Michigan Court of Appeals Holds Criminal Jury Instruction Proper
On September 23rd, 2014, the Michigan Court of Appeals held in a criminal case that a trial court's mid-deliberation, non-standard jury instruction in a CSC case did not constitute reversible error.
In People v Galloway, Docket No. 316262, the Michigan Court of Appeals addressed the issue of whether the trial court's deadlock jury instruction was coercive to the point that it affected defendant's right to a fair trial.
The Court first recited the facts of the case.
Defendant’s convictions are based on the accusations of the 10-year-old daughter of his long-term, live-in girlfriend. The complainant claimed that defendant employed tickling as an opportunity to touch her breasts. She asserted that when she sat on defendant’s lap, he would move her around and his penis would become [']boney.['] The complainant further alleged that she awoke one morning and found defendant’s cell phone propped up in her bedroom doorframe, set to video record. Defendant countered that the child had never liked him and falsified her allegations to get him out of her mother’s life. The child complainant and her mother corroborated defendant’s claim that the child did not like defendant for reasons completely separate from the sexual contact allegations . . .
The Court's analysis of the jury instruction issue followed.
Defendant contends that the trial court committed reversible error by giving a coercive deadlock jury instruction and that defense counsel was ineffective in accepting that improper instruction . . .
Here, the challenged instruction was given mid-deliberation and therefore had heightened coercive potential. Id. at 385. And the [']suggestion['] that the jury conduct an internal poll to ascertain whether a majority believed a verdict could be reached clearly deviated from the language of M Crim JI 3.11 and 3.12 and the ABA instruction adopted in Sullivan, 392 Mich at 335, 342.
However, the instruction was not a reversible [']substantial departure.['] It did not have the potential to cause a juror to bend his or her will to that of the majority simply for the sake of reaching an agreement. See Hardin, 421 Mich at 316. Rather, after giving the standard deadlock jury instructions, the trial court gave the jury the option of retiring for the day or of continuing deliberations that evening. If the jury found itself still unable to agree, it could conduct an internal poll to determine whether a majority believed a unanimous verdict could never be reached. The additional instruction in no way sought to reveal the numerical split of the jury as in Wilson, 390 Mich 689. Accordingly, the provision of this instruction was not reversible error, and defendant can establish no prejudice as a result of defense counsel’s waiver.
Yet, we do not condone the use of the challenged instruction. Our Supreme Court has made clear in the years since Luther that the safest course to avoid juror coercion is to read the standard jury instructions. See Pollick, 448 Mich at 386; Goldsmith, 411 Mich at 560-561; Sullivan, 392 Mich at 342. There was no need to deviate in this case, especially as the jury foreperson informed the court that the jury was not actually deadlocked. Accordingly, we recommend that the trial court avoid this additional instruction in the future . . .