People v. Howe

Swainson, J.

For the purposes of this appeal we adopt appellant’s "Statement of Facts”.

This "Statement of Facts” has been expressly accepted by the people and accurately reflects the proceedings below.

"Defendant-Appellant John Clovis Howe was convicted by a jury in Detroit Recorder’s Court of Manslaughter (MCLA 750.321; MSA 28.553) on June 2, 1970 arising out of the strangulation death of Marjorie Lathrop. On June 17, 1970, Defendant Howe was sentenced to five to fifteen years imprisonment.

"At trial, the prosecutor called eight witnesses, Cooper, Barnes, Riedel, and Loch, police officers who testified to their participation in the investigation, Corrigan from the Wayne County Medical Examiner’s office who testified to cause of death, Hindman, an osteopathic physician who testified to examining the deceased at the scene, Erlene Howe, called after both sides had rested, who testified that she advised police a missing endorsed witness was in Nebraska, and Geraldine Bowman.

"Witness Bowman testified that she lived in the apartment building in question and knew both the defendant and deceased. She testified that on the day of the death she saw Defendant and the deceased together in the hallway of the apartment building and that she spoke with them. She testified that she returned to her apartment and that, shortly thereafter, she heard scuffling, fighting, the deceased screaming, and the Defendant 'cussing’ the deceased coming from somewhere in the hallway. She also testified that, at that time, she looked out of her window and saw an unknown man who she testified was a friend of Defendant put a tire iron in a car and return to the apartment building.

"Throughout cross-examination, defense counsel extensively questioned witness Bowman about the physical layout of the apartment building and the location of the source of the noises and about the unknown man she saw in the apartment building and through her window.

"The sole defense witness was Nora VanDusen. She testified that she lived in the apartment building and that she knew the deceased. She testified that on the day of the death the deceased spent the hours from eight to noon and one-thirty to three in her (the witness’) apartment. Witness VanDusen testified that the deceased avoided her own apartment as she was afraid of her boyfriend. She also testified to seeing an unknown man coming out of the back door of the apartment building on the afternoon of the death.

"During cross-examination, re-direct examination, and re-cross examination, witness VanDusen was questioned about the physical layout of the building.

. "After an hour and twenty minutes of diliberation [sic], the jury requested a view of the apartment building, particularly of the hallway. The trial judge recognized that the drawings used at trial were confusing and he granted the view.

"After the view the jury resumed deliberations until they submitted a request for the testimony of witnesses Bowman and VanDusen to the trial judge:

"'The Court: I had a request from the foreman of the jury. Would you please give us the transcript of the two women witnesses. The answer is no. I will tell them that I don’t do that. Nothing short of a reading of the entire record. To give jurors bits of testimony puts too much emphasis on it.

" 'All right. Call the jury.’

(Jury returns to the courtroom).

"'The Court: For the record, ladies and gentlemen, your foreman, Mr. Gordon, has addressed a note to the Court that reads, "Dear Sir: Would you please give us the transcript of the two women witnesses”. Signed by the foreman of the jury.

" 'Ladies and gentlemen, this has been a relatively short case. There were very few witnesses, and you will have to remember it. Now, the reason I won’t do it is because the decisions that I am guided by frown upon the practice of having read back and the reporter would have to read it back, portions of the testimony of certain witnesses because it places entirely too much emphasis on the testimony of one witness and you must consider it all, all that bore upon this case. I cannot grant your request because the burden of decisions in this case — in this state frown upon the practice other than reading the whole record and it would take us a long time to read that back, as long as it took the reporter to take it, perhaps, so you will have to rely on your memory. This was a short case.

" 'All right, you may return to the jury room and continue your deliberations.’

(Jury retires to the jury room to continue deliberation.)

"The jury continued deliberation and eventually returned a guilty verdict. On August 24, 1973, the Court of Appeals affirmed Defendant’s conviction. On September 4, 1973, Defendant filed an application for Leave to Appeal, which this Court granted on December 19, 1973.”

The single issue before this Court for resolution is whether the trial court denied defendant a fair trial by failing to grant the jury’s request for a reading of the testimony of the two principal witnesses in this case?

I

It has been acknowledged by both the people and the appellant that the trial court was in error when it stated what it considered to be the controlling rule of law governing the reading back of testimony. The correct Michigan rule is very clear:

"The general rule, well established, is that when a jury requests that testimony be read back to it both the reading and extent of reading is a matter confided to the sound discretion of the trial judge. See Klein v Wagenheim, 379 Mich 558, 561 [153 NW2d 663] (1967); People v Walker, 371 Mich 599, 610 [124 NW2d 761] (1963); Rumptz v Leahey, 26 Mich App 438, 443 [182 NW2d 614] (1970).

"In Klein v Wagenheim, supra, p 561, the Michigan Supreme Court considered and rejected the argument that it is not proper to read any testimony, unless all the testimony is read, because otherwise there would be a tendency to emphasize what is read. The Court declared: ’This is not now and never has been the law in Michigan’.” People v Turner, 37 Mich App 162, 165; 194 NW2d 496 (1971).

Contained within this case-law rule is the recognition that a jury will at times require testimony read back to it to resolve a disagreement or correct a memory failure. A trial court must exercise its discretion to assure fairness and to refuse unreasonable requests; but, it cannot simply refuse to grant the jury’s request for fear of placing too much emphasis on the testimony of one or two witnesses. The Supreme Court of New Jersey in State v Wolf, 44 NJ 176, 185; 207 A2d 670, 675-676 (1965), elaborated further upon this point:

"When a jury retires to consider their verdict, their discussion may produce disagreement or doubt or failure of definite recollection as to what a particular witness said in the course of his testimony. If they request enlightenment on the subject through a reading of his testimony, in the absence of some unusual circumstance, the request should be granted. The true administration of justice calls for such action. Where there is a doubt in the minds of jurors as to what a witness said, it cannot be prejudicial to anyone to have that doubt removed by a rehearing of his testimony. There is no need to be chary for fear of giving undue prominence to the testimony of the witness. If under our system of trials a jury is to be considered intelligent enough to be entrusted with powers of decision, it must be assumed they have sense enough to ask to have their memories stimulated or refreshed only as to those portions of the testimony about which they are in doubt or disagreement. It must be assumed also that if they had any similar doubts or disagreements about statements of other witnesses they would seek the same remedy.”

See also, American Bar Association Project on Minimum Standards for Criminal Justice, Trial by Jury, § 5.2.

Returning to the present case we note that the jury asked to rehear the testimony of the only two witnesses to the events surrounding the death of the victim, Marjorie Lathrop. The trial judge did not indicate that he thought the request was unreasonable. Neither did he ask the jury to resume deliberations with the knowledge that their request would again be reviewed if the jury members continued to find it necessary to rehear certain testimony. See, Klein v Wagenheim, 379 Mich 558, 561-562; 153 NW2d 663 (1967); People v Wright, 41 Mich App 518, 523; 200 NW2d 362 (1972). The trial judge abused his discretion by failing to properly consider what appears to have been a reasonable request on the part of the jury.

II

The people urge that even if the trial judge incorrectly interpreted the law, " * * * the totality of the circumstances and the fact that the jury had not specifically referred to any specific testimony which caused them some concern, and because the jury continued deliberating without showing any further confusion, * * * that there was no manifest or serious error committed by the trial court.” In addition, the people would also have us limit our review because appellant’s trial counsel failed to timely object to the judge’s decision.

We are factually unable to accept the people’s arguments. The trial judge never indicated to the jury that a more specific request would be granted nor did he indicate that their request could be entertained at a later point in their deliberations. He quite clearly stated that he could not grant their request.

The court also instructed the jury to "rely on your memory” thus directing them to attempt to reach a verdict based upon what they were able to recall from the trial testimony. We have no knowledge, of course, of the extent of the jury’s confusion. We do know, however, that the trial court earlier granted the jury’s request to view the premises after the jury foreman stated that the jury members were confused by the floor plans presented at trial. Both witnesses Bowman and Van Dusen had testified extensively in relation to these drawings. In addition, our independent reading of their testimony reveals that there was a great deal of confusion present in the questioning and the witnesses’ answers. We cannot say that the trial judge’s error in failing to consider the jury’s reasonable request to reread material testimony, when viewed in the context of the entire record, was harmless error beyond a reasonable doubt. MCLA 769.26; MSA 28.1096; People v Liggett, 378 Mich 706, 717; 148 NW2d 784 (1967); People v Robinson, 386 Mich 551, 563; 194 NW2d 709 (1972).

Finally, we find counsel’s failure to object irrelevant to the resolution of this appeal. After the trial judge informed counsel of the jury’s request, he immediately stated that he would not grant the request. The actions of the trial judge bypassed the adversary function of defendant’s counsel.

The Court of Appeals is reversed and the case remanded for a new trial.

T. M. Kavanagh, C. J., and T. G. Kavanagh, Williams, and Levin, JJ., concurred with Swain-son, J.