People v. Budzyn

566 N.W.2d 229, 456 Mich. 77

Opinions

Riley, J.

In this appeal, we are asked to review the fairness of the trial for two police officers who were convicted of second-degree murder for killing a suspected drug user while attempting to arrest him while the suspect was holding contraband. We conclude that defendants have demonstrated that their juries were exposed to extrinsic influences that created a real and substantial possibility of prejudice, dépriving them of their constitutional rights under the Sixth Amendment. These errors, however, were harmless beyond a reasonable doubt with regard to defendant Larry Nevers. Therefore, we affirm defendant Nevers’ conviction. With regard to defendant Walter Budzyn, we conclude that the extrinsic influences were not harmless beyond a reasonable doubt. Accordingly, we vacate defendant Budzyn’s conviction and remand for a new trial.

FACTS AND PROCEEDINGS

Defendants Budzyn and Nevers were police officers with the Detroit Police Department. They were on duty when the incident occurred that resulted in Malice Green’s death. Both were tried at a single criminal proceeding with two different juries.¹

On November 5, 1992, at approximately 10:15 P.M., defendants were patrolling in the city of Detroit in plain clothes in an unmarked vehicle. They apparently observed a Tempo, driven by Malice Green, with bullet holes in its front passenger door. Defendant Nevers, who only gave testimony before his own jury, testified that he observed the car pull up in front of a house known for its drug activity. Budzyn and Nevers stopped behind the Tempo to investigate. The home, with a storefront attached to it, was occupied by Ralph Fletcher. Fletcher explained that others used his house for illegal drug activities. Robert Hollins and Theresa Pace, witnesses to the event, were present at Fletcher’s house and had been smoking cocaine that evening.

Defendant Budzyn, who only testified before his own jury, said that he witnessed Robert Knox running along the building and explained that he chased Knox because, apparently by mistake, he believed that Knox had been in the vehicle with Green.² Budzyn caught Knox, brought him around to the front of Fletcher’s place, and patted him down for weapons. He also patted down Fletcher, who had been in the car with Green. Manuel Brown, who had been smoking cocaine at Fletcher’s place, was walking away from the house, but stopped to watch this activity. Nevers asked Malice Green for his driver’s license. Green did not respond to Nevers’ request, but walked around to the passenger side of his vehicle and got in. Green was sitting in the passenger seat, with his legs hanging out the open doorway. Budzyn came around to the passenger side, shined his flashlight on him, and asked for his license. Green began to look in the glove compartment, grasped at something that was on the floor, apparently cocaine, and Budzyn asked him to let go of what was in his hand.

At this point, there is substantial disagreement in the testimony given by defendants Budzyn and Nevers and the witnesses to the incident, Brown, Fletcher, Hollins, Knox, and Pace regarding what happened.

The five civilian witnesses testified that after Green refused to open his hand, Budzyn began to hit him repeatedly on the hand with the police flashlight, telling him to open his hand. Budzyn then climbed onto Green, who did not resist but did not comply, straddling him. Brown testified that Budzyn struck Green about ten times on his head with the flashlight. Fletcher, who was only three to five feet away, testified that Budzyn repeatedly hit Green on the hand. Hollins said that he heard Budzyn hit Green six or seven times, and, although he did not see the blows land, that these blows must have landed on Green’s head. Knox said that he saw Budzyn hit Green in the hand because Green did not open it when Budzyn asked.³ Pace testified that from the position on which Budzyn sat on Green, he must have been hitting him on the head.

These five witnesses also said that, while Budzyn was struggling with Green in the Tempo, Nevers struck Green on his knee several times. Brown and Fletcher said that Nevers then went around to the other side of the car, the driver’s side, opened the door, and struck Green, who was now lying on the front seat, on the head with his flashlight.⁴ Nevers instructed these people to leave the scene.

In contrast to this testimony, Budzyn explained to his jury that while Green was sitting in the passenger side of the vehicle, he suspected that Green was holding narcotics in his fist. He said that he grabbed Green’s right arm and that Green kicked him with both his legs. He produced evidence of a small injury to his knee. Budzyn said that he turned and fell backward into the vehicle, dropping his flashlight. Budzyn denied that he ever hit Green at all. Budzyn also said that he only held Green’s hands because he suspected that he was holding narcotics. Budzyn called for backup assistance. Budzyn explained that he heard “two hits” after Nevers went around to the driver’s door and said that he later was “shocked” to find so much blood on the scene. Budzyn said he retrieved four rocks of cocaine from inside the vehicle.

Like Budzyn, Nevers testified to his jury that he assisted Budzyn when Green resisted Budzyn’s efforts to open his hand. Nevers explained that he only hit Green on his knees when Green brought his knees up to stop Nevers from prying open his hand. Nevers then went to the other side of the vehicle because Budzyn told him that Green was attempting to get out of the other side of the car. Nevers then told the people from Fletcher’s place to leave. Nevers explained that he hit Green in the head with his flashlight because Green was grabbing for his gun. Nevers said that after he struck him, “[Green] finally let go of my gun and I did not hit him [again]” at that time. Nevers flagged down the EMS medical technicians who had been called to the scene. Green continued to struggle with the officers and Nevers said he saw something “shiny” in Green’s right hand and he struck him again, the blow landing on Green’s head, because Nevers feared he might be carrying a razor blade or knife. Nevers admitted that, during the course of the incident he hit Green five or six times on the head with his flashlight.

The EMS medical technicians arrived in two vehicles. The first to arrive were Albino Martinez and Mithyim Lewis. The other EMS vehicle soon arrived with two other medical technicians, Lee Hardy and Scott Walsh. Several marked police cars arrived soon after the EMS vehicles. Martinez, Lewis, Hardy, and Walsh all testified that Green was covered with blood and was hanging from the driver’s side door when they arrived. There was a pool of blood under his head on the street. These witnesses said that Nevers struck Green in the head with his heavy police flashlight repeatedly even though Green was not offering any significant resistance. Martinez and Walsh said that Nevers told Green to open his hands and hold still, and that, when he did not, Nevers hit him with the flashlight. Martinez and Lewis said that Nevers hit Green four times in the head with the flashlight, while Hardy said he saw Nevers hit Green approximately ten times in the head. Martinez explained that Green was “dazed,” and Hardy described him as “stuporous,” relating that Green was uttering only a few words like “wait” while Nevers was striking him.

Officer Robert Lessnau,⁵ who arrived on the scene in one of the marked police vehicles, pulled Green from the vehicle. The ems medical technicians testified that Lessnau hit Green with his fists. Martinez and Walsh said that while Lessnau was striking Green, Nevers also hit Green twice in the ribs. Green finally released the car keys he held in one hand and a piece of white paper, apparently for rolling rock cocaine, he held in the other. The uniformed officers, including Sergeant Freddie Douglas,⁶ then cuffed Green’s hands behind his back as Green struggled. The EMS medical technicians began rendering care to Green. Green suffered a seizure and, soon after, died.

The people presented Dr. Kalil Jiraki, an assistant Wayne County Medical Examiner, as a medical expert to testify regarding the nature of Green’s wounds and the cause of his death. Dr. Jiraki testified that Green died from “[b]lunt force trauma to [his] head” and that he suffered at least fourteen blows to the head. Dr. Jiraki also explained that Green had 0.5 micrograms of cocaine in his body, indicating that he was under the influence of cocaine at the time of his death. He concluded, however, that it had “no bearing on the cause of his death.” In response, defendants presented three pathologists, one of whom, Dr. L. G. Dragovic, testified that he identified eleven blunt-force injuries to Green’s head.

Budzyn and Nevers were charged with second-degree murder. Beginning with the first reports of Green’s death, the case produced a firestorm of media publicity in the Detroit metropolitan area. The incident occurred soon after the California state courts acquitted four white Los Angeles police officers who had been videotaped beating black motorist Rodney King. The acquittal in the King case resulted in a terrible riot in Los Angeles that drew the attention of the national media. The media reports in Detroit of Green’s death included a comparison of the two incidents. Before the trial began, the Detroit Police Department fired defendants. The city of Detroit also agreed to a multimillion dollar settlement with Green’s estate. In response to some criticisms of the settlement, a city attorney stated that a generous settlement might spare the city the riotous violence that racked Los Angeles after the acquittal of the police officers. These events occurred during the interval between Green’s death in November 1992 and the start of defendants’ trial in June 1993, seven months later.

Defendants moved to sever the trials, and the trial court refused to separate the proceedings, but did grant defendants separate juries. Nevers asked for a change of venue because of the extensive pretrial publicity, but the trial court denied this motion. The trial court began the voir dire on June 2, 1993. The people began presenting their case on June 18, 1993. During a recess near the end of trial, on August 5 and 6, 1993, the trial court provided the juries with several film videos to watch to entertain themselves, including a copy of Malcolm X. The film begins with a video of the Los Angeles police officers beating Rodney King. Defendants moved for a mistrial on this basis, but this motion was denied.⁷

After approximately seven weeks of trial, the juries began deliberating on August 13, 1993. Budzyn and Nevers were convicted of second-degree murder. The jury in Budzyn’s trial deliberated for eight days, and, in Nevers’ trial, the jury deliberated for nine days. Budzyn was sentenced to serve eight to eighteen years, and Nevers was sentenced to twelve to twenty-five years in prison. Defendants moved for a new trial, but the trial court denied this motion.

On appeal by right, the Court of Appeals consolidated defendants’ appeals and affirmed the convictions in an unpublished opinion per curiam, issued March 22, 1995 (Docket Nos. 170477, 170478). Defendants appealed to this Court, and this Court granted leave.⁸ In reviewing the many claims of error raised on appeal, we have only provided an analysis of the claim regarding the extrinsic influences on the jury. For the remaining claims, we believe that the Court of Appeals has properly responded to these claims and we affirm its decisions with regard to them.⁹

ANALYSIS

I. THE STANDARD FOR CLAIM OF ERROR FOR EXTRINSIC INFLUENCES ON THE JURY

A defendant tried by jury has a right to a fair and impartial jury. People v Tyburski, 445 Mich 606, 618; 518 NW2d 441 (1994) (Mallett, J., plurality opinion), citing Duncan v Louisiana, 391 US 145; 88 S Ct 1444; 20 L Ed 2d 491 (1968). During their deliberations, jurors may only consider the evidence that is presented to them in open court. See United States v Navarro-Garcia, 926 F2d 818, 820 (CA 9, 1991). Where the jury considers extraneous facts not introduced in evidence, this deprives a defendant of his rights of confrontation, cross-examination, and assistance of counsel embodied in the Sixth Amendment. See Hughes v Borg, 898 F2d 695, 700 (CA 9, 1990).

In order to establish that the extrinsic influence was error requiring reversal, the defendant must initially prove two points. First, the defendant must prove that the jury was exposed to extraneous influenees. See Marino v Vasquez, 812 F2d 499, 504 (CA 9, 1987). See also United States v Caro-Quintero, 769 F Supp 1564, 1573 (CD Cal, 1991). Second, the defendant must establish that these extraneous influences created a real and substantial possibility that they could have affected the jury’s verdict. See Hughes, supra at 700.¹⁰ Generally, in proving this second point, the defendant will demonstrate that the extraneous influence is substantially related to a material aspect of the case and that there is a direct connection between the extrinsic material and the adverse verdict. See Caro-Quintero, supra at 1574, citing United States v Bagnariol, 665 F2d 877, 885 (CA 9, 1981).¹¹ If the defendant establishes this initial burden, the burden shifts to the people to demonstrate that the error was harmless beyond a reasonable doubt. We examine the error to determine if it is harmless beyond a reasonable doubt because the error is constitutional in nature. See People v Anderson (After Remand), 446 Mich 392, 406; 521 NW2d 538 (1994). The people may do so by proving that either the extraneous influence was duplicative of evidence produced at trial or the evidence of guilt was overwhelming. See Hughes, supra at 700.

II. APPLICATION OF THE STANDARD

A. EXPOSURE TO EXTRINSIC EVIDENCE

In examining the extraneous influences that defendants claim affected the juries’ verdicts, we shall focus on defendants’ claims from juror affidavits that the juries were exposed to (1) the film Malcolm X, (2) media reports during the trial of existing contingency plans in case of rioting, i.e., placing the National Guard on alert and closing the freeways in the event the juries acquitted, and (3) the claim that the jurors considered as a factor defendants’ supposed participation in the police unit known as stress (Stop the Robberies Enjoy Safe Streets)¹² even though there was no evidence about this produced at trial. There is no dispute that the trial court provided the film Malcolm X to the juries, which they watched (at least in part) on August 5, 1993, and on August 6, 1993.¹³ This viewing occurred near the end of trial: the trial had begun on June 18, 1993, and the juries began deliberating on August 13, 1993. The affidavits confirmed that the jurors had watched, at least in part, Malcolm X. Defendants also rely on these juror affidavits to assert that the two other alleged extraneous influences listed above affected the juries’ verdicts.

Generally, jurors may not impeach their own verdict by subsequent affidavits showing misconduct in the jury room. People v Pizzino, 313 Mich 97, 108; 20 NW2d 824 (1945). See also Tanner v United States, 483 US 107; 107 S Ct 2739; 97 L Ed 2d 90 (1987). As the Court of Appeals has previously noted, once a jury has been polled and discharged, its members may not challenge mistakes or misconduct inherent in the verdict. Rather, oral testimony or affidavits may only be received on extraneous or outside errors, such as undue influence by outside parties. See Hoffman v Monroe Public Schools, 96 Mich App 256, 257-258; 292 NW2d 542 (1980), citing Mattox v United States, 146 US 140; 13 S Ct 50; 36 L Ed 917 (1892). See also People v Larry Smith, 106 Mich App 203, 211-212; 307 NW2d 441 (1981). As the United States Supreme Court has explained, the distinction between an external influence and inherent misconduct is not based on the location of the wrong, e.g., distinguished on the basis whether the “irregularity” occurred inside or outside the jury room. Rather, the nature of the allegation determines whether the allegation is intrinsic to the jury’s deliberative process or whether it is an outside or extraneous influence. See Tanner, supra at 117-118. In examining these affidavits, a trial court should not investigate their subjective content, but limit its factual inquiry to determining the extent to which the jurors saw or discussed the extrinsic evidence. See Dickson v Sullivan, 849 F2d 403, 406 (CA 9, 1988).

After reviewing the three sworn juror affidavits,¹⁴ we believe that we may consider these affidavits to determine whether they met the threshold requirement. The three influences culled from the sworn affidavits, as identified above, were extraneous to the trial proceedings and did not result exclusively from juror misconduct inherent in the verdict. According to these sworn statements, the juries were exposed to, and considered during deliberations, extraneous factors regarding whether defendants Budzyn and Nevers were guilty of second-degree murder.

B. REAL AND SUBSTANTIAL POSSIBILITY OF PREJUDICE

We must next determine whether defendants have established that there is a real and substantial possibility that these extrinsic influences could have affected the juries’ verdict. When considering that (1) the juries viewed the film Malcolm lasa group near the end of trial, (2) the juries, or a member, were exposed during deliberations to the fact the city of Detroit was bracing for a riot in the event of an acquittal, and (3) the juries were exposed to extrinsic information, in part inaccurate, that defendants were previously members of the stress police unit, we believe that each defendant has established his initial burden.

The first of these influences that we address is the Malcolm X film. The film is a work based on Malcolm X’s autobiography. The juries viewed the film with the understanding that it had been provided, with three others, as entertainment by the trial court during a period late in trial where there were no trial proceedings. The film begins with the voice of Malcolm X’s character giving a provocative speech charging “the white man with being the greatest murderer on earth” while the viewer is shown footage of Rodney King being beaten by Los Angeles police officers, interspersed with a picture of an American flag.¹⁵ The Rodney King videotape is shown in slow motion, in eight segments, as the American flag begins to bum. Id. The voice-over makes an explicit reference to the city of Detroit, the location of the incident in the instant case, by stating that the black community has been deprived of democracy in the “streets of Detroit.” Id. The factual similarities between (1) Rodney King’s assault by police officers in Los Angeles as captured by the video shown at the beginning of Malcolm X and (2) the police brutality inflicted against Malice Green in Detroit, as charged, are striking. The parallel is unmistakable.¹⁶

Later, in a different scene of the film, the character portraying Malcolm X states:

No, I’m telling you that devil has made dead souls out of you and I [sic], . . . Why, my brothers and sisters, he should get down on his knees. He should beg our mercy. Oh, my brothers and sisters, his kind has committed God’s greatest crime against your and my kind every day of his life. He ought to get on his knees and say he’s committed the crime. But does he do that? Does he do that? No. No, he scorns you. He splits your head with his night stick, he busts you upside of the head with that billy club, he calls you a nigger. I’m telling you he calls you a coon. That’s what he says to you — “Boy,” “Nigger.” Four hundred years is long enough. You’ve been sitting down, laying down, and bowing down for four hundred years. I think it’s time to stand up. [Emphasis added.]

In the second half of the film that was only seen by the Budzyn jury,¹⁷ Malcolm X’s character is forced to rescue a member of the Nation of Islam from the police station. A bystander explains that a police officer had “crack[ed]” him with (presumably) his night stick and the man began to bleed like a “stuck hog.”¹⁸ Soon after this episode, in scenes only viewed by the Budzyn jury, Malcolm X’s character gives a speech before an audience in which he states (interspersed with actual footage from the 1960s of violence by white police officers against the black community):

A hundred years ago, they used to put on white sheets and sic bloodhounds on us. Well, nowadays they’ve traded in the sheets — well, some of them traded in sheets— . . . they have traded in those white sheets for police uniforms. They’ve traded in the bloodhounds for the police dogs.

You’ve got these Uncle Tom negro leaders today that are telling us we ought to pray for our enemy. We ought to love our enemy. We ought to integrate with an enemy who bombs us, who kills and shoots us, who lynches us, who rapes our women and children. No! (interspersed with scene of Ku Klux Klan).

The greater context of the film did not dull these words because they are strikingly inflammatory. The power of these words might have triggered an emotional response by the jury, because defendants’ conduct, as alleged, could arguably fit the description given by Malcolm X’s character. There is some indication that it did evoke such a response. A juror from the Budzyn trial swore that apparently this scene of the film excited a response from one of the other jurors while they watched the movie as a group:

I specifically recall that segment of the movie in which Malcolm X compares police officers to the Ku Klux Klan. I also specifically recall that there was a verbal reaction by at least one juror when that speech was made.

As an extraneous influence, this film did not, strictly speaking, introduce any outside information about this event, i.e., extrajudicial facts about defendants, Malice Green, or the incident itself. Nevertheless, the viewing of the film, with its forceful words and images, may have undermined the juries’ ability to examine impartially defendants’ credibility. Both defendants testified and gave accounts of the altercation that conflicted with that of the witnesses for the prosecution.¹⁹ The images of police brutality from Malcolm X confirmed the people’s description of defendants’ conduct, thereby lending additional credibility to the people’s case.

Moreover, the juries may have found it difficult to set aside, when they examined the testimony of these particular defendants, the accusations expressed by Malcolm X’s character in the film, and suggested by the Rodney King videotape, that white police officers were brutal racists who could not be trusted. The jurors may have been less willing to believe that defendants, as white police officers, could be trusted.²⁰ In focusing the jurors’ attention in a very emotional way on the racial element of the crime, the images from the film invited the juries to view the instant crime as a part of a pattern of police brutality, effectively asking them to redress this injustice. The juries were, however, bound to decide the case on only the facts as presented at trial and to weigh defendants’ credibility without consideration of these extraneous factors.

These themes from Malcolm X of racial bigotry by the police force tied into, and intensified, the significance of the jurors’ exposure to other facts extrinsic to the trial. The affidavits indicate that the Budzyn jury and one member of the Nevers jury were exposed to the fact, during deliberations, that the city of Detroit was bracing for a riot in the event of an acquittal. Such rioting, of course, occurred in Los Angeles after the acquittal of the white police officers who were charged with assaulting Rodney King. The juror from Budzyn’s trial swore that this fact had been discussed by the Budzyn jury during deliberations:

During the trial at one point the question was raised whether “they” would riot if we didn’t convict. Towards the end of deliberations but before I signed the verdict form, someone mentioned reports that freeways and businesses might be closed. It was also discussed that the National Guard had been put on alert for the end of the trial.

A juror in the Nevers trial indicated that he had learned from news reports and other sources about the city’s preparation for a possible riot.²¹ There is no indication that the Nevers jury ever discussed this point during deliberations. Yet, according to an affidavit, the Nevers jury did discuss, before deliberations, the “similarities between Rodney King and this case” because “it was cops beating a black man.” Like the exposure to the film, the fact that the city braced for a riot should be irrelevant to the juries’ deliberations because they are bound to issue their decisions in accordance with law. They should not consider whether there would be a riot if they acquitted. The reality is, however, that the jurors’ knowledge that the city was preparing for a possible riot may have caused them to fear an acquittal.

Furthermore, the jurors were also exposed to the supposed fact that each defendant had previously been a member of the stress unit. According to the affidavit of a juror from the Nevers trial, “[i]t was explained during deliberations that stress was a police group that regularly abused young black males in the city.” The jurors also discussed this point that defendants were prior participants in STRESS during deliberations.²² This is the kind of concrete, factual evidence that could substantially compromise the ability of a jury to issue a fair verdict because the evidence relates directly to the past conduct of the police officers. This extraneous influence creates more than an emotional reason to convict. It suggests, if the perceptions were true about the nature of the STRESS police unit and defendants’ participation in it, that these officers may have been acting in accordance with their preexisting racist predisposition to target young black men for abuse when they encountered Malice Green.²³ This evidence was never introduced at trial. It is the kind of evidence that has a direct and rational connection between it and an adverse verdict. See Bagnariol, supra at 885. The United States Court of Appeals for the Eighth Circuit explained how damaging such extrinsic evidence may be when it affects a defendant’s credibility, particularly in a case, like this one, that was a credibility contest:

The [extrinsic] comments [in this case] relate to factual questions that go to the heart of the jury’s role: to weigh the relative credibility of witnesses in a case that turned almost entirely on whose version of events the jury found more credible. The jury’s duty to resolve factual questions is severely impaired when it improperly receives information that besmirches the defendants’ character. [United States v Hall, 85 F3d 367, 371 (CA 8, 1996).]

Similarly, in hearing that defendants were members of an allegedly violent and racist unit, the juries’ ability to resolve the factual questions before them may have been severely impaired.

In relying on this extrinsic evidence regarding the STRESS unit, the juries would then have had an arguably good reason, but a legally impermissible one, to accept the emotionally charged account given by the film Malcolm X of the brutality of white police officers.²⁴ Moreover, by convicting defendants, the juries may have believed they were avoiding a possible riot in the city of Detroit. Considering all these factors, we believe that there is a real and substantial possibility that these external influences together could have affected the juries’ verdicts.²⁵

C. HARMLESS ERROR ANALYSIS

Because defendants have carried their initial burden, we must decide whether any error was harmless beyond a reasonable doubt. There is no dispute that the extrinsic evidence was not duplicative of other properly admitted evidence for either defendant. Hence, we must determine whether the evidence against defendants was overwhelming. See Hughes, supra at 701. We believe that these extraneous influences were harmless for defendant Nevers in light of the overwhelming evidence of his guilt, but that the errors do require reversal for defendant Budzyn because the evidence against him was not overwhelming.

In the Nevers trial, the four ems witnesses, who had no apparent motive to lie, provided interlocking testimony that Nevers repeatedly bludgeoned Malice Green in the head with his heavy police flashlight while Green was dazed and not offering significant resistance.²⁶ The medical testimony of the injuries to Green’s head also substantiated this testimony. The people have proven that there was unimpeachable, compelling evidence that defendant Nevers harbored, at the very least, an unjustified intent to commit great bodily harm against Green. Thus, under Hughes, the extraneous influences were harmless. Consequently, we affirm the Court of Appeals decision to affirm defendant Nevers’ conviction.

In Budzyn’s trial, however, we believe that the evidence against defendant Budzyn, particularly considering he was convicted of second-degree murder, was not overwhelming. The evidence against him was fundamentally weaker than the evidence against Nevers for three reasons.

First, of the three civilian witnesses who testified that defendant Budzyn hit Green in the head with his flashlight (Manuel Brown, Robert Hollins, and Theresa Pace), none was able to see the flashlight actually make contact with Green’s head.²⁷ Unlike the ems witnesses, they did not have a direct view of the blows. Instead, the three witnesses each inferred the fact that the flashlight hit Green in the head from the positions of the two men in the vehicle and from Budzyn’s use of the flashlight to strike Green. Brown, who arguably gave the most damaging testimony of any witness, was the farthest witness away, standing fifteen feet from Fletcher, Hollins, Knox, and Pace.²⁸

This testimony also contained some inconsistencies. The three key witnesses who testified that Budzyn hit Green on the head with his flashlight gave conflicting testimony on the nature of the blows that Budzyn administered: Pace and Hollins testified that Budzyn lifted the flashlight above his head or shoulders and brought the flashlight down, while Brown insisted that the blows were horizontal, across his body, and that Budzyn did not lift the flashlight above his head. Also, Fletcher, who was only three to five feet away and was the closest of the witnesses to the incident, testified that Budzyn hit Green’s clenched fist with the flashlight, but that he did not see Budzyn hit Green anywhere else on his body.²⁹

Second, the civilian witnesses admitted that the altercation occurred after Green refused Budzyn’s request that he turn over the incriminating evidence he held in his hand. The civilian witnesses all agreed that Green never complied and that he struggled with Budzyn,³⁰ although they said he never struck him or kicked him.³¹ In fact, Fletcher testified that during the entire episode, Budzyn held onto Green’s closed fist, attempting to retrieve the contraband. This is a very different setting from the description the ems medical technicians gave of the situation in which defendant Nevers was striking Green in the head. Because the exchange occurred in the confined context of the car with the car obscuring the witnesses’ view, their testimony that Green did not kick Budzyn does not directly rebut his claim that Green did.³² The medical evidence also does not necessarily contradict Budzyn’s claims, because Nevers hit Green with significant force in the head and these blows may have been the cause of Green’s extensive head injuries.

Third, in this credibility contest between Budzyn and these witnesses, the civilian witnesses all had either consumed alcohol or cocaine sometime before witnessing the exchange,³³ three of them were friends with Green (Fletcher, Hollins, and Pace),³⁴ and there was some suggestion from their testimony that they had reason to dislike these officers.³⁵ This fact is relevant because an inquiry into whether an error was harmless requires a focus on the nature of the error in light of the weight and strength of the other evidence. People v Mateo, 453 Mich 203, 215; 551 NW2d 891 (1996). Defendant Budzyn had searched Fletcher and Knox for weapons before defendant Nevers asked to see Malice Green’s driver’s license. Defendant Budzyn had also broken into Fletcher’s home while Fletcher and Hollins among others were there, a week and a half before this incident, searching the house without warrant, and, on another occasion, had arrested two people outside the house. Thus, these witnesses were not in the same objective position as the ems medical technicians, who, incidentally, did not offer any testimony regarding Budzyn’s actions against Green because they had not yet arrived on the scene.

Even if the jury reasonably believed the testimony of the civilian witnesses, they still might not have concluded that Budzyn was guilty of second-degree murder. The question whether Budzyn’s unnecessary use of force as described by the civilian witnesses would be second-degree murder or manslaughter is an issue for the jury. We do not believe that the only, possible reasonable conclusion to draw from this evidence is that it established beyond a reasonable doubt that he harbored an intent to kill, an intent to do great bodily harm, or to commit an act in wanton and wilful disregard that the likelihood that the natural tendency of his conduct was to cause death or great bodily harm. In contrast, the testimony from the ems medical technicians against Nevers made the conclusion inescapable that he was guilty of second-degree murder. We cannot say that the extraneous factors may not have affected the Budzyn jury’s verdict. We, therefore, reverse his conviction and remand for a new trial.

CONCLUSION

We affirm defendant Nevers’ conviction, but reverse defendant Budzyn’s conviction and remand his case for a new trial. Thus, we affirm in part and reverse in part the decision of the Court of Appeals.

Brickley, Cavanagh, and Weaver, JJ., concurred with Riley, J.

1 There were charges that their crime was racially motivated. Consequently, we note that Budzyn and Nevers are white and Malice Green is black.

2 Budzyn was apparently mistaken because Fletcher was the only passenger in the Tempo with Green; Knox had traveled to Fletcher’s place with Hollins at approximately 7:00 p.m. that evening. Knox had paid Hollins $15 (in cash and cocaine) to drop him off at the house.

3 Knox’s testimony from the preliminary examination was read to the jury because Knox died before trial.

4 Fletcher said he saw Nevers land two blows to Green’s head with a golf-like swing.

5 Officer Lessnau was charged with assault with intent to murder. He was tried at the same time as Budzyn and Nevers in a bench trial. The trial court acquitted him.

6 Sergeant Douglas was charged with a crime but the magistrate dismissed the charge at his preliminary examination.

7 The trial judge did not select the movies or approve the selections himself, but he took responsibility for the action taken by the employees of the court. The trial judge disqualified himself on ruling on defendants’ motion. The chief judge of Recorder’s Court referred the motion to a third judge who heard the motion and denied it.

8 451 Mich 884 (1996).

9 We note that one claim of error was conceded by defendants on appeal to this Court. Defendants acknowledge that their claim regarding an instructional error was resolved by this Court’s decision in People v Tims, 449 Mich 83, 99; 534 NW2d 675 (1995), in which we held that a defendant may be convicted of a crime if his culpable conduct was “a” proximate cause of death.

10 The inquiry whether the extrinsic influences could have affected the jury’s verdict is an objective inquiry. See Dickson v Sullivan, 849 F2d 403, 406 (CA 9, 1988).

11 This Court may also consider the following factors in determining whether the extrinsic influence created a real and substantial possibility of prejudice:

(1) whether the material was actually received, and if so how; (2) the length of time it was available to the jury; (3) the extent to which the juror discussed and considered it; (4) whether the material was introduced before a verdict was reached, and if so at what point in the deliberations; and (5) any other matters which may bear on the issue of the reasonable possibility of whether the extrinsic material affected the verdict. [Marino, supra at 506.]

12 Stress was a controversial decoy unit of the Detroit Police Department that gained a reputation for brutality. A juror from the Nevers trial stated that “[i]t was explained during deliberations that stress was a police group that regularly abused young black males in the city." (Emphasis added.) Defendant Nevers was apparently previously a member of this unit, while defendant Budzyn apparently was not previously a member.

13 Before this date, on August 2, 1993, the trial court had informed the juries that they would have to be in their jury rooms on August 5, 1993, and August 6, 1993, even though there would be no court-related activity.

14 Defendants together produced four affidavits from jurors who sat during trial, three from defendant Nevers’ trial and one from defendant Budzyn’s trial. The trial court refused to grant an evidentiary hearing regarding these affidavits, but instead accepted the statements as true regarding what occurred before and during deliberations.

One of the affidavits that defendant Nevers relies on was not signed by the juror. We have not considered this affidavit. Defendant Nevers attempted to remedy the deficiency by producing an affidavit from an attorney who swore that the particidar juror had verbally adopted all of the statements, but only refused to sign the affidavit because she feared that it would bring “renewed pressure to her from the media and from the public.” However, the attorney cannot testify with respect to these juror’s statements because that testimony would be hearsay. Hence, the attorney’s affidavit has not cured this fundamental defect. Consequently, for this appeal, there are only three sworn juror affidavits that we may consider.

15 The character of Malcolm X gives a voice-over narrative at the beginning of the film:

Brothers and sisters, I am here to tell you that I charge the white man, I charge the white man with being the greatest murderer on earth. I charge the white man with being the greatest kidnapper on earth.

There is no place in this world that man can go and say he created peace and harmony. Everywhere he’s gone he’s created havoc. Everywhere he’s gone he’s created destruction. So I charge him, I charge him with being the greatest kidnapper on this earth. I charge him with being the greatest murderer on this earth. I charge him with being the greatest robber and enslaver on this earth. I charge the white man with being the greatest swine eater on this earth, the greatest drunkard on this earth. He can’t deny the charges. You can’t deny the charges. We’re the living proof of those charges. You and I are the proof. You’re not an American. You are a victim of America.

You didn’t have a choice coming over here. He didn’t say “black man, black woman, come on over and help me build America.” He said “nigger get down in the bottom of that boat and I’m taking you over there to help me build America.” Being bom here does not make you an American. I’m not an American. You’re not an American. You’re one of the twenty-two million black people who are the victims of America.

... We didn’t see any democracy on the streets of Harlem, ... on the streets of Detroit .... No, we’ve never seen democracy. All we’ve seen is hypocrisy. We don’t see any American dream. We’ve experienced only the American nightmare. [Emphasis added.]

16 In fact, according to a juror in the Nevers trial, one of the “juror[s]” who was “not chosen to sit [apparently a venireman] . . . actually thought that the Rodney King video was a video of the Malice Green incident.”

17 The juror from the Budzyn trial swore to the following:

It appeared that all jurors, including our one alternate, watched Malcolm X, including the opening segment which showed the Rodney King footage. We began the movie on Thursday [August 5, 1993] and completed it on Friday [August 6, 1993].

A juror from the Nevers trial stated that “we watched the first, but not the second video cassette of that movie.” These excerpts from the second half of the film are taken only from the second cassette.

18 Malcolm X confronts the police who finally relent and allow him to call an ambulance and take the bleeding man from the police station to the hospital. Id.

19 Defendant Budzyn testified on July 20, 1993, and defendant Nevers testified on August 3, 1993.

20 We are not contending that their testimony was credible, but only that their testimony should have been reviewed without bias.

21 This juror stated:

During our deliberations, we were allowed to go home one night. While I was home, I saw a news report that in the event of a riot, they were going to close the freeways. In addition to this information, I learned various other pieces of information at different times, both before and during trial. I had learned that the National Guard was being put on alert for our verdict.

22 The juror from the Budzyn trial swore that the assertion was raised during deliberations:

During the first few days of deliberations, [a] [jjuror . . . advised another juror in the presence of and within earshot of all the jurors that “they were part of stress,” referring at the time to both Nevers and Budzyn. This statement appeared to be accepted and believed by my fellow jurors.

The juror in the Nevers trial stated as follows:

During deliberations, Mr. Nevers’ participation in stress was discussed, and it kind of set the tone from the beginning of our deliberations. [Emphasis added.]

23 We do not intend to express an opinion about the stress unit. Rather, we are only attempting to relate the jurors’ perception about the character of the unit.

24 This extrinsic evidence regarding defendants participation in stress would be particularly unfair to defendant Budzyn, because not only was there no testimony regarding his participation introduced at trial, but he was apparently never a member.

25 We do not express an opinion regarding whether any one of these extraneous influences would have been adequate by itself to create a real and substantial possibility that the juries’ verdicts could have been affected.

26 Martinez and Lewis arrived at the scene at the same time. Martinez testified that Nevers hit Green while Green was dangling out of the vehicle:

Q. Could you see any ii\jury on Malice Green?

A. Just all the blood flow coming from his head.

Q. Could you describe that for us?

A. Just that he was pointed towards more of a downward position towards the street and all the blood was just coming off of his head in a big puddle outside of his car.

Q. What is the next thing that happens?

A. [Nevers is] still ordering [Green] to open his hands and hold still and, you know, Malice Green was still moving around and his hair was flicking back at the blood splashing.

Q. And then what happened?

A. Then Mr. Nevers just reached over and had him like this telling him to hold still and he didn’t hold still and he just, crack, crack.

Q. Now you’ve indicated that he, after that he starts to hit him in the head with the flashlight; is that correct?

A. Correct.

* * *

A. At that point [Sergeant Douglas] told Officer Nevers to take it easy. Said, take it easy, Larry.

Q. After that remark was made, what did Defendant Nevers do?

A. As I say, still holding on to him, was still hitting him. Then he gave two more quick flicks with the flashlight.

Q. Where did he hit Malice Green with those next two?

A. In the head again.

Similarly, Lewis noted that “[Green] was covered with blood . . . [h]is entire face, his hair appeared to be soaked with it, and on the ground,” and that Nevers hit him anyway:

Q. Now, when you walk up and you are confronted with this sight, do you say anything?

A. I asked him what happened

* * *

. . . and he said, I hit him. And if he doesn’t quit it, I’m gonna hit him again.

:|: * *

Q. What’s the very next thing you recall happening?

A. The officer told him to be still, don’t move, and he hit him twice on the head with the flashlight.

Q. Were these two blows like one right after the other?

A. Yes, sir. Two, you know, rapping motions.

Q. Where in the head did he strike him, if you can tell us?

A. In the forehead around the scalp area.

* * *

Q. All right. Then what happened?

A. He told him to be still and not to move again, and Malice Green didn’t, so he hit him on the head again.

The other two ems witnesses who arrived soon after confirmed this testimony. Walsh explained that “[Green] was covered in blood,” noting that “[h]is shirt all the way up to the chest was totally covered in blood” when Nevers struck him with his flashlight. The top three or four inches of the flashlight was covered with blood. He further testified that “[Nevers] told [Green] to drop what he had in his hand [and] he struck him once in the back of the head.” Hardy, who said that Green “had blood totally across his forehead, some coming down his face on the side,” testified that Nevers was striking Green:

Q. Now, you said that you saw [Green] being struck. Can you indicate the manner that you saw him being struck at that time when you were standing right near the rear tire or bumper of the civilian car?

A. They weren’t as rapid as the first ones that I had seen.

Q. As you were getting out of your rig?

A. Yes.

Q. Demonstrate, please, how they are.

A. They were like, you know, had more like power to them. Not as much speed.

Q. Not as much speed as the early ones?

A. As the early ones.

Q. Did they have some force behind them?

A. Yes.

27 Brown clarified his earlier testimony that Budzyn hit Green in the head by explaining that he did not see any actual contact:

Q. You didn’t see the contact but you saw the head go back, so you assumed there was contact there?

A. That’s correct.

Q. So yesterday when you said you saw the contact you didn’t really see it, you saw [Green’s] head bouncing back?

A. That’s correct.

Similarly, Hollins explained that he “couldn’t see” where the blows actually hit from his vantage point (“I didn’t see contact”), but, rather, he determined it from their positions.

Pace also testified that she believed that Budzyn hit Green on the head, but she was only inferring this point from their positions in the vehicle:

I couldn’t see that much into the car. There wasn’t much space left on his body he could have been hitting him but his head because of the way he was straddled on him.

Later, she admitted that she did not “see actual contact.”

28 Brown explained that he only saw the blows through the “rear window” of the car while Budzyn and Green were wrestling in the front seat.

29 Fletcher testified as follows:

Q. Mr. Fletcher, . . . [Budzyn] only hits Mr. Green in the hand?

A. That’s all.

Q. He never hit him anywhere else, did he?

A. I didn’t see him hit him anywhere else.

30 Brown described Budzyn’s interaction with Green as a “struggle” in which Budzyn was “trying to pull [Green’s] hand away from his body.” He said there would be “more blows, and then more wrestling, more blows and more wrestling.” Fletcher testified that Green “wrestled back.” Hollins testified that Green “scuffl[ed]” with Budzyn, trying to “get [Budzyn’s] hand off him.” Pace testified that Green’s legs were “moving in a kicking and struggling manner” and she admitted that she said in an earlier statement that Green was kicking and fighting with Budzyn.

31 The concurrence/dissent suggests that Budzyn “initiated” this exchange by beating Green on the hands. See Mallett, C.J., pp 131, 135. We note that Budzyn, as a police officer, would have the right to use the necessary force to arrest a suspect who is holding cocaine. See People v Doss, 406 Mich 90, 101-102; 276 NW2d 9 (1979). The question, of course, is whether his use of force was criminal because it was unnecessary.

32 Defendant Budzyn testified that when Green closed his fist, Budzyn believed that he was holding narcotics. Defendant Budzyn said that he grabbed Green’s right arm and that Green kicked him with his legs and that Green pulled Budzyn on top of him in the vehicle. Defendant Budzyn denied that he struck him at all with his flashlight or fist.

33 Brown had earlier traveled to Fletcher’s home, had used cocaine in the home, twice left the house with Knox to purchase cocaine and returned, and finally left the house before witnessing the altercation. Fletcher admitted that he had purchased and consumed alcoholic beverages that day. Hollins had driven Knox and Pace to Fletcher’s home, where Hollins smoked cocaine, drank some beer, left with Pace, before returning and witnessing the altercation. Knox admitted that he had smoked the cocaine at Fletcher’s home that Brown had purchased for him. Finally, Pace admitted that while at Fletcher’s home she had smoked cocaine.

34 Fletcher testified that he had known Green since they were children and that they were “very . . . good friends.” Hollins had known Green since Green’s childhood and said he “kn[e]w him well.” Pace had known Green for several months before this incident and said that they were friends.

35 They each referred to the officers as “Starsky and Hutch.” Pace admitted that she was “always afraid” of Budzyn. Brown said that Nevers had previously arrested him and that he served jail time.