People v. Wilson

• Decision Date: 18 December 1973
• Docket Number: No. 10,10
• Citation: People v. Wilson, 390 Mich. 689, 213 N.W.2d 193 (Mich. 1973)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Albert Charles WILSON, Defendant-Appellee and Cross-Appellant. 390 Mich. 689, 213 N.W.2d 193, 77 A.L.R.3d 765
• Court: Michigan Supreme Court

Page 193

213 N.W.2d 193

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

No. 10.

390 Mich. 689, 213 N.W.2d 193, 77 A.L.R.3d 765

Supreme Court of Michigan.

Dec. 18, 1973.

William C. Buhl, Pros. Atty., Van Buren County, Paw Paw, for plaintiff-appellant.

State Appellate Defender Office by Stuart M. Israel, Asst. Appellate Defender, Detroit, Barbara L. Betsey, Marie Colombo, Research Assts., for defendant-appellee.

Before the Entire Bench.

BRENNAN, Justice.

The case was well put by the Court of Appeals, 44 Mich.App. 137, 205 N.W.2d 75:

'Defendant was convicted by a jury of attempted breaking and entering. MCLA § 750.92; MSA § 28.287 and MCLA § 750.110; MSA § 28.305. Defendant appeals his conviction. We reverse.

'After approximately ninety minuters 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. Buhl: 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.'

The majority of the Court of Appeals' panel adopted the rule of Brasfield v. United States, 272 U.S. 448, 47 S.Ct. 135, 71 L.Ed. 345 (1926), holding that the trial judge's inquiry into the numerical division of the jury had the tendency to be coercive, and constituted error.

Judge Holbrook in dissent argued that the rule in Michigan heretofore has been that each case must be considered upon its own facts, the issue on appeal being whether, under all the circumstances, the supplemental instruction of the trial court was coercive and amounted to a miscarriage of justice.

We are disposed to adopt the reasoning of the majority below.

In the case at hand, the trial court, upon hearing that the jury was divided eleven to one, observed,

'Well, that is not very far from a verdict.'

The clear implication of the trial judge's remark was that only one more juror remained to be convinced in order to permit the return of a unanimous verdict.

It cannot be supposed that a jury is closer to agreement--in point of time--when it stands at eleven to one...