People v. Carter

Cavanagh, J.

(dissenting). I would affirm the Court of Appeals reversal of defendant’s conviction. The trial judge’s refusal to allow the jury to review vital testimony was a violation of MCR 6.414(H), People v Howe, 392 Mich 670 ; 221 NW2d 350 (1974), and People v Smith, 396 Mich 109 ; 240 NW2d 202 (1976), and constituted error requiring reversal. United States v Olano, 507 US 725 ; 113 S Ct 1770 ; 123 L Ed 2d 508 (1993).

i

MCR 6.414(H) provides:

If, after beginning deliberation, the jury requests a review of certain testimony or evidence, the court must exercise its discretion to ensure fairness and to refuse unreasonable requests, but it may not refuse a reasonable request. The court may order the jury to deliberate further without the requested review, so long as the possibility of having the testimony or evidence reviewed at a later time is not foreclosed. [Emphasis added.]

During voir dire, the judge told the jury that she would not allow them to review transcripts of testimony. Despite this instruction, the jury requested testimony. In response, the judge denied the request and reminded them of her earlier instruction. She did not, as the rule allows, send them back to deliberate with *226 the opportunity to review the testimony if they could not resolve the need.

Moreover, she did not refuse an “unreasonable request.” In fact, it appears that she thought any request would be unreasonable because of the time it would take to have transcripts typed. As the majority points out, the court reporter could have read the relevant testimony to the jury. The judge did not inform the jury of this fact. Instead, she told them that it would be impossible for them to review the transcripts as they would not be available for “weeks and months.” The prosecutor argues that there is no duty for the judge to inform the jury sua sponte of this possibility. This is true, but there is a duty to refrain from foreclosing the possibility of having the testimony read. The trial judge clearly breached this duty.

n

In People v Howe, this Court stated that when a jury requests that testimony be read back, both the reading and extent of the reading is a matter confided to the sound discretion of the trial judge, and that the jury will at times require testimony read back to it to resolve a disagreement or correct a memory failure. This Court explained that the 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. 392 Mich 676 . Howe held that it was an abuse of discretion to fail to properly consider a reasonable request by the jury to rehear testimony of the only *227 two witnesses to the events surrounding the death of the victim. Howe also stated that failure to object was irrelevant when the actions of the judge bypassed the adversary function where, after the judge informed counsel of the jury’s request, he immediately denied the request.

In the instant case, the judge abused her discretion, in violation of Howe, by failing to properly consider the jury request to rehear testimony. Before a request was made, the judge told the jury that she would not allow testimony review. She also exercised her discretion not to permit the jury to take notes. MCR 6.414(C). Regardless, the jury requested the testimony of four of the eighteen witnesses. The judge told counsel that she would deny the request, then asked whether there was any input, and proceeded to respond in the manner that she had indicated. This left the jury to rely on its “collective memories” in order to determine the facts.

It was, however, reasonable for the jury to request a review of Mackin’s testimony. Mackin, the jailhouse informant, was crucial to the prosecution. In fact, his testimony was the only direct evidence against defendant. Mackin’s claim that defendant confessed his crime allowed the prosecution to press charges against defendant after four years of investigation. Because he was the prosecution’s key witness, defendant’s strategy was to impeach his credibility and argue that he had received his information about the crime from sources other than defendant. This testimony, alone, occupied over one hundred pages of trial transcript. Moreover, his credibility was highly *228 questionable. He offered several motivations for his decision to testify against his former cellmate. 1

It was similarly reasonable for the jury to request testimony of the officers whose testimony related directly to Mackin’s credibility. Lieutenant William Presley had interviewed Mackin and took his initial statement. Officer Collins also spoke with him on several occasions, and was present when the family was allowed to plead with him to testify. Both Rice and Collins were questioned regarding whether information about the crime was communicated to other agencies. This testimony related to the defense theoiy that Mackin had seen defendant’s parole records and had learned about the crime in that manner rather than through defendant’s alleged confession to Mackin. The jury requested testimony only of the witnesses who provided direct testimony in support or contravention of the respective theories presented by the prosecution and defense.

In People v Smith, this Court unanimously reaffirmed Howe and held that where the judge completely foreclosed the opportunity of having testimony reread, reversal was necessary. In Smith there was no jury request to have testimony reread. However, before the jury deliberated, the judge told them that he would not reread any testimony and told them not to ask for it. 396 Mich 110 .

*229 In the instant case, the judge similarly foreclosed the jury from reviewing testimony. Even so, the jury’s apparent need to review testimony led it to make the request. This was erroneously denied and, under Smith , reversal is necessary. 2

in

The majority distinguishes our controlling case law by stating that Howe and Smith dealt with “forfeiture” of trial error, whereas the instant defendant “waived” the error. This “waiver,” according to the majority, extinguishes any error (citing Olano, supra).

Though defense counsel may have acquiesced to the proposed ruling from the judge regarding the testimony read back, the judge should not have put counsel in the position of having to object to a suggestion that violated the court rule. Olano, 507 US 742 (Kennedy, J., concurring). Moreover, defense counsel was placed in a position to object after the judge had twice unilaterally stated that she would not allow the testimony to be read back. Acquiescence under these circumstances is questionable.

Even if we were to presume that defense counsel accepted the denial of the jury request, the majority fails to properly analyze the case under the principles stated in Olano; the federal case on which it relies. In Olano, the trial court erroneously allowed two alter *230 nate jurors to attend, but not participate in, deliberations along with the regular jurors. Id. at 727. This violated the Federal Rule of Criminal Procedure 24(c) as quoted in Olano, supra at 730 . 3 The United States Supreme Court described the case as involving a deviation from, and violation of, a “rule” rather than a violation of a “right.” Id. at 737, 739 . The case was then analyzed under waiver principles. “Waiver” was defined as the “intentional relinquishment ... of a known right.” Id. at 733 .

The instant majority provides that defendant did not have “a right to have a jury rehear testimony.” Ante at 218. Such phrasing of the right at issue necessarily leads the majority to its conclusion. However, the Olano Court did not analyze whether the defendants had a “right to have only twelve jurors in the room during deliberations.” Instead, the Court seemed to imply that a violation of the court rules is a violation of general due process rights protected by the rules. While I agree that there are varying rights and different waiver requirements, I cannot join in the view that defendant did not have a right to have the trial court follow the court rules enacted by this Court. Under our case law in this area, and under these facts, this right was not waivable.

Consistent with Olano, I would approach this as a violation of MCR 6.414, which directs that the trial *231 court may “not refuse a reasonable request” and may not foreclose later review of the testimony. The Court explained that a court must first determine whether the right waived is waivable. Id. at 733. Waiver is the “intentional relinquishment ... of a known right.” Id. “Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.” [Id. (emphasis added).]

MCR 6.414(H) is the result of a judgment by this Court that the “true administration of justice” calls for the court to allow the jury to have testimony read back to resolve disagreement or correct a memory failure. Howe, 392 Mich 676 , quoting State v Wolf, 44 NJ 176, 185; 207 A2d 670 (1965). The staff comment provides that subrule (H) was adopted to incorporate the procedure governing jury requests for review adopted in People v Howe. An informed and accurate debate in the juiy room is fundamental to our system of justice. A jury should not be denied a reasonable opportunity to review critical testimony. It is of major concern that we have no knowledge of the extent of the jury’s confusion. It is possible that jurors who did not remember testimony of key witnesses may have allowed themselves to be persuaded by those who claimed to remember. This is even more probable when they have been advised by the judge that they cannot review the desired testimony. Smith, 396 Mich 111 . Moreover, the problem was compounded by the judge’s refusal to allow the jurors to take notes. Because the truth-seeking function of the jury was so *232 tainted by the violation of the court rule in this case, I would hold that the error was nonwaivable.

Next, under Olano, the defendant must show “plain” error. In defining plain error, the Court explained that the error must be clear under current law. 507 US 734 . As explained, the judge’s instruction violated the clear current law as stated in MCR 6.414(H), Howe, and Smith .

Olano then provides that the defendant must show that the plain error affected substantial rights. 507 US 734 ; People v Carines, 460 Mich 750, 774 ; 597 NW2d 130 (1999). The majority in Carines explained this rule by stating that a reviewing court should reverse only when the defendant is actually innocent or the error affected the fairness, integrity, or public reputation of judicial proceedings. Id. As explained, the refusal to allow the jury to review the testimony of key witnesses was a violation of defendant’s right to have the jury base its verdict on a clear understanding of the facts. Defendant was convicted on the basis of Mackin’s testimony. Otherwise, there was only evidence that he was in the vicinity of the store. In this close case, the jury had a legitimate interest in hearing again the testimony of the key witnesses. This is the sort of error that compromises the fairness, integrity, and truth-seeking function of a jury trial. Therefore, reversal is warranted.

IV

At this Court, defendant argues that the “failure to quarrel with the trial judge’s determination not to allow the rehearing of testimony” should have been *233 raised at defendant’s initial Ginther hearing. 4 Therefore, defendant asserts, he was denied his constitutional right to effective assistance of counsel. Defendant also implies that his appellate attorney was ineffective in failing to raise this issue and in failing to effectively cross-examine trial counsel at the Ginther hearing.

The majority provides that the crucial factor distinguishing this case from Howe and Smith is defense counsel's acquiescence to the court rule violation. Ante at 215. Therefore, had defense counsel remained silent, thus forfeiting the error, or had he objected, thus preserving the error, then under controlling case law he would be granted a new trial. Given the devastating result of defense counsel’s acquiescence under the majority analysis, defendant was denied his Sixth Amendment right to effective assistance of counsel. People v Pickens, 446 Mich 298 ; 521 NW2d 797 (1994). Therefore, at the very least, defendant is entitled to a Ginther hearing on this issue. The majority, however, is convinced that appellate counsel’s failure to raise the issue, along with defendant himself failing to raise the issue at the Ginther hearing, is determinative in deciding that trial counsel was not ineffective. The majority also provides that defendant’s and appellate counsel’s “belief” that the waiver did not constitute ineffective assistance is sufficiently persuasive to prove that trial counsel was not ineffective. Ante at 219, n 14. I cannot join in such deference to these inferred beliefs. Defendant is not trained in law, and appellate counsel’s negligence does not prove effective assistance of another attorney. The majority’s *234 lack of desire to address this issue is similarly persuasive. Therefore, I would grant defendant relief on this issue.

v

In this case, as in Howe, the jury requested testimony of only the key witnesses. The prosecutor’s case relied heavily on Mackin’s testimony. Had it not been for that testimony, defendant would never have been arrested and charged. We know that defendant was questioned on the basis of the circumstantial evidence, but that the police did not have enough evidence to hold him until Mackin came forward. The jury requested only the testimony of those who could support defendant’s theory that Mackin lied. Denial of a reasonable request to review this key testimony violates both our court rule and case law. This violation severely undermined the truth-seeking function of the jury. Under these circumstances, the trial court’s violation of MCR 6.414(H), Howe, and Smith, supra, requires reversal. Olano, supra. Therefore, I would affirm the decision of the Court of Appeals.

At one point, Mackin indicated that he was testifying because the victim’s family deserved justice. He also explained that he wanted a retrial of the charges against him, pictures of the scene of the crime for which he was convicted and protection in the federal prisoner system. Additionally, he wanted a letter sent to his sentencing judge requesting credit for good time on his current sentence.

The prosecutor also points to both the amount of time the jury deliberated, and the time that it took for the jury to request a rereading of testimony, for support that the jury did not need to resolve disagreement or correct memory failure regarding the testimony. The majority agrees that this is an appropriate consideration when determining whether to refuse the request. However, in Smith , this Court stated that it is conjectural and improper to look at the time of jury deliberation as support for the supposition that the jury was not confused about the testimony. 396 Mich 111 .

“The court may direct that not more than 6 jurors in addition to the regular jury be called and impanelled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. . . . An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its ver dict.” [Emphasis added.]

People v Ginther, 390 Mich 436 ; 212 NW2d 922 (1973).