People v. Wilson, Docket No. 12899

• Decision Date: 06 December 1972
• Docket Number: No. 3,Docket No. 12899,3
• Citation: 205 N.W.2d 75,44 Mich.App. 137
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert Charles WILSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 75

205 N.W.2d 75

44 Mich.App. 137

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Albert Charles WILSON, Defendant-Appellant.

Docket No. 12899.

Court of Appeals of Michigan, Division No. 3.

Dec. 6, 1972.

Leave to Appeal Granted Feb. 28, 1973.

Released for Publication March 20, 1973.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William C. Buhl, Pros. Atty., for plaintiff-appellee.

Before HOLBROOK, P.J., and R. B. BURNS and TARGONSKI ^*, JJ.

R. B. BURNS, Judge.

Defendant was convicted by a jury of attempted breaking and entering. M.C.L.A. § 750.92; M.S.A. § 28.287 and M.C.L.A. § 750.110; M.S.A. § 28.305. Defendant appeals his conviction. We reverse.

After approximately ninety minutes of deliberation the jury returned to the courtroom. The foreman advised the court that the jury was unable to agree upon a verdict, and the following colloquy occurred:

'THE COURT: Well, without saying for whom, how do you stand numerically?

'MR. SPICKETTS: Eleven to one.

'THE COURT: Well, that is not very far from a verdict. You have been at this an hour and a half. You may be seated. I have previously instructed you that it is your duty to determine the facts from the evidence received in open court and to apply the law to the facts and in this way decide the case.

'I am now asking you to return to your jury room for further deliberations. In your deliberations, you should examine the questions submitted with proper regard and consideration for the opinions of others. You should listen to each other's arguments with an open mind and make every reasonable effort to reach a verdict.

'You will now return to your jury room and resume your deliberations.

'THE COURT: Any comments or objections to the additional instructions?

'MR. BUEL: No, Your Honor.

'MR. HANSON: None, Your Honor.'

Defendant claims that the trial judge erred by asking the jury for numerical division of the jury.

This precise issue has not been ruled on by the Michigan Courts and there is a split of authority throughout the country. The Federal Courts have prohibited the court from inquiring as to a numerical division of a jury since Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926), wherein Justice Stone stated:

'We deem it essential to the fair and impartial conduct of the trial that the inquiry itself should be regarded as ground for reversal. Such procedure serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division. Its effect upon a divided jury will often depend upon circumstances which cannot properly be known to the trial judge or to the appellate courts and may vary widely in different situations, but in general its tendency is coercive. It can rarely be resorted to without bringing to bear in some degree, serious, although not measurable, an improper influence upon the jury, from whose deliberations every consideration other than that of the evidence and the law as expounded in a proper charge, should be excluded. Such a practice, which is never useful and is generally harmful, is not to be sanctioned.

'The failure of petitioners' counsel to particularize an exception to the court's inquiry does not preclude this court from correcting the error. * * * This is especially the case where the error, as here, affects the proper relations of the court to the jury, and cannot be effectively remedied by modification of the judge's charge after the harm has been done.'

We agree with Justice Stone that for a trial judge to ask the jury as to their numerical division, when in disagreement, tends to have a coercive effect upon the minority of the jury.

Reversed and remanded for a new trial.

HOLBROOK, Presiding Judge (dissenting).

The writer has carefully read the prevailing opinion and is unable to subscribe to the result obtained. Although this precise issue has not been ruled on by our Michigan Supreme Court, it appears that the test is whether or not supplemental instructions of the trial judge constitute coercion in obtaining a verdict from the jury. The inquiry by the trial judge as to how the jury stood numerically appears to be the crux of the issue presented on this appeal. To the writer's mind this inquiry was made not for the purpose of coercion, but only as an inquiry as to the possibility of the jury's arriving at a verdict. It is true that the Federal Courts have prohibited their trial courts from inquiring as to the numerical division of a jury since Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926). This rule has not been adopted by our State Supreme Court, applicable to the trial courts of Michigan. It appears to this writer that our present rules which require considering each case on its own merits are adequate to administer justice. Our Supreme Court delineated the rule for determining whether the supplemental instructions amount to coercion in People v. Pizzino, 313 Mich. 97, 103, 20 N.W.2d 824, 827 (1945):

'In Zeitz v. Mara, 290 Mich. 161, 166, 287 N.W. 418, 420, (1939), we said:

"Examination of the authorities shows that, when it is claimed that a jury has been coerced into returning a verdict, all of the facts and circumstances must be considered as well as the particular language used by the trial judge."

In the case of People v. Maxwell, 3 Mich.App. 264, 267--268, 142 N.W.2d 40, 42 (1966) it is stated as follows:

'The trial of this case had taken three days. It had started on Wednesday, and had been given to the jury on Friday, when the jury began its deliberation at 4:45 p.m. At 5:31 p.m. the jury was recalled to the courtroom and the following transpired:

"The Court: Ladies and gentlemen of the jury, you have deliberated a little less than an hour but it is getting late and I wanted to inquire into the state of your deliberations.

"May I inquire if you have selected a foreman?

"Juror Crayton: We have, and I am the foreman, Your Honor.

"The Court: Your name?

"Foreman Crayton: Crayton.

"The Court: You have been here a long time today and in consideration of the fact that some of you have a long way to go in this city of Detroit, I wish to inquire of you, Mr. Foreman, if you feel you cannot arrive at a verdict within the next 15 minutes and, if so, I am inclined to dismiss you until tomorrow morning at 9:30.

"Foreman Crayton: I do feel, Your Honor, we would reach a decision within the next 15 minutes.

"The Court: Do I understand that the majority of the jurors would rather go home and come back here tomorrow to continue deliberation or is it the other way around--let's take a vote--who would like to stay, with a show of hands, please?

"(Whereupon all jurors raised their hands.)

"The Court: Very well, I will release you to continue your deliberations again.

"You may return to the jury roon.'

'The jury was then excused at 5:35 p.m. and returned with its verdict at 5:56 p.m.

'The appellant contends this action by the court amounted to coercion of the jury.

'We do...