguments of men who are equally honest and intelligent as himself. There was no error in these instructions.'

Michigan

Use of the Allen charge also has long been part of this state's jurisprudence. In People v. Coulon, 151 Mich. 200, 114 N.W. 1013 (1908), the trial court urged the minority to reconsider but further indicated 'that no juror should yield his wellgrounded convictions or violate his oath'. The trial court also said that 'if upon further consideration a juror cannot conscientiously yield, of course, he ought not to do so'. This Court citing Tuey, Smith and Allen said such instructions were not erroneous. See People v. Tutha, 276 Mich. 387, 267 N.W. 867 (1936).

Compare the decision in People v. Engle, 118 Mich. 287, 76 N.W. 502 (1898) where the Court noted a deviation from the Tuey charge and granted a new trial:

'In the present case, however, the jury were not instructed that the verdict to which they agreed should be and must be each individual juror's own verdict, the result of his own convictions, and not a mere acquiescence in the conclusion of his fellows; but, on the contrary, they were instructed just the reverse,--that they must each try to be persuaded. We think the court was in error in this instruction, and that its substance had a tendency to make the jurors feel that they must give way to their honest convictions upon the merits, and agree with the majority, though they had a reasonable doubt of the guilt of the respondent.'

In People v. Kasem, 230 Mich. 278, 203 N.W. 135 (1925), the trial court apparently told the jury that they had a duty to reach a verdict. The court indicated to the panel that it would entail great expense to declare a hung jury. This Court did not regard this as coercing agreement although 'what was said might better have been omitted'. ¹ Each case must be evaluated on Defendant in the instant case admits that the trial court was most scrupulous in following the language approved in People v. Chivas, 322 Mich. 384, 34 N.W.2d 22 (1...