People v. Walker, Docket No. 155198

• Decision Date: 11 July 2019
• Docket Number: Docket No. 155198
• Citation: 504 Mich. 267,934 N.W.2d 727
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Harold Lamont WALKER, Defendant-Appellant.
• Court: Michigan Supreme Court

504 Mich. 267

934 N.W.2d 727

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Harold Lamont WALKER, Defendant-Appellant.

Docket No. 155198

Supreme Court of Michigan.

Argued January 24, 2019

Decided July 11, 2019

Cavanagh, J.

At issue in this case is whether the trial court committed error requiring reversal when it gave an ad-lib deadlocked-jury instruction. We conclude that it did. The instruction given by the trial court lacked constructive advice to encourage further deliberation, omitted important safeguards of jurors' honest convictions, included coercive language, and was delivered in a coercive atmosphere. We hold that the instruction crossed the line from appropriately encouraging deliberation and candid consideration to impermissibly coercing jurors to surrender their honestly held beliefs for the sake of reaching a verdict. The error was plain, affected defendant’s substantial rights, and affected the fairness, integrity, and public reputation of the judicial proceeding. Accordingly, we reverse the judgment of the Court of Appeals and remand the case to the Wayne Circuit Court for a new trial. Additionally, in light of the trial court’s conduct during defendant’s sentencing, we direct that defendant be retried before a different judge. Because we hold that defendant is entitled to a new trial, we do not address his remaining issues.

I. FACTS AND PROCEDURAL HISTORY

On August 8, 2014, defendant, Harold L. Walker, was charged with being a felon in possession of a firearm (felon-in-possession) under MCL 750.224f ; carrying a concealed weapon (CCW) under MCL 750.227 ; and possession of a firearm when committing or attempting to commit a felony (felony-firearm) under MCL 750.227b(1). At trial, multiple police officers testified that on August 5, 2014, while on routine patrol in a high-crime residential area of Detroit, they saw four people standing and drinking beer on a sidewalk outside a home, near a vehicle playing loud music. As the police officers approached the group, defendant quickly walked away, holding something that appeared to be heavy in a front pocket of his pants. When he reached the home’s porch, defendant pulled from his pocket what looked to the officers like a large-frame revolver and threw it into a bush beside the porch. The police recovered a loaded revolver from the bush and arrested defendant. As a condition of his parole from a prior felony conviction, defendant was not allowed to possess a weapon.

Defendant offered an alternative explanation for the revolver being in the bush. Darryl Jevon Williams, Jr., lived in the neighborhood and was with defendant on the night in question. Williams testified that he knew defendant was on parole and that defendant could not be around guns, so Williams hid his gun in the bush before defendant arrived. Both Williams and defendant testified that it was a Budweiser beer bottle that defendant had tossed into the bush and that defendant had tossed the bottle because he could not be around alcohol while on parole.

At his trial, defendant presented one witness (Williams) and testified on his own behalf. The jury began deliberating at 11:19 a.m. At 12:36 p.m., the trial court announced to counsel that the jury "sent out a note saying that they can't reach a decision and they're deadlocked." The court stated that, later, if there was another note from the jury, it would "read the Allen^{[1 ]} Instruction, but at this point after one hour of deliberations I don't think, you know, that they've even made a [sic] effort."

When the jury reentered the courtroom, the trial court stated that it had received two notes: one requesting to see the gun (which the trial court noted had already been accomplished), and one stating, "We are hung and I don't believe there will be and [sic] agreement with more time." The trial court then delivered the following instruction:

Well, that’s not the way this works. Your [sic] all heard a full day of testimony, and you deliberated for what a [sic] hour and fifteen minutes, and now you just give up. That’s not the way it works , I'm sending you all to lunch, maybe what you need is some time a part [sic] and some nourishment, other than candy, to help you all, you know, have clear heads and review the evidence that you heard.

Now, if there’s someone among you who’s failing to follow the instructions or there’s someone who’s refusing to participate in the process, you can send us a note and let us know that and we can address that , but at this point I'm not inclined to end your deliberations at this point because you had a full day of testimony and you've only been at this, discussing it, for one hour.

So I'm going to send you to lunch, maybe sometime [sic] apart will help you all to think about things, and then you'll come back in one hour and resume your deliberations. If you have any questions, if there is anything that you don't understand or need clarification on send a note. And again, if there’s one among you or two among you, three among you who are refusing to follow the instructions or participate in the process you can let us know that, too. [Emphasis added.]

The jury returned a verdict of guilty on all counts at 3:07 p.m., approximately 1½ hours after returning from lunch. The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to concurrent prison terms of 46 months to 75 years for felon-in-possession and CCW, both of which were to be served consecutively to the mandatory 10-year sentence for third-offense felony-firearm.²

Defendant filed a claim of appeal in the Court of Appeals arguing, among other assertions of error, that the trial court’s deadlocked-jury instruction was impermissibly coercive. In an unpublished opinion, a divided Court of Appeals panel affirmed defendant’s convictions. People v. Walker , unpublished per curiam opinion of the Court of Appeals, issued December 1, 2016 (Docket No. 327063), 2016 WL 7041970, p. 12. In relevant part, the Court of Appeals majority reasoned that the trial court’s jury instruction "stressed to the jury the importance of engaging in a full-fledged deliberation" and held that, in context, the instruction did not coerce a verdict. Id. at 4. The dissenting judge concluded that the instruction was impermissibly coercive and that defendant was entitled to a new trial. Id. ( GLEICHER , J., dissenting) at 1, 5.

Defendant sought leave to appeal in this Court. Oral argument was scheduled on whether to grant the application or to take other action, see MCR 7.305(H)(1), on issues including: "whether ... defendant is entitled to a new trial based on the trial judge’s comments to the jury in lieu of the standard ‘deadlocked jury’ instruction, M Crim. JI 3.12." People v. Walker , 501 Mich. 1088, 911 N.W.2d 810 (2018).

II. STANDARD OF REVIEW

"We review de novo claims of instructional error." People v. Kowalski , 489 Mich. 488, 501, 803 N.W.2d 200 (2011). Because defendant failed to object to the instruction,³ we apply the plain-error rule, which requires that (1) error must have occurred, (2) the error was plain, (3) the plain error affected substantial rights, and (4) the error resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity or public reputation of judicial proceedings. People v. Randolph , 502 Mich. 1, 10, 917 N.W.2d 249 (2018) ; People v. Carines , 460 Mich. 750, 763, 597 N.W.2d 130 (1999). An error is plain if it is "clear or obvious." Carines , 460 Mich. at 763, 597 N.W.2d 130. An error has affected a defendant’s substantial rights when there is "a showing of prejudice, i.e., that the error affected the outcome of the lower court proceedings." Id. A defendant bears the burden of persuasion with respect to prejudice. Id.

III. ANALYSIS

When a jury indicates it cannot reach a unanimous verdict, a trial court may give a supplemental instruction—commonly known as an Allen⁴ charge—to encourage the jury to continue deliberating.

People v. Sullivan , 392 Mich. 324, 329, 220 N.W.2d 441 (1974). The goal of such an instruction is to encourage further deliberation without coercing a verdict. People v. Hardin , 421 Mich. 296, 314, 365 N.W.2d 101 (1984). See Allen v. United States , 164 U.S. 492, 501, 17 S. Ct. 154, 41 L. Ed. 528 (1896) ("While undoubtedly, the verdict of the jury should represent the opinion of each 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 a comparison of views ...."). "If the charge has the effect of forcing a juror to surrender an honest conviction, it is coercive and constitutes reversible error." Sullivan , 392 Mich. at 334, 220 N.W.2d 441 (quotation marks and citation omitted).

In Sullivan , this Court adopted a standard deadlocked-jury instruction that has since been incorporated into our model jury instructions.⁵ Id. at 341, 220 N.W.2d 441 ; M Crim. JI 3.12. Although the model instruction is an example of an instruction that strikes the correct balance, it is not the only instruction that may properly be given. The relevant question is whether "the instruction given [could] cause a juror to abandon his [or her] conscientious dissent and defer to the majority solely for the sake of reaching agreement[.]" Hardin , 421 Mich. at 314, 365 N.W.2d 101. The inquiry must consider the factual context in which the instruction was given and is conducted on a case-by-case basis. Sullivan , 392 Mich. at 332-334, 220 N.W.2d 441.

The disputed factual issue in this case was relatively straightforward—whether defendant took a gun from his pocket and threw it into a bush where it was recovered by the police—and the jurors deliberated for only about an hour and fifteen minutes before sending a note stating that they could not reach an agreement. Assuming that this was too short a period for thoughtful deliberation, a simple instruction to the jury to "continue your deliberations"...