People v. Carter

612 N.W.2d 144, 462 Mich. 206

Opinions

Weaver, C.J.

Following a jury trial, defendant was convicted of first-degree (felony) murder, armed robbery, and possession of a firearm during the commission of a felony in the shooting death of a Detroit convenience store clerk.¹ The issue before the Court is whether defendant’s convictions must be reversed because the trial court refused the jury’s request for the testimony of four witnesses, in violation of MCR 6.414(H).²

Although the trial court violated the court rule by foreclosing to the jury the possibility of later reviewing the requested testimony, we hold that this error does not warrant reversal of defendant’s convictions because defense counsel specifically approved the trial court’s refusal of the jury’s request and the court’s subsequent instruction to the jury. Thus, defendant waived his rights under the rule. This waiver extinguishes any error and precludes defendant from raising the issue on appeal.

i

On March 20, 1992, Nidhal Jarbo and her brother-in-law, Hani Naemi, were working at the family store, the Eight Mile Express. Defendant was a regular customer of the store. As Ms. Jarbo left the store to go to the bank, she observed the defendant outside the store with what appeared to be a gym bag. When she returned to the store about fifteen or twenty minutes later, the police were present; Hani Naemi had been shot dead in the cooler.

Police suspected defendant, but released him because there was not sufficient evidence to charge him with the crime. Shortly thereafter, defendant was imprisoned on an unrelated parole violation. While imprisoned in the Muskegon Correctional Facility, defendant shared a cell with Norman Mackin. Mr. Mackin testified that sometime in February 1993, defendant divulged to him his role in an unsolved Detroit murder. The details provided by Mr. Mackin were sufficient to permit the police to tie defendant to the murder of Mr. Naemi.

At trial, defendant’s theory was that, as defendant’s cellmate, Mr. Mackin had access to the grievance papers that defendant was drafting in an attempt to have the fact that he was a suspect in the Detroit murder removed from his record. Defendant alleged that these papers would have provided Mr. Mackin with enough information to fabricate a story implicat ing defendant.³ The jury rejected this theory and convicted defendant on all three counts.

Defendant appealed his convictions to the Court of Appeals, arguing, among other things, that the trial court had violated MCR 6.414(H) by refusing the jury’s request, received fifteen minutes into deliberations, for the testimony of four witnesses, including that of Mr. Mackin.⁴ The Court of Appeals agreed, concluding that the trial court’s response to the jury’s request had impermissibly foreclosed the possibility of having the testimony reviewed at a later time. The Court of Appeals then applied a harmless error analysis, finding that it could not conclude that the trial court’s error was harmless. Consequently, it reversed defendant’s convictions and remanded the case for a new trial.

Both parties appealed to this Court, which granted the prosecutor’s application for leave to appeal and denied defendant’s applications. 461 Mich 880 (1999).

ii

The court rule at issue in this case, MCR 6.414(H), states:

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.

Footnotes

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[5]

In the present case, about fifteen minutes after the jury began to deliberate and shortly before breaking for lunch, the jury sent out a note requesting “Dale Collins’ testimony, Mackin’s testimony, pictures and illustrations, Presley’s testimony and Rice’s testimony.”⁶ The following colloquy between the trial court and the attorneys ensued:

The Court: . . . Now, obviously what I will do when they come back is I will sit them down in the jury box and respond, as to Dale Collins’ testimony, Mackin’s testimony, Presley’s testimony and Rice’s testimony, as I indicated in the beginning, they are to rely on their collective memories, there’s no testimony they can read from.

The Court: And as to the pictures and illustrations that have been admitted into evidence, are they already in there?

Mr. Cox[7]: They’re in the folder right there.

The Court: All right. So both counsel have no problem with that?

Mr. Cox: No.

The Court: The exhibits that have been admitted and they’re all in the folder.

Mr. Lar$on[8]: Right here.

After returning from the lunch recess, the trial court once again discussed the matter with the attorneys outside the jury’s presence:

The Court: . . . Back on the record. Dealt with the note pretty much at lunch, prior to breaking for lunch. The court received a note at 12:50, right before it was time for the jurors to go to lunch, and we indicated we would bring them back at 2:00 and address the note. The note reads as follows: Dale Collins’ testimony, Mackin’s testimony, pictures and illustrations, Presley’s testimony and Rice’s testimony.

And what we decided prior to lunch, Counselors, all of us together I think, is that we would—all of the admitted exhibits had been placed in a folder which we will submit to the jury after the jury—the court.calls the jurors out and sits them in their seats and indicates to them that as to all of the testimony that they’ve requested, as I indicated in the beginning, there are no—the transcripts are not typed and will not be typed for some weeks and months to come. They must rely on their collective memories. Any input, any—anything else?

Mr. Larson: Satisfaction with that part of it, Judge.

The second part, may I go into that? They asked for illustrations and things of that nature.

The Court: M’hm.

Mr. Larson: You’re going to instruct them that other than the evidence that has been admitted—I don’t know if they’re requesting other notes or pictures.

The Court: Well, what I will say to them with regard to the request for the pictures and illustrations, all of the exhibits that have been admitted into evidence and have been placed into a folder and we’ll send them with you into the jury room. Is that all right?

Mr. Larson: That’s fine, yes.

The trial court then had the jury brought into the courtroom and instructed them as follows:

The note reads as follows: Dale Collins’ testimony, Mackin’s testimony, pictures and illustrations, Presley’s testimony and Rice’s testimony. Let me indicate to you that, first of all, I’ll deal with the request for the pictures and illustrations. The counselors have placed all of the exhibits that have been admitted into evidence in a folder, and when you return to the jury room, you’ll be able to take all of the exhibits that have been admitted into evidence with you for your review as requested.

With regard to the remainder of the note, which again asks for various people’s testimony, again, that being Dale Collins, Mack [sic] and Presley and Rice’s testimony, one of the things the court explained to you in the beginning, that the transcripts will not be typed for some weeks and months way into the future and you must listen very carefully because you must rely on your collective memories to resolve any issues with regard to that![9]

So that is the court’s response to your question. You now may return to the jury room and resume your deliberations.

The prosecution concedes that the trial court’s instructions to the jury violated MCR 6.414(H).¹⁰ Howe ver, the prosecution argues that defendant waived the issue when defense counsel expressed satisfaction with the trial court’s refusal of the jury’s request and its subsequent instruction to the jury. We agree.

The rule that issues for appeal must be preserved in the record by notation of objection is a sound one. People v Carines, 460 Mich 750, 762-765; 597 NW2d 130 (1999). Counsel may not harbor error as an appellate parachute. People v Pollick, 448 Mich 376, 387; 531 NW2d 159 (1995), quoting People v Hardin, 421 Mich 296, 322-323; 365 NW2d 101 (1984). “Deviation from a legal rule is ‘error’ unless the rule has been waived.” United States v Olano, 507 US 725, 732-733; 113 S Ct 1770; 123 L Ed 2d 508 (1993).

In two recent cases with similar facts, the Court of Appeals has agreed with the argument advanced by the prosecution in the present case. In People v Fetterley, 229 Mich App 511, 518-519; 583 NW2d 199 (1998), the trial court denied the jury’s request for a transcript of the testimony of one of the witnesses. The court explained that it did not have a transcript and instructed the jury to remember the testimony as best it could. Both attorneys indicated that they had no objection to the trial court’s decision. Id., 519. Rejecting the defendant’s argument that this constituted an error requiring reversal pursuant to MCR 6.414(H), the Court of Appeals explained, “defense counsel expressly acquiesced to the court’s handling of the jury’s request. A defendant may not waive objection to an issue before the trial court and then raise it as an error” on appeal. Id., 520. The Court of Appeals made a similar conclusion in People v Crawford, 232 Mich App 608, 620; 591 NW2d 669 (1998), where, again, the matter was discussed between trial counsel and the trial court, and counsel agreed with respect to how the jury would be instructed.

When asked by the trial court in the present case for a response to its proposed instructions, defense counsel expressed satisfaction with the trial court’s decision to explain that the transcripts were not available and that the jury must rely on its collective memory. Because defense counsel approved the trial court’s response, defendant has waived this issue on appeal.

Waiver has been defined as “the ‘intentional relinquishment or abandonment of a known right.’ ” Carines, supra at 762, n 7, quoting Olano, supra at 733. It differs from forfeiture, which has been explained as “the failure to make the timely assertion of a right.” Id. “One who waives his rights under a rule may not then seek appellate review of a claimed deprivation of those rights, for his waiver has extinguished any error.” United States v Griffin, 84 F3d 912, 924 (CA 7, 1996), citing Olano, supra at 733-734. Mere forfeiture, on the other hand, does not extinguish an “error.” Olano, supra at 733; Griffin, supra at 924-926.

It is the difference between waiver and forfeiture that makes the present case distinguishable from the cases of People v Howe, 392 Mich 670; 221 NW2d 350 (1974), and People v Smith, 396 Mich 109; 240 NW2d 202 (1976). While the present case deals with waiver, Howe and Smith addressed situations in which the error was forfeited. Griffin provides a clear example of the effect of this difference. In Griffin, the court concluded that the defendant waived any objection to a jury instruction because his counsel affirmatively approved the instruction. Griffin, supra at 923-924. This approval extinguished any error. Id. However, counsel's approval of the instruction did not preclude the court from reviewing a codefendant’s challenge to the instruction. Codefendant’s counsel, rather than affirmatively approving the instruction, failed to object to the instruction. The failure to object qualified as a forfeiture, and the court reviewed the instruction for plain error. Id., 924-926.

Justice Kelly, in her dissent, ignores this crucial distinction. She characterizes the majority opinion as holding “that defense counsel’s failure to object when the judge announced her decision foreclosed reversal by this Court,” and she would analyze the issue under the standard for unpreserved, forfeited error. Post at 222, 224 (emphasis added). This is clearly incorrect. Defense counsel in the present case did not fail to object. Rather, counsel expressly approved the trial court’s response and subsequent instruction. This constitutes a waiver that extinguishes any error. Thus, this case does not concern unpreserved error where no timely objection was made.¹¹

Justice Cavanagh, in his dissent, would conclude that the error could not be waived.¹² We disagree with this approach. “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.” Olano, supra at 733. It is presumed that waiver is available in “ ‘a broad array of

constitutional and statutory provisions’ . . . New York v Hill, 528 US 110, 114; 120 S Ct 659; 145 L Ed 2d 560 (2000), quoting United States v Mezzanatto, 513 US 196, 200; 115 S Ct 797; 120 L Ed 2d 697 (1995). While the defendant must personally make an informed waiver for certain fundamental rights such as the right to counsel or the right to plead not guilty, for other rights, waiver may be effected by action of counsel. Id., 528 US 114-115.

“Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has—and must have—full authority to manage the conduct of the trial.” As to many decisions pertaining to the conduct of the trial, the defendant is “deemed bound by the acts of his lawyer-agent and is considered to have ‘notice of all facts, notice of which can be charged upon the attorney.’ ” Thus, decisions by counsel are generally given effect as to what arguments to pursue, . . . what evidentiary objections to raise, . . . and what agreements to conclude regarding the admission of evidence .... Absent a demonstration of ineffectiveness, counsel’s word on such matters is the last. [Id. (citations omitted).]

A defendant does not have a right to have a jury rehear testimony. Rather, the decision whether to allow the jury to rehear testimony is discretionary and rests with the trial court. MCR 6.414(H); Howe, supra at 675.¹³ In our opinion, the decision whether to oppose the trial court’s refusal of the jury’s request for testimony is akin to an evidentiary decision. Because counsel has full authority to manage the con duct of the trial and to decide matters of trial strategy, we conclude that in this instance, waiver could be effected by the action of defense counsel. Hill, supra, 528 US 115; see also 3 LaFave, Israel & King, Criminal Procedure (2d ed), § 11.6, p 593.

In the present case, counsel clearly expressed satisfaction with the trial court’s decision to refuse the jury’s request and its subsequent instruction. This action effected a waiver. Because defendant waived, as opposed to forfeited, his rights under the rule, there is no “error” to review.¹⁴

m

We conclude that, although the trial court violated the court rule by foreclosing to the jury the possibility of later reviewing the requested testimony, this error does not warrant reversal of defendant’s convictions because defense counsel specifically approved the trial court’s refusal of the request and its subsequent instruction to the jury. Defendant’s waiver of his rights under the rule has extinguished any error. Therefore, we reverse the judgment of the Court of Appeals and reinstate defendant’s convictions.

Taylor, Corrigan, Young, and Markman, JJ., concurred with Weaver, C.J.

1

Defendant was sentenced to imprisonment for natural life without the possibility of parole for the felony-murder conviction. He was also sentenced to the mandatory term of two years’ imprisonment on the felony-firearm conviction. His sentence of 20 to 40 years’ imprisonment on the underlying armed robbery conviction was vacated.

2

MCR 6.414(H) states:

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.

3

At a subsequent Ginther hearing (see footnote 14) defense counsel explained that the grievance papers were not introduced into evidence because Mr. Mackin was able to testify regarding facts about the incident that were not contained in the grievance reports. People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

4

In response to the jury’s request, the trial court explained that the transcripts would not be typed for weeks and instructed the jury to rely on their collective memories.

5 This rule is consistent with case law. See People v Howe, 392 Mich 670; 221 NW2d 350 (1974).