People v. Tate
| Decision Date | 05 April 2001 |
| Docket Number | Docket No. 215400. |
| Citation | 624 N.W.2d 524,244 Mich. App. 553 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Monya TATE, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Jennifer M. Granholm, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, Ana Quiroz, Assistant Prosecuting Attorney, for the people.
Carl Ziemba, Detroit, for the defendant on appeal.
Before NEFF, P.J., and TALBOT and SULLIVAN1, JJ.
Defendant appeals as of right from his jury trial conviction of two counts of second-degree murder, M.C.L. § 750.317; MSA 28.549, and one count of possession of a firearm during the commission of a felony, M.C.L. § 750.227b; MSA 28.424(2). The trial court sentenced defendant to concurrent sentences of life in prison and 40 to 80 years for murder and two years for felony-firearm. We affirm.
Defendant raises four issues relating to the substitution of a juror during deliberations. The jury that heard the case consisted of thirteen members. Before opening statements, the court instructed the jury not to discuss the case with anyone "until the case is completely over." Following closing statements and final jury instructions on a Thursday, the trial court stated:
The name of Juror No. 10 was drawn as the alternate, the jury retired to deliberate at approximately 4:00 p.m., and the court inquired if counsel were satisfied with the instructions. The prosecutor said "Yes," and defense counsel stated, "the instructions as given were fine...." The next morning, Friday, the court granted a request to have the burden of proof instruction reread, provided the jury with a copy of that instruction, and the jury deliberated the entire day.
At approximately 10:00 a.m. the following Tuesday, Monday being the Labor Day holiday, one of the jurors advised the court, in the presence of counsel and defendant, that she had developed an itchy rash that might be contagious and for which her pharmacist had recommended that she see a doctor that day. The court excused the itching juror without objection, advised the rest of the jury of its concern that the excused juror might be contagious and that the alternate was on her way, and instructed the jury as follows:
The Court: Obviously you may have to go back, and I'm not going to say go back to square one, but certainly you will have to share with the other juror how you have been deliberating, and that juror will then be part of the 12 who will decide the case.
After the jury was excused from the courtroom, having been asked to return at 10:15 a.m., the court inquired of counsel if there was anything further for the record; both counsel responded "No."
When the alternate arrived and had been sworn, the following exchange occurred:
The record does not indicate the exact time Juror No. 10 joined the jury. That afternoon, the jury requested and received a rereading of the instruction that mere presence is not enough to prove that defendant assisted or was the principal actor in a crime and the instructions for second-degree murder. The jury was excused at 1:58 p.m., and returned with its verdict at 2:20 p.m.
Defendant first claims the trial court erred in excusing the itching juror from service after deliberations had begun because the court failed to ascertain whether the excused juror's rash was contagious and whether she could continue. We disagree. In People v. Carter, 462 Mich. 206, 612 N.W.2d 144 (2000), the prosecutor conceded that the trial court's jury instructions violated a court rule, but argued that the defendant waived the issue when defense counsel expressed satisfaction with the trial court's refusal of a jury request and its subsequent instruction to the jury. The Supreme Court agreed. Citing People v. Carines, 460 Mich. 750, 762-765, 597 N.W.2d 130 (1999), the Court noted the soundness of the rule requiring preservation of issues for appeal by notation on the record, and then reiterated the long-held rule that counsel may not harbor error as an appellate parachute. Carter, supra at 214, 612 N.W.2d 144, citing People v. Pollick, 448 Mich. 376, 387, 531 N.W.2d 159 (1995).
Citing United States v. Olano, 507 U.S. 725, 732-733, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), the Court defined error as "deviation from a legal rule unless the rule has been waived." Carter, supra at 214, 612 N.W.2d 144. The Court then distinguished between waiver, defined as "the intentional relinquishment or abandonment of a known right," and forfeiture, defined as "the failure to make the timely assertion of a right," and stated that waiver extinguishes error but forfeiture does not. Carter, supra at 215, 612 N.W.2d 144, citing Carines, supra at 762-763, n. 7, 597 N.W.2d 130; Olano, supra at 733, 113 S.Ct. 1770; and United States v. Griffin, 84 F.3d 912, 924-926 (C.A.7, 1996). The Court stated that, because counsel "expressly approved" the trial court's instruction as opposed to merely "fail[ing] to object," the approval constituted "a waiver that extinguishes any error." Carter, supra at 216, 612 N.W.2d 144 (emphasis in the original).
In this case, the trial court clearly instructed the jury that one of the thirteen jurors, whose name would be drawn, would be an alternate who would be called in to continue deliberations in the event that one of the seated jurors was unable to continue, and defense counsel expressly approved the instructions as given. Then, when the court questioned and excused the juror, there was no objection, and counsel again, when queried by the court whether there was anything for the record, responded "No." Pursuant to Carter, supra, we conclude that any error in either the instruction regarding the procedure in the event a juror had to be excused or the actual removal of the juror was extinguished by counsel's repeated waiver, either in the form of express approval or (which amounts to the same thing) by responding "No" when specifically queried by the court whether there was anything further for the record.
In any event, a trial court's decision to remove a juror will be reversed only when there has been a clear abuse of discretion. People v. Dry Land Marina, Inc., 175 Mich.App. 322, 325, 437 N.W.2d 391 (1989). An abuse of discretion will be found only when an unprejudiced person, considering the facts on which the trial court acted, would conclude that there was no justification or excuse for the ruling made. People v. Ullah, 216 Mich.App. 669, 673, 550 N.W.2d 568 (1996). In Dry Land Marina, there was a jury of twelve and two alternates. Over defense objection, the trial court excused a deliberating juror who had broken her arm the preceding weekend, was having circulatory problems with her hand, was taking pain medication that made her groggy, and was possibly slated for surgery. This Court found that the trial court did not abuse its discretion. Dry Land Marina, supra at 324, 437 N.W.2d 391.
In this case, the court was concerned about the juror's discomfort, was concerned that the rash might be contagious, and was advised that the juror's pharmacist told her to see her doctor that very day. We similarly conclude, especially because of the potential that the rash might have been contagious to the other jurors, that the trial court did not abuse its discretion in dismissing the juror.
Defendant relies on United States v. Patterson, 307 U.S. App. D.C. 63, 26 F.3d 1127 (1994), wherein the court reversed the defendant's conviction on the basis of the trial court's removal of a juror during deliberations. The juror had been having severe chest pains and had gone to her doctor with instructions to call the court after her appointment. Approximately three hours later, without having heard from the juror, the court excused her without determining whether she could continue and without, therefore, a finding of "just cause" as required by F.R. Crim. P. 23(b). The federal rule provides:
Jury of Less than Twelve. Juries shall be of 12 but at any time before verdict the parties may stipulate in writing with the approval...
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