People v. Morgan

255 N.W.2d 603, 400 Mich. 527
Michigan Supreme Court·Decided July 18, 1977·No. Docket Nos. 55554, 55555, (Calendar No. 15)·Published·Cited by 37 cases

Opinions

Coleman, J.

The defendants had a jury trial and were convicted of two kidnappings and two felonious assaults. During the trial, the judge and the attorneys questioned the jurors in the judge’s chambers to determine whether the jurors had seen certain media publicity and, if so, whether it would affect their judgment. The defendants remained in the courtroom while the jurors were [531]*531questioned in chambers. The Court of Appeals said this entitled the defendants to a new trial.1

We disagree. The record in this case demonstrates there is no reasonable possibility that these defendants were prejudiced by their absence during the questioning of the jurors. The Court of Appeals is reversed and the defendants’ convictions are reinstated.

I

The evidence at trial established that Edward Love and Curtis Atkinson were blindfolded and kidnapped by Edmond Monroe, a former codefendant in this case.2 Monroe took Love and Atkinson to an apartment where defendants Morgan and Cargile were waiting. Love and Atkinson were beaten, forced to undress and locked in a small closet. When they were let out of the closet, Curtis Young was present in the apartment. His head was bruised and bleeding. The defendants forced Love, Atkinson and Young to lie on the floor in a pile, naked. Then the defendants doused the victims with lighter fluid and set them on fire. When the fire died out, all three victims were locked in the closet. The next morning when they were let out of the closet, Curtis Young jumped out a second story window trying to escape. Gunshots were fired. Later, he was found dead. Love and Atkinson were then driven to areas near their homes and released.

The defendants were arrested and charged with murder, kidnapping and felonious assault. The first attempt to bring them to trial was aborted by [532]*532a mistrial. Less than two weeks later, they were brought to trial again.3

On the fourth day of the second trial, the jury was excused and, with the defendants present, the defense moved for a mistrial claiming that a newspaper article about the case published in a local paper the day before contained information that might prejudice the jury against the defendants. The defense was also worried about a television news feature dealing with another case that had appeared on two local television stations the day before. The subject of the film was witness intimidation. This troubled the defense because one of the prosecution witnesses who testified against the defendants at the preliminary examination changed her testimony at trial.4

The prosecutor suggested, and the judge and defense attorneys agreed, that the jurors should be questioned about the article and the film. The judge proposed that the jurors be taken to the jury room and then be summoned one by one to the judge’s chambers for individual questioning. After being questioned, the jurors would be taken to the jury box in the courtroom so that they would not be able to communicate with the other jurors. This proposal was agreeable to the attorneys. The defendants did not object to this proposal or ask to be present during the questioning. They simply remained in the courtroom when the judge and all of the attorneys went to the judge’s chambers.

[533]*533The proceedings in the judge’s chambers were stenographically recorded. The transcript, which is almost 40 pages long, shows that the judge explained the purpose of the questioning to the jurors and asked them if they had read any newspaper articles about the case. He also asked what the jurors had been watching on television and whether any newspaper articles or television films had been discussed in the jury room. The attorneys were permitted to ask additional questions if they wished. The judge told the jurors to disregard media publicity, reminded them about their oath to decide the case solely on the basis of the evidence presented in court and cautioned them not to discuss the case until deliberations began.

The questioning revealed that none of the 14 jurors knew anything about the newspaper article. Two jurors did, however, know something about the television film. One of these jurors said she did not see the film, but did hear parts of the audio transmission. She said she heard "about something down here at Recorder’s Court * * * about a witness getting their house burned”. She was aware the film was not about the defendants’ case. The other juror said she saw the film while dressing to come to court. She said she heard "something to the effect that was getting to jurors, or something, and witnesses, and that one witness’s house had been burned”. She too was aware that the film was not about the defendants’ case. When asked whether she thought the things depicted in the film were happening in the defendants’ case, she said "no”.

These two jurors were asked whether the film would affect their judgment in any way. Both of them unequivocally said it would not. The defense attorneys indicated they were satisfied that these [534]*534two jurors had not been prejudiced and could remain in the case.

When all of the jurors had been questioned, the judge and the attorneys returned to the courtroom. The judge denied the mistrial motion, and the trial resumed without comment from either of the defendants. Eventually, the two jurors who knew something about the television film participated in the verdict.

When the defendants appealed their convictions to the Court of Appeals, they objected to their absence during the questioning of the jurors. The Court of Appeals remanded the case to the trial court for an evidentiary hearing to determine whether the defendants had waived their right to be present. The Court of Appeals instructed the trial court to grant the defendants a new trial if they had not waived that right. The trial court found that there had been no waiver, and awarded the defendants a new trial. The prosecution appealed.

II

The Court of Appeals based its decision in this case on People v Medcoff, 344 Mich 108; 73 NW2d 537 (1955). The defendants in Medcoff had a jury trial and were convicted of violating local gambling laws. During the trial, the judge excluded the defendants, all of the attorneys and everyone else except a court reporter and the jurors from the courtroom and then questioned the jurors about possible misconduct. He failed, however, to question the jurors about the possibility that they had been prejudiced by matters outside the record, although defense counsel had earlier requested that he do so.

[535]*535On appeal, this Court did not consider whether and to what extent the defendants had actually been prejudiced by their absence during the questioning. Instead, the Court said that once absence is established, "[i]njury is conclusively presumed”.5

Although we believe the Medcoff result was correct on its facts, it is no longer the law that injury is conclusively presumed from defendant’s every absence during the course of a trial. No less an authority than the United States Supreme Court has recognized that even violations of constitutional rights can amount to harmless error in the circumstances of a particular case,6

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People v. Morgan, 255 N.W.2d 603, 400 Mich. 527 (Mich. 1977).

255 N.W.2d 603 (People v. Morgan) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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