People v. Grove

566 N.W.2d 547, 455 Mich. 439

• Court: Michigan Supreme Court
• Decided: July 29, 1997
• Docket: Docket Nos. 103004, 103521, Calendar Nos. 9-10
• Status: Published

Opinions

Boyle, J.

We granted leave in People v Grove to address whether a trial court has discretion under MCR 6.302(C)(3) to reject the plea underlying a plea agreement that includes a prosecutorial sentence recommendation. We granted leave in People v Austin to address (1) whether the trial court abused its discretion in refusing to entertain the defendant’s guilty plea, which was part of a plea agreement reached after the trial court’s “plea cutoff” date, (2) whether the trial court abused its discretion in denying defendant’s motion for mistrial on the ground of juror misconduct, and (3) whether the case should be remanded to the trial court for correction of the presentence report.

In Grove, we hold that the court had the authority under MCR 6.302(C)(3) to exercise its discretion in rejecting defendant’s guilty plea. We reverse the decision of the Court of Appeals and reinstate the trial court’s conviction. In Austin, consistent with our reasoning herein, we find the trial court’s rejection of the plea agreement was not an abuse of discretion. We also hold that defendant was not prejudiced by the alleged juror misconduct, and we affirm the decision of the Court of Appeals on that issue. We order that the letters from Sergeant Harris dated June 27 and 28, 1991, be deleted from the presentence report.¹

I. FACTS AND PROCEEDINGS

A. PEOPLE v GROVE

The Michigan State Police arrested defendant Grove on March 1, 1991, in connection with allegations of criminal sexual conduct. Defendant was charged in Delta County with two counts of first-degree criminal sexual conduct,² a felony offense carrying a maximum sentence of life or any term of years,³ and one count of second-degree criminal sexual conduct,⁴ a felony offense carrying a maximum sentence of fifteen years imprisonment.⁵ The complainant was the defendant’s fifteen-year-old daughter, who was under the age of thirteen at the time of the acts for which defendant was charged.⁶

On August 2, 1991, the prosecutor, defendant, and defendant’s counsel appeared before acting circuit Judge Robert E. Goebel for a pretrial conference.⁷ The parties informed the court that they had reached a plea agreement whereby the defendant would plead guilty of fourth-degree criminal sexual conduct,⁸ a misdemeanor offense carrying a maximum sentence of two years imprisonment and a $500 fine,⁹ and the prosecutor would move to dismiss the other charges and recommend a sentence in the county jail not to exceed one year. Judge Goebel examined the defendant in accordance with MCR 6.302 to ensure that the plea was understanding, voluntary, and accurate.¹⁰ The judge took the plea under advisement to review the presentence investigation report and to schedule sentencing.

On the date set for sentencing, October 8, 1991, Judge Goebel rejected the defendant’s bargained guilty plea:

The Court has had the benefit of reading the presentence report, and I’ve had a conference with counsel and Mr. Ayotte of the corrections department in chambers. I noted to them that I had read the Defendant’s version of the incident, as well as the victim’s version ... of what had happened .... I noted the victim recommended prison time and the cap as recommended by the prosecutor would not allow for prison time. I indicated that I thought I had the discretion, having taken the plea under advisement, and needed to first rule on whether or not I would accept the guilty plea. ... I do not feel it would be in the interest of justice. I feel that there is such a wide disparity between what the victim claims had happened, as opposed to what the Defendant claimed had happened, and the victim’s desire of a prison term that it would not be fair and in the interest of justice to accept this matter plea bargained to fourth degree. If, in fact . . . the first degree criminal sexual conduct had happened in the course of time as the victim claims, I feel the matter should go to trial on the original charge. And the Defendant, if found guilty, should be sentenced appropriately under the charge he was found guilty on or pled guilty to as the case may be. If indeed this was only a relatively minor fourth degree incident, and there was no prior first degree criminal sexual conduct, or if indeed there was no factual basis for the sexual conduct at all, then the Defendant would be more fairly found not guilty. The prosecutor in chambers urged me to accept the plea, one of the reasons being that he felt the victim had recanted her story and she would be subject to possible impeachment. . . . [T]he difficulty in proving this case . . . was one of the principal reasons he wished to have this plea bargain accepted at the fourth degree level.

Defendant’s counsel objected to the judge’s refusal to accept the plea, and implied that the judge had attempted to coerce the defendant in chambers into agreeing not to contest the scoring of the penetration issue. After a brief hearing,¹¹ the judge stated on the record that he had neither engaged in such coercion nor penalized the defendant in any way for failing to admit anything.¹² The prosecutor, while indicating it was his intent to go forward with the plea bargain, stated that “it would be both appropriate and ethical to try the case at the level originally charged.” The judge restated his ruling, and his belief that it was a “valid exercise of the Court’s discretion . . . .” However, the judge specifically declined to preclude the parties from taking the plea agreement to Judge Ship-man to seek his acceptance. The prosecutor did not submit the plea to Judge Shipman.

On December 10 through December 12, 1992, the defendant was tried before a jury on the original charges and convicted of one count of CSC n. Judge Shipman sentenced the defendant to forty months to fifteen years imprisonment. The Court of Appeals reversed the defendant’s conviction and remanded with instructions for the “trial court to permit defendant to plead guilty of fourth-degree criminal sexual conduct in exchange for the terms of the parties’ previous plea agreement.” 208 Mich App 574, 580; 528 NW2d 796 (1995). We granted leave to appeal,¹³ and we now reverse for the reasons stated below.

B. PEOPLE v AUSTIN

The Boyne City Police arrested defendant David Austin on January 31, 1991, in connection with allegations of criminal sexual conduct involving two victims. Defendant Austin was charged in Charlevoix County under separate warrants with two counts of CSC I. The information cited use of force or coercion as the aggravating factor making the offenses CSC I.¹⁴ Defendant was twenty-nine years old. Both victims were thirteen-year-old girls.¹⁵ Defendant denied that these incidents occurred.

A third felony warrant was issued on February 20, 1991, charging defendant with one count of CSC IV. The victim was a fourteen-year-old girl.¹⁶ Defendant admitted to grabbing one of the victims named in the February 20, 1991, warrant.

On March 11, 1991, the parties appeared before Judge Richard M. Pajtas for a scheduling conference. The parties estimated the trial would take three days, and they agreed to schedule the trial for June 25, 1991. They also agreed that May 13, 1991, would serve as the date on which any and all motions would be heard and as the date beyond which “no reduced pleas pursuant to a plea agreement between defense and prosecution” would be accepted.

The day before the scheduled trial date, the parties appeared before the trial court and informed the court that they had reached a plea agreement. Under the agreement, defendant agreed to plead guilty of two counts of CSC m¹⁷ in relation to the incidents that occurred in 1988, and one count of esc IV in relation to the incident that occurred in 1990. In exchange, the prosecutor agreed to drop the original charges and agreed not to pursue an habitual offender charge or second offense charges.

The trial judge refused to accept the plea agreement because it was presented after the plea cutoff date:

As you know, the Court does not participate in your plea bargaining, but I do now set a date beyond which I will accept no negotiated pleas. ... I set the matter for a scheduling conference on March 11, 1991, the next available motion day [after arraignment]. . . . And at that scheduling conference both Counsel appeared, the needs of the case were discussed and a jury trial date . . . was set.

Also, we set [May 13] to hear any and all motions . . . , if there were to be any. And also at that scheduling conference, after discussion, we set May 13, 1991, as the date that no reduced pleas, pursuant to a plea agreement . . . would be accepted. And so Counsel has had two and one half months from the date of the arraignment to plea bargain this case.

That is, in my opinion, more than a reasonable time to investigate the case, to make an offer, to negotiate and so forth. And I have heard no persuasive reason why I should make an exception to the plea cutoff date. I recognize the discretion to do so, but I’m not persuaded by the reasons set forth that it would be a proper exercise of discretion.

The case proceeded to trial on the charges related to the 1988 incidents, and on June 26, 1991, the jury convicted defendant Austin of both counts of CSC I. On July 22, 1991, defendant pleaded guilty of being an habitual offender, second offense,¹⁸ and the judge sentenced him to two concurrent life terms of incarceration. At the same hearing, defendant also pleaded guilty of the esc iv charge related to the 1990 incident. The judge sentenced defendant to incarceration for one to two years for this offense.

After the trial on the CSC I charges, the judge learned from one of the jurors that, after the first day of trial, the juror learned about other CSC charges pending against the defendant when his wife began telling him about a newspaper article concerning defendant. These charges were not presented to the jury during the trial. The juror immediately told his wife that he was prohibited from hearing the information, and she told him nothing further. Upon learning this information, defense counsel filed a motion for a mistrial.

A hearing on defendant’s motion was held on July 16, 1991. The juror in question and the jury foreman testified. The juror testified that he had not actually read the article, but that his wife had told him that defendant had other rape charges pending. He immediately cut her off and explained the judge’s instruction that the jurors not watch the news or listen to anything about the case. The prosecutor asked the juror how the information affected him “in terms of how [he] thought about [defendant].” The juror answered, “Well, I kind of really had my mind made up by then already before I ever got home — before I saw his side of the story.” He also testified that he did not use the information he heard in deliberating to a verdict, and that he did not ignore the evidence presented during the second and last days of trial. He did not share the information with any other juror, but he did think it caused him to look at the defendant “[a] little” differently and made it harder for him to change his mind after the first day of trial. Finally, he testified that his decision was made on the basis of the evidence and was not influenced by his wife’s comments.

The jury foreman testified that “it was very, very obvious that he [the juror] didn’t have a preconceived notion of what was going to happen before we went into the jury room.” He asked several questions and demonstrated a desire to reach the right decision. The foreman also testified, consistent with the juror’s testimony, that the juror did not share the information with the rest of the jury.

The judge denied defendant’s motion for a mistrial, concluding that defendant suffered no actual prejudice. The judge reasoned “that while he [the juror] was exposed to some inadmissible evidence, he did not consider it and did not let it influence him in arriving at a verdict.”

At sentencing, defendant objected to inadmissible information attached to the presentence report. Two letters attached to the report essentially asserted that defendant was a sexual predator and discussed unrelated and unsubstantiated allegations of sexual misconduct by defendant. The judge responded by stating that he would not consider “the letter” when determining defendant’s sentence. However, the judge did not delete the information from the presentence report when it was sent to the Department of Corrections. Defendant now requests that the information be deleted from the report, and the prosecutor expressly concedes that such relief is proper under MCR 6.425(D)(3).

The defendant appealed his conviction and sentence on several grounds, including whether the trial judge abused his discretion in refusing defendant’s plea, juror misconduct, and the failure to delete the letters referenced above from the presentence report. 209 Mich App 564; 531 NW2d 811 (1995). The Court of Appeals affirmed on all issues, holding that the trial judge’s refusal to accept the plea was not an abuse of discretion under the court rules, that defendant was not prejudiced by the juror’s exposure to inadmissible evidence, and that the failure to delete the letters from the presentence report was harmless, error. We granted leave to appeal,¹⁹ and we now affirm in part, reverse in part, and remand.

n. DISCUSSION AND ANALYSIS

The Court of Appeals correctly stated the issue as “whether a trial court is able to exercise its discretion to refuse to accept a guilty plea underlying a plea agreement that includes a prosecutorial sentence recommendation.” Grove at 577. The Court of Appeals reversed defendant’s conviction and remanded the case, stating:

On remand, we instruct the trial court to permit defendant to plead guilty of fourth-degree criminal sexual conduct in exchange for the terms of the parties’ previous plea agreement. If the trial court elects to reject the recommended sentence, then it must state the sentence it finds appropriate and give defendant the opportunity to affirm or withdraw his guilty plea. [Id. at 580.]

The Court of Appeals decided this case on the basis of its interpretation of our decision in People v Killebrew, 416 Mich 189; 330 NW2d 834 (1982), and “the interplay between MCR 6.301(B) and MCR 6.302(C)(3).” Grove at 577. Former MCR 6.301(B) provided that the judge’s consent was required where a defendant sought to plead guilty or nolo contendere. In its current form, the rule states, “A defendant may enter a plea of nolo contendere only with the consent of the court.” The Court relied on the staff comment that “deletion of the consent provision indicates that the trial court may not refuse to accept a guilty plea based solely on disagreement with the wisdom of the plea, of the charge, or of the plea bargain, unless the bargain is conditioned on the court’s agreement to some provision, such as sentence disposition.” Thus, the Court concluded:

Unlike MCR 6.301(B), MCR 6.302(C)(3) refers to a trial court’s acceptance or rejection of a plea agreement rather than the underlying guilty plea itself. Further, although we recognize that MCR 6.302(C)(3) allows a trial court to reject a plea agreement based upon a prosecutorial sentence recommendation, it is silent regarding the underlying plea.

Under the sentence-bargaining procedures articulated in Killebrew, a trial court retains the option to reject a defendant’s underlying guilty plea only when the plea agreement includes a specific sentence disposition. In contrast, Killebrew requires a trial court that rejects a plea agreement that includes a sentence recommendation to state the sentence that it finds to be appropriate and give the defendant the opportunity to withdraw the guilfy plea. ... In short, neither Killebrew nor MCR 6.302(C)(3) gives a trial court the discretion to reject a guilty plea underlying a plea agreement that includes a prosecutorial sentence recommendation. [Grove at 579-580.]

The Attorney General²⁰ maintains that the trial judge had the authority to reject the plea under MCR 6.302(C)(3), which states:

If there is a plea agreement and its terms provide for the defendant’s plea to be made in exchange for a specific sentence disposition or a prosecutorial sentence recommendation, the court may

(a) reject the agreement; or

(b) accept the agreement after having considered the presentence report, in which event it must sentence the defendant to the sentence agreed to or recommended by the prosecutor; or

(c) accept the agreement without having considered the presentence report; or

(d) take the plea under advisement.

If the court accepts the agreement without having considered the presentence report or takes the plea agreement under advisement, it must explain to the defendant that the court is not bound to follow the sentence disposition or recommendation agreed to by the prosecutor, and that if the court chooses not to follow it, the defendant will be allowed to withdraw from the plea agreement.

The Attorney General argues that, according to the specific language of MCR 6.302(C)(3)(a), the trial judge is authorized to reject the entire plea agreement, including the underlying plea, where the plea agreement includes either a sentence agreement or a sentence recommendation. We agree.²¹ Under the plain language of the rule, the word “agreement” in subsection (a) refers to the phrase “plea agreement” in subsection (3). That phrase, under the terms of subsection (3), is defined as an agreement between the prosecutor and the defendant wherein “the defendant’s plea [is] made in exchange for [either] a specific sentence disposition or a prosecutorial sentence recommendation . . . Thus, the rule plainly grants trial judges the discretion to reject the entire plea agreement, including the underlying plea and the sentence recommendation.²²

Killebrew does not support the conclusion reached by the Court of Appeals that a trial court does not have “the discretion to reject a guilty plea underlying a plea agreement that includes a prosecutorial sentence recommendation.” Grove at 580. In approving the procedures for plea bargaining recognized in Killebrew, and defining the judge’s role in those procedures, we held:

Third, the judge will retain control over sentencing. If the judge feels that the agreement reached by the defendant and government attorney will serve the interests of justice, he may accept the agreement or recommendation. If, however, the judge, in an exercise of his discretion, finds that the bargain is not appropriate, he is free to reject the plea. Thus, the judge’s sentencing discretion is unhampered. [Id. at 211 (emphasis added).]

Nothing in Killebrew suggests a limitation on the trial court’s option to reject a plea agreement in which the agreement did not provide for a specific sentence disposition. Staff comments to the Michigan Court Rules are not approved by the Court, and are not an authoritative source for their interpretation. See staff comment to MCR 1.101. Moreover, taking the staff comment at face value, a plea such as presented here implicitly conditions the bargain on the court’s agreement with the sentence disposition. The operative effect of such a bargain increases the constraint on the judge’s control over sentencing. In short, the institutional reality is that the recommendation has the same effect as an agreement.

In Killebrew, while holding that a trial judge may not engage in plea bargaining with the defendant, we explained that there are competing policy considerations involved in the plea bargaining process:

In balancing these competing considerations — that the degree of [judicial] involvement must be kept minimal to avoid a coercive atmosphere and to retain public confidence in the judicial system and that judicial control of sentencing is required by statute — we now hold that a trial judge shall not initiate or participate in discussions aimed at reaching a plea agreement. He may not engage in the negotiation of the bargain itself. The trial judge’s role in the plea-bargaining procedure shall remain that of a detached and neutral judicial official. [Id. at 205.]

Thus, we sought to balance the need to protect the defendant from the potential for implicit or explicit coercion by the judge and to protect public confidence in the judicial system with the need to protect the judiciary from attempts to circumscribe its constitutional and statutory sentencing function. In MCR 6.302, we attempted to codify the procedures discussed in Killebrew, but neither the case nor the court rule was intended to emasculate the judge’s sentencing authority in favor of the parties’ right to enter into a plea bargain. We recognize that “[w]here charges are dismissed as bargaining chips, the primary effect is to limit the judge’s discretion over the duration of imprisonment.” United States v Pimentel, 932 F2d 1029, 1033 (CA 2, 1991). A conclusion that the judge is compelled to accept the bargained plea would frustrate the competing policy interests at stake in that it would transfer the trial judge’s sentencing discretion to the prosecutor in cases where the plea reduction results in a substantial reduction in the potential range of sentences and would thus erode public confidence in the judiciary.

The United States Supreme Court has recently observed in a unanimous opinion that allowing a defendant an absolute right to withdraw his plea “on a lark,” without showing a “fair and just reason” under FR Crim P 32, after the defendant “has sworn in open court that he actually committed the crimes [and] . . . the court has found a factual basis for the plea” would “debase[] the judicial proceeding at which a defendant pleads and the court accepts his plea,” United States v Hyde, 520 US _, _; 117 S Ct 1630, 1633-1634; 137 L Ed 2d 935 (1997). So too would a rule compelling the judge to accept a defendant’s plea despite the judge’s awareness of facts that would establish guilt of a crime requiring greater sentencing latitude. Such a rule would not be faithful to the judicial role recognized in Killebrew of “a detached and neutral judicial official,” id. at 205 (emphasis added), but would reduce the judge’s role to one of merely providing the court’s “rubber stamp” for the defendant’s plea, regardless of the level of imposition on the judge’s sentencing discretion.²³

4

Legislative recognition of judicial authority in MCL 767.29; MSA 28.969 also supports the conclusion that the judge is not compelled to accept a plea agreement in which there is a prosecutorial sentence recommendation:

A prosecuting attorney shall not enter a nolle prosequi upon an indictment, or discontinue or abandon the indictment, without stating on the record the reasons for the discontinuance or abandonment and without the leave of the court having jurisdiction to try the offense charged, entered in its minutes.[²⁴]

In addition to this Court’s express statements in Killebrew and in MCR 6.302(C)(3)(a) that the court may reject the plea agreement, including the underlying plea, this statute reflects a legislative understanding of the trial judge’s role in ensuring that the public’s interest in bringing criminals to justice is not defeated by unconstitutional, illegal, or ultra vires acts by the prosecutor. The authority to impose sentence is vested exclusively in the trial courts. Were the prosecutor and defendant able to compel the trial judge to accept an underlying plea in the presence of a sentence recommendation, no matter how severe the departure from the original charge and its sentencing framework, the interests served by the nolle prosequi statute would be defeated.²⁵ Moreover, like the nolle prosequi statute, the trial judge’s authority to decide whether to accept or reject a plea, while reviewable for an abuse of discretion, encourages the prosecutor to carefully consider the relevant facts when initially exercising prosecutorial charging discretion.²⁶

The acceptance of plea bargaining as a systemic necessity in the criminal justice system ultimately rests on reposing adequate sentencing discretion in the trial judge. If sentencing discretion were removed from the equation, or severely constrained, public confidence would be compromised. We hold that under Killebrew and MCR 6.302(C)(3)(a), the decision whether to accept or reject a bargained plea, on the basis of whether acceptance of the proffered plea presents an undue interference with the judge’s sentencing discretion, given the facts of the individual case, is a proper exercise of the trial court’s discretion.²⁷

5

Our conclusion that, as we stated in Killebrew, the judge’s sentencing discretion remains “unhampered” by a plea agreement containing a sentence bargain or a sentence recommendation, id. at 211, is consistent with federal authorities under FR Crim P 11, which provides for a similar procedure to that of MCR 6.302. In Santobello v New York, 404 US 257, 262; 92 S Ct 495; 30 L Ed 2d 427 (1971), the Supreme Court stated, “There is, of course, no absolute right to have a guilty plea accepted. ... A court may reject a plea in exercise of sound judicial discretion.”²⁸ In United States v Bean, 564 F2d 700, 704 (CA 5, 1977), the court held, “A decision that a plea bargain will result in the defendant’s receiving too light a sentence under the circumstances of the case is a sound reason for a judge’s refusing to accept the agreement.” The Bean court reasoned that “a plea bargain to dismiss charges is an indirect effort to limit the sentencing power of the judge.” Id. Consistent with that view, the United States Court of Appeals for the Tenth Circuit has held that rejection of a plea is proper under Rule 11 where “[t]he ultimate effect of the dismissal of charges . . . under the plea bargain was to restrict the district court’s ability to impose what it considered an appropriate sentence . . . .” United States v Carrigan, 778 F2d 1454, 1464 (CA 10, 1985). See also United States v Moore, 637 F2d 1194, 1196 (CA 8, 1981) (“a district court is under no duty to consider a negotiated plea agreement . . . [and] rejection of the proposed guilty plea [even without articulating reasons] was not beyond the scope of its broad discretion”); United States v Crowell, 60 F3d 199, 205-206 (CA 5, 1996) (“A district court’s rejection of a plea agreement is reviewed only for abuse of discretion [and a] court may properly reject a plea agreement based on undue leniency”); United States v Brubaker, 663 F2d 764, 768 (CA 7, 1981) (restriction on the trial court’s sentencing discretion is a permissible consideration in exercise of the court’s discretion to reject a plea agreement).²⁹

6

Here, the prosecutor agreed to dismiss the more serious esc I and esc n charges in exchange for a guilty plea of esc iv. The trial judge articulated the following reasons when he rejected the proffered plea agreement, including the underlying plea:

[T]he victim recommended prison time and the cap as recommended by the prosecutor would not allow for prison time. . . . I do not feel it would be in the interest of justice. I feel that there is such a wide disparity between what the victim claims had happened, as opposed to what the Defendant claimed had happened, and the victim’s desire of a prison term that it would not be fair and in the interest of justice to accept this matter plea bargained to fourth degree. . . . [T]he Defendant, if found guilty, should be sentenced appropriately under the charge he was found guilty on or pled guilty to as the case might be.[³⁰]

We conclude that the judge did not abuse his discretion in rejecting the-entire plea agreement, including the underlying plea, for these reasons. The judge’s reasoning reflected his understanding of the plea agreement, considering the facts and the interests of the victim, as a substantial hinderance of his ability to impose an appropriate sentence under the plea bargain where the offense to which the defendant agreed to plead guilty, esc rv, is a two-year maximum misdemeanor, while the originally charged offenses (CSC i) were subject to a sentence of life or any term of years. The judge’s actions were consistent with MCL 767.29; MSA 28.969 and our analysis in Killebrew, and were authorized under MCR 6.302(C)(3). Thus, we reverse the decision of the Court of Appeals and reinstate the defendant’s convictions.

B. PEOPLE v AUSTIN

1. THE PLEA CUTOFF DATE

As noted above, the trial judge refused to accept the defendant’s plea because it was presented over a month after the plea cutoff date and one day before trial was to begin. MCR 6.302 is not implicated by this rejection. We conclude that rejection of a tardy plea is within the discretion of a trial court.

a

The Court of Appeals held that the trial court has the discretion to adhere to its scheduling orders under the court rules:

According to MCR 6.301(A), a court may refuse to accept a defendant’s plea “pursuant to the rules.” MCR 6.001(D) provides that the rules of civil procedure apply to criminal cases. Further, MCR 2.401(B)(1)(b) establishes that a trial court may enter a scheduling order setting time limitations for the processing of a case. Reading these rules together, it is clear that the trial court had the authority to reject a plea that was entered into after the date set forth in the scheduling order. MCR 2.401(B)(1)(b).

We note that this interpretation of MCR 6.301(A) is in harmony with MCR 6.002, which states that these rules “are to be construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.” Furthermore, this construction of MCR 6.301(A) recognizes the trial court’s authority to control its docket. See People v Dowell, 199 Mich App 554; 502 NW2d 757 (1993). In this case, defendant and the prosecutor reached a plea agreement one day before trial; more than one month after the May 13, 1991, cutoff date. The trial court’s refusal to accept defendant’s plea agreement enhanced its docket control, eliminated unjustifiable expense and delay, and was, therefore, proper. [209 Mich App 567.]

We agree with the Court of Appeals. The court rules provide for and encourage the use of scheduling orders to promote the efficient processing of civil and criminal cases. Although the Michigan courts have not had occasion to address the issue, federal and state case law supports the conclusion that the judge has discretion under these circumstances.³¹

b

Like the court in United States v Ellis, 547 F2d 863, 868 (CA 5, 1977), we find that “the deference due the prosecutorial prerogative and the rights of the defendant under [the court rules are] outweighed by judicial discretion to control the scheduling of trial procedures in ongoing prosecutions, plus the broad interests of docket control and effective utilization of jurors and witnesses.” In Ellis, the court affirmed the district judge’s decision to adhere to a plea cutoff date when the defendant and prosecutor presented it only one day late. Id. The Ellis court relied on an earlier unpublished decision in which the court approved of a judge’s adherence to a plea cutoff date, describing that case as follows:

[T]he judge reasoned that strict adherence . . . was necessary for proper scheduling of cases to save time, difficulty and expense to jurors and witnesses who would otherwise have to be summoned needlessly to attend court sessions. He refused to vary the deadline date because the United States attorney was overworked or understaffed. He concluded that if he varied the date from his deadline because of this office’s workload, he would also have to consider variations for defense counsel similarly situated, with the result that the deadline would become meaningless. [Id. at 868.]

Likewise, People v Cobb, 139 Cal App 3d 578; 188 Cal Rptr 712 (1983), demonstrates that, having considered this problem, the California courts have granted trial judges broad discretion in deciding whether to accept tardy plea agreements. The court described the rationale behind allowing plea cutoff dates as follows:

Generally, such deadlines are supported as a means of reducing the confusion, hardship and inconvenience inherent in calling calendars. The priority of the criminal calendar and the frequency of pleas in lieu of trials often place civil litigants in a trailing position, which on trial day is at best an uncertain one. When pleas are taken at this time, the practice may well have a domino effect on other cases. It may leave courtrooms vacant if the calendar judge has failed to overschedule trials. Excusing unused jurors or, when expected pleas do not materialize, announcing there are insufficient judges or courtrooms for the balance of the calendar, is an unpleasant judicial task. [Id. at 581.][³²]

The rule varies in California depending on the county and the judge.³³ However, the California Court of Appeals specifically approved the rule adopted in Fresno County, where “ultimate management of the criminal calendar is in the hands of the presiding judge . . . .’’Id.

In Cobb, the defendant and the prosecutor presented a plea bargain to three different judges, all of whom refused to consider the plea offered because, as in the instant case, the parties presented it after the time scheduled for the taking of pleas. Id. at 582. Like the federal rule and the Michigan rules cited by the Court of Appeals, the California rules, while providing “ ‘guidelines which the trial court can utilize in receiving and considering plea bargains involving pleas to lesser offenses[,]’ [contain] no reference to the court’s discretion to refuse to consider such a plea at all, or within certain time limits.”³⁴ Id. at 584. The Cobb court, citing Ellis, supra, observed:

It appears that the competing interests of accurately scheduling court calendars and judiciously taking pleas to avoid trial can be accommodated while reasonably restricting pleas to certain time periods. The purpose of improving calendar management justifies the setting of deadlines beyond which no conditional plea may be taken. [Cobb at 585. ][³⁵]

c

The Court of Appeals analysis of the applicable court rules was correct. We hold that a judge is within his discretion in refusing to entertain a tardy plea agreement. The rules of civil procedure apply in criminal cases pursuant to MCR 6.001(D). Under MCR 2.401(B)(1)(b), the trial judge may “enter a scheduling order setting time limitations for the processing of the case and establishing dates when future actions should begin or be completed in the case.” Taken together, these rules implicitly confer the discretion to decline to entertain actions beyond the agreed time frame. Were the rules not so construed, scheduling orders would quickly become meaningless.³⁶

Given the above-noted statement from Santobello, that there is “no absolute right to have a guilty plea accepted . . . [and that a] court may reject a plea in exercise of sound judicial discretion,” id. at 261-262, we find the reasoning offered by these state and federal authorities persuasive. Optimum service to the public, to victims, witnesses, jurors, litigants, and to counsel mandates that trial judges have the authority and discretion to manage dockets. The interplay between MCR 2.401 and MCR 6.001 provides for such efficient management, while allowing judges the flexibility to exercise their discretion appropriately, given the circumstances of an individual case. Such a decision will only be overturned for an abuse of discretion.

d

The parties were aware of the scheduling order and agreed to the dates set therein at the scheduling conference. However, the parties offered the plea over a month after the plea cutoff date. Counsel for the defendant offered three reasons why the plea agreement was tardy: First, the prosecutor did not offer the plea until the day before trial. Second, the statements certain witnesses to the crimes charged gave to the police were not consistent with the statements they had earlier given to defense counsel in that they alleged more serious offenses when given to the police. Third, the plea negotiations included the CSC IV charge for which the plea cutoff date had not yet passed. The prosecutor confirmed these statements, but did not attempt to persuade the judge to entertain the plea agreement.

The judge believed that two and one-half months was sufficient time to negotiate a plea, and he recognized that he had the discretion to accept the plea despite its tardiness. He entertained defense counsel’s arguments in favor of the plea agreement, but apparently determined that the need to adhere to the scheduling policy outweighed the considerations asserted by the parties. We find nothing in the record to indicate the judge abused his discretion in reaching this decision. The defendant has only an opportunity, not a right, to plead guilty. No right is denied when the opportunity is not timely exercised. Defendant has the right to a fair trial of the offense charged.

2. JUROR MISCONDUCT

Defendant argues that the juror in question was not impartial because he was exposed to a newspaper article referencing another charge against the defendant, which made the juror view the defendant differently so that it was harder for him to change his mind about the defendant. The Court of Appeals concluded that the defendant was not prejudiced because the juror did not read the article, did not share it with the rest of the jury, and testified that his decision was based on all the evidence rather than on the contents of the newspaper article.

The issue before the trial judge was whether the defendant’s exposure to the information in the newspaper article prejudiced the defendant. 23A CJS, Criminal Law, § 1441, p 386. The general rule in these cases may be stated as follows:

Whether or not prejudice warranting a new trial results from the reading by the jurors of news articles or seeing or hearing broadcasts must turn on the special facts of each case, and the question is left largely to the determination and discretion of the trial court.

See also People v Flinnon, 78 Mich App 380, 391; 260 NW2d 106 (1977). This rule reflects the fact that “due process does not require a new trial every time a juror has been placed in a potentially compromising situation.” Smith v Phillips, 455 US 209, 217; 102 S Ct 940; 71 L Ed 2d 78 (1982). In Smith, the Supreme Court explained further:

Were that the rule, few trials would be constitutionally acceptable. The safeguards of juror impartiality, such as voir dire and protective instructions from the trial judge, are not infallible; it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen. [Id.]

b

In this case, when asked whether the information caused him to look at the defendant differently or if it made it harder for him to change his mind about the defendant, the juror’s testimony was equivocal. The juror testified in relevant part:

Q. Were you made aware of the fact through your wife or otherwise that my client, Mr. Austin, had other charges pending?

A. Yes. . . .

Q. Okay. And were you informed by your wife or otherwise, as a result of the article, that Mr. Austin was ... in jail during the trial?

A. No. She didn’t add anymore. In fact, I cut her off. I just said, “You aren’t supposed to be doing this.”

Q. . . . [W]hen you heard these comments through your wife about Mr. Austin having other charges, how did that affect you in terms of how you thought about him?

A. Well, I kind of really had my mind made up by then already before I ever got home — before I saw his side of the story.

Q. That was . . . after the first day of trial?

A. The first afternoon, yes.

Q. Okay. When you went to the jury room to deliberate after the close of the trial, which was the second morning, did you think about that information at all that you heard from your wife? Did that cross your mind at all, do you know?

A. No, I don’t think it did.

Q. Did you mention to any of the other jurors that there was an article in the paper?

A. No, I never did.

Q. Did you discuss ... in the jury deliberations . . . other charges pending?

A. No.

Q. Now, . . . one of the general instructions the jurors were given was to not make a decision until [you hear] all the evidence. . . .

A. Right. Yes.

Q. You just told me a few minutes ago that you made your mind up the first day. Did you ignore what you heard the second day?

A. No ... .

Q. Can you . . . describe the circumstances . . . ?

A. Yes. My wife was sitting ... in front of the TV reading the paper .... And when she got done, she just mentioned the fact that he was up for a couple of other [rape] counts, or admitted to it, or something like that.

* * *

Q. If you had heard something to have impacted your mind the following day of the trial, would the statement from your wife have caused you to ignore the other evidence?

A. I don’t think so.

* * *

Q. [0]nce your wife started discussing this information. [W]hat happened then?

A. I kind of just told her that I wasn’t supposed to hear any of that stuff. I wasn’t supposed to watch the news, which I had never informed her before .... And it was just dropped right there.

Q. After you heard about the other charges against Mr. Austin, did that cause you to look at him differently . . . ?

A. I think so. A little.

Q. Did that confirm . . . the decision you said you already pretty much made?

A. Mm-hmm. Yes.

Q. Yes. And that would have made it harder for that opinion to be changed the next day, do you think?

A. Yes, I guess so.

* * *

Q. [I]n your jury deliberation, did you consider the information that your wife stated to you on Tuesday night?

A. No, I didn’t.

Q. [Did you consider] both the evidence from the first day . . . and the second day . . . and only that evidence as the basis of your decision as a juror among jurors?

A. Yes.

Q. Was your decision in any way influenced by the comment that your wife had made . . . ?

A. No.

Q. Did you allow that comment from your wife to impact the decision that you made or try to influence other jurors?

A. No.

In addition, the jury foreman testified that the juror engaged in deliberations did not appear to have a preconceived notion of guilt, and did not share the information with any other jurors.

We agree with the Court of Appeals that the defendant was not prejudiced by this juror’s exposure to inadmissible evidence and that the trial judge did not abuse his discretion in declining to declare a mistrial on defendant’s motion. The juror appears to have equivocated when asked whether the information affected his view of the defendant, but he steadfastly maintained that he reached his decision on the basis of the evidence and not on the basis of his wife’s comment. The juror immediately prevented his wife from giving him details and remained faithful to his duty to weigh the evidence in deliberations.³⁷ Moreover, the judge instructed the jury, pursuant to its oath, “to return a true and just verdict based only on the evidence and [the court’s] instructions on the law,” and “not [to] use any personal knowledge that you may have about a place, person, or event. . . . [Y]ou must decide this case only on the evidence admitted at trial.” Thus, we conclude that the juror was not biased because he heard his wife’s comments.

The judge heard the evidence in the trial and observed the demeanor of the witnesses during the motion for mistrial. He listened to counsel and rendered his decision on the basis of the evidence. We find no evidence in the record that the judge abused his discretion in deciding that the defendant was not prejudiced by the presence of this juror. The judge correctly noted that when a juror states during voir dire that information heard about the case can be set aside, such information is not sufficient grounds to dismiss the juror for cause under MCR 2.511(D)(3) and (4). The record gives every indication that, although the juror heard the information and was initially affected by it, he was able to set that information aside and render a decision solely on the basis of the evidence presented.

m. CONCLUSION

In People v Grove, we reverse the decision of the Court of Appeals and reinstate the trial court’s conviction. In People v Austin, we affirm the Court of Appeals decision except with regard to the presentence report. On remand, the trial court shall delete the letters from Sergeant Harris dated June 27 and 28, 1991, from the presentence report consistent with MCR 6.425(D)(3). We do not retain jurisdiction.

Malt jut, C.J., and Brickley, Riley, and Weaver, JJ., concurred with Boyle, J.

1 Although the parties and the judge reference only the letter to Judge Pajtas, we find two substantially similar letters attached to the report; one was sent to the person who prepared the report.

2 MCL 750.520b(l)(a); MSA 28.788(2)(l)(a).

3 MCL 750.520b(2); MSA 28.788(2)(2).

4 MCL 750.520c(l)(a); MSA 28.788(3)(l)(a).

5 MCL 750.520c(2); MSA 28.788(3)(2).

6 At trial, the victim testified that she had been sexually assaulted by her father from the time she was five or six until she was thirteen. The first incidents she remembered occurred in her bedroom. Defendant would come in at night and start “feeling up” her body. He told his daughter this was “a secret” and not to tell anyone. He would digitally penetrate her vagina for ten to fifteen minutes. These incidents became “common,” occurring in defendant’s bedroom and the living room, so that the victim “just more or less thought it was normal or something.” He also “put [her] mouth around his penis” on several occasions. Leaving his pants on, he would undo his zipper and “push on the back of [her] head and push [her] down there.” She did not tell anyone at first because she feared her father after watching him beat her brother. (Defendant is six feet, three inches tall and weighed 240 pounds when he was arrested.) When she was accused of lying about the incidents, she initially recanted her story. However, charges were brought when she later agreed to testify. The victim’s testimony was substantially consistent with the facts she related to the Michigan State Police when she made her original complaint.

7 Judge Goebel is a Delta County Probate Judge who was acting in place of vacationing circuit Judge Dean J. Shipman.

8 MCL 750.520e; MSA 28.788(5).

9 MCL 750.520e(2); MSA 28.788(5)(2).

10 Defendant admitted touching his daughter’s vagina when she was under the age of thirteen for the purpose of sexual arousal on more than one occasion between 1980 and 1986.

11 Mr. Ayotte of the Department of Corrections testified regarding his impressions of the judge’s concerns in chambers.

12 Defendant has not pursued this issue on appeal, instead arguing the judge was not authorized under the rules to reject the plea.

13 451 Mich 905 (1996).

14 MCL 750.520b(l)(f); MSA 28.788(2)(l)(f).

15 The record indicates that the victims were at the defendant’s house one day in late August or early September, 1988, in the basement with a few other teenagers and adults, drinking wine coolers provided by the defendant. One victim was defendant’s babysitter; the other was invited over. Defendant attempted to get one of the victims to take painkillers. After the victims were drunk, the defendant took each separately into his bedroom and forced her to engage in sexual intercourse on his bed. Neither victim revealed these rapes to adults until August, 1990, because of fear and psychological trauma associated with the incidents. One victim testified that the defendant had repeatedly asked her for sex before the rapes.

16 The record indicates that the defendant supplied alcohol to the victim and two other teenage girls, one of whom was another of defendant’s babysitters, on June 8, 1990. After spending most of the night with the girls at one of their residences, defendant took two of them to another of their residences around 6:30 a.m. on June 9, 1990. Defendant began to wrestle with both, touched them in their private areas, and bit them on their breasts.

17 MCL 750.520d(l); MSA 28.788(4)(1).

18 MCL 769.10; MSA 28.1082.

19 453 Mich 945 (1996).

20 In both cases, the Attorney General represents the prosecutor on appeal.

21 Alternatively, the Attorney General presents arguments related to the defendant’s standing to appeal on the basis of an interference with the prosecutor’s charging discretion and the appropriateness of the remedy ordered in the Court of Appeals. We do not reach the remedy issues because we reverse the decision of the Court of Appeals. With regard to whether the defendant had standing to appeal the case to the Court of Appeals, we agree with the Attorney General that the defendant did not have standing to raise a separation of powers issue; however, defendant did have standing to allege that the trial judge’s action in refusing to accept his plea was not authorized under the Michigan Court Rules. Unlike People v Ott, 428 Mich 890 (1987), we did not grant leave here limited to the separation of powers issue.

22 The dissent fails to acknowledge the fact that the language of the rule plainly authorized the judge’s conduct here.

23 In People v Blue, 428 Mich 684, 694-695; 411 NW2d 451 (1987), we observed, with regard to a guilty but mentally ill plea:

“The prosecutor and defendant do not have the right to present the trial court with a fait accompli. [T]he judge must be allowed to exercise his discretion; his role is not simply ministerial. The judge is not merely a rubber stamp with which the bargain is sealed.”

24 "All provisions of the law applying to prosecutions upon indictments . . . shall, in the same manner ... be applied to informations and all prosecutions and proceedings thereon.” MCL 767.2; MSA 28.942. “The word ‘indictment’ includes information . . . MCL 750.10; MSA 28.200. See also Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115, 120, n 10; 215 NW2d 145 (1974).

25 Several federal courts have held that the “court’s discretion to reject a charge bargain is more akin to its discretion over sentencing matters than to its more limited discretion to refuse to grant a Rule 48(a) motion to dismiss an indictment.” Pimentel, supra at 1033; see also United States v Carrigan, 778 F2d 1454, 1463-1464 (CA 10, 1985).

26 We note that the dissenting opinion’s conclusion would render the nolle prosequi statute meaningless under these circumstances. To the extent the dissent interprets the court rules as superseding the nolle prosequi statute, we disagree. The court rules are rules of procedure, insofar as they regulate the appropriate process. Because the statute is not “inconsistent with a procedure provided by a rule,” MCR 6.001(E), the rules should not be read to override the statute. The rules describe the appropriate procedure in plea taking. They do not purport to limit the authority of the court.

27 We reject the dissent’s assertion that our reasoning in Genesee Prosecutor, n 24 supra at 121, governs these cases. There, with regard to the prosecutor’s authority to decide what charges will be instituted against a defendant, we stated, “A circuit judge does not enjoy supervisory power over a prosecuting attorney.” We remanded the defendant’s case for trial on the original information charging the defendant with manslaughter and murder where the judge accepted the defendant’s plea of guilty to manslaughter over the prosecutor’s objection. While it is true that a prosecutor’s determination of what charges to bring is subject to judicial review only for an abuse of power, id., and the judge may not accept a plea and dismiss a higher charge over the prosecutor’s objection, the question here is whether the judge may reject a plea to an included offense. The decision to enter a nolle prosequi with respect to an existing charge and reduce the charge pursuant to a plea bargain is a separate matter from the judge’s authority to impose a plea on the prosecution. Moreover, although the prosecutors here urged the court to accept the plea, the prosecutors did not object and seek superintending control as did the prosecutor in the Genesee Prosecutor cases. See also Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672; 194 NW2d 693 (1972). In those cases, the prosecutor was faced with a direct challenge to his charging discretion, which covers decisions reviewable only for an abuse of power, and the prosecutor sought relief in the nature of mandamus. This case, however, presents an appeal by the defendant, alleging that the judge exceeded his authority under the court rules. We reject that allegation and, as noted above, n 21, the defendant did not have standing to appeal on grounds asserting a violation of the prosecutor’s charging discretion.

28 Moreover, “neither the defendant nor the government is bound by a plea agreement until it is approved by the court.” United States v Washman, 66 F3d 210, 213 (CA 9, 1995).

29 In light of our agreement with these authorities, we also reject the dissent’s assertion that the case “does not concern the authority of the trial judge to reject a plea because of disagreement with the prosecutor’s sentence recommendation.” Post at 482. Rather than viewing the judge’s role as that of a “superprosecutor,” id. at 477, we view the judge’s role as set forth herein to be consistent with the concept of checks and balances that informs our system of government.

30 The dissent implies that the Court’s decision was made “solely on the basis of its subjective view of what is just.” Post at 481. We disagree. The judge clearly considered the sentencing implications of the prosecutor’s recommendation when he spoke of the victim’s desire for prison time and the fact that the recommendation would remove the discretion to impose a sentence that included prison time. Thus, the judge reached the conclusion that the plea agreement would result in a miscarriage of justice because of the undue interference with his sentencing authority that the plea agreement presented. Moreover, the trial court’s “subjective view of what is just” is necessarily implicated in the proper performance of its responsibilities, just as it is in the charging decision of the prosecution.

31 We reject the dissent’s interpretation of the federal authorities. The dissent supports its conclusion that “[t]he trial court abused its discretion by rejecting the plea agreement,” post at 492, with reference to United States v Shepherd, 322 US App DC 160; 102 F3d 558 (1996), United States v Robertson, 45 F3d 1423 (CA 10, 1995), and United States v Moore, 916 F2d 1131 (CA 6, 1990). We perceive no inconsistency between our holding today and the principles discussed in these cases. The dissent observes that the defendant in Shepherd “agreed to plead as charged” in exchange for the possibility that the departure committee would make a departure recommendation under the mandatory Federal Sentencing Guidelines. Post at 489. The court’s decision that rejection was inappropriate merely demonstrates that where the defendant is prepared to plead “on the nose” and the prosecutor accepts the plea, all public concerns have been vindicated. We note that the Shepherd court acknowledged the fact that consideration of the lateness of the defendant’s plea was a “proper factor” for the court to consider in deciding whether to accept the plea. Id. at 164. In Moore and Robertson, the circuit courts refused to recognize the validity of judicial refusal to accept a plea where the sole reason for such refusal was that it came on the day of trial, Moore at 1136, n 11, or that it came so close to trial that the court could not schedule other matters, Robertson at 1438. However, these cases support our decision here. In Robertson, the court specifically limited its holding “under the facts of [the] case,” id. at 1439, and referenced Moore at 1136, n 11, characterizing that case as standing for the proposition that “when no plea cutoff date has been missed and ‘the Government makes its first plea offer to a defendant the morning of trial and defendant accepts, the rejection of the plea under those circumstances may well constitute an abuse of discretion.’ ” Robertson at 1438 (emphasis added). Indeed, the Moore court stated:

Our remand on this issue is not intended to mean that rejecting a plea because it comes too late may not be a proper exercise of discretion. The problem here is that we are simply unable to ascertain from the trial judge’s brief comments the precise reason why this plea was rejected. If a trial judge sets a plea cut-off date and a plea is not offered prior to that time, the trial judge may well be justified in rejecting the plea. [Id. at 1136, n 11 (emphasis added).]

Unlike Moore and Robertson, the plea attempted here came in violation of the plea cut-off date under a scheduling order of which the parties had ample notice and to which they had previously agreed. Thus, the concern reflected by these courts for arbitrary rejection of pleas offered near trial is not implicated in this case.

32 The nature of the system frequently results in instability and inconvenience in managing the civil trial docket, producing such inefficient systems as a trailing civil docket. MCL 768.1; MSA 28.1024 grants the parties in criminal cases the right to a “speedy trial . . . without delay except as may be necessary to secure to the accused a fair and impartial trial.” MCL 780.759; MSA 28.1287(759) and MCL 780.786a; MSA 28.1287(786a) further provide a statutory right to a speedy trial of the defendant for certain victims, including victims of child sexual abuse and CSC I, n, and HI. Moreover, bond requirements under various criminal statutes and other procedural imperatives may dictate organizing the civil docket around criminal cases. Like civil discovery deadlines, plea cutoff dates allow trial courts to assign true trial dates, which in turn produce prompt resolution of cases that should settle. Thus, counsel and parties in both civil and criminal cases benefit from real trial docketing.

33 The court rejected the assertion by a dissenting judge that the California courts allowance for varied plea bargaining procedures posed an equal protection problem, concluding that plea bargains “are subject to reasonable time constraints on their delivery to the court.” Id. at 587.

34 This Court, however, has published Administrative Order No. 1991-4, Time Guidelines for Case Processing, which provides general time guidelines to assist courts in processing cases expeditiously. These broad guidelines represent public policy consistent with allowing trial judges to tailor more specific scheduling deadlines in individual cases in an attempt to reach the goals set out by the guidelines. Simply put, the earlier cases are pleaded out, the more likely it is that the system will conform to the guidelines; and the only way a trial court can encourage early pleas is by firm adherence to deadlines.

35 The court further concluded that under subsection 10(a)(7) of the California Standards of Judicial Administration, the period in which pleas could be rejected as tardy was limited to “that reasonable time which follows the readiness conference and ends upon the completion of trial.” Cobb at 585. That standard explicitly provides that courts “should adopt a rule or policy providing that the readiness conference is the last possible point of negotiation and that thereafter a defendant may plead only to the principal charge against him.” Id. at 582. Although no such standard has been promulgated in Michigan, the Cobb court concluded the trial court’s discretion to set the calendar deadline and adhere thereto existed independently of the standard, but was limited thereby. Moreover, the court held “that the standard does not preclude the exercise of discretion at any time under exceptional circumstances.” Id. at 585.

36 Therefore, we reject the dissenting opinion’s conclusion that our decision “inflates the role of day-to-day procedural matters contrary to [our] directive in Higgins." Post at 492. The dissent’s conclusion that our decision elevates docket control “above the substantive rights of the parties,” id. at 490, fails to acknowledge that neither this Court nor the United States Supreme Court has recognized that the parties have a right to present a plea Santobello, supra at 261-262. Moreover, we fail to discern any inconsistency between our decision here and Higgins v Henry Ford Hosp, 384 Mich 633, 637; 186 NW2d 337 (1971), a civil case in which the Court ruled that the trial court’s acceptance of an amended complaint after entry of an order of dismissal for no progress “in fact and in law reinstated the case.” The dissent references the committee comment to GCR 1963, 13. GCR 1963, 13 was replaced in 1985 with MCR 1.105, which this Court adopted without the commentary referenced by the dissent. We do not question the validity of MCR 1.105 or the comment to its predecessor, GCR 1963, 13. On the contrary, we conclude that our decision here construes the court rules, when considering the case in the overall context of our system for the administration of justice, “to secure the just, speedy, and economical determination of every action and to avoid the consequences of error that does not affect the substantial rights of the parties.” MCR 1.105 (emphasis added).

37 We reject defendant’s assertion that the juror’s having “made up” his mind after the first day of trial denied defendant a fair trial. The attempt to form and reach conclusions about the evidence during the course of a trial is a natural part of the human thought process with which every juror must struggle in reaching a verdict. It would be illogical to expect jurors to suspend normal thought processes when hearing the evidence. At most, the effect of the statement is to admit that, with regard to this juror, the prosecutor sustained his burden of proof when he finished presenting his case on the first day.