People v. Clark

556 N.W.2d 820, 453 Mich. 572

• Court: Michigan Supreme Court
• Decided: December 27, 1996
• Docket: 103664, Calendar No. 9
• Status: Published

Opinions

Mallett, J.

The defendant was convicted by a jury of involuntary manslaughter in the death of her four-year-old son and was sentenced to a prison term of seven to fifteen years. The Court of Appeals reversed, holding that the defendant was prejudiced by a change in the jury instructions. We would affirm the decision of the Court of Appeals that the defendant was prejudiced by the change in the instructions and is entitled to a new trial.

i

The decedent was adopted when he was nine months old in March, 1986. He died unexpectedly at the age of four. The medical examiner ultimately concluded that he died from dehydration. This dehydration could not be explained, however, by any underlying, ongoing, or apparent disease process. Child abuse was suspected in the death because of ligature marks and bruises observed on his body.¹

The decedent suffered from excessive and overwhelming thirst that seemed to have no discovered medical basis. He was described as a compulsive drinker and would go as far as drinking from toilets. He also suffered from frequent urination and began wetting the bed around two years of age. On the advice of her doctor, the defendant restricted the child’s liquid intake several hours before bedtime, starting at 7:00 P.M. She asked the teachers not to let him drink more water than the other children at school. She also restricted his intake during the hours that he was in her care.

In March 1989, defendant found the child having a seizure in his room. She told the physician that he drank over a gallon of water earlier that day. Testing revealed unusually high salt levels that were inconsistent with drinking so much water. The cause of this high salt level remains unknown.² Defendant took the child to the family physician, who sent him to the hospital for follow-up tests. The results of these tests were not reported to the defendant.

The prosecutor presented the defendant as a mother who became obsessed with her son’s bed-wetting to the point that she withheld liquids, causing him to be fatally dehydrated. Testimony revealed that defendant disciplined her children with a belt and that she would keep the child tied in bed with a cloth belt or nylon stockings to keep him from getting up at night. When he was brought into the hospital, nylon stockings were found under his body on the stretcher. The defense, on the other hand, argued that this was a frustrating and difficult child who had many medical problems that were inadequately addressed by the medical community. The Kent County medical examiner who performed the autopsy concluded that the child died because water was withheld from him.

The defendant was charged with involuntary manslaughter. The statute for that offense only defines the penalty;³ the elements of involuntary manslaughter are defined by common law:

“Involuntary manslaughter is the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty.” [People v Ryczek, 224 Mich 106, 110; 194 NW 609 (1923) (citation omitted).]

The kind of negligence required for manslaughter is something more than ordinary or simple negligence, however, and is often described as “criminal negligence” or “gross negligence,” People v Townes, 391 Mich 578, 590, n 4; 218 NW2d 136 (1974), “wilfulness, or of wantonness and recklessness.” People v Orr, 243 Mich 300, 307; 220 NW 777 (1928).

For a defendant’s behavior to be considered grossly negligent, three elements must be satisfied.⁴ These elements are émbodied in CJI2d 16.18 that expressed the people’s theory of the defendant’s guilt. The instruction states:

(1) Gross negligence means more than carelessness. It means willfully disregarding the results to others that might follow from an act or failure to act. In order to find that the defendant was grossly negligent, you must find each of the following three things beyond a reasonable doubt:

(2) First, that the defendant knew of the danger to another, that is, he knew there was a situation that required him to take ordinary care to avoid injuring another.

(3) Second, that the defendant could have avoided injuring another by using ordinary care.

(4) Third, that the defendant failed to use ordinary care to prevent injuring another when, to a reasonable person, it must have been apparent that the result was likely to be serious injury.

Before closing arguments, the parties and the court agreed to this instruction.

At the end of closing argument, and in reliance on CJI2d 16.18, the prosecutor noted that the people did not have to prove that the defendant "intended that the child should die, but instead that her grossly negligent behavior of withholding fluids resulted in his death. The prosecutor stated:

You are going to get an instruction on what gross negligence is. You are going to hear that it is you knew of the danger, there was a danger to another — that is, she knew that there was a situation that required him to take — that required her to take ordinary care to avoid injuring another, that she could have avoided the injury by using ordinary care — giving the child water- — and that she failed to use ■ ordinary care to prevent injuring another when to a reasonable person it must have been apparent that the result was likely to cause serious injury.

The prosecutor summed up the evidence that pointed to defendant’s knowledge that restricting fluids was imprudent and harmful to the point that it could cause death and did so in this instance.

After the prosecutor’s closing argument, defense counsel requested a change in the jury instruction on gross negligence.⁵ Defense counsel wanted the phrase “cause death” to replace cause “serious injury,” in CJI2d 16.18(4). This request occurred in a sidebar conference, out of the hearing of the jury, and was not recorded. However, without considering the effect this would have on the proceedings, the prosecutor and the judge agreed to the modification. Defense counsel then proceeded with his closing argument. The defense argued that the decedent was a difficult child, that the defendant was not inattentive to his needs, but was a concerned parent doing her best in a difficult situation, and that it could not possibly have been apparent to her that her actions would result in his death.

Before instructing the jury, defense counsel raised the issue of the changed instruction to confirm the modification. The prosecutor entered an objection to the previously modified instruction, noting that the people did not have to prove that the defendant knew that her actions would cause death under the definition of gross negligence embodied in the manslaughter instructions. Indicating that the modification might be a misstatement of the law and that it also set a higher standard than the law required, the judge changed his mind and decided that the instruction should not be given. Consequently, the judge properly instructed the jury with the standard instruction that was the correct statement of the law.

Defense counsel objected because he had relied on the modified instruction in formulating his closing argument. The judge, acknowledging the predicament that had been created, offered the defense the opportunity to reopen the closing argument. Defense counsel declined this invitation, stating that in his opinion the modified instruction was not a misstatement of the law and that to reargue would only accentuate issues that should not be accentuated and create credibility problems with the jury. Further, he noted that he could not prepare a new argument on such short notice.

During deliberations, the jury requested a “[definition of the guidelines to find negligence.” The parties and the court determined that this was a request for clarification of the definition of gross negligence and agreed to a rereading of CJI2d 16.18, the legal instruction on gross negligence. Eventually, the jury returned a verdict of guilty.

Defense counsel moved for a new trial, arguing that his client’s right to a fair trial was irreversibly prejudiced when the judge changed the content of the instruction after defense counsel relied on the previous modification. This motion was denied. At no time did the parties or the court raise the possibility of declaring a mistrial.⁶

The defendant appealed her conviction in the Court of Appeals,⁷ arguing that the modification of the jury instruction and defense counsel’s reliance on the modification, and the judge’s decision to give the unmodified instruction, was sufficiently prejudicial to require reversal. The Court of Appeals agreed. It found that the difference between the two instructions was critical. The Court could not find that this was a case in which the error was so minor as to be harmless or that this was error that could be cured easily by reargument. Reargument would only be appropriate if it would not prejudice the defendant. The Court noted, “Clearly, there is a substantial difference between having to prove that a reasonable person would know that the conduct would likely cause death and proving that a reasonable person would know that his conduct would likely cause serious injury.” Unpublished opinion per curiam, issued June 23, 1995 (Docket No. 144551), slip op at 2. The Court agreed with the defendant that reargument was not a reasonable resolution in this case for the same reasons argued to the judge at the trial.

[W]e do not believe that it would be a reasonable resolution of the matter to allow closing arguments to be reopened. As defendant pointed out, that would only have accentuated the issue, and it would be difficult, if not impossible, to credibly put together a new closing argument designed around a definition involving serious injury after having already argued to the jury on the basis of a definition involving death. Finally, it should not be overlooked that the first instruction had been agreed to by the prosecutor. [Id.]

The Court of Appeals held that the defendant was prejudiced by the change in instruction and therefore entitled to a new trial. Id., citing United States v White, 27 F3d 1531, 1538 (CA 11, 1994).

II

A court must properly instruct the jury so that it may correctly and intelligently decide the case. People v Townes, supra at 586, citing People v Murray, 72 Mich 10; 40 NW 29 (1888). See also Ross v United States, 180 F2d 160 (CA 6, 1950). The pertinent rule in criminal trials is MCR 6.414(F), which provides:

Before closing arguments, the court must give the parties a reasonable opportunity to submit written requests for jury instructions. Each party must serve a copy of the written requests on all other parties. The court must inform the parties of its proposed action on the requests before their closing arguments. After closing arguments are made or waived, the court must instruct the jury as required and appropriate, but with the parties’ consent, the court may instruct the jury before the parties make closing arguments. After jury deliberations begin, the court may give additional instructions that are appropriate)[⁸]

The reason for this is obvious. Clarity in instructions and understanding by counsel of the exact nature of the charge is critical, because counsel shape their arguments to conform to the law as defined by the instructions. As the United States Supreme Court stated in Herring v New York, 422 US 853, 862; 95 S Ct 2550; 45 L Ed 2d 593 (1975):

It can hardly be questioned that closing argument serves to sharpen and clarify the issues for resolution by the trier of fact in a criminal case. For it is only after all the evidence is in that counsel for the parties are in a position to present their respective versions of the case as a whole. Only then can they argue the inferences to be drawn from all the testimony, and point out the weaknesses of their adversaries’ positions. And for the defense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant’s guilt.

In People v Patskan, 387 Mich 701; 199 NW2d 458 (1972), this Court addressed a similar issue. The parties requested instructions on both the crimes of attempted armed robbery and attempted assault with intent to commit armed robbery. The judge decided he would only give an instruction on attempted assault with intent to commit armed robbery.⁹ The defense, therefore, made its closing argument in reliance on the giving of this instruction. The judge, however, did not give either instruction, and both parties properly objected. Id. at 706-707. This Court held that the judge violated GCR 1963, 516.1¹⁰ when he failed to give the instruction. The lead opinion stated:

As the people point out, defendant’s basic defense was that he was not a participant in the crime. However, this does not lessen the prejudice to him where the court has agreed to give a specific charge and then fails to do so. His counsel forcefully argued that if any crime was committed it was attempted assault with intent to rob being armed. The failure of the trial judge to give the instruction after indicating he would do so, was fundamentally unfair, violated GCR 1963, 516.1 and, also, defendant’s right to due process of law. Therefore, the conviction must be reversed and a new trial held. [Patskan at 710 (emphasis added).]

Although the reasoning in Patskan did not command a majority, we find it persuasive and instructive here.¹¹

The Court of Appeals relied on Patskan in People v Swejkowski, 90 Mich App 366; 282 NW2d 5 (1979). The trial judge failed to give an instruction regarding circumstantial evidence. This instruction had been submitted to the court with other requests, and the judge said that all of the instructions would be given to the jury. The judge failed to give the instruction on circumstantial evidence despite defense counsel’s objection. The prosecutor argued that the instructions given were sufficient. The judge reasoned that the omitted instruction was unnecessary because there was enough direct evidence to establish the defendant’s guilt. The Court of Appeals disagreed. It noted:

“The court is required to inform counsel of its proposed action on the requests prior to their arguments to the jury. The obvious purpose of this provision is to enable counsel to know which requests will be granted or denied, in order to argue the facts in light of the law as the court will charge the jury.” [Id. at 370, quoting 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), comments, p 565 (citation omitted).]

Citing Patskan, the Court held that if the judge previously agreed to give a certain instruction and counsel relied on this in closing argument, then failure to give the instruction was error requiring reversal. Id. at 371.

In People v Paxton, 47 Mich App 144; 209 NW2d 251 (1973), the Court of Appeals reversed a conviction and ordered a new trial in a case in which the jury was incorrectly charged regarding the elements of self-defense. The trial court failed to inform the jury that one need not retreat from one’s own home in order to establish self-defense. The Court stated that the “trial court was in error in allowing the defendant to proceed on the wrong theory,” and that this error required reversal. Id. at 149. Although not directly on point, Paxton is helpful. In the instant case, the problem was not an incorrect instruction to the jury, but an instruction that did not support the theory argued by the defense. In Paxton, the jury operated under the assumption that the defendant had to retreat from a threat in her own home. In the instant case, defense counsel argued that the defendant should be acquitted because she did not know her actions would result in death. In each case, there was reliance on a mischaracterization of a critical issue that directly affected the theories argued by defense counsel that resulted in prejudice to the defense. We think the reasoning in Paxton is persuasive and supports granting a new trial.

Our cases, as well as federal authority, indicate that where the trial court errs in misleading or misinforming counsel regarding the ultimate instructions that will be given to the jury and prejudice results, a new trial is required.¹² We note, however, that not every instance of this type of instructional error will require reversal.¹³ “Simply stated, and employed in both federal rule and case law and state statute and court rule, reversal is required only if the error was prejudicial. That inquiry focuses on the nature of the error and assesses its effect in light of the weight and strength of the untainted evidence.” People v Mateo, 453 Mich 203, 215; 551 NW2d 891 (1996), citing People v Peterson, 450 Mich 349, 377-378; 537 NW2d 857 (1995). Prejudice is determined by the affect of the error on substantial rights or its effect on the verdict. Mateo at 219.¹⁴

III

A change in jnry instructions at the eleventh hour, as occurred here, should be made only with extreme caution. In this case, defense counsel was inadvertently misled by the court and argued the wrong theory to the jury. Consequently, his ábility to represent his client was impaired, with the result that the client’s right to a fair hearing was prejudiced. The rule that counsel be informed of the instructions to be given to the jury before closing arguments enables counsel to tailor arguments to the proper legal standards. If the instruction is changed after an attorney relies on it, it impairs not only the content and quality of the final argument, but the effectiveness of the representation as well.

In this case, the prosecutor does not disagree, but claims that the defendant did not suffer any prejudice because the difference between the two theories is not significant and that consequently the outcome would have been the same. The prosecutor further argues that the defense attorney should not gain an advantage after deliberately injecting error into the proceedings and then refusing to correct the error by rearguing when he was given the opportunity to do so.

We disagree. The error here is not a minor one. The instruction relied on by defense counsel required that the defendant know her actions would cause death. The defense’s closing argument was tailored to refute that the state had proven this requisite knowledge beyond a reasonable doubt. Conversely, the instruction actually given required that the defendant know that her actions would result in serious injury. The gap between these two standards is far from insignificant. The difference between the levels of proof required to meet the reasonable doubt standard under either theory is also far from insignificant. Further, the jury asked for a reclarification of the definition of gross negligence; thus, it is apparent that the jury was confused by the difference between the two arguments and the final instructions.

In the instant case, the prejudice requiring reversal was incurred when the judge, after agreeing to a modified instruction, subsequently decided to charge the jury with the unmodified instruction after defense counsel relied on and conformed his closing arguments to the modified instruction. Defense counsel tailored his closing argument to be consistent with the theory that the defendant could not possibly have known that withholding water from the child would lead to his death.¹⁵ This is a far greater threshold of knowledge for the prosecutor to prove than proving merely that the defendant knew her actions would cause serious injury, which was the theory argued by the prosecutor.

We find it impossible to conclude that the last minute change in the instructions did not affect the verdict. Under the higher standard argued by defense counsel, the defendant might have been acquitted. We agree with the Court of Appeals that reargument would be inappropriate. This would have accentuated the issue and impaired defense counsel’s credibility with the jury. Because this error affected the jury’s result, it is prejudicial error requiring reversal because it affirmatively calls into question the validity of the jury’s decision. Mateo, supra-, see also People v Grant, 445 Mich 535; 520 NW2d 123 (1994).

IV

Under no circumstances do we conclude, advocate, or imply that a trial judge has a duty to instruct the jury incorrectly, nor do we say that the judge erred by refusing to give the erroneous instruction.

The prejudice to the defendant in this case was incurred by virtue of defense counsel’s argument in reliance on one instruction and the judge’s subsequent decision to instruct the jury on a different one. This misled defense counsel in formulating his closing argument.¹⁶ The attorneys and the court complied with the rule up to the time that defense counsel requested the modification. The violation or lack of compliance with the rule is not as much the fact that the requests were not written, as it was that the proposed modification was requested between the two closing arguments, and neither the prosecutor nor the judge had ample opportunity to consider its full import before either closing argument. We note again that the prosecutor and the judge initially agreed with the modification.

The dissent argues that the modification was inappropriate from the outset because it did not satisfy the requirements of MCR 6.414(F). The modification was not written nor was it served on the prosecutor. We agree with the dissent that the proposed modification was untimely and improvidently agreed to by the parties and should have been denied on the spot or, alternatively, the judge should have granted a recess to allow the parties some time to consider the request. However, neither the dissent’s nor the people’s briefs cite any authority to support the proposition that requests for instructions can only be submitted in writing. The rule states only that the court must give the parties reasonable opportunity to submit written requests before their closing arguments. Oral requests may not be wise, but it does not appear that they are precluded.¹⁷

The dissent opines that because defense counsel did not comply with the strictures of the court rule, and because the judge subsequently did instruct the jury correctly, there was no error. What the dissent fails to consider, however, is the resulting prejudice to the defendant. The fact that the judge correctly instructed the jury is not the issue. Nor is it the fact that the requested instruction was untimely, unwritten, or incorrect. The issue is the prejudice suffered by the defendant “ ‘when the change in the instructions is substantial, when the judge’s instructions repudiate counsel’s argument, or when the judge’s instructions impair the effectiveness of the attorney’s argument.’ ” United States v White, supra at 1538, quoting United States- v Clark, 732 F2d 1536, 1541-1542 (CA 11, 1984). We maintain that the difference between the incorrect instruction relied upon and the instruction given was substantial. The resulting prejudice could not effectively be cured through reargument. The instruction given eviscerated the defense’s argument and impaired its effectiveness. A mistrial was not requested, and the defense motion for a new trial was denied. Under these circumstances, a new trial is required.¹⁸

Defense counsel relied on the judge’s agreement to instruct the jury with a modified instruction relating to the definition of gross negligence in his closing argument. The judge’s subsequent decision to instruct the jury with the unmodified instruction, erroneous or not, effectively nullified the defense’s theory as argued to the jury and consequently prejudiced the defense. The jury was concerned about the definition of gross negligence and requested clarification on this element. Because we cannot say with confidence that this did not affect the jury’s final outcome or that, had the court charged the jury with the modified instruction, the defendant would not have been acquitted, we would affirm the decision of the Court of Appeals and would hold that the defendant is entitled to a new trial.

Levin, J., concurred with Mallett, J.

1 Ligature marks may be created when something is tied or bound together.

2 The prosecutor hinted that defendant deliberately loaded him down with salt to retain fluid. Medical testimony indicated no source for the high sodium other than he must have ingested something.

3 MCL 750.321; MSA 28.553 provides:

Any person who shall commit the crime of manslaughter shall be guilty of a felony punishable by imprisonment in the state prison, not more than 15 years or by fine of not more than 7,500 dollars, or both, at the discretion of the court.

4 These elements are:

(1) Knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another.

(2) Ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand.

(3) The omission to use such care and diligence to avert the threatened danger when to the ordinary mind it must be apparent that the result is likely to prove disastrous to another. [People v Orr, supra at 307.]

5 There is no clear evidence in the record that defense counsel deliberately tried to “ ‘dictate the law by which a verdict is reached or to create a mistrial by erroneously stating the legal principles applicable to a given situation,’ ” as the dissent intimates. Quoting United States v Pena, 897 F2d 1075, 1085 (CA 11, 1990). Post at 612-613.

6 A mistrial might have been declared on the basis of manifest necessity. However, we do not wish to imply that the trial judge is under any obligation to do so sua sponte. This is within the sound discretion of the trial judge and would not be prohibited under either the federal or state constitutions if the judge is persuaded that such emergent circumstances exist that “justice . . . cannot be achieved without aborting the trial . . . .” People v Henley, 26 Mich App 15, 29; 182 NW2d 19 (1970), citing United States v Perez, 22 US (9 Wheat) 579, 580; 6 L Ed 165 (1824). Declaring a mistrial could have been accomplished without the consent of the defendant and without violating double jeopardy concerns if dictated by manifest necessity. Id. The prosecution has not raised before this Court the claim that the defendant’s failure to request a mistrial waived the error.

7 Defendant raised two other issues in her appeal. These involved the prosecutor’s handling of the autopsy process. The Court of Appeals held that although the prosecutor acted improperly, this misconduct did not deprive the defendant of the ability to have a fair trial, and the Court refused to set aside the convictions on this basis, finding the issue of the changed jury instructions dispositive. [Unpublished opinion per curiam, issued June 23, 1995 (Docket No. 144551), slip op at 2.]

8 MCR 2.516(A)(1) is the rule governing civil trials and similarly provides:

At a time the court reasonably directs, the parties must file written requests that the court instruct the jury on the law as stated in the requests. In the absence of a direction from the court, a party may file a written request for jury instructions at or before the close of the evidence.

This rule provides further that “[t]he court shall inform the attorneys of its proposed action on the requests before their arguments to the jury.” MCR 2.516(A)(4).

9 The Court of Appeals initially noted that there is no offense of attempted assault, but this Court did not address that issue because its decision regarding the jury instruction was dispositive. Id. at 711.

10 GCR 1963, 516.1 was basically the same as MCR 2.516, and provided:

Request for Instructions: At or before the close of the evidence, any party may, or at any time the Court reasonably directs, the parties shall, file written requests that the Court instruct the jury on the law as set forth in the request. A copy of such requested instructions shall be served on the adverse parties in accordance with GCR 1963, 107. The court shall inform counsel of its proposed action on the requests prior to their arguments to the jury and, subject to the provision of subrule 516.3, shall instruct the jury after the arguments are completed.

11 Patskan was written by Justice Swainson with whom only Justice Williams concurred. Chief Justice T. M. Kavanagh and Justice Adams concurred only in the result. Justice T. G. Kavanagh concurred in the result, but did not agree that the trial judge’s omission “constituted reversible error.” Id. at 716.

12 For example, in Ross v United States, supra, the United States Court of Appeals for the Sixth Circuit noted that, “it being the duty of the court to charge the jury correctly, restatement of the proposition in clear, explicit, and correct language was demanded, so that no confusion could possibly be left in the minds of the jurors . . . .’’Id. at 166. Counsel should know ahead of time what the charges will be so that they may properly argue the case to the jury. Id. at 165. This case was remanded for a new trial. See also United States v Harvill, 501 F2d 295 (CA 9, 1974); United States v Gaskins, 849 F2d 454 (CA 9, 1988).

13 Michigan courts adhere to the harmless error doctrine, set out both by statute and by court rule. The statute provides:

No judgment or verdict shall be set aside or reversed or a new trial be granted by any court of this state in any criminal case, on the ground of misdirection of the jury, or the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court, after an examination of the entire cause, it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice. [MCL 769.26; MSA 28.1096.]

Similarly the court rule states:

An error in the admission or the exclusion of evidence, an error in a ruling or order, or an error or defect in anything done or omitted by the court or by the parties is not ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order, unless refusal to take this action appears to the court inconsistent with substantial justice. [MCR 2.613(A).]

14 In assessing the level of prejudice required to reverse a conviction, Justice Boyle addressed the differences between the standards for evaluating the effect of preserved constitutional and preserved nonconstitutional error. Id. at 216-217. In Mateo, a majority of this Court rejected the use of the Chapman standard in cases of nonconstitutional error, stating that “[t]he fundamental protections of individual liberties embodied in constitutional rights are not at issue when the error is not of constitutional dimension.” Id. at 217. See Chapman v California, 386 US 18; 87 S Ct 824; 17 L Ed 2d 705 (1967).

Justice Boyle noted that the federal courts employ several standards when evaluating the effect of nonconstitutional error on the outcome of the proceedings. These are the “highly probable, more probable than not, and a reasonable likelihood” that the outcome was affected. Id. at 219. She further noted the tests suggested by Chief Justice Traynor in his book on harmless error, which rejected the Chapman standard. These tests are a highly probable standard and a more probable than not standard. Id., ns 18-19. See also Kotteakos v United States, 328 US 750; 66 S Ct 1239; 90 L Ed 1557 (1946) (substantial influence on the outcome standard).

We do not believe that the error in this case is of constitutional proportion. The trial was fair and speedy, counsel was not ineffective, and the jury was properly charged. In People v Anderson (After Remand), 446 Mich 392, 405; 521 NW2d 538 (1994), this Court listed what properly may be considered constitutional error warranting automatic reversal. These include: “[T]he total deprivation of the right to trial counsel, an impartial judge, excluding grand jury members who are the same race as defendant, denial of the right to self-representation, denial of the right to a public trial, and a constitutionally improper reasonable doubt instruction.”

However, Mateo did not define the ultimate standard by which the effect of nonconstitutional error should be evaluated. The analysis suggests that the appropriate standard lies somewhere between a reasonable doubt on the one hand and a reasonable likelihood that the outcome was affected on the other. Id. at 218-219. While a high probability standard may be the most appropriate test, the majority pointed out that without input from the bench and bar, “it is unwise for this Court to unilaterally adopt a definitive standard.” Id. at 220.

15 Excerpts from the closing argument are illustrative:

The issue before you is whether she acted in a grossly negligent manner and that conduct caused his death. . . . It is what she did to Rodney and whether under the circumstances it was apparent to her what she did caused his death. . . . [S]he was never told medically that that — her conduct would lead to any dangerous condition. We have not heard that from anyone. ... So she got no support or no clue that what she was doing — that is, denying him when he wanted more water — that that was wrong or that would lead to death.

16 “The trial court’s failure to comply with Rule 30 constitutes reversible error only if the party was unfairly prevented from arguing his defense to the jury or was substantially misled in formulating his arguments.” United States v Smith, 629 F2d 650, 653 (CA 10, 1980) (citations omitted). FR Crim P 30 is the federal counterpart of MCR 6.414. See dissent at 612-613.

17 This Court has noted that a trial judge may

comply with an oral request if he thinks it proper to do so, but, if he declines, such refusal is not a proper basis for an assignment of error. As suggested by this Court in Anthony v Cass County Home Telephone Co, 165 Mich 388, 401 [130 NW 659 (1911)], such practice “is not to be commended for many reasons that must be apparent to the profession.” However, without reference to the form in which the request was made in the instant case, its denial was not erroneous. [Corpron v Skiprick, 334 Mich 311, 319; 54 NW2d 601 (1952).]

18 See also United States v Smith, n 16 supra at 653 (error requiring reversal occurs “only if the party was unfairly prevented from arguing his defense to the jury or was substantially misled in formulating his arguments”); Wright v United States, 339 F2d 578, 579 (CA 9, 1964) (“[cjounsel’s closing argument was based upon a theory of defense which the court rejected, or at least ignored, in its subsequent instructions. We cannot say that this did not impair the effectiveness of counsel’s argument and hence of appellant’s defense”); accord United States v Gaskins, n 12 supra at 458-459; United States v Harvill, n 12 supra at 296-297; United States v Pommerening, 500 F2d 92, 101 (CA 10, 1974); United States v Mendoza, 473 F2d 697, 701 (CA 5, 1973). In Mendoza, the United States Court of Appeals for the Fifth Circuit noted that despite overwhelming evidence of guilt there was a “failure of substantial compliance with the [court] rule.” The court stated:

Although we recognize that the evidence against the defendants is nearly overwhelming, we cannot say with reasonable certainty that the outcome would be the same if the defense had argued before the jury with accurate information about the Trial Judge’s proposed action upon the requested jury instructions. Therefore, we think the circumstances warrant granting defendant a new trial. [Id. at 701.]

In a footnote the court noted: “This action is not taken by any constitutional mandate, but rather in our supervisory capacity to assure that the Federal Rules of Criminal Procedure are followed.” Id., n 4.