People of Michigan v. Noralee Marie Hope ( 2016 )


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  •                           STATE OF MICHIGAN
    COURT OF APPEALS
    PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
    October 18, 2016
    Plaintiff-Appellee,
    v                                                                  No. 324703
    Washtenaw Circuit Court
    NORALEE MARIE HOPE,                                                LC No. 14-000280-FH
    Defendant-Appellant.
    Before: RIORDAN, P.J., and METER and OWENS, JJ.
    PER CURIAM.
    Defendant, Noralee Marie Hope, appeals as of right her conviction of domestic assault,
    third offense, MCL 750.81(4).1 She was sentenced to 18 months’ probation. We reverse and
    remand for a new trial.
    I. FACTUAL BACKGROUND
    This case arises from a confrontation between defendant and Dwayne O’Banner, who
    were in a dating relationship, on May 2, 2014. At trial, O’Banner described the incident as
    follows: At approximately 8:00 a.m., the couple got into a disagreement, and O’Banner
    expressed his intention to leave defendant’s apartment permanently. When O’Banner began to
    pack his things, defendant entered the room and stated that he was not leaving. O’Banner
    continued to collect his belongings, prompting defendant to grab and jump on him, which
    resulted in O’Banner falling on the bed with defendant on top of him. She then ripped off his
    shirt and struck him numerous times on the head. O’Banner told defendant to stop hitting him or
    else he would call 911, and she replied that he was not going to call 911. O’Banner then
    attempted to retrieve his cell phone from his pants pocket and defendant ripped his pocket as she
    attempted to take it away.
    1
    MCL 750.81 was amended by 
    2016 PA 87
    , effective July 25, 2016. In addition to other
    substantive changes to the text of the statute, domestic assault, third offense, is now codified
    under MCL 750.81(5).
    -1-
    Eventually, O’Banner was able to run from the apartment, enter his car, and call the
    police. Defendant followed him outside and tried to enter the driver’s side of O’Banner’s car.
    When the police arrived, O’Banner was still inside the vehicle, and defendant had returned to her
    apartment.
    Before trial, the trial court granted defense counsel’s oral motion to exclude any mention
    of defendant’s prior domestic assault convictions and warrants. Subsequently, the juror at issue
    in this case stated during voir dire that she knew defendant’s daughter through the juror’s work at
    a juvenile detention facility, but she did not believe that her recognition of defendant’s daughter
    would affect her ability to be a fair juror. When the juror was asked whether she had any
    experience with defendant, the juror responded that she had interacted with defendant during
    parental visitation, but she could not remember any specific interactions with her. However, the
    juror could remember particular interactions with defendant’s daughter. The juror stated that
    recognizing defendant’s daughter was “just distracting[,] that’s all,” and she reiterated that she
    could be fair to defendant despite her familiarity with the daughter. The juror was not removed
    from the jury panel for cause or by preemptory challenge.
    During trial, O’Banner and a responding officer testified on behalf of the prosecution.
    Defendant did not testify. After the jury rendered its guilty verdict, the juror at issue disclosed
    that she had knowledge of defendant’s previous domestic violence convictions, and she believed
    that defendant’s “troubled or abusive relationship” with her daughter had caused the daughter to
    exhibit behavioral issues. Defendant moved for a new trial in light of this information, which the
    trial court denied.
    This appeal followed.
    II. FAIR AND IMPARTIAL JURY
    Defendant argues that she was denied her right to a fair and impartial jury. We agree.
    A. STANDARD OF REVIEW
    We review for an abuse of discretion a trial court’s decision on a defendant’s motion for a
    new trial. People v Stokes, 
    312 Mich. App. 181
    , 186; 877 NW2d 752 (2015), lv held in abeyance
    878 NW2d 886 (2016). “An abuse of discretion occurs only when the trial court chooses an
    outcome falling outside the principled range of outcomes.” 
    Id. (quotation marks
    and citation
    omitted). “A trial court’s factual findings are reviewed for clear error,” which “exists if the
    reviewing court is left with a definite and firm conviction that a mistake has been made.” People
    v Miller, 
    482 Mich. 540
    , 544; 759 NW2d 850 (2008). Ultimately, however, we review de novo a
    defendant’s claim that she was denied the right to a fair and impartial jury. Stokes, 312 Mich
    App at 186.
    B. ANALYSIS
    Criminal defendants have a constitutional right to a fair and impartial jury.     People v
    Budzyn, 
    456 Mich. 77
    , 88; 566 NW2d 229 (1997). “During their deliberations, jurors        may only
    consider the evidence that is presented to them in open court.” 
    Id. “Where the
    jury      considers
    extraneous facts not introduced in evidence, this deprives a defendant of his            rights of
    -2-
    confrontation, cross-examination, and assistance of counsel embodied in the Sixth Amendment.”
    
    Stokes, 312 Mich. App. at 187
    (quotation marks omitted), quoting 
    Budzyn, 456 Mich. at 88
    .
    Jurors are presumed to be impartial, and the defendant bears the burden of demonstrating
    that a juror was partial “or at least that the juror’s impartiality is in reasonable doubt.” People v
    Miller, 
    482 Mich. 540
    , 550; 759 NW2d 850 (2008). To warrant reversal on the basis of an
    extraneous influence, a defendant must show that (1) “the jury was exposed to extraneous
    influences” and that (2) “these extraneous influences created a real and substantial possibility
    that they could have affected the jury’s verdict.” 
    Budzyn, 456 Mich. at 88
    -89; see also 
    Stokes, 312 Mich. App. at 187
    . “[In] proving this second point, the defendant will demonstrate that the
    extraneous influence is substantially related to a material aspect of the case and that there is a
    direct connection between the extrinsic material and the adverse verdict.” 
    Budzyn, 456 Mich. at 89
    . If a defendant meets these two requirements, the burden shifts to the prosecution “to
    demonstrate that the error was harmless beyond a reasonable doubt.” 
    Id. The error
    is harmless if
    “the extraneous influence was duplicative of evidence produced at trial or the evidence of guilt
    was overwhelming.” 
    Id. at 89-90.
    “[T]he distinction between an external influence and inherent misconduct is not based on
    the location of the wrong,” such as whether the influence arose from inside or outside the jury
    room. 
    Budzyn, 456 Mich. at 91
    . “Rather, the nature of the allegation determines whether the
    allegation is intrinsic to the jury’s deliberative process or whether it is an outside or extraneous
    influence.” 
    Id. Likewise, the
    United States Supreme Court has recognized that, in general,
    “information is deemed ‘extraneous’ if it derives from a source ‘external’ to the jury,” and
    provided the following examples: “ ‘External’ matters include publicity and information related
    specifically to the case the jurors are meant to decide, while ‘internal’ matters include the general
    body of experiences that jurors are understood to bring with them to the jury room.” Warger v
    Shauers, ___ US ___; 
    135 S. Ct. 521
    , 529; 
    190 L. Ed. 2d 422
    (2014).
    In support of her claim on appeal, defendant proffers an affidavit prepared by the juror at
    issue, which was not included in the lower court record. See MCR 7.210(A)(1). We usually will
    not consider expansions of the record on appeal. See People v Seals, 
    285 Mich. App. 1
    , 20-21;
    776 NW2d 314 (2009); People v Powell, 
    235 Mich. App. 557
    , 561 n 4; 599 NW2d 499 (1999).
    However, this Court may, “in its discretion, and on the terms it deems just[,] . . . permit
    amendments, corrections, or additions to the transcript or record.” MCR 7.216(A)(4). The
    appropriate means for a party to amend the record on appeal is by motion. See People v Lee, ___
    Mich App ___, ___ n 3; ___ NW2d ___ (2016) (Docket No. 322154); slip op at 2 n 3.
    Nevertheless, because the affidavit is significant, and a remand to supplement the record would
    be a waste of judicial resources, we will exercise our discretion and consider the enlarged record.
    See 
    id. Additionally, it
    is important to note that, in general, a juror’s postverdict affidavit cannot
    be used to impeach the verdict, but “oral testimony or affidavits may . . . be received on
    extraneous or outside errors[.]” 
    Budzyn, 456 Mich. at 91
    . See also People v Pizzino, 
    313 Mich. 97
    , 105; 20 NW2d 824 (1945); 
    Budzyn, 456 Mich. at 119
    (MALLET, C.J., concurring in part and
    dissenting in part); People v Riemersma, 
    104 Mich. App. 773
    , 785; 306 NW2d 340 (1981).
    Because defendant’s claim is that the jury’s verdict was affected by an extraneous influence, and
    -3-
    the juror’s affidavit offers evidence of that extraneous influence, we will consider the affidavit.
    
    Id. It is
    clear that at least one member of the jury was exposed to an extraneous influence,
    thus meeting the first prong of the Budzyn test. See 
    Budzyn, 456 Mich. at 88
    -89; 
    Stokes, 312 Mich. App. at 187
    . In her affidavit, the juror stated that she was very familiar with defendant’s
    daughter and her family background, and that the juror had seen defendant when she visited the
    daughter. The juror further believed, based on her knowledge of defendant’s daughter and her
    family, that defendant and her daughter had a “troubled or abusive relationship” and there were
    “anger and abuse problems” within defendant’s home, both of which affected the daughter’s
    behavior. Moreover, the juror had prior knowledge that defendant “had been involved with
    domestic violence issues in the past.” From these statements, it is apparent that, at a minimum,
    the juror was exposed to facts that were not admitted into evidence, that were not intrinsic to the
    jury’s deliberative process, see 
    Budzyn, 456 Mich. at 88
    , 91; 
    Stokes, 312 Mich. App. at 187
    , and
    that were not part of the “general body of experiences” that we would expect jurors to bring to
    the jury room, see 
    Warger, 135 S. Ct. at 529
    . To the contrary, the juror’s knowledge specifically
    involved the defendant in this case as well as prior acts of similar conduct involving defendant’s
    family. In addition, the juror stated:
    I did make an argument in favor of guilt in the jury room towards the end of
    deliberation when a few other jurors expressed hesitation about voting “guilty.” I
    don’t remember whether I mentioned to other jurors what I knew about
    [defendant] from my previous encounters with her. But it is true that the other
    jurors all knew that I knew [defendant’s daughter] and [defendant], since it was
    said in open court during voir dire, before the judge asked me to approach the
    bench.
    Thus, we conclude that the jury was exposed to extraneous influences. See 
    id. at 88.
    Next, under the second Budzyn prong, defendant has demonstrated that the extraneous
    influences “created a real and substantial possibility that they could have affected the jury’s
    verdict.” 
    Budzyn, 456 Mich. at 88
    -89. In her affidavit, the juror expressed her belief that she
    made a fair decision to convict defendant based on the evidence admitted at trial. However, she
    expressly stated that “[her] knowledge of [defendant’s] past was on [her] mind throughout
    deliberations.” The juror’s knowledge was substantially related to a material aspect of the case
    because she was aware of defendant’s prior instances of domestic assault and she believed, based
    on her prior knowledge, that defendant had abused her daughter. See 
    id. at 89.
    Further, it is
    clear that there was “a direct connection between the extrinsic material and the adverse verdict,”
    
    id., as this
    case hinged on the credibility of O’Banner, and the defense theory offered by
    defendant was that O’Banner was not credible because he was “the abuser,” not “the abused.”
    Defendant’s previous instances of domestic violence and abusive relationship with her daughter
    directly contradict that defense theory, and references to defendant’s prior convictions and
    warrants were excluded by the trial court. Accordingly, defendant has established the two
    elements required to warrant reversal on the basis of an extraneous influence. See 
    Budzyn, 456 Mich. at 88
    -89; see also 
    Stokes, 312 Mich. App. at 187
    .
    -4-
    Additionally, the prosecution has not demonstrated that the error was harmless beyond a
    reasonable doubt. See 
    Budzyn, 456 Mich. at 89
    -90. As the prosecution emphasizes, the juror
    stated during voir dire that she could be fair to defendant, regardless of her familiarity with
    defendant’s daughter. Likewise, in her affidavit, she averred that she “made a fair decision to
    vote to convict [defendant] based on the evidence.” However, the extraneous influence was not
    duplicative of evidence presented at trial. See 
    id. Defense counsel
    moved prior to trial to
    exclude all references to defendant’s prior convictions for domestic assault, and the prosecution
    did not present any evidence of those convictions. Further, the evidence of defendant’s guilt was
    not overwhelming. See 
    id. Again, defendant’s
    conviction was contingent on the victim’s
    credibility.
    On this record, “[w]e cannot say that the extraneous factors may not have affected the . . .
    jury’s verdict.” 
    Id. at 108.
    Therefore, we reverse defendant’s conviction and remand for a new
    trial. See 
    id. III. INEFFECTIVE
    ASSISTANCE OF COUNSEL
    Defendant also raises two ineffective assistance of counsel claims on appeal. In light of
    our determination that a new trial is warranted, we need not address these claims. Nonetheless,
    we have reviewed defendant’s contentions and concluded that she has failed to demonstrate that
    defense counsel provided ineffective assistance. See People v Vaughn, 
    491 Mich. 642
    , 669-671;
    821 NW2d 288 (2012).
    IV. CONCLUSION
    Defendant is entitled to a new trial because the jury was exposed to extraneous
    influences.
    Reversed and remanded. We do not retain jurisdiction.
    /s/ Michael J. Riordan
    /s/ Patrick M. Meter
    /s/ Donald S. Owens
    -5-
    

Document Info

Docket Number: 324703

Filed Date: 10/18/2016

Precedential Status: Non-Precedential

Modified Date: 10/19/2016