People v. Galloway

307 Mich.App. 151

858 N.W.2d 520

PEOPLE

v.GALLOWAY.

Docket No. 316262.

Court of Appeals of Michigan.

Submitted Sept. 9, 2014, at Lansing.

Decided Oct. 7, 2014, at 9:05 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Matthew Schneider, Chief Legal Counsel, and Joyce F. Todd, Special Assistant Attorney General, for the people.

State Appellate Defender Office (by Susan M. Meinberg ) for defendant.

Before: FITZGERALD, P.J., and GLEICHER and RONAYNE KRAUSE, JJ.

Opinion

PER CURIAM.

A jury convicted defendant of two counts of second-degree criminal sexual conduct (CSC–II), MCL 750.520c(2)(b) (sexual contact with victim younger than 13), and the trial court sentenced him to concurrent terms of 2 to 15 years' imprisonment.

Defendant now challenges the instructions given by the court upon the jury's query of what would occur in the event it was unable to reach a verdict. Defendant contends that his convictions are against the great weight of the evidence because the complainant's testimony was contradicted and impeached. He further asserts that his minimum sentence was improperly enhanced by judicial fact-finding.

Although the trial court unnecessarily supplemented the standard deadlocked-jury instruction, the instruction was not coercive and does not warrant reversal. Further, the jury was presented with adequate information to judge the credibility of the witnesses, and we may not interfere with its assessment. Moreover, this Court has already rejected the application of Alleyne v. United States, 570 U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), to the Michigan sentencing guidelines. Accordingly, we affirm defendant's convictions and sentences.

I. BACKGROUND

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.

II. DEADLOCKED–JURY INSTRUCTION

Defendant contends that the trial court committed reversible error by giving a coercive deadlocked-jury instruction and that defense counsel was ineffective in accepting that improper instruction.

A. THE INSTRUCTIONS

At 11:35 a.m. on the third day of trial, the court released the jury to begin its deliberations. At 2:50 p.m., the jury asked to review the complainant's testimony and the recording was played in the courtroom. At 3:08 p.m., the jury returned to the jury room to continue its deliberations. At 4:08 p.m., the jury asked to review defendant's testimony and the same procedure was followed. The jury continued its deliberations at 5:05 p.m. Then, at 5:44 p.m., court reconvened and the trial judge stated on the record:

All right. Counsel, ... I talked to the two of you in chambers and I've got a note indicating, “What happens if we cannot not [sic] unanimously decide on a verdict?” So what I propose, and I think you both agree with me, is that I will give the deadlocked jury instruction 3.12. In addition, I will indicate to them that if they have reached a unanimous verdict on one of the counts, ... the Court can accept a unanimous verdict on one of the two counts, and then invite them to also return to the jury room and direct the foreman to poll the jury in private, and then advise me only whether a majority of the jury believes a verdict can be reached or a majority does not after they've done their further deliberation. Should I just give 'em all three options at the same time?

The prosecutor answered in the affirmative. Defense counsel objected to “the third option as you just read it, is that you invite them to go back and poll” and asked that the court “maybe remove the invitation part of it.”

The trial court defended its choice of instruction and the following colloquy ensued:

The Court: ... Now, this is People v. Luther and that's 53 Mich.App. 648 [219 N.W.2d 812], it's a 1974 case.... I'm just looking at the Bench Book, the latest version I had, which was 2010. Now, paragraph five ... was added in September 2011 to comply with the court rule ... 2.513.

* * *

The Court: ... Okay, so let's take a look at what MCR 2.513(N)(4) says here. All right, that is entitled:

Clarifying or amplifying ... final instructions. When it appears that a deliberating jury has reached an impasse, or is otherwise in need of assistance, the court may invite the jurors to list the issues that divide or confuse them in the event that the judge can be of assistance in clarifying or amplifying the final instructions.

[Defense Counsel ]: Judge, that People v. Luther is still good law.

The Court: Okay. All right. Well, let's bring 'em in.

The jury returned to the courtroom for additional instruction. The court inquired:

The Court: Okay. Members of the jury, you had sent out a note a little bit ago indicating, “What happens if we cannot unanimously decide on a verdict?” Is that still the question?

* * *

Female Juror: Yes, and we want to clarify that is just a question; that's not our official answer, if that makes sense. We're still deliberating.

The Court: Oh, okay.

Female Juror: We want to know what would happen if we don't come up with a verdict.

The Court: Okay. Well, at this point I'm supposed to give you a certain instruction, and ... I'll give you some additional instructions. Okay? So let me give you the jury instruction.

You have returned from deliberations indicating that you believe you cannot reach a verdict. That may or ... may not be true but I'm still gonna give this to you. I'm going to ask you to please return to the jury room and resume your deliberations in the hope that after further ... discussion you will be able to reach a verdict.

Now, as you deliberate, please keep in mind the guidelines I gave you earlier. Remember, it is your duty to consult with your fellow jurors and try to reach an agreement, if you can do so without violating your own judgment. To return a verdict, you must all agree, and the verdict must represent the judgment of each of you.

Now, as you deliberate, you should carefully and seriously consider the views of your fellow jurors. Talk things over in a spirit of ... fairness and frankness. Naturally there will be ... differences of opinion. You should each not only express your opinion, but also give the facts and the reasons on which ... you base it. By reasoning the matter out, jurors can often reach agreement.

Now, if you think it would be helpful, you may submit to the bailiff a written list of the issues that are dividing or confusing you. It will then be submitted to me. I will attempt to clarify or amplify the instructions in order to assist you in your further deliberations.

Now, when you continue your deliberations, do not hesitate to rethink your own views and change your opinion if you decide it was wrong. However, none of you should give up your honest beliefs about the weight or effect of the evidence only because of what your ... fellow jurors think or only for the sake of reaching agreement.

Now, the other thing I want to advise you of is a couple of different things. Now, if you have reached a unanimous verdict on one count—there are two counts here—but you have not reached or cannot reach a unanimous verdict on another count, then you can give me your verdict—once you're sure about that ...—I can accept your verdict on any count that you're unanimous on. But you have to also tell me that ... you're unable to reach a unanimous verdict on the other count.

Now, the other suggestion I would have for you is you could re—you know, I want you to go back and attempt to continue deliberations. But at some point if you want to come back to me, I will direct the foreperson of your jury to poll the jury in private and advise me only that a majority of the jury believes a verdict can be reached or a majority does not. Does everybody understand that? Do you want me to repeat that? You can't tell me how your voting stands; you can't tell anybody how your voting stands on anything. But you can tell me whether or not a majority of you believe that you'll be able to reach a verdict or a majority thinks that you won't be able to reach a verdict.

Now, the other option I will give to you folks is if you want to continue deliberating tonight, that's fine with me. If you would prefer to come back in the morning and continue your deliberations, that would be fine. So I'm gonna let you all retire to the jury room, discuss it amongst yourselves, and send me a note out as to what you would like to do.

The jury was excused to the jury room at 5:59 p.m. Defense counsel indicated that she was “[s]atisfied” with the court's instructions. Nineteen minutes later, the jury returned a verdict of guilty on both charged counts.

B. STANDARDS OF REVIEW

“A party must object or request a given jury instruction to preserve the error for review.... Absent an objection or request for an instruction, this Court will grant relief only when necessary to avoid manifest injustice.” People v. Sabin (On Second Remand), 242 Mich.App. 656, 657–658, 620 N.W.2d 19 (2000). Where counsel expresses satisfaction with the jury instructions, however, any claim of error is deemed waived, leaving nothing for this Court's review. People v. Carter, 462 Mich. 206, 219, 612 N.W.2d 144 (2000).

Defendant contends that defense counsel's decision to approve the jury instructions, and thereby waive his claim of appellate error, rendered her performance constitutionally deficient. Defendant failed to...