Summary
In People v Harman, 98 Mich. App. 541, 543; 296 N.W.2d 303 (1980), a panel of this Court, in a per curiam opinion, declared that Sullivan stated that a claim of coercion must be determined on a case-by-case basis.
Summary of this case from People v. JohnsonOpinion
Docket No. 78-475.
Decided July 2, 1980. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Rita Chastang, Assistant Prosecuting Attorney, for the people. Domnick J. Sorise, Assistant State Appellate Defender, for defendant on appeal.
The defendant was charged with and convicted by jury of larceny from a person in violation of MCL 750.357; MSA 28.589. Following sentence, defendant appeals as a matter of right.
The defendant contends that the trial court's instruction to the deadlocked jury was coercive and constituted reversible error. The court made the following statements in its instruction:
"[I]n order to return a verdict, each juror must agree to it. Each juror must decide the case for himself or herself but only after an impartial consideration of the evidence with his or her fellow jurors.
"No juror should surrender his honest conviction as to the weight or effect of the evidence solely because of the opinion of fellow jurors or for the mere purpose of returning a verdict.
"Jurors have a duty to consult with one another and to deliberate with a view to reaching an agreement, if it can be done without sacrifice of individual judgment.
"In the course of deliberations, a juror should not hesitate to reexamine his or her own views and change his or her own opinion if convinced that this opinion is erroneous.
"May I remind you that when a jury is unable to reach a verdict, the jury fails to accomplish its purpose. A jury unable to agree is, therefore, a jury which has failed in its purpose. Each time we have such an indecisive jury, ammunition is given to those who oppose the jury system as we know it, a system which requires a unanimous vote for either a conviction or an acquittal. Please bear this in mind.
"I say this without in any way suggesting that any of you should give up his or her conscientious opinion or belief."
The Allen charge (so named from Allen v United States, 164 U.S. 492; 17 S.Ct. 154; 41 L Ed 528) was designed to encourage a jury to reach a verdict by telling the minority that they should consider the correctness of their stance. It was given after the jury had deliberated a significant time without reaching a verdict.
In People v Sullivan, 392 Mich. 324; 220 N.W.2d 441 (1974), the Court stated that a claim of coercion must be determined on a case-by-case basis.
In the case at bar, the most controversial statement made by the trial judge is his addition to the instruction recommended by A.B.A. Standard 5.4 that a jury which is unable to reach a verdict "fails to accomplish its purpose" and that each time there is such a jury "ammunition is given to those who oppose the jury system as we know it". The qualification made by the judge at the end of these statements adequately lessened their effect.
The facts indicate that the jury was not coerced by these statements. Prior to receiving the instruction the jury twice indicated that it was close to a verdict. This Court stated in People v Tooks, 55 Mich. App. 537; 223 N.W.2d 63 (1974), that where a jury deliberated for two hours after receiving the instruction, any coercive import of the instruction had been ignored. In the case at bar, the jury deliberated for approximately three hours indicating that the instruction had no coercive effect.
Our review of the instruction and the facts of this case reveals that the trial court did not commit reversible error.
Affirmed.