PEOPLE OF MI V MAURICE ANTHONY RICHARDS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 19, 2010
Plaintiff-Appellee
v
No. 293285
Macomb Circuit Court
LC No. 2009-000434-FC
MAURICE ANTHONY RICHARDS,
Defendant-Appellant.
Before: BORRELLO, P.J., and CAVANAGH and OWENS, JJ.
PER CURIAM.
Defendant was convicted by a jury of carjacking, MCL 750.529a, and possession of a
firearm during the commission of a felony, MCL 750.227b. He was sentenced to 8 to 25 years’
imprisonment for the carjacking conviction, and a consecutive two-year term of imprisonment
for the felony-firearm conviction. He appeals as of right. We affirm.
On January 4, 2009, defendant took the complainant’s 2008 Dodge Charger from a gas
station in Warren. The prosecution’s theory at trial was that defendant approached the
complainant and demanded his keys, and that the complainant conceded only after defendant
motioned toward a gun in the waistband of defendant’s pants. The defense theory at trial was
that defendant could not have possessed a gun because the police had performed a pat down
search on him and a companion, Dorian Pittman, minutes earlier and did not find a gun. The
defense conceded that defendant drove away in the complainant’s car and argued that, at most,
defendant was guilty only of unlawfully driving away an automobile.
I. JURY DISCUSSION
Defendant first argues that the trial court violated his due process right to a trial by an
impartial jury when it instructed the jurors that they could discuss the evidence among
themselves during trial recesses. Defendant objected to the trial court’s jury instruction at trial
on the ground that it would allow the jurors to form premature conclusions without having heard
all the evidence and final arguments, thereby preserving that argument for appeal. However,
defendant did not argue that the instruction was improper because it allowed alternate jurors to
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participate in discussions that might influence the verdict, leaving that claim unpreserved. An
objection on one ground is insufficient to preserve an appellate challenge based on a different
ground. People v Bulmer, 256 Mich App 33, 35; 662 NW2d 117 (2003).
Claims of instructional error are reviewed de novo. People v Hubbard (After Remand),
217 Mich App 459, 487; 552 NW2d 493 (1996). This Court “examines the instructions as a
whole, and, even if there are some imperfections, there is no basis for reversal if the instructions
adequately protected the defendant’s rights by fairly presenting to the jury the issues to be tried.”
People v Martin, 271 Mich App 280, 337-338; 721 NW2d 815 (2006). Defendant’s unpreserved
claim is reviewed for plain error affecting his substantial rights. People v Carines, 460 Mich
750, 752-753, 763-764; 597 NW2d 130 (1999).
Defendant correctly observes that the trial court’s instruction allowing the jurors to
discuss the evidence during recesses is contrary to longstanding precedent. See People v Hunter,
370 Mich 262, 269-270; 121 NW2d 442 (1963), and People v Blondia, 69 Mich App 554, 557558; 245 NW2d 130 (1976). However, the trial court was expressly authorized by Supreme
Court Administrative Order No. 2008-21 to instruct the jurors in the manner that it did.
We disagree with defendant’s argument that the instruction infringed on his right to a fair
trial. Defendant relies on Commonwealth v Kerpan, 508 Pa 418, 422; 498 A2d 829 (1985), in
which the court identified five primary reasons why pre-deliberation discussions among jurors
are not favored: (1) the prosecution’s evidence is presented first and, therefore, the jurors’ initial
opinions are likely to be unfavorable to the defendant and jurors will likely note only subsequent
evidence that confirms their initial opinions; (2) jurors who express preliminary opinions to other
jurors will become locked into their positions and be less likely to be open-minded during
deliberations; (3) the defendant is entitled to have his case considered by the entire jury, as
opposed to separate cliques; (4) jurors might form premature conclusions before hearing the
court’s instructions regarding the applicable law; and (5) jurors might form premature
conclusions before hearing the final arguments of counsel.
Defendant concedes that AO 2008-2 addresses two of these concerns. In particular, the
jurors received binders containing relevant instructions, and the jurors were expressly prohibited
from discussing the evidence unless all jurors were present. We believe that the trial court’s
instructions were also responsive to the remaining concerns identified in Kerpan. The court
cautioned the jurors that “it’s extremely important that you remember and clearly understand that
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AO 2008-2 authorized certain judges in Michigan, including the trial judge in this case, to
participate in a pilot project to study the effects of proposed reforms to the jury system in
Michigan. The proposed reforms include proposed MCR 2.513(K), which states:
Juror Discussion. After informing the jurors that they are not to decide the
case until they have heard all the evidence, instructions of law, and arguments of
counsel, the court may instruct the jurors that they are permitted to discuss the
evidence among themselves in the jury room during trial recesses. The jurors
should be instructed that such discussions must be clearly understood as tentative
pending final presentation of all evidence, instructions, and argument.
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any discussions you have are tentative until you’ve heard all the evidence, the instructions the
court will give, and the argument by the attorneys.” After giving additional preliminary
instructions, the court further instructed the jury as follows:
You must keep an open mind and not decide any issue in the case until
you’ve heard all the evidence, all the instructions on the law, all the arguments of
counsel, and until the court directs you to begin your deliberations. However, you
may discuss the case among yourselves in the jury room during trial recesses
when all of the jurors are present. Although you can discuss the evidence with
your fellow jurors you must clearly understand that any such discussions are
tentative pending final presentation of all evidence, instructions, and argument. I
cannot stress enough how important it is for you to keep an open mind and to
avoid forming opinions about the outcome of the case until I direct you to begin
your deliberations.
The trial court’s instructions guarded against the jury making premature conclusions by
emphasizing that any preliminary discussions were to be considered tentative only. The court
also emphasized that the jurors were to keep an open mind throughout the trial, and that the
jurors were not to decide any issue until after they heard all the evidence, the parties’ arguments,
and the court’s instructions, and they were directed to begin deliberations. The jury would have
also understood from the court’s instructions that any views expressed by a given juror would be
understood by the other jurors within the framework of these guidelines, thereby minimizing the
potential for jurors to become locked into any preliminary opinions that might be expressed. In
addition to the specific instructions regarding juror discussions, the trial court also instructed the
jury that defendant was presumed innocent and that it must acquit defendant unless it was
satisfied beyond a reasonable doubt of his guilt after consideration of all the evidence in the case.
Jurors are presumed to follow their instructions. People v Abraham, 256 Mich App 265, 279;
662 NW2d 836 (2003). Viewed as a whole, the trial court’s instructions sufficiently protected
defendant’s right to have his case decided by a fair and impartial jury.
We also reject defendant’s unpreserved claim that the instruction violated his right to a
fair trial because it improperly allowed alternate jurors who were not part of the final jury to
exert their influence on the verdict. Although all jurors were permitted to participate in tentative
discussions about the case during trial recesses, those discussions occurred before deliberations
began, and a clear distinction was made between tentative discussions and the separate
deliberations to reach a final decision. Accordingly, defendant has not established a plain error
in this regard.
II. TRIAL COURT’S COMMENT
Defendant next argues that the trial court infringed on his presumption of innocence
when it made a comment that defendant contends effectively informed the jury that it could draw
an adverse inference from his failure to produce Dorian Pittman as a witness. Because defendant
did not object to the trial court’s comment, we review this unpreserved claim for plain error
affecting defendant’s substantial rights. Carines, 460 Mich at 763-764.
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Pittman was with defendant on the night of the offense, but was not called as a witness by
either side. Testimony was presented that Pittman was interviewed by the police and gave a
statement regarding whether defendant possessed a gun, but the content of that statement was not
presented. In response to defense counsel’s question, however, an officer testified that he did not
search for a gun after interviewing Pittman. When the jury sought to further question the officer
about Pittman’s statement, the trial court explained that neither side had requested Pittman’s
presence, and that his statement was inadmissible hearsay. Subsequently, during closing
arguments, defense counsel argued that the prosecution had the burden of proof, and that “if
Dorian Pittman had said there was a gun, you can bet he would’ve been in court.” After
overruling the prosecutor’s objection to this statement, the court commented that “neither side
has requested his presence here . . . during this trial. And they can reach their own conclusions
from that.”
Contrary to what defendant argues, the trial court’s comment was not the equivalent of a
“missing witness” instruction, see CJI2d 5.12, whereby the jury was informed that it could infer
from defendant’s failure to call Pittman that Pittman’s testimony would have been unfavorable to
defendant. The court merely commented that “neither side” had requested Pittman’s presence
and that the jurors could draw their own conclusions from that. The comment did not favor a
permissible inference for either party. Further, the trial court instructed the jury that defendant
was presumed innocent, that the prosecution was required to prove defendant’s guilt beyond a
reasonable doubt, and that defendant was not required to offer any evidence or do anything to
prove his innocence. Defendant has failed to demonstrate a plain error, or shown that his
substantial rights were affected.
III. SHACKLING
Defendant lastly argues that the trial court’s decision to shackle his ankles during trial
violated his right to due process and deprived him of a fair trial. We disagree.
We review a trial court’s decision to restrain a defendant during trial for an abuse of
discretion under the totality of the circumstances. People v Dixon, 217 Mich App 400, 404-405;
552 NW2d 663 (1996). “Freedom from shackling is an important component of a fair trial.” Id.
at 404. A defendant may be shackled only to prevent the defendant’s escape, to prevent the
defendant from injuring others in the courtroom, or to maintain an orderly trial. People v Dunn,
446 Mich 409, 425; 521 NW2d 255 (1994). To justify reversal of a conviction on the basis of
being shackled, the defendant must show that prejudice resulted. People v Payne, 285 Mich App
181, 186; 774 NW2d 714 (2009). “[A] defendant is not prejudiced if the jury was unable to see
the shackles on the defendant.” People v Horn, 279 Mich App 31, 36; 755 NW2d 212 (2008).
Even if the trial court abused its discretion by denying defendant’s request to attend trial
without shackles, defendant has failed to show that he was prejudiced. The record discloses that
the trial court recognized the importance of the jury not viewing defendant in restraints during
trial and took steps to ensure that the jury would not see the shackles. The court stated that
defendant was to be shackled only at his ankles, where “the shackles will be blocked by the table
and so not in the jury’s view throughout the trial.” Further, the court ordered that defendant was
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not to be shackled during jury selection, when potential jurors would be seated behind defense
counsel’s table, and that defendant would be permitted to enter and leave the courtroom while
the jury was not present. Defendant acknowledges that there is no evidence that any jurors saw
him in shackles. Because defendant is unable to show that he was prejudiced by the shackles, a
new trial is not required on this basis.
Affirmed.
/s/ Stephen L. Borrello
/s/ Mark J. Cavanagh
/s/ Donald S. Owens
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