PEOPLE OF MI V JOHN ALLEN ROUSE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
November 2, 2006
9:05 a.m.
Plaintiff-Appellee,
v
No. 262417
Dickinson Circuit Court
LC No. 04-003271-FH
JOHN ALLEN ROUSE,
Defendant-Appellant.
Official Reported Version
Before: Borrello, P.J., and Jansen and Cooper, JJ.
BORRELLO, P.J.
Defendant appeals as of right his jury-based convictions of two counts of second-degree
criminal sexual conduct (CSC II), MCL 750.520c. Defendant was sentenced to 11 to 30 years in
prison. We reverse and remand for a new trial. This appeal is being decided without oral
argument. MCR 7.214(E).
At trial, the complainant testified that defendant engaged in sexual contact with her
numerous times during the summer of 2003. The complainant was less than 13 years of age at
the time.
Following the completion of proofs and closing arguments the jury began its
deliberations. On the first day, the jury deliberated for approximately 6 1/2 hours, with breaks
for dinner and to hear testimony replayed. At about 3:35 p.m. on the second day of
deliberations, the trial court received a note from the jury that read: "We have discussed and
explored all the avenues in this case. We are at an impasse." The trial court instructed the jury
as follows:
At this point in time I am going to ask that you continue to deliberate. I
am going to remind you of some of the instructions that I have read to you in the
past with regard to your deliberation.
There is no fixed set of time as to how long we will allow a jury to
deliberate before we determine it to be a mistrial. But in considering everything
that I will read to you, also consider that if you are not truly able to reach an
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agreement on this in compliance with the instruction that I will give you, it will
result in everybody coming back, the victim and the defendant included, and
going through this entire process again with another jury. That is a difficult
situation. It is, it is, you know, in terms of the justice that we are rendering in this
case, I think is somewhat compromised if we are unable to reach a verdict one
way or the other in this case. [Emphasis added.]
Immediately following this instruction, the trial court instructed the jury pursuant to
CJI2d 3.12, commonly referred to as the deadlocked-jury instruction:
However, as I will read you this instruction, if one or more of you are truly
convicted to your beliefs, which ever way it is, I don't want you to reach an
agreement just to reach an agreement because of what I have just told you. I want
you to follow this instruction, search your conscience, search your reasons for
what ever your position is, and give this matter some more consideration, given
these parameters.
You have returned from deliberations indicating that you believe you
cannot reach a verdict. I'm going to ask you to please return to the jury room and
resume your deliberations in the hope that after further discussion you will be
able to reach a verdict. As you deliberate, please keep in mind the guidelines that
I gave you earlier. Remember it is your duty to consult with your fellow jurors
and to try to reach an agreement if you can do so without violating your own
judgment. To return a verdict you must all agree and the verdict must represent
the judgment of each of you.
As you deliberate you should carefully and seriously consider the views of
your fellow jurors. Talk things over in a spirit of fairness and frankness.
Naturally there will be differences of opinion. You should each not only express
your opinion but also give the facts and the reasons on which you base it. By
reasoning the matter out, jurors can often reach an agreement. When you
continue your deliberations do not hesitate to rethink your own views and change
your opinion if you decide it was wrong.
However, none of you should give up your honest beliefs about the weight
or effect of the evidence only because of what your fellow jurors think or only for
the sake of reaching an agreement.
When the trial court completed the supplemental instructions, defense counsel objected to
the instructions and moved for a mistrial. According to defense counsel, the effect of the trial
court's instructions was to inform the jury that it would be a waste of time and money if it did not
reach a verdict. Defense counsel also asserted that the first supplemental instruction was not part
of the standard jury instruction for a deadlocked jury. The trial court denied defense counsel's
motion for a mistrial, reasoning that there was nothing inappropriate in its instructions. The jury
deliberated for approximately 5 1/2 hours after the trial court instructed it to continue
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deliberating and ultimately convicted defendant of two counts of CSC II and acquitted him of a
third count of CSC II.
The sole issue on appeal concerns the trial court's supplemental instructions to the jury
after the jury informed the court that it had reached an impasse in the afternoon of the second
day of deliberations. We review de novo claims of instructional error. People v Marion, 250
Mich App 446, 448; 647 NW2d 521 (2002).
In People v Sullivan, 392 Mich 324, 341-342; 220 NW2d 441 (1974), our Supreme Court
adopted American Bar Association (ABA) Standard 5.4 for the supplemental instruction that
should be read to a deadlocked jury. ABA Standard 5.41 provides:
"Length of deliberations; deadlocked jury.
"(a) Before the jury retires for deliberation, the court may give an
instruction which informs the jury:
"(i) that in order to return a verdict, each juror must agree thereto;
"(ii) that 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 violence to
individual judgment;
"(iii) that each juror must decide the case for himself, but only after an
impartial consideration of the evidence with his fellow jurors;
"(iv) that in the course of deliberations, a juror should not hesitate to
reexamine his own views and change his opinion if convinced it is erroneous; and
"(v) that no juror should surrender his honest conviction as to the weight
or effect of the evidence solely because of the opinion of his fellow jurors, or for
the mere purpose of returning a verdict.
"(b) If it appears to the court that the jury has been unable to agree, the
court may require the jury to continue their deliberations and may give or repeat
an instruction as provided in subsection (a). The court shall not require or
threaten to require the jury to deliberate for an unreasonable length of time or for
unreasonable intervals.
1
CJI2d 3.12 is the instruction for deadlocked juries. This instruction incorporates and adapts the
ABA's standard. See People v Pollick, 448 Mich 376, 382 n 12; 531 NW2d 159 (1995). The
ABA standard, with only stylistic changes made, is currently found at ABA Standards for
Criminal Justice, Discovery and Trial by Jury (3d ed), Standard 15-5.4, p 255.
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"(c) The jury may be discharged without having agreed upon a verdict if it
appears that there is no reasonable probability of agreement." [Sullivan, supra at
335, quoting ABA Standard 5.4.]
The Sullivan Court held that "[a]ny substantial departure" from ABA Standard 5.4 "shall
be grounds for reversible error." Id. at 342. The purpose of giving the instruction is to "guard
against coercion." Id. at 334. According to the Court in Sullivan:
The optimum instruction will generate discussion directed towards the
resolution of the case but will avoid forcing a decision.
If the instruction given "can cause a juror to abandon his conscientious
dissent and defer to the majority solely for the sake of reaching agreement", then
that charge should not be used. Such results obviously have no place in a fair
criminal justice system." [Id.]
In People v Hardin, 421 Mich 296; 365 NW2d 101 (1984), our Supreme Court further
defined when an instruction is unduly coercive and constitutes a substantial departure from ABA
Standard 5.4. According to Hardin, "[w]hether any deviation from ABA standard jury
instruction 5.4 is substantial in the sense that reversal is required depends upon whether the
deviation renders the instruction unfair because it might have been unduly coercive." Id. at 316.
Our Supreme Court further explained that, in Sullivan,
[t]his Court simply stated that any substantial departure from ABA standard jury
instruction 5.4 "shall be grounds for reversible error." Our adoption of ABA
standard 5.4 was not designed to create or promote an appellate exercise in
semantic comparison as to whether the syntax and language of a given instruction
comports with that of ABA standard 5.4. The significance of a "substantial
departure"—i.e., one which is grounds for reversible error—is not just a
difference in language, style, or syntax. The significance of a "substantial
departure" is the risk that the resultant instruction will be more coercive than the
ABA instruction. The test for determining whether a departure from ABA
standard 5.4 is substantial cannot rest simply on a gross difference in language.
The instruction that departs from ABA standard 5.4 must also have an undue
tendency of coercion—e.g., could the instruction given cause a juror to abandon
his conscientious dissent and defer to the majority solely for the sake of reaching
agreement?
Thus, coercion is at the very heart of the inquiry of whether a departure
from ABA standard jury instruction 5.4 is a "substantial departure." [Id. at 314.]
According to our Supreme Court in Hardin, "[w]here additional language contains 'no pressure,
threats, embarrassing assertions, or other wording that would cause this Court to feel that it
constituted coercion,' . . . that additional language rarely would constitute a substantial
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departure." Id. at 315, quoting People v Holmes, 132 Mich App 730, 749; 349 NW2d 230
(1984). In addition, "whether the court required, or threatened to require, the jury to deliberate
for an unreasonable length of time or for unreasonable intervals" is also relevant to whether there
was coercion. Hardin, supra at 316. Furthermore, "an instruction that calls for the jury, as part
of its civic duty, to reach a unanimous verdict and which contains the message that the failure to
reach a verdict constitutes a failure of purpose, is a substantial departure . . . because it tends to
be coercive." Id., citing People v Goldsmith, 411 Mich 555, 561; 309 NW2d 182 (1981).
Another factor that affects the potential coercive effect of a jury instruction is the timing
of the instruction. Instructions that are given before the jury begins deliberating are less likely to
have a coercive effect than supplemental instructions given to a jury that has already begun
deliberating. People v Pollick, 448 Mich 376, 385; 531 NW2d 159 (1995). As our Supreme
Court stated in Pollick,
[i]t requires no special insight to see that there is a greater coercive potential
when an instruction is given to a jury that already believes itself deadlocked.
Instructions given to a jury that has not yet begun to deliberate are less likely to
weigh on a dissenting juror, or to be understood as a request that a particular
dissenting juror abandon the view that is preventing an otherwise unanimous jury
from reaching its verdict. [Id.]
In the instant case, the trial court responded to the jury's declaration that it was at an
impasse by giving supplemental instructions, which included those of ABA Standard 5.4, plus
some additional supplemental instructions. While the trial court's recitation of ABA Standard
5.4 was not verbatim,2 it was not, in and of itself, different enough to constitute a substantial
departure. However, we find that the trial court's additional supplemental instructions did
constitute a substantial departure from ABA Standard 5.4. In making a determination regarding
coerciveness, "[w]e must examine the alleged coerciveness of the language employed, and we
must examine it in the factual context in which it was given." Hardin, supra at 321. Examining
the following supplemental instruction in the factual context in which it was given, we find that
the language is coercive and constitutes a substantial departure from ABA Standard 5.4:
But in considering everything that I will read to you, also consider that if
you are not truly able to reach an agreement on this in compliance with the
instruction that I will give you, it will result in everybody coming back, the victim
and the defendant included, and going through this entire process again with
another jury. That is a difficult situation. It is, it is, you know, in terms of the
justice that we are rendering in this case, I think is somewhat compromised if we
are unable to reach a verdict one way or the other in this case.
2
The trial court's instruction was nearly verbatim to CJI2d 3.12.
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This instruction is coercive in two respects. First, the portion of the instruction that
suggested to the jury that justice would be compromised if the jury was unable to reach a verdict
and that "everybody" would have to come back to go through the process again with another jury
is coercive because it contains the message that a failure to reach a verdict constitutes a failure of
purpose. In Goldsmith, our Supreme Court held that the trial court's instruction to the jury
before the jury began deliberating that "'when a jury is unable to reach a verdict, the jury has not
accomplished its purpose'" was a substantial departure, requiring reversal. Goldsmith, supra at
560. In reversing, our Supreme Court stated:
Part of the instruction given in this case is essentially a call for the jury, as
part of its civic duty, to reach a unanimous verdict and contains the message that a
failure to reach a verdict constitutes a failure of purpose. Nothing in the standard
instruction sanctions such a charge and we conclude that the giving of such an
instruction was reversible error. [Id. at 561.]
The instruction in this case was similarly coercive because by asserting that justice would be
compromised if the jury were unable to reach a verdict, it contained the message that a failure to
reach a verdict constitutes a failure of purpose and tended to pressure the jury to reach a
unanimous verdict as part of its civic duty. Significantly, the instruction in the instant case,
unlike the instruction in Goldsmith, was given after the jury had commenced deliberations and
after the jury had informed the trial court that it had reached an impasse. Therefore, the coercive
effect was even greater in this case than in Goldsmith. See Pollick, supra at 385.
The supplemental instruction is also coercive because it included language indicating that
if the jury did not reach a verdict, the victim would be subjected to another trial. This instruction
was improper because it contained language that, in effect, pressured the jury to make a decision
on the basis of emotion or sympathy for the minor victim. See Hardin, supra at 315. The victim
was a child who was allegedly a victim of sexual abuse. Because they are so vulnerable, child
victims of sexual abuse evoke strong emotions and sympathies. The trial court's remarks
appealed to the jury's sympathy for the child victim and pressured the jury to render a verdict to
avoid the necessity of the minor victim being subjected to the trauma of another trial. For the
trial court to highlight the fact that the minor victim would be required to endure another trial if
the jury did not render a verdict is coercive because of the pressure that jurors might feel to reach
a verdict to ensure that the minor victim did not have to face this trauma. The jury's sympathy
for the minor victim is certainly understandable. Nevertheless, precisely because a child victim
of sexual abuse evokes such emotion and sympathy, the trial court should not have emphasized
the fact that if the jury was unable to reach a verdict, the minor victim would be subjected to the
trauma of another trial. Such language was unduly coercive and constituted a substantial
departure from ABA Standard 5.4.
In sum, we hold that the trial court's instructions to the jury were coercive because they
contained the message that justice would be compromised if the jury failed to reach a verdict and
therefore essentially included a call for the jury, as part of its civic duty, to reach a verdict and
because the instructions pressured the jury to reach a verdict on the basis of emotion or sympathy
for the minor victim. The fact that the instructions were given after the jury had begun
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deliberations and informed the trial court that it had reached an impasse magnified the coercive
effect of the improper supplemental instructions. We therefore hold that the instructions
constituted a substantial departure from ABA Standard 5.4 and constituted error requiring
reversal. Accordingly, we reverse and remand for a new trial.
Reversed and remanded. We do not retain jurisdiction.
Cooper, J., concurred.
/s/ Stephen L. Borrello
/s/ Jessica R. Cooper
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