People v. Goldsmith ( 1979 )

N. J. Kaufman, J.

Defendant was convicted of assault with intent to commit murder, MCL 750.83; MSA 28.278, and possession of a firearm in the commission of a felony, MCL 750.227(b); MSA 28.424(2), by a Wayne County Circuit Court jury. He was sentenced to imprisonment for 5 to 15 years on the assault conviction and to a two-year consecutive sentence on the felony-firearm conviction. Defendant appeals as of right under GCR 1963, 806.1.

Defendant raises a myriad of allegations in this appeal, only one of which warrants reversal. Defendant argues the trial court’s instruction improperly coerced the jury into bringing in a verdict. We agree. In its instruction upon the jury’s duties, the court went beyond the bounds of propriety. At first, the instructions presented no problem. The court apprised the jurors that they were to enter the deliberations with an open mind and a willingness to give serious consideration to each other’s opinions. They were to deliberate with a view to reaching unanimous agreement, if it could be done without sacrificing individual judgment.

At this point the court’s charge went from an instructive, informative one to one that was intimidating and coercive. The court stated:

"Let me remind you that when a jury is unable to reach a verdict, the jury has not accomplished its purpose. A jury unable to agree, therefore, is a jury which has failed in its purpose. Each time such an indecisive jury fails, ammunition is given to those who oppose the jury system as we know it, a system that requires a unanimous vote of all twelve jurors for either conviction or acquittal. As you deliberate, please bear this in mind.”

The leading case in Michigan which thoroughly considered the issue of jury coercion in the supplemental charge context is People v Sullivan, 392 Mich 324; 220 NW2d 441 (1974). In that case, the Supreme Court expressed a disfavor with the use of Allen- type charges¹ due to the danger of possible coercive effects, and recommended ABA jury standard 5.4² for prospective use in deadlocked jury situations.

It is important to note that Sullivan, supra, dealt with a deadlocked jury situation whereas the instant instruction was given prior to the jury’s initial deliberations. In deadlocked jury situations, instructions such as that recommended in ABA 5.4 serve several purposes. They encourage the jury to work harder in their deliberations, but hopefully do not coerce a verdict. They additionally serve as a judicial economy measure by serving to avoid the time and expense of convening another trial. The potential coercive effect of this type of charge is then tolerated to a certain extent due to the positive purposes it serves. See Sullivan, supra at 333-334.

These purposes need not be served in a predeliberation setting as in the case at bar. The jury needs no additional encouragement to reach a verdict since it is not even known whether or not they will have a difficult time in their deliberations in the first place. From a policy standpoint, then, the potential coercive effect of the sort of instruction contemplated in Sullivan, supra, should not be tolerated in a predeliberation setting since no counterbalancing purposes are served by its use. This becomes of even greater significance when one considers that the instant instructions were far more coercive and intimidating than those contemplated and recommended in Sullivan, i.e., ABA 5.4. See footnote 1. And, as stated in Sullivan, supra at 342, "Any substantial departure therefrom shall be grounds for reversible error”.

The instructions given did substantially depart from the recommended ABA instruction. Moreover, the instructions as given were such that they could have caused a juror to abandon his conscientious dissent and defer to the majority solely for the sake of reaching agreement. Such results have no place in a fair criminal justice system. Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

D. C. Riley, J., concurred.

1 The popular name for this instruction came from the United States Supreme Court’s approval of the charge in Allen v United States, 164 US 492; 17 S Ct 154; 41 L Ed 528 (1896).

2 ABA Project on Minimum Standards for Criminal Justice, Trial by Jury, Standard 5.4:

" '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.

" '(c) The jury may be discharged without having agreed upon a verdict if it appears that there is no reasonable probability of agreement.’ ”