PEOPLE OF MI V RAHIEM L HENRY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
November 16, 2001
9:00 a.m.
Plaintiff-Appellant,
v
No. 230353
Wayne Circuit Court
LC No. 00-002520
RAHIEM L. HENRY,
Defendant-Appellee.
Updated Copy
January 18, 2002
Before: Bandstra, C.J., and Whitbeck and Owens, JJ.
BANDSTRA, C.J.
The prosecution appeals as of right from the trial court's order denying its motion to
reconvene the jury. We dismiss the appeal for lack of jurisdiction.
I. Basic Facts and Procedural History
Defendant was tried before a jury on one count each of assault with intent to commit
murder1 and leaving the scene of a serious personal injury motor vehicle accident.2 At the close
of trial, the jury was instructed concerning the elements of both charged offenses, as well as the
lesser included offense of assault with intent to commit great bodily harm less than murder.3
After deliberating for little more than a day, the jury indicated that it had reached a verdict with
respect to count II—leaving the scene of an accident—but it was unable to reach a unanimous
decision on the assault charge. Noting that the jurors had not yet spent a great deal of time
deciding the case, the trial court accepted the jury's verdict of guilty on count II of the
information but sent the panel back to continue its deliberations with respect to count I. A short
while later, the following transpired:
1
MCL 750.83.
2
MCL 257.617.
3
MCL 750.84.
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The Court: I've received a note indicating that you have reached a verdict
regarding the first count of the information. Is that correct?
[Jury Foreperson]: Yes.
The Court: [The court clerk] will receive the verdict.
The Court Clerk: Mr. Foreperson, how do you find the defendant, Rahiem
L. Henry as to the charge of assault with intent to murder?
[Jury Foreperson]: Find him not guilty.
The Court Clerk: Jurors, would you please stand and raise your right
hand. Mr. Foreperson and members of the jury, you do say upon your oath that
you find the defendant, Rahiem L. Henry, not guilty of the charge of assault with
intent to murder. So say you Mr. Foreperson, so say you all members of the jury?
Is that your verdict?
The jurors responded affirmatively, after which they were thanked and discharged by the
court following the prosecutor's decline of an offer to poll. Immediately thereafter, the court was
presented with a verdict form, signed by the jury foreperson, indicating that although the jury had
acquitted defendant of the primary charge of assault with intent to murder, it had nonetheless
convicted him of the lesser included offense of assault with intent to do great bodily harm less
than murder. Although finding that there had been an apparent "breakdown in communication"
between itself and the jury foreperson when receiving the verdict on count I,4 the court
nonetheless determined that, because it had accepted a verdict and discharged the jury, it had no
choice but to dismiss the assault charge.5 Relying on the written verdict form, the prosecutor
moved to reconvene the jury at a later date so that it might "complete" its verdict on count I. The
trial court denied the motion, finding that to do so would be a violation of defendant's right to be
free from twice being placed in jeopardy. We find no error in this decision.
4
The court explained this breakdown as follows:
I thought that the question put to [the foreperson] was, how do you find
the defendant as to Count I. And I believe the response that he gave was not
guilty. And I interpreted that to mean that, exactly what it said, that he is not
guilty of Count I, so that we needed not, did not need to make inquiry regarding
the lesser charges.
We note that the record further indicates that, upon rendering their verdict as inquired
into by the court clerk, there was apparently some "hesitation" by the jurors as if "they wanted to
add more."
5
The court, however, retained the jury's verdict with respect to count II of the information, for
which defendant was subsequently sentenced to a term of two years' probation.
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II. Jurisdiction
A. The Prosecutor's Right to Appeal
In criminal cases, the state is authorized to take an appeal from a final judgment or order
of a court or tribunal only where "the protection against double jeopardy [under the state and
federal constitutions] would not bar further proceedings against the defendant . . . ."6 On a
number of occasions, we have held that this statutory limitation does not prevent the government
from seeking an appeal where reinstatement of a verdict of conviction, rather than a retrial, is
sought.7 Here, however, the prosecutor does not seek merely to reinstate a verdict clearly
expressed by the existing record, but, rather, to continue proceedings against defendant so that
such a record may be developed. As hereafter explained, we find the trial court to have correctly
determined such proceedings to be barred by the double jeopardy protections and therefore
dismiss this matter for want of appellate jurisdiction.8
B. Jury Recall and Double Jeopardy Protections
A double jeopardy challenge involves a question of law that this Court reviews de novo.9
Both the United States and Michigan Constitutions prohibit placing a defendant twice in jeopardy
for a single offense.10 "When a defendant exercises the right to trial by jury, jeopardy generally
attaches at the time the jury is selected and sworn."11 Once jeopardy attaches, the defendant has
"a constitutional right to have his case completed and decided by that tribunal."12 The underlying
principle of such protection is to prevent the state from making "repeated attempts to convict an
individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal
6
MCL 770.12(1).
7
See, e.g., People v Hutchinson, 224 Mich App 603, 606-607; 569 NW2d 858 (1997), quoting
People v Jones, 203 Mich App 74, 78-79; 512 NW2d 26 (1993); People v McEwan, 214 Mich
App 690; 543 NW2d 367 (1995). See also People v Reynolds, 181 Mich App 185, 188; 448
NW2d 774 (1989) ("[a] prosecutor's appeal of a sentence does not subject the defendant to a
second trial, but only a correction of the judgment, and thus does not present double jeopardy
implications.").
8
MCR 7.203(E). See also People v Hinerman, 420 Mich 851, 851; 358 NW2d 894 (1984)
("[t]he Court of Appeals had no authority to entertain the prosecution's appeal of the trial court's
decision . . . since MCL 770.12; MSA 28.1109 does not permit such an appeal under the
circumstances . . .").
9
People v Kulpinski, 243 Mich App 8, 12; 620 NW2d 537 (2000).
10
US Const, Am V; Const 1963, art 1, § 15.
11
People v Mehall, 454 Mich 1, 4; 557 NW2d 110 (1997).
12
People v Dry Land Marina, Inc, 175 Mich App 322, 325; 437 NW2d 391 (1989).
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and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing
the possibility that even though innocent he may be found guilty."13
This Court in People v Rushin14 applied double jeopardy protections in a situation similar
to that presented here. There, after returning verdicts of not guilty, the jury was dismissed by the
trial court and left the courtroom.15 Moments later, however, the panel was reassembled and
ordered to continue its deliberations after the trial court learned that a member of the panel had,
during assent, expressed dissatisfaction with the reported verdict.16 When these additional
deliberations failed to produce a unanimous decision, a mistrial was declared after which the
defendants were subsequently retried and convicted.17 In reversing those convictions on appeal,
we held that "the jury's verdict of acquittal at the first trial was final."18
Once the jury has been officially discharged and left the courtroom, . . . it
is error to recall it in order to alter, amend or impeach a verdict in a criminal case.
As soon as it departs from the courtroom, the jury's legal duties cease to exist; it
no longer functions as a unit charged to perform a solemn task but rather as 12
unsworn members of the community; its relationship to the case has terminated. . .
.
To rule that a jury could be recalled after being discharged and leaving the
courtroom would not only offend the policies underlying the double jeopardy
clause, but would also serve as an invitation to tamper with the jury after it had
completed its deliberations. [Id. at 398-399 (emphasis added).]
Here, like the jury's verdict at the first trial in Rushin, the jury's verdict in the instant
matter was final.19 Although a jury is free to change the form and substance of a verdict to
13
Green v United States, 355 US 184, 187-188; 78 S Ct 221; 2 L Ed 2d 199 (1957).
14
People v Rushin, 37 Mich App 391; 194 NW2d 718 (1971).
15
Id. at 393-394.
16
Id. at 394.
17
Id.
18
Id. at 399.
19
See People v McGee, 247 Mich App 325, 339; ___ NW2d ___ (2001) (a verdict in a criminal
case becomes final when "it is announced in open court, assented to by the jury, and accepted by
the trial court"); see also MCR 6.420, which establishes the procedure for acceptance of verdicts
in criminal cases. Here, following the jury's assent, the trial court determined the oral reading of
the verdict to be the verdict of record and discharged the jury. The verdict regarding the sole
remaining count was thus final, rendering any attempt to amend or otherwise alter the verdict a
violation of the principles of double jeopardy and this Court's decision in Rushin.
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coincide with its intentions at any point before its discharge,20 once discharged the panel is
defunct as a legal body and is therefore without power to alter or amend the verdict. We find
that, in light of the verdict assented to by the jury and accepted by the trial court, the jeopardy
that had attached at the selection and swearing of the jury terminated with that panel's discharge,
thereby precluding any further proceedings relating to the assault with which defendant was
charged.
In reaching this conclusion, we reject the prosecution's claim that, because it does not
seek to permit the jury to further deliberate in this matter but, rather, merely to "complete" a
verdict previously reached yet delayed in its pronouncement, the finality interests21 of the Double
Jeopardy Clause have no relevance here. Unlike the circumstances presented in People v
Kinard,22 where the defendant was tried for murder before the bench, the defendant in the instant
matter elected to invoke his constitutional right to a trial by jury.23 While juries are not held to
rules of logic or required to explain their decisions, and therefore may act solely out of a desire
for lenience, a judge sitting without a jury is not afforded the same latitude.24 Indeed, when
sitting as the trier of fact, the trial court is required to place its findings of fact and conclusions of
law on the record or in a written opinion.25 Thus it was held in Kinard that the trial court's
failure, until sentencing, to expressly render a decision on the additional charge of possession of
a firearm during the commission of a felony did not require that the defendant's conviction on
that charge be reversed:
Because the findings of fact stated at the close of trial supported the
decision eventually announced, no danger of abuse is presented. Moreover, while
finality of verdicts may be required by the Double Jeopardy Clause and desirable
as a matter of policy, see [Rushin, supra], these interests have no relevance here
20
See People v McNary, 43 Mich App 134, 142-143; 203 NW2d 919 (1972), rev'd in part on
other grounds 388 Mich 799 (1972), wherein we stated:
A jury verdict is not merely the first sentence uttered by the foreman when
asked for the verdict. Often the verdict will have to be clarified and interpreted by
either the judge or the jury until it specifically identifies a known crime. The
judge has a right to clarify the form of the verdict if the jury has not been
discharged; and the jury can always change the form and the substance of the
verdict to coincide with its intention, before it is discharged.
21
See Rushin, supra at 395 ("The double jeopardy clause clearly enunciates a policy of finality in
criminal proceedings in favor of the defendant."), citing United States v Jorn, 400 US 470, 479;
91 S Ct 547; 27 L Ed 2d 543 (1971).
22
People v Kinard, 129 Mich App 94, 98; 341 NW2d 820 (1983).
23
US Const, Am VI; Const 1963, art 1, § 20.
24
People v Vaughn, 409 Mich 463, 466; 295 NW2d 354 (1980).
25
See MCR 2.517(A).
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because the trial court did not change its finding but merely delayed in announcing
it.[26]
In contrast to the clear and irrefutable findings of record that supported the delayed
verdict of the sole trier of fact in Kinard, we are left here with only the written verdict form.
Because the verdict indicated by that form was never assented to by the jury, either as a whole or
individually, it cannot be said with any certainty that this form, signed by only one member of the
panel, represents the unanimous decision of the jury, so as to permit a conclusion that the relief
sought by the prosecutor would amount to no more than the delayed announcement of a verdict
already validly established.27
For similar reasons, we find the prosecution's reliance on People v Gabor28 to also be
misplaced. In Gabor, the defendant was tried by a jury on two counts of fourth-degree criminal
sexual conduct.29 Following deliberations, the jury foreperson stated on the record the jury's
verdict of "'guilty for the act of criminal sexual conduct in the first degree for the first offense and
guilty for the act of criminal sexual conduct in the second degree second offense.'"30 Upon being
polled, each juror affirmed the reported verdict, after which the jury was dismissed by the trial
court.31 Immediately thereafter, counsel for the defendant moved to set aside the verdict on the
ground that the jury had convicted the defendant of first- and second-degree criminal sexual
conduct, rather than the fourth-degree offenses with which he had been charged.32 In response,
the trial court recalled the jury and requested that the foreperson read the verdict again.33 The
verdict, as read by the foreperson upon recall, was "'guilty first offense criminal sexual conduct
in the fourth degree, guilty of the second offense criminal sexual conduct in the fourth degree.'"34
In reversing the trial court's dismissal of both counts, we stated:
As the trial court correctly recognized, the jury's function ceased after it
had been discharged. [Rushin, supra.] The trial court wrongly concluded,
however, that dismissal of the charges against defendant was required in this case.
26
Kinard, supra at 98.
27
In any event, as a result of one juror's death in the time since the trial, any attempt to
definitively ascertain the intentions of the individual jurors with respect to the verdict form is
impossible.
28
People v Gabor, 237 Mich App 501; 603 NW2d 840 (1999).
29
Id. at 502.
30
Id.
31
Id. at 502-503.
32
Id. at 503.
33
Id.
34
Id.
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On the whole record, in keeping with "a rule of reasonableness" in construing the
jury verdict, we can easily deduce that the jury intended to convict defendant of
both counts of the charged offense. The two counts of fourth-degree CSC were
the only charges on which defendant was tried and the only counts on which the
jury was instructed. There were no lesser offense instructions. The written
verdict form clearly and unambiguously reflects the jury's verdict of guilty of both
counts of fourth-degree CSC.[35]
Here, however, the verdict form does not so "clearly and unambiguously reflect[] the
jury's verdict . . . ."36 In Gabor, the jury's intent to convict the defendant as charged was apparent
from the foreperson's statement of the verdict in open court, even apart from the written verdict
form. As noted by the panel in Gabor, this was due in large part to the absence of any option to
convict of a lesser offense. In contrast, however, while the jury's intent to acquit the instant
defendant of the principal offense of assault with intent to murder can be clearly gleaned from the
foreperson's statement of the verdict, the same cannot be said for its decision regarding the lesser
offense of assault with intent to do great bodily harm. Accordingly, we do not believe that under
the facts of this case, the written verdict form presents the "contemporaneous [and] objective
indication" of juror intent argued by the prosecutor.
III. Retrial on the Lesser Included Offense
As a final consideration, we note that because a final verdict37 of acquittal was rendered
by the jury with respect to the charged offense of assault with intent to murder, a retrial regarding
the lesser included offense of assault with intent to do great bodily harm is precluded.38
We dismiss.
/s/ Richard A. Bandstra
/s/ William C. Whitbeck
/s/ Donald S. Owens
35
Id. at 503-504.
36
Id. at 504.
37
See n 19, supra.
38
See Brown v Ohio, 432 US 161, 168-169; 97 S Ct 2221; 53 L Ed 2d 187 (1977), in which the
Court held that greater and lesser included offenses must be considered the "'same'" for
constitutional double jeopardy analysis, and that "[w]hatever the sequence may be, the Fifth
Amendment forbids successive prosecution and cumulative punishment for a greater and lesser
included offense."
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