Opinion
352449
03-30-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. GEOFFREY LAVAR LAWSON, Defendant-Appellant.
UNPUBLISHED
Genesee Circuit Court LC No. 08-024090-FC
Before: K. F. KELLY, P.J., and LETICA and RICK, JJ.
PER CURIAM.
Defendant appeals by delayed leave granted the trial court's order denying his motion for relief from judgment. Finding no errors warranting reversal, we affirm.
After this Court denied defendant's delayed application for leave to appeal, People v Lawson, unpublished order of the Court of Appeals, entered May 6, 2020 (Docket No. 352449), the Michigan Supreme Court, in lieu of granting leave to appeal, remanded the case to this Court for consideration as on leave granted. People v Lawson, 508 Mich. 1001; 967 N.W.2d 240 (2021).
I. BASIC FACTS AND PROCEDURAL HISTORY
In 2010, a jury convicted defendant of first-degree felony murder, MCL 750.316(1)(b), armed robbery, MCL 750.529, conspiracy to commit armed robbery, MCL 750.157a and MCL 750.529, and possession of a firearm during the commission of a felony, MCL 750.227b. The trial court sentenced defendant to life imprisonment without parole for the felony-murder conviction, and concurrent prison terms of 22-1/2 to 45 years each for the armed robbery and conspiracy to commit armed robbery convictions, and a consecutive two-year term of imprisonment for the felony-firearm conviction. In a prior appeal, this Court affirmed defendant's convictions and sentences. People v Lawson, unpublished per curiam opinion of the Court of Appeals, issued June 26, 2012 (Docket No. 302128).
The factual background leading to defendant's convictions are not relevant to this appeal but can be found in this Court's prior opinion. See People v Lawson, unpublished per curiam opinion of the Court of Appeals, issued June 26, 2012 (Docket No. 302128).
In 2019, defendant filed a motion for relief from judgment, in which he sought a new trial because, according to defendant, the trial court judge had two improper ex parte communications with the jury outside of his and his attorney's presence. In particular, defendant relied on the following exchange that occurred after the trial court received the jury's note that it had reached a verdict:
Before we bring the jury out, there was or there were a few letters or notes from the jury. The first one that came out says-all it says was Dr. Sauer's testimony. I interpreted that to mean that they wanted to either read or see it. So, I wrote back as follows. We do not have a transcript of any witness's testimony. It would be too expensive to do that. We can replay Dr. Sauer's testimony on video, but it will take a while for us to put it together. Do you want to see it on video? I did not get a response.
The second note came out and they wanted the elements for the charges in count one. That would be the felony murder and the second-degree murder and [defense counsel] wasn't here. So, I'm going to show what we did. We went online and we took the elements for felony murder, armed robbery, and second-degree murder, and customized them for this case, and took out all the commas, clauses, and all of that, and that's what we sent in to the jury.
[Defense Counsel]: I don't have any objection to that. [Emphasis added.]
In his motion for relief, defendant argued that he was entitled to a new trial because: (1) the trial court engaged in ex parte communications with the jury while the jury was deliberating; (2) he was denied his right to counsel when the trial court engaged in the ex parte communications without him or his counsel present; (3) he was denied the effective assistance of counsel because his attorney failed to object to the ex parte communications; and (4) he was denied his right to a properly instructed jury and to the effective assistance of counsel when the trial court gave the jury a defective jury verdict form. The trial court denied defendant's motion, and this appeal followed.
II. STANDARDS OF REVIEW
We "review a trial court's decision on a motion for relief from judgment for an abuse of discretion and its findings of facts supporting its decision for clear error." People v Swain, 288 Mich.App. 609, 628; 794 N.W.2d 92 (2010). "A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes, or makes an error of law." Id. at 628-629 (citations omitted). We review constitutional issues de novo. People v Harris, 499 Mich. 332, 342; 885 N.W.2d 832 (2016).
III. DISCUSSION
A. TRIAL COURT'S EX PARTE COMMUNICATIONS WITH THE JURY
Defendant first argues that the trial court abused its discretion by denying his motion for relief from judgment because the trial court's ex parte communications with the jury during deliberations were improper and prejudiced his trial. We disagree.
At the time of defendant's trial, MCR 6.414(B) provided, in relevant part: "The court may not communicate with the jury or any juror pertaining to the case without notifying the parties and permitting them to be present." In People v France, 436 Mich. 138; 461 N.W.2d 621 (1990), the Michigan Supreme Court examined MCR 6.414(A), the predecessor to MCR 6.414(B), in the context of a trial court's ex parte communications with a deliberating jury. The Court held that ex parte communications in violation of the court rule are not subject to automatic reversal. France, 436 Mich. at 142-143. Rather, "[a] reviewing court must reverse the conviction if it determines that a defendant has been prejudiced by an ex parte communication with the jury." Id. at 163. "[B]efore a reviewing court can make a determination regarding the prejudicial effect of an ex parte communication, it must first categorize the communication into one of three categories: substantive, administrative, or housekeeping." Id. The Court explained:
MCR 6.414 was subsequently repealed and replaced by MCR 2.513. The relevant language remains substantively the same.
Substantive communication encompasses supplemental instruction on the law given by the trial court to a deliberating jury. A substantive communication carries a presumption of prejudice in favor of the aggrieved party, regardless of whether an objection is raised. The presumption may only be rebutted by a firm and definite showing of an absence of prejudice.
Administrative communications include instructions regarding the availability of certain pieces of evidence and instructions that encourage a jury to continue its deliberations. An administrative communication has no presumption of prejudice. The failure to object when made aware of the communication will be taken as evidence that the instruction was not prejudicial. Upon an objection, the burden lies with the nonobjecting party to demonstrate that the communication lacked any prejudicial effect.
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Housekeeping communications are those which occur between a jury and a court officer regarding meal orders, rest room facilities, or matters consistent with general "housekeeping" needs that are unrelated in any way to the case being decided. A housekeeping communication carries the presumption of no prejudice. First, there must be an objection to the communication, and then the aggrieved party must make a firm and definite showing which effectively rebuts the presumption of no prejudice. [Id. at 163-164 (citations and footnote omitted).]
This case involves two ex parte communications by the trial court with the jury during deliberations. According to the record, the first communication involved a jury note that stated: "Dr. Sauer's testimony." In response, the trial court wrote: "We do not have a transcript of any witness's testimony. It would be too expensive to do that. We can replay Dr. Sauer's testimony on video, but it will take a while for us to put it together. Do you want to see it on video?" The trial court did not receive a response.
In our view, the trial court fairly interpreted "Dr. Sauer's testimony" as a request to review the testimony of that witness. The court's responsive communication with the jury, which simply explained "the availability of certain pieces of evidence," France, 436 Mich. at 143, was clearly administrative in nature. "An administrative communication has no presumption of prejudice." Id. at 163. The trial court placed the communication it had with the jury on the record once trial reconvened. Moreover, the absence of an objection to the trial court's explanation of how it responded to the jury's note can be taken as evidence that the instruction was not prejudicial. See id. ("The failure to object when made aware of the [administrative] communication will be taken as evidence that the instruction was not prejudicial."). Defendant does not explain how any reasonable possibility of prejudice arose from the trial court's response, which left it to the jury to decide if it still wanted to see the testimony, but the jury never responded. Reversal is unwarranted because defendant has not demonstrated "any reasonable possibility of prejudice" flowing from this administrative communication between the trial court and the jury. See id. at 162-163, 166.
The trial court's ex parte communication after the jury's second note is not as easily resolved; nevertheless, we conclude that defendant is not entitled to a new trial on the basis of this communication. The trial court stated that the jury's second note requested "the elements for the charges in count one." The court then explained how it responded to the jury:
So, I'm going to show what we did. We went online and we took the elements for felony murder, armed robbery, and second-degree murder, and customized them for this case, and took out all the commas, clauses, and all of that, and that's what we sent in to the jury. [Emphasis added.]
Thus, it is undisputed that the trial court provided the deliberating jury with some form of instruction on the law-a substantive communication-while defense counsel was not present. See France, 436 Mich. at 143 ("Substantive communication encompasses supplemental instructions on the law given by the trial court to a deliberating jury."). Under France, a substantive communication carries a presumption of prejudice in favor of the defendant. Id. Such presumption of prejudice, however, may be rebutted by a "firm and definite showing of an absence of prejudice." Id. at 163. The Court in France explained: "The prosecution may rebut the presumption of prejudice with a showing that the instruction was merely a recitation of an instruction originally given without objection, and that it was placed on the record." Id. at 163 n 34.
On the basis of the record, the trial court merely provided the jury, in written form, with the same instructions for Count 1 that it had previously given during its final instruction, to which the parties had already agreed. At the time of defendant's trial, the court rules did not require a written copy of the jury instructions to be sent into the jury room with the jury, as they do now. See MCR 2.513(N)(3). Nothing in the record suggests that the instructions given by the trial court were anything other than the standard instructions, which were previously given to the jury. The trial court placed on the record a thorough explanation of what was provided to the jury. The court did not indicate that it made any changes or additions to the standard instructions, other than that it "customized them for this case" and removed unnecessary punctuation marks. The trial court's statement that it went "online" indicates that the court downloaded the written instructions from the online version of the standard jury instructions, and its statement that it "customized" them suggests that it included the victim's name and other details related to the case to fill in the blanks in the standard forms of those instructions. Thus, as was explained on the record, the trial court's ex parte communication was a written recitation of instructions originally given without objection, which would serve to rebut the presumption of prejudice. Id. at 163 n 34.
Defendant nevertheless contends that he is entitled to relief because the actual written instructions were not preserved as part of the record. For the reasons previously discussed, there is "a firm and definite showing of an absence of prejudice" sufficient to rebut the presumption of prejudice regarding the trial court's substantive communication to the jury. See id. at 143. The absence of a record in this case does not deny defendant an opportunity for meaningful review of what occurred, or cast ineradicable doubt on the fundamental fairness of the proceedings. As previously indicated, the trial court thoroughly explained exactly what it did to respond to the jury's note, which was to provide the standard jury instructions for Count 1, customizing them to this case and removing unneeded punctuation marks, and by "show[ing]" what was done. Moreover, it is significant that, after hearing the trial court's explanation and being "show[n]" what was done, defense counsel stated: "I don't have any objection to that." Defense counsel's response demonstrates that he understood the trial court's explanation and affirmatively agreed with the instructions as given. The trial court's terminology and defense counsel's approval indicate that the written instructions were "show[n]" to counsel, not that they were merely approved by counsel without review, as defendant claims.
Defendant also argues that the trial court violated MCR 6.414(B) by failing to preserve the jury's notes and its responses as part of the record. Intermingled with this argument is the assertion that the failure to preserve the notes and responses demonstrates prejudice in defendant's favor. At the time of defendant's trial, MCR 6.414(B) provided, in pertinent part: "The court must ensure that all communications pertaining to the case between the court and the jury or any juror are made a part of the record." While it would have been ideal for the trial court to have actually preserved the written notes, the court did not violate MCR 6.414(B) because it did make the communications between it and the jury "a part of the record." The court complied with MCR 6.414(B) by reading both of the jury's notes and the court's written response to the first note into the record, and by explaining what was done in response to the second note. While the written instructions were not preserved as related to the jury's second note, the court did thoroughly explain its communication with the jury and showed defense counsel what was done, which allows for a meaningful review of what occurred. Consequently, defendant is not entitled to a new trial under MCR 6.414(B) because the jury notes and the trial court's responses were not preserved by the court.
Furthermore, although the presumption of prejudice has been rebutted on the basis of the record, it also is significant that defendant did not raise this issue on direct appeal. Had defendant raised this issue on direct appeal, the presumption of prejudice arising from a court's substantive communication with the jury, as expressed in France, would have applied. Defendant raised this claim, however, in a motion for relief from judgment. "A defendant in a criminal case may move for relief from a judgment of conviction and sentence." Swain, 288 Mich.App. at 629 (citation omitted). Such motions are governed by MCR 6.500 et seq. When the defendant seeks such relief on grounds, other than jurisdictional ones, that could have been raised on appeal, the defendant must satisfy "good cause" for the failure to raise such grounds earlier and demonstrate "actual prejudice" as a result of the alleged irregularity. MCR 6.508(D)(3)(a) and (b). "A defendant has the burden to establish entitlement to relief." Swain, 288 Mich.App. at 630, citing MCR 6.508(D). Thus, regarding prejudice, contrary to the burden being on the prosecution to rebut the presumption of prejudice as explained by France, defendant has the burden to establish the requisite prejudice under the rules governing a motion for relief from judgment. Swain, 288 Mich.App. at 630. Defendant has not established actual prejudice, as required under MCR 6.508(D).
In sum, reversal is not warranted because defendant has not demonstrated the requisite level of prejudice flowing from either the administrative or substantive communications the trial court had with the jury. And for all the reasons explained above, we also conclude defendant was not denied his right to counsel at a critical stage of the proceedings or denied his constitutional right to be present as a result of the trial court failing to notify his or defense counsel before it responded to the notes because defendant has not demonstrated he was prejudiced by the communications. Consequently, the trial court did not abuse its discretion when it denied defendant's motion for relief from judgment.
The Sixth Amendment right to counsel attaches to criminal prosecutions when the judicial process is initiated and extends to every "critical stage" of the proceeding. People v Williams, 470 Mich. 634, 641; 683 N.W.2d 597 (2004). A critical stage is "where counsel's absence might harm defendant's right to a fair trial." People v Buie (On Remand), 298 Mich.App. 50, 61; 825 N.W.2d 361 (2012) (quotation marks and citation omitted). "It is well established that a total or complete deprivation of the right to counsel at a critical stage of a criminal proceeding is a structural error requiring automatic reversal." People v Willing, 267 Mich.App. 208, 224; 704 N.W.2d 472 (2005).
"A criminal defendant has a statutory right to be present during his or her trial." People v Kammeraad, 307 Mich.App. 98, 116; 858 N.W.2d 490 (2014). "A defendant has a right to be present during the voir dire, selection of and subsequent challenges to the jury, presentation of evidence, summation of counsel, instructions to the jury, rendition of the verdict, imposition of sentence, and any other stage of trial where the defendant's substantial rights might be adversely affected." People v Mallory, 421 Mich. 229, 247; 365 N.W.2d 673 (1984).
B. INEFFECTIVE ASSISTANCE OF COUNSEL
Next, defendant asserts that his trial attorney was ineffective for failing to object to the trial court's ex parte communications with the deliberating jury and that his appellate attorney was ineffective for failing to raise the claim with this Court. Thus, defendant argues that the trial court abused its discretion by denying his motion for relief from judgment on the basis of this ineffective-assistance claim. Again, we disagree.
"Whether a defendant has been denied the effective assistance of counsel is a mixed question of fact and constitutional law." People v Solloway, 316 Mich.App. 174, 187; 891 N.W.2d 255 (2016). "To demonstrate ineffective assistance of trial counsel, a defendant must show that his or her attorney's performance fell below an objective standard of reasonableness under prevailing professional norms and that this performance caused him or her prejudice." People v Nix, 301 Mich.App. 195, 207; 836 N.W.2d 224 (2013) (citation omitted). "To demonstrate prejudice, a defendant must show the probability that, but for counsel's errors, the result of the proceedings would have been different." Id. The test for ineffective assistance of appellate counsel is the same as that applicable to a claim of ineffective assistance of trial counsel. People v Uphaus (On Remand), 278 Mich.App. 174, 186; 748 N.W.2d 899 (2008).
The effective assistance of counsel is presumed, and the burden is on the defendant to establish the contrary. People v Roscoe, 303 Mich.App. 633, 644; 846 N.W.2d 402 (2014). "[A] reviewing court must conclude that the act or omission of the defendant's trial counsel fell within the range of reasonable professional conduct if, after affirmatively entertaining the range of possible reasons for the act or omission under the facts known to the reviewing court, there might have been a legitimate strategic reason for the act or omission." People v Gioglio (On Remand), 296 Mich.App. 12, 22-23; 815 N.W.2d 589 (2012) (citation omitted), vacated in part on other grounds 493 Mich. 864 (2012). Moreover, "[t]he defendant has the burden of establishing the factual predicate of his ineffective assistance claim." People v Douglas, 496 Mich. 557, 592; 852 N.W.2d 587 (2014).
Defendant has not established that his trial attorney was ineffective by failing to object to the trial court's two ex parte communications with the jury during deliberations. The court placed a detailed account of the communications it had with the jury on the record when trial reconvened. As previously mentioned, in response to the jury's first note, the court simply explained "the availability of certain pieces of evidence," which is an administrative communication that carries no presumption of prejudice. France, 436 Mich. 163. In an attempt to demonstrate prejudice, defendant argues that "counsel forfeited the only opportunity to inquire of the jury's intent with respect to their note simply labeled 'Dr. Sauer's testimony.'" Defendant's mere speculation that there was some intent beyond the obvious-that the jury had asked to review Dr. Sauer's testimony-is insufficient to show that counsel's failure to object was objectively unreasonable or prejudicial, especially where the trial court explained that it had advised the jury that the witness's testimony could be replayed but would take some time to put it together. The trial court's response left it to the jury to ask if it still wanted to rehear the testimony, and the jury never responded with a follow-up request.
We also disagree that defendant's trial attorney performed deficiently by failing to object to the trial court's substantive communication with the jury when responding to the jury's second note that requested the elements for Count 1. The trial court "show[ed]" defense counsel how it handled the note, indicating that it printed out the standard instructions for Count 1, tailored them to this case, and removed unnecessary punctuation. Defense counsel reasonably may have determined that there was no basis for objecting to the trial court's handling of the matter, given that the court only reinstructed the jury, in written form, with the same previously-approved instructions for Count 1 that it had already read to the jury. See People v Ericksen, 288 Mich.App. 192, 201; 793 N.W.2d 120 (2010) ("Failing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel.").
Even if we were to conclude that defense counsel's performance was deficient for failing to object-and to be clear, we do not-defendant has not demonstrated a reasonable probability that, but for counsel's failure to object, the result of the proceedings would have been different. See Nix, 301 Mich.App. at 207. Defendant attempts to demonstrate prejudice by arguing that "trial counsel abandoned any chance to ascertain why the jury was confused as to the elements of count one." However, because there was no indication that the jury expressed confusion as to Count 1, only that it asked for the elements of Count 1, defendant is left only with conjecture. See People v Pratt, 254 Mich.App. 425, 430; 656 N.W.2d 866 (2002). Defendant's claim that counsel never saw the instructions is weakened by the record, which demonstrates that the trial court stated: "So, I'm going to show what we did" and counsel subsequently responded, "I don't have any objection to that." (Emphasis added.) Consequently, defendant cannot establish a claim of ineffective assistance of counsel on the basis of his attorney's failure to object.
Similarly, defendant cannot demonstrate that he was prejudiced by his appellate counsel's failure to raise these arguments because, for the reasons previously discussed, there is no reasonable probability that the outcome of defendant's appeal would have been different had appellate counsel raised those arguments on direct appeal. Thus, appellate counsel's failure to raise these futile arguments on direct appeal was not objectively unreasonable. Uphaus (On Remand), 278 Mich.App. at 186. Accordingly, the trial court did not abuse its discretion by denying defendant's motion for relief from judgment on the basis that he was denied the effective assistance of counsel.
C. JURY VERDICT FORM
Lastly, defendant argues that the trial court abused its discretion by denying his motion for relief from judgment on the basis that he was denied his constitutional right to a properly instructed jury. Defendant contends that the verdict form did not provide the jury with the option of returning a general "not guilty" verdict for the felony-murder count. The argument is meritless.
"A criminal defendant is entitled to have a properly instructed jury consider the evidence against him." People v Wade, 283 Mich.App. 462, 467; 771 N.W.2d 447 (2009) (quotation marks and citations omitted). "An issue with a jury verdict form is considered an error in jury instructions." Id. "[A] criminal defendant is deprived of his constitutional right to a jury trial when the jury is not given the opportunity to return a general verdict of not guilty." Wade, 283 Mich.App. at 467.
In this case, the verdict form provided the jury with the following options for the felony-murder count: "Not Guilty," "Guilty of Homicide-Felony Murder," and "Guilty of the Lesser Offense of Murder-2nd Degree." Thus, contrary to what defendant asserts, the verdict form specifically gave the jury the option to select a general "Not Guilty" verdict for the felony-murder charge. Similarly, the trial court instructed the jury that one of the available options for the felony-murder charge was a verdict of "not guilty." Because the record clearly establishes that the jury was given the opportunity to return a general verdict of not guilty, defendant's challenge to the jury verdict form is without merit.
Alternatively, defendant argues that his trial counsel was ineffective for failing to object to the jury verdict form and his appellate counsel was ineffective for failing to raise the issue on direct appeal. But because the record clearly establishes that the jury was given the opportunity to return a general verdict of not guilty, any objection or argument on appeal would have been meritless. See Ericksen, 288 Mich. at 201. Consequently, the trial court did not abuse its discretion by denying defendant's motion for relief from judgment with respect to this claim.
Affirmed.
RICK, J. (dissenting).
I respectfully dissent. In People v France, 436 Mich. 138, 163; 461 N.W.2d 621 (1990), our Supreme Court devised a method to efficiently determine whether an ex parte communication is prejudicial, wherein a reviewing court "must first categorize the communication into one of three categories: substantive, administrative, or housekeeping." While I recognize the value of such a tool, I would emphasize that the record must clearly support the conclusion that an ex parte communication belongs to one category over another. Furthermore, I would note that these exercises in language analysis and categorization should never be prioritized over a defendant's due-process rights. It is my view that the majority opinion cannot be reconciled with these principles.
I. BACKGROUND
As the majority notes, this Court previously affirmed defendant's convictions and sentences on direct appeal in 2012. People v Lawson, unpublished per curiam opinion of the Court of Appeals, issued June 26, 2012 (Docket No. 302128). The instant case arises out of a motion for relief from judgment filed by defendant and subsequently denied by the trial court in 2019. Following the trial court's denial, defendant filed a delayed application for leave to appeal, which this Court denied by order in 2020. People v Lawson, unpublished order of the Court of Appeals, entered on May 6, 2020 (Docket No. 352449). Defendant appealed to our Supreme Court, which has now remanded for consideration as on leave granted. People v Lawson, 966 N.W.2d 22 (2021).
This appeal primarily concerns two ex parte communications between the trial court and the jury at defendant's 2010 trial, outside of the presence of both defense counsel and the prosecution. The majority characterizes the first communication as purely administrative and states that it was thus permitted under France, 436 Mich. at 163. As for the second communication, the majority acknowledges that it was substantive, and admits that it was presumptively prejudicial. However, citing People v Swain, 288 Mich.App. 609; 794 N.W.2d 92 (2010), the majority now concludes that defendant's failure to raise the issue on direct appeal precludes this Court from granting relief. I respectfully disagree.
II. ANALYSIS
A. THE FIRST COMMUNICATION
In its first communication, the jury sent the trial court a note that simply read "Dr. Sauer's testimony," with no further description. Without notifying or consulting the parties, the trial court wrote back, "We do not have a transcript of any witness testimony. It would be too expensive to do that. We can replay Dr. Sauer's testimony on video, but it will take a while for us to put it together. Do you want to see it on video?" The jury did not respond.
If the jury requests a review of testimony or evidence that was not allowed in the jury room during deliberations, "the court must exercise its discretion to ensure fairness and to refuse unreasonable requests[.]" MCR 2.513(P). Assuming that the jury was asking to view a copy of Dr. Sauer's testimony, the trial court appears to have complied with MCR 2.513(P). But even so, the court failed to adhere to MCR 6.414(A), which was still in effect when defendant's jury trial took place. MCR 6.414(A), decided after France, specifically obligates the trial court to follow a specific procedure when addressing questions posed by the jury:
The majority correctly notes that MCR 6.414 was repealed and replaced by MCR 2.513.
Court's Responsibility. The trial court must control the proceedings during trial, limit the evidence and arguments to relevant and proper matters, and take appropriate steps to ensure that the jurors will not be exposed to information or influences that might affect their ability to render an impartial verdict on the evidence presented in court. The court may not communicate with the jury or any juror pertaining to the case without notifying the parties and permitting them to be present. The court must ensure that all communications pertaining to the case between the court and the jury or any juror are made a part of the record.
Put differently, under MCR 6.414(A), the trial court should have first notified the parties and given them an opportunity to appear in court before returning an answer to the jury. This should not have been an unduly burdensome task. 2010 was not so long ago; even then, every lawyer would have had multiple methods of communication at their disposal. The trial court should not have had trouble contacting the parties and ensuring they were given an opportunity to appear in the courtroom before the court answered the jury's questions. It is unclear why the trial court failed to even attempt to follow this procedure.
Given that the trial court did not adhere to MCR 2.614(A), I would posit that a discussion of whether France is controlling puts the cart before the horse. But even accepting that France applies and that the jury's communication must be placed into one of three categories, the majority's conclusion that the first note was an administrative communication is dubious at best. The three categories of communication-substantive, administrative, and housekeeping-are described as follows:
Substantive communication encompasses supplemental instruction on the law given by the trial court to a deliberating jury. A substantive communication carries a presumption of prejudice in favor of the aggrieved party, regardless of whether an objection is raised. The presumption may only be rebutted by a firm and definite showing of an absence of prejudice.
Administrative communications include instructions regarding the availability of certain pieces of evidence and instructions that encourage a jury to continue its deliberations. An administrative communication has no presumption of prejudice. The failure to object when made aware of the communication will be taken as evidence that the instruction was not prejudicial. Upon an objection, the burden lies with the nonobjecting party to demonstrate that the communication lacked any prejudicial effect.
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Housekeeping communications are those which occur between a jury and a court officer regarding meal orders, rest room facilities, or matters consistent with general "housekeeping" needs that are unrelated in any way to the case being decided. A housekeeping communication carries the presumption of no prejudice. First, there must be an objection to the communication, and then the aggrieved party must make a firm and definite showing which effectively rebuts the presumption of no prejudice. [France, 436 Mich. at 163-164 (citations and footnote omitted).]
Although it is quite clear that the communication at issue here did not concern a "housekeeping" matter, it is impossible to discern whether the phrase "Dr. Sauer's testimony" was administrative or substantive. The lack of any other context or explanation of the jury's meaning beyond those three words strongly suggests that the note could be interpreted in multiple different ways.
Had the trial court followed the required procedure outlined in MCR 6.414(A), the ambiguity likely could have been resolved, which would in turn have have facilitated a proper review of the matter by this Court. Our review has been similarly thwarted by the trial court's failure to preserve the note itself as part of the record, which, while not required, would certainly have been a beneficial piece of evidence to submit to the Court on appeal. That the note fails to ask an actual question and was not preserved as part of the record are issues that cast no small amount of doubt on the majority's conclusion here. As it stands, one can only speculate as to why the jury did not explain the request, as well as whether the communication "lacked any reasonable prejudicial effect," France, 436 Mich. at 143. I remain unconvinced that we have received sufficient contextual information with which to categorize the communication in accordance with France. Consequently, I disagree with the majority's conclusion that the jury's first note was an administrative communication.
B. THE SECOND COMMUNICATION
In its second communication, the trial court told the parties that the jury sent a written note that said, "the elements for the charges in count one." As with the jury's first note, is unclear precisely what the jury was communicating to the trial court here because the court did not save the written document, although it appears that the communication was likely substantive. Instead, the trial court summarized what the jury requested on the record, based solely on its own recollection of the note's contents. The trial court then explained that it responded to the jury by stating:
So, I'm going to show what we did. We went online and we took the elements for felony murder, armed robbery, and second-degree murder, and customized them for this case, and took out all the commas, clauses, and all of that, and that's what we sent in to the jury.
The majority concedes that under France and the facts of the case, the jury's second communication was substantive and therefore presumptively prejudicial. But rather than find in favor of defendant, the majority instead concludes that the prosecution rebutted the presumption of prejudice by demonstrating that the trial court merely provided the jury with a written version of the same instructions for Count I that were previously given during the court's recitation of the final jury instructions.
Lawyers and trial judges know the importance of a complete and unambiguous record. They also know that to ensure a clean record, everything must be described in detail for benefit of the reviewing court. Aside from the trial court's failure to keep the jury's second note, which could have been presented as part of the record on appeal, this Court was also not provided with a copy of the written instruction that was delivered to the jury. Additionally, we do not know who drafted the written version of the instruction or the sources used in crafting it. These are not trivial questions, nor does an inquiry into these issues "go beyond the limits necessary to safeguard the right of a defendant to a fair trial." France, 436 Mich. at 142. The record provided to this Court contains major ambiguities, and without further evidentiary support, it cannot be said with certainty that the written instruction and the instruction previously read to the jury were identical. Accordingly, I disagree with the majority's conclusion that the presumption of prejudice was adequately rebutted on the basis of this record.
C. MCR 6.508(D)
Finally, I disagree with the majority's conclusion that defendant's failure to object at trial or to raise this issue on direct appeal bars his claim for relief. This belies a stunning lack of understanding for how Michigan's trial courts operated in the early- to mid-2000s. When defendant was tried in 2010, Michigan's indigent defense systems were notably poor-so poor, in fact, that just one year before defendant was tried, the American Civil Liberties Union (ACLU) filed a class-action lawsuit alleging that the constitutional violations committed as a result of poor indigent defense in certain counties-including Genesee, where defendant's trial took place- warranted declaratory and injunctive relief. Duncan v Granholm, 284 Mich.App. 246; 774 N.W.2d 89 (2009). Around that same time, the National Legal Aid and Defender Association (NLADA) analyzed the various indigent defense systems operational in Michigan and concluded that "none of the public defender services in the sample counties are constitutionally adequate." National Legal Aid and Defender Association, Evaluation of Trial-Level Indigent Defense Systems in Michigan (June 2008), p 5, available at https://michiganidc.gov/wp-content/uploads/2021/03/NLADA-Race-to-the-Bottom.pdf (accessed March 22, 2023).
I am aware that the bar for establishing entitlement to relief from judgment under MCR 6.508 is a high one, but I believe the record before us contains too many ambiguities to support the majority's ruling here, and moreover, I cannot countenance the idea of viewing this case with a blind eye to reality. It must be acknowledged that when defendant went to trial, he and his counsel were operating in a system that did not encourage lawyers to fully advocate on behalf of their poor clients, which could explain the failure to object at the trial court level and the failure to submit vital pieces of information-the written jury instruction, for example-on appeal. As a result of these issues, the record is so lacking that we can hardly do more than make an educated guess as to how to categorize the ex parte communications that occurred in the trial court. For these reasons, I wholly disagree with the majority's conclusion that defense counsel should be precluded from obtaining relief under MCR 6.508(D). I would grant defendant's motion for relief from judgment, and so respectfully dissent.