People v. Pannell

461 N.W.2d 621, 436 Mich. 138

• Court: Michigan Supreme Court
• Decided: September 12, 1990
• Docket: Docket Nos. 84104, 84324, (Calendar Nos. 56)
• Status: Published

Opinions

Riley, C.J.

We granted leave to appeal in these two cases, consolidated for purposes of this appeal, to review the strict rule requiring reversal of a conviction in the event of communication with a deliberating jury outside the courtroom and the presence of counsel.¹

Communication with a deliberating jury is prohibited by MCR 6.414(A).² Any communication with a jury not in conformance with the court rules has been, and continues to be, discouraged by this Court. However, the realities of trial practice lead us to the determination that the harsh rule of automatic reversal goes beyond the limits necessary to safeguard the right of a defendant to a fair trial. Therefore, today we modify the rule of automatic reversal.³

The linchpin of the new rule centers on a showing of prejudice. For purposes of this rule, we broadly define prejudice as "any reasonable possibility of prejudice.”

We find that communication with a deliberating jury can be classified into one of three categories: substantive, administrative, or housekeeping. Upon appeal, it is incumbent upon a reviewing court to first categorize the communication that is the basis of the appeal. This will necessarily lead to the determination of whether a party has demonstrated that the communication was prejudicial, or that the communication lacked any reasonable prejudicial effect.⁴

Substantive communication encompasses supplemental instructions on the law given by the trial court to a deliberating jury. A substantive communication carries a presumption of prejudice in favor of the aggrieved party regardless of whether an objection is raised. The presumption may only be rebutted by a firm and definite showing of an absence of prejudice.

Administrative communications include instructions regarding the availability of certain pieces of evidence and instructions that encourage a jury to continue its deliberations. An administrative communication carries no presumption. The failure to object when made aware of the communication will be taken as evidence that the administrative instruction was not prejudicial. Upon an objection, the burden of persuasion lies with the nonobjecting party to demonstrate that the communication lacked any prejudicial effect. Alternatively, a reviewing court, upon its own volition, may find that an instruction which encourages a jury to continue its deliberations was prejudicial to the defendant because it violated the ABA Standard Jury Instruction 5.4(b),⁵ as adopted by this Court in People v Sullivan, 392 Mich 324; 220 NW2d 441 (1974).

Housekeeping communications are those which occur between a jury and a court officer regarding meal orders, rest room facilities, or matters consistent with general "housekeeping” needs that are unrelated in any way to the case being decided. A housekeeping communication carries the presumption of no prejudice. First, there must be an objection to the communication, and then the aggrieved party must make a firm and definite showing which effectively rebuts the presumption of no prejudice.

We conclude that the instructions in each of the cases at bar fall into the category of administrative communication, except the typewritten definition of second-degree criminal sexual conduct which was a substantive communication. With regard to the administrative communications in each case, the defense counsel waived objection when made aware of the instructions. With regard to the substantive communication in Pannell, the prosecution effectively overcame the presumption of prejudice to the defendant. Furthermore, the note written by the trial court was in conformance with the Sullivan rule and included in the record. We find that the record evidence indicates that neither defendant has suffered "any reasonable possibility of prejudice” as a result of the communications.

Accordingly, we reverse the decision of the Court of Appeals in France and affirm the decision of the Court of Appeals in Pannell.

I. FACTS AND PROCEEDINGS

A. PEOPLE v FRANCE

At the conclusion of a September, 1985, jury trial, LaNathan France was convicted of armed robbery⁶ and of breaking and entering an occupied dwelling with intent to commit larceny.⁷ The jury acquitted him of second-degree criminal sexual conduct.⁸ He was sentenced to serve a term of from twenty to forty years in prison for armed robbery, and a concurrent term of from ten to fifteen years in prison for breaking and entering.

Moments after the jury left the courtroom to begin its deliberations, the trial court asked defense counsel, "[a]ny objection, if [the jurors] ask for the exhibits, just to send them into them by way of the bailiff . . . ?” Defense counsel said he did not object.

While the jury was deliberating, the trial court several times indicated that there had been contact between the bailiff and the jury. On each occasion, defense counsel stated that he had no objection.

The first of these conversations began when the trial court explained that the jury had sent out a note asking for a diagram of the victim’s house, as well as the exhibits that had been produced by the prosecution. The trial court stated, "I instructed [the bailiff] to tell [the jurors] that the diagram on the board wasn’t made an exhibit, thus it’s not one of the exhibits that can be brought to them. Their response was okay.” The trial court then stated that the other exhibits had been given to them. Defense counsel responded: ”[n]o objection to the handling [of] the diagram in the manner in which you did, your Honor.”

Later in the day, the trial court stated that it had received a note from the jury asking for a further definition of criminal sexual conduct. The trial court reported that it had given the jury a written instruction in a form that was approved by the defense counsel. Defense counsel stated on the record that the recitation of the trial court was correct.⁹

Finally, the trial court said that the jury had requested a police report. He told counsel that "the response to [the jurors] was that [the police report] was marked but was not received in evidence; and, therefore, we were not able to give them that.” Defense counsel’s response was the same: "[n]o objection to that, your Honor.”

In the Court of Appeals, France presented many claims of error. Believing one had merit, the Court of Appeals declined to discuss the others.

The Court of Appeals followed the strict rule prohibiting communication with a deliberating jury outside the courtroom and the presence of counsel, People v Cain, 409 Mich 858; 294 NW2d 692 (1980), and reversed the conviction of the defendant.¹⁰ The Court based its decision solely on the doctrine of stare decisis.* ¹¹ Judge Beasley signed the unanimous opinion and added a separate concurrence in which he urged this Court to "revisit and reverse” the automatic reversal rule stated in Zaitzeff v Raschke, 387 Mich 577; 198 NW2d 309 (1972).

The prosecution sought leave to appeal, which we granted on June 30, 1989.¹²

B. PEOPLE v PANNELL

Earl L. Pannell went to trial in November, 1985, on eight counts of first-degree criminal sexual conduct.¹³ At the conclusion, a jury found him not guilty of three of the eight counts. With regard to the remaining five counts, Pannell was convicted of the lesser offense of third-degree criminal sexual conduct.¹⁴ He was sentenced to five concurrent terms of from ten to fifteen years in prison.

The jury was instructed near the end of the day on November 12, 1985. The next morning, the jury began deliberating, and, at 10:30 a.m., it asked the court for "[pictures, police report, [and the victim’s] statement.” In the absence of defense counsel, the judge directed the bailiff to give the jury the photographs that were admitted into evidence. However, the court waited to respond to the request for the police report and the victim’s statement until defense counsel appeared at 12:20 p.m. At this time, the matters were placed on the record. Both parties agreed that neither the police report nor the victim’s statement should be sent to the jury because the items were not admitted into evidence. Furthermore, defense counsel had no objections to the jury receiving the photographs. The jury was excused that afternoon at 4:30 p.m. without reaching a verdict.

The following morning, November 14, 1985, at 10:38 a.m., the jury sent a note to the judge which read, "we can not reach an agreement.” Without consulting counsel, the judge immediately replied with a note which read, "[c]ontinue your deliberations . . . .” At 12:12 p.m. that afternoon, the jury sent out a second note which stated, "[m]ay we see the hammers?” Again, without consulting counsel, the judge directed the bailiff to give the jury the hammers that were entered into evidence as exhibits.¹⁵ When the attorneys returned to the courtroom at 12:20 p.m. the same afternoon, the judge summarized the above occurrences for the record.¹⁶ Here again, there was no objection to the judge sending the jury the exhibits that were entered into evidence, in this instance the hammers.

However, defense counsel wanted to place on the record an objection to the jury request of the previous day. The objection was that the testimony of a police officer regarding the victim’s statement should have been reread to the jury.¹⁷ During the objection, the jury returned with its verdict at 12:25 p.m.

The Court of Appeals affirmed the convictions of the defendant. People v Pannell, 170 Mich App 768; 429 NW2d 233 (1988). In doing so, the Court found no error requiring reversal since the note sent to the jury was consistent with the ABA Standard Jury Instruction 5.4(b),¹⁸ adopted by this Court in People v Sullivan, supra. Additionally, the Pannell Court took the opportunity to express its concern about the automatic reversal rule:

We also state that we, like a growing number of our fellow appellate judges, disagree with the strict rule requiring reversal set forth in People v Cain [94 Mich App 644, 648; 288 NW2d 465 (1980)]. Like Judge Sawyer in his concurrence in People v Lyons [164 Mich App 307, 311; 416 NW2d 422 (1987)], we do not believe that contact with a deliberating jury can never be harmless error. We join Judge Sawyer in urging the Supreme Court to review this issue. [Id. at 771.]

The defendant sought leave to appeal, which we granted on June 30, 1989.¹⁹

II. ANALYSIS

A

It has been clear for well over a hundred years that contact with a deliberating jury must be carefully limited. People v Knapp, 42 Mich 267, 269-272; 3 NW 927 (1879); Churchill v Alpena Circuit Judge, 56 Mich 536; 23 NW 211 (1885).²⁰

In recent years, this Court has been asked to address the issue on numerous occasions. In Wilson v Hartley, 365 Mich 188, 190; 112 NW2d 567 (1961), a bailiff and a clerk entered the jury room on the second day of deliberations and delivered an oral message from the judge. The Court said that it did not "condone such improper method of handling a jury trial,” but affirmed the conviction on the ground that there was no prejudice to the plaintiff (against whom the jury returned its verdict). In Wilson, pp 189-190, we emphasized the importance of conforming to the correct procedure:

Trial judges have a responsibility to communicate to the jury directly in open court and in the presence of, or after notice to, the parties or their counsel. The secrecy of the deliberations of the jury is a responsibility of the trial judge. The question of communications, either oral or written, from third parties to the jurors in the jury room has been the subject of several appeals to this Court in the last year. This indicates the importance of calling to the attention of the entire trial bench their duty to preserve the secrecy of the jury deliberations.

A few months later, the Court ordered a new trial in a case in which the trial judge had directed the sheriff to give oral instructions to a deliberating jury. People v Kangas, 366 Mich 201; 113 NW2d 865 (1962). Citing Knapp and Churchill, the Court ordered the new trial without separately discussing the question whether there was any prejudice in that particular case. The Court also cautioned trial judges to be sure that they and others avoid improper contact with deliberating juries:_

We call to the attention of the trial judges of this State their duty to safeguard trial by jury from any suspicion the jury may be tampered with while deliberating. Frequently of late this Court has had similar incidents called to its attention by appeal in which there is reason to believe the opportunity for jury tampering was present.

[W]e . . . caution trial judges that bailiffs, sheriffs, and other court personnel should be warned about practices involving associations with jurors both in and out of the courtroom which might create the opportunity to influence their decisions. [Kangas, supra at 208.]

In Salvatore v Harper Woods, 372 Mich 14, 19-21; 124 NW2d 780 (1963), the trial judge returned a deliberating jury to the courtroom and spoke to the jury in the absence of counsel. The Court said that the trial court should not proceed in this fashion "unless undue delay of the jury’s deliberations would result or unless counsel have agreed by stipulation on the record to permit such further instruction in their absence.” Id. at 21. The Court affirmed the judgment of the trial court, however, observing that the proceedings in Salvatore had occurred in open court and had been recorded.

After wrestling with three more cases involving contact between a deliberating jury and outsiders,²¹ the Court decided Zaitzeff v Raschke, supra. In that case, a deliberating jury passed out a note asking that certain testimony be reread. The judge brought the jurors back to the courtroom, where he discussed their request.²² A short time later, the judge and the court reporter entered the jury room, where the court reporter read to the jury the requested testimony. This Court reversed the trial court’s judgment in Zaitzeff, adopting Justice Black’s view that it is virtually impossible for a defeated party to demonstrate prejudice as a result of an improper visit to a deliberating jury. This Court strongly emphasized its intention to stop the practice of making improper contact:

With what was written so plainly in 1961 for Wilson v Hartley, 365 Mich 188, concerning the indefensible practice of entering the jury room while the jurors are there, no matter by whom done, one would think that this Court had said enough to prevent what took place here. Yet the practice seems to go on, and on, and on, encouraged occasionally by "no prejudice shown” conclusions of a group of Justices who cannot hope to know what was said, or done, or gestured, or hinted, in the sanctity of the jury room. [Id. at 579.]

Later in 1972, this Court reversed a first-degree murder conviction where the trial judge, without obtaining the permission of the attorneys, had entered the jury room to deliver twenty-one exhibits. People v Heard, 388 Mich 182, 183-184; 200 NW2d 73 (1972). Neither the attorneys nor the jury had asked the judge to do this, and defense counsel objected when the judge returned to the courtroom.

In People v Cain, supra, this Court reinstated an order granting a defendant a new trial. A deliberating jury had passed out a . note asking whether its verdict had to be unanimous. The judge read the note and told the bailiff to tell the jurors that their verdict had to be unanimous. Because of this error, the trial court granted the defendant a new trial, which the Court of Appeals set aside. This Court reinstated the trial court’s order for a new trial, since the bailiff’s oral statement to the jury "was in the nature of an instruction, off the record and without counsel, in (at the perimeter of) the jury room, and while the jury was deliberating.” 94 Mich App 648.

The Court’s most recent opinion in this area is People v Anderson, 418 Mich 31; 340 NW2d 634 (1983). In Anderson:

The judge concluded his instructions with the statement that he would, before the jury commenced deliberations, discuss with the lawyers the instructions he had just given. If there were no additional instructions, he would then "personally come to your jury room and advise you that there will be no more instructions,” whereupon "any verbal communication between us shall cease.” After determining that there would be no further instructions, the judge announced that he would, with the consent of both counsel, advise the jury to commence deliberations, and apparently did so. [Id. at 45.]

The Court of Appeals reversed Anderson’s conviction on a different ground, and this Court reinstated the conviction, finding that the ex parte communication with the jury was not error which required reversal because the trial judge had expressed his intention to communicate with the jury in that fashion and neither party had objected, even though each had been put on notice of the judge’s intention to proceed. Nevertheless, the Court once again cautioned that such contact was improper:

There is simply no showing of prejudice in this case .... This view should not be taken in any way as approval of the practice employed in this case. It was an unwise and potentially prejudicial procedure. The better, simpler, and wiser practice would require the trial judge to communicate with the jury only from the bench in the courtroom and on the record. While experience suggests that that may sometimes be a cumbersome and time-consuming procedure, it is a price worth paying to preserve the integrity of the factfinding process, the appearance of jury independence, and the avoidance of the expense, delay, and consumption of judicial resources involved in appellate evaluation of jury room contact between the court and the jurors, [id. at 40-41.]

This issue has also been presented on numerous occasions to the Court of Appeals. Two recent decisions are noteworthy. In People v Kent, 157 Mich App 780, 789-792; 404 NW2d 668 (1987), the Court of Appeals reversed the defendant’s convictions because of errors in evidentiary rulings, and went on to address the defendant’s contention that error which required reversal took place when a court clerk took meal orders from the jury during its deliberations. Defense counsel and defendant were informed after the fact and neither objected. The Court identified the meal order as a "purely housekeeping matter,” id. at 791, and concluded that the communication was not improper. Before leaving the issue, the Kent Court strongly criticized the automatic reversal rule and urged a greater flexibility in the manner with which this Court treats the issue.²³_

In People v Lyons, 164 Mich App 307, 309; 416 NW2d 422 (1987), lv den 430 Mich 861 (1988), a deliberating jury sent out a note that read, " '[t]he jury cannot reach a decision. What does the judge suggest?’ ” Without consulting either party, the judge told the bailiff to tell the jury to " 'keep on working.’ ” The bailiff delivered the oral message. The Court of Appeals reversed the defendant’s conviction, saying that "[i]n Michigan there is a strict rule prohibiting communication with a deliberating jury outside of the courtroom and the presence of counsel.” The Court of Appeals relied principally upon Cain.

Again, a member of the panel, Judge Sawyer, issued a separate concurrence in which he urged this Court to reexamine the automatic reversal rule. Lyons, supra at 311-313. While noting that an "invasion into the jury room must be looked upon with great concern,” Judge Sawyer continued on, stating, "I cannot agree with the proposition that such an invasion can never be considered harmless.” Id. at 311. Additionally, Judge Sawyer raised the policy concern of requiring the victim of the crime to "be put through another trial in futile reverence to a rule which serves no useful purpose.” Id. at 313.²⁴

It is readily apparent that an increasing number of Court of Appeals jurists, while remaining loyal to the doctrine of stare decisis, have found considerable disfavor with the rule of automatic reversal in the event of ex parte communication with a deliberating jury.

B

A review of federal cases that address the issue of ex parte communications with a deliberating jury indicate that the nature of the communication can be classified as either substantive or administrative. Substantive ex parte communication occurs when the trial court provides the jury with supplemental instructions on matters of law. Administrative ex parte communication includes instructions regarding the availability of certain pieces of evidence, and an instruction which encourages the jury to continue its deliberations.

One of the earliest cases involving the issue of substantive ex parte communication is Fillippon v Albion Vein Slate Co, 250 US 76; 39 S Ct 435; 63 L Ed 853 (1919), where an employee brought a personal injury action against his employer for work-related injuries. In Fillippon, the jury was instructed on applicable Pennsylvania law and had retired for deliberations when it sent a written inquiry to the court asking whether the plaintiff should be found to have been contributorily negligent. The court responded with a written supplemental explanation of the law of contributory negligence.

The United States Supreme Court found that the supplemental instruction given to the jury was not in accord with Pennsylvania law, and that it was "calculated to mislead the jury in that it excluded a material element that needed to be considered in determining whether plaintiff should be held guilty of contributory negligence . . . .” Id. at 82. The Court said that "the trial court erred in giving a supplementary instruction to the jury in the absence of the parties and without affording them an opportunity either to be present or to make timely objection to the instruction.” Id. at 81. Although the Court provided no remedy for the error of ex parte communication, it held that erroneous instructions in jury trials are presumptively injurious and furnish grounds for reversal unless it affirmatively appears that they were harmless. The Fillippon rule was then extended to criminal cases in Shields v United States, 273 US 583; 47 S Ct 478; 71 L Ed 787 (1927).

One of the leading cases regarding unauthorized communications with a jury is Remmer v United States, 347 US 227; 74 S Ct 450; 98 L Ed 654 (1954).²⁵ The Supreme Court held:

In a criminal case, any private communication, contact, or tampering, directly or indirectly, with a juror during a trial about the matter pending before the jury is, for obvious reasons, deemed presumptively prejudicial, if not made in pursuance of known rules of the court and the instructions and directions of the court made during the trial, with full knowledge of the parties. The presumption is not conclusive, but the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant. [Id. at 229. Emphasis added.][²⁶]

One manner in which the prosecution can meet its burden of establishing that the instruction was harmless to the defendant is illustrated in United States v York, 830 F2d 885, 894 (CA 8, 1987). The jury posed the question, " '[c]an we find York guilty on Count n even though he may not have carried a gun?’ ” The court responded with, " '[i]n answer to your question I refer you to pages 31-33 of my instructions.’ ” The court held that the presumption of prejudice was overcome because, "[t]he court’s ex parte communication did nothing more than direct the jury to the neutral correct explanation of the law . . . .” Id. at 895. See also Black v Stephens, 662 F2d 181 (CA 3, 1981) (In response to a jury’s note requesting a definition of excessive force, the trial court merely recited the original instruction to which there was no objection. The court held that the recitation of the original charge was not improper.).²⁷

Ex parte administrative instructions are not generally held to be error requiring reversal unless it can be shown that there was a prejudicial effect upon a jury. Occasionally, a jury will request certain documents or information that may or may not have been admitted into evidence. When these requests occur, the trial court will ordinarily advise the jury regarding the availability of the information requested, or, if the subject matter of the request has been admitted into evidence, the court will comply with the request and send in the exhibits.

As amply illustrated above, case law has determined that it is error for the court to instruct or communicate with the jury in the absence of counsel and without notice to the defendant and counsel. In United States v Reynolds, 489 F2d 4, 8 (CA 6, 1973), the court held that the test for determining if a forbidden communication constituted error requiring reversal was whether " 'there is any reasonable possibility of prejudice.’ ”²⁸

In United States v Mesteth, 528 F2d 333 (CA 8, 1976), the jury sent two written requests to the judge. The first asked for the testimony of a witness to be read, and the second was an inquiry regarding whether the defendant was right- or left-handed. The judge responded by writing "no” and his signature on the bottom of each note. The court applied the Reynolds test to find that the communications were not "of an affirmative or substantive nature,” and held that "there was no reasonable possibility of prejudice, and the error, if any, was harmless.” Mesteth at 335.

Included within the category of administrative communication is an instruction which encourages a jury to continue its deliberations. In General Motors Corp v Walden, 406 F2d 606 (CA 10, 1969), after the jury had deliberated for some time, it sent a note to the court which read, " 'Your honor, we are sitting five to one, and apparently cannot get closer. We do not know what to do. Will you please instruct us?’ ” Id. at 609. Without consulting counsel the court responded, " '[t]he Court has received your note and advises that you are to continue to deliberate.’ ” Id. Within an hour the court informed counsel of the note and its response. However, the court did not divulge how the jury was divided. Neither counsel objected, moved for a mistrial, or requested further instructions. The court found that the statement by the trial court was "an administrative direction to the jury” and went on to hold, "the communication was both harmless to the parties and collateral to the issues submitted for determination by the jury.” Id. at 610.

Again, in Reazin v Blue Cross & Blue Shield of Kansas, Inc, 663 F Supp 1360 (D Kan, 1987),²⁹ citing Acree v Minolta Corp, 748 F2d 1382, 1385 (CA 10, 1984), the court said that the response of a trial court to a jury request for evidence or to a question whether a jury should proceed is an administrative direction. In Aeree, the court held, "[notwithstanding this general [Fillippon] rule, it is not error if the instructions given to the jury are merely administrative directions rather than supplementary instructions.” Id. at 1385.³⁰

c

We are persuaded by our analysis of the preceding cases that the Michigan rule of automatic reversal does not serve the best interests of justice and, in many instances, it may very well serve to defeat justice. The Michigan rule was borne of the frustration of this Court with the failure of our state trial courts to cease the practice of entering the jury room while the jury is deliberating. Notwithstanding our decision today, the message bears repeating: ex parte communication with a deliberating jury is error under MCR 6.414(A); it has been, and continues to be discouraged by this Court.

However, as observed by the United States Supreme Court in Rushen v Spain, 464 US 114, 118-119; 104 S Ct 453; 78 L Ed 2d 267 (1983), reh den 465 US 1055 (1984):

[T]he Constitution ”does not require a new trial every time a juror has been placed in a potentially compromising situation . . . [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.” Smith v Phillips, 455 US 209, 217 [102 S Ct 940; 71 L Ed 2d 78] (1982). There is scarcely a lengthy trial in which one or more jurors do not have occasion to speak to the trial judge about something, whether it relates to a matter of personal comfort or to some aspect of the trial. The lower federal courts’ conclusion that an unrecorded ex parte communication between trial judge and juror can never be harmless error ignores these day-to-day realities of courtroom life and undermines society’s interest in the administration of criminal justice.

We are persuaded that this Court can no longer "ignore the day-to-day reality of courtroom life” in Michigan. While we are mindful of the right to a fair trial, we cannot ignore the interest of society in the administration of justice, and the interest of the state in the effective use of its judicial and law enforcement resources. Furthermore, we find merit in the concern for the victims of crime expressed by Judge Sawyer in his Lyons concurrence. We, too, believe that it is unconscionable that a victim must be put through another trial in futile reverence to a rule which fails to serve the interests of justice.³¹ Therefore, we draw from the reasoning of the Court of Appeals jurists who have urged us to review this issue, as well as from the reasoning of the federal courts, to modify the rule of automatic reversal.

The linchpin of the new rule centers on a showing of prejudice. For the purposes of this rule, we broadly define prejudice as " 'any reasonable possibility of prejudice.’ ”³² A reviewing court must reverse the conviction if it determines that a defendant has been prejudiced by an ex parte communication with the jury.

We hold that before a reviewing court can make a determination regarding the prejudicial effect of an ex parte communication, it must first categorize the communication into one of three categories: substantive, administrative, or housekeeping. This wilJ necessarily lead to a decision regarding whether a party has demonstrated that the communication was prejudicial or that the communication lacked any reasonable prejudicial effect.³³

Substantive communication encompasses supplemental instruction on the law given by the trial court to a deliberating jury. A substantive communication carries a presumption of prejudice in favor of the aggrieved party regardless of whether an objection is raised. The presumption may only be rebutted by a firm and definite showing of an absence of prejudice.³⁴ See Remmer, supra.

Administrative communications include instructions regarding the availability of certain pieces of evidence and instructions that encourage a jury to continue its deliberations. An administrative communication has no presumption of prejudice. The failure to object when made aware of the communication will be taken as evidence that the instruction was not prejudicial. Upon an objection, the burden lies with the nonobjecting party to demonstrate that the communication lacked any prejudicial effect.³⁵ Alternatively, a reviewing court, upon its own volition, may find that an instruction which encouraged a jury to continue its deliberations was prejudicial to the defendant because it violated the ABA Standard Jury Instruction 5.4(b), as adopted by this Court in Sullivan, supra.

Housekeeping communications are those which occur between a jury and a court officer regarding meal orders, rest room facilities, or matters consistent with general "housekeeping” needs that are unrelated in any way to the case being decided. A housekeeping communication carries the presumption of no prejudice. First, there must be an objection to the communication, and then the aggrieved party must make a firm and definite showing which effectively rebuts the presumption of no prejudice.³⁶

D

In France, the Court of Appeals found no error with regard to the typewritten definition of second-degree criminal sexual conduct which was sent to the jury because the note had received the prior approval of counsel. The Court followed the analysis in People v Anderson, 418 Mich 31; 340 NW2d 634 (1983), and held that no prejudice was shown with regard to the typewritten note. We agree.

We find that the typewritten note was a substantive communication because it was a supplemental instruction on the law. However, we hold that the presumption of prejudice was overcome by the consent of the defense counsel prior to the instruction being sent to the jury. As in Anderson, the judge expressed his intention to engage in an ex parte communication with the jury, and both parties consented to the communication after having been put on notice by the court. Id. Furthermore, the note merely recited the original instruction on second-degree criminal sexual conduct to which there was no objection when given to the jury at the close of trial. Black, supra.37 Therefore, we are unable to find any reasonable possibility of prejudice to the defendant as a result of the typewritten note.

The comments made by the bailiff in France were a result of requests made by the jury to review certain pieces of information, some that were taken into evidence and some that were not. In each instance, the judge either provided the jury with the evidence, or he instructed the jury that the information was unavailable because it was not entered into evidence. In Pannell, the communications were similar. We find that the ex parte instructions given in both cases come within the category of administrative communication. In each case, the defense counsel waived objection when he was made aware of the instructions, and we are unable to find any reasonable possibility of prejudice to the defendants.

With regard to the note written by the trial court in Pannell, we find that the judge merely required the jury to continue its deliberations. The court did not require or threaten to require the jury to deliberate for an unreasonable time or for unreasonable intervals. Therefore, we find no violation of the rule adopted in Sullivan.

III. CONCLUSION

A defendant is entitled to a fair trial, not a perfect one.³⁸ Today, we have set forth rules which we believe acknowledge the realities of the courtroom while safeguarding the right of an individual to receive a fair trial. Reviewing courts must first categorize the nature of the communication—substantive, administrative, or housekeeping—and then analyze whether the communication carried any reasonable possibility of prejudice to the defendant. In doing so, we find that the communications which serve as the basis for each of the instant appeals did not result in any possible prejudicial effect to the defendant.

Thus, we reverse the decision of the Court of Appeals in France and remand the case to the Court of Appeals for consideration of the remaining issues which the defendant has raised on appeal. Conversely, we affirm the decision of the Court of Appeals in Pannell.

Brickley, Boyle, and Griffin, JJ., concurred with Riley, C.J.

1 See Zaitzeff v Raschke, 387 Mich 577; 198 NW2d 309 (1972), and People v Cain, 409 Mich 858; 294 NW2d 692 (1980) (peremptory order adopting the dissent of Justice Cavanagh in People v Cain, 94 Mich App 644, 647-648; 288 NW2d 465 [1980]).

2 MCR 6.414(A) provides:

Court’s Responsibility. The trial court must control the proceedings during trial, limit the evidence and arguments to relevant and proper matters, and take appropriate steps to ensure that the jurors will not be exposed to information or influences that might affect their ability to render an impartial verdict on the evidence presented in court. The court may not communicate with the jury or any juror pertaining to the case without notifying the parties and permitting them to be present. The court must ensure that all communications pertaining to the case between the court and the jury or any juror are made a part of the record.

3 The rule that we adopt today will apply to both criminal and civil cases.

4 The following three paragraphs provide examples of what may constitute substantive, administrative, or housekeeping communications. The examples included within each category are not intended to be an exclusive list of the communications that may be included within each category. We leave the classification of communications not enumerated in this opinion to be decided as they arise in future cases.

5 The current version of this jury instruction is found in 3 ABA Standards for Criminal Justice (2d ed), Standard 15-4.4(b).

6 MCL 750.529; MSA 28.797.

7 MCL 750.110; MSA 28.305.

8 MCL 750.520c(l)(c); MSA 28.788(3)(l)(c).

9 The Court of Appeals held that there was no error regarding the typewritten definition of criminal sexual conduct that was given to the jury, citing People v Anderson, 418 Mich 31; 340 NW2d 634 (1983).

10 The reversal was based solely on the comments made by the bailiff to the jury.

11 "Although we have some concern for this automatic reversal rule, stare decisis requires our adherence and reversal in the instant case.” People v France, unpublished opinion per curiam of the Court of Appeals, decided August 18, 1988 (Docket No. 89986).

12 432 Mich 920 (1989).

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

14 MCL 750.520d(l)(b); MSA 28.788(4)(l)(b).

15 During trial, defense counsel objected to the admissibility of the hammers because they were not the actual hammers used in the perpetration of the crime, merely similar to those actually used. This objection was overruled and the hammers were admitted into evidence.

16 Thursday, November 14, 1985—12:20 p.m.

(Proceedings reconvened; out of the presence of jury)

The Court: Mr. Belcoure, Ms. Donahue, we have received some communications from the jury during the day. At or about 10:38 the jury wrote a note which says, We can not reach an agreement. About 10:38, the Court wrote a note to the jury saying, Continue your deliberations, with my initials on it, with the instruction that that be shown to the jury and retrieved so that it could be put in the Court file, which was done.

At 12:12 the jury wrote a note which says, May we see the hammers? Thank you. I instructed the bailiff to give the jurors Exhibits 10 and 10-A or 10-B, rather. Strike that. 10, 10-A, and 10-B, which are the hammers.

17 This was the same testimony that, on the previous day, defense counsel agreed should not be given to the jury.

18 Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury, Standard 5.4, Length of deliberations, deadlocked jury,

¹⁹

20 Over the years, variations of this issue continued to appear in this Court. See, for instance, People v Mullane, 256 Mich 54, 59-60; 239 NW 282 (1931), People v Chambers, 279 Mich 73, 79-81; 271 NW (1937), People v Pizzino, 313 Mich 97, 107-108; 20 NW2d 824 (1945), and People v Nick, 360 Mich 219; 103 NW2d 435 (1960).

21 Bunda v Hardwick, 376 Mich 640, 665-668, 673-674; 138 NW2d 305 (1965), DeCorte v New York Central R Co, 377 Mich 317, 331-332, 333-357, 363; 140 NW2d 479 (1966), and People v Schram, 378 Mich 145, 150-154, 157-166; 142 NW2d 662 (1966).

22 The attorneys had, for some reason, chosen to waive being present when the jury returned its verdict. Apparently the attorneys were also absent when the jury returned to the courtroom to discuss its request for a rereading of the testimony.

23 We believe the exact language of Kent, supra at 791-792, bears repeating in light of our decision today:

Broad rules of law designed to address especially egregious situations on occasion become petrified without additional analysis over periods of time. It makes little sense to have a rule so absolute that the potential result is reversal of an otherwise errorless trial because of am insignificant contact with a jury which does not even raise the concern of those who were present during the proceedings. Those who promulgate such rules would do well to consider the consequences of reversal of convictions where, despite clear instructions to the contrary, a juror suddenly appears at a secretary’s desk and makes a request for water or to call a babysitter, or a juror knocks at the door and verbally requests certain exhibits, or a note is sent to a judge indicating how the voting stands. Is a court officer, when taking a jury to a meal, prohibited from verbally indicating the spending limits?

Little enough confidence exists today in our institutions without further perpetuating its erosion by an automatic rule applied to court personnel who are under oath to obey the law where nothing more is revealed than an incidental contact unrelated to the case itself. The judicial system must demonstrate some confidence in those who are entrusted with its well-being and, in fact, have little interest in the outcome of a matter, when there is no showing of prejudice (or, after scrutiny, even a hint of such).

24 The full excerpt from which this quotation is taken, reads:

I find it regrettable that the citizens’ tax dollars must be wasted on giving a defendant another trial when he has received a fair trial the first time. I find it unconscionable that the victim must be put through another trial in futile reverence to a rule which serves no useful purpose. It is little wonder that victims may be reluctant to come forward when our justice system places upon them the burdens of following such absurd rules. As Judge Harrison pointed out, such results as we are compelled to reach today only serve to deepen the erosion of public confidence in our judiciary. Therefore, while I am constrained to vote for reversal, I urge the Supreme Court to reverse us and restore some common sense to the system.

25 Remmer involved an unnamed person that had remarked to a juror during trial that he could profit by bringing in a verdict favorable to the defendant. Notwithstanding this distinction, we believe that the nature of this type of ex parte jury contact must be classified as substantive and that the Supreme Court’s treatment of the communication is relevant to our analysis here.

26 In United States v Pennell, 737 F2d 521 (CA 6, 1984), cert den 469 US 1158 (1985), the court held that the Supreme Court’s subsequent opinion in Smith v Phillips, 455 US 209; 102 S Ct 940; 71 L Ed 2d 78 (1982), reinterpreted Remmer so as to shift the burden of showing prejudice to the defendant. However, no other federal appellate court has departed from the Remmer standard for evaluating the effect of an improper contact. United States v Butler, 262 US App DC 129, 133, n 2; 822 F2d 1191 (1987).

27 In Gleeson v Wood, 321 F Supp 118 (ED Pa, 1970), the court held that the failure to make a timely objection to a substantive ex parte instruction requested by the jury resulted in a waiver of the objection and precluded the assertion of it at a later time.

28 The foreman asked the bailiff if the jury could have the height of the defendant. The bailiff relayed the question to the judge’s secretary who in turn repeated it to the judge. The judge used the same communication system in reverse to tell the jury that it could not have any additional information. The court held that the communication did not create a reasonable possibility of prejudice.

29 Aff’d 899 F2d 951 (CA 10, 1990).

30 In Aeree, supra at 1384, the jury sent two notes to the trial court during its deliberations. Without notifying either counsel of the questions, the judge responded as follows:

Question: "Should Judge O’Connor have included consideration of loss of car for 9 months in instruction #15?”

Response: "Loss of car was not included because the court ruled that he was not entitled to damage for this item.”

Question: "We seem to be missing the police report re: machines. Is that point relevant to our deliberations?”

Response: "A police report was referred to, but was not offered or admitted into evidence.”

The court held that the responses of the trial judge did not constitute error because "[t]he trial court’s explanation did not instruct the jury on what the law is or on how to apply the law to the evidence. Nor did it instruct the jury on how to conduct itself. It merely gave the jury collateral information that did not affect its deliberation.” Id. at 1385.

31 In Pannell, the victim was raped and brutalized by three men. It is unthinkable to have her relive the nightmare by requiring a new trial merely because there were administrative communications with the jury, communications which we firmly believe did not have any reasonable possibility of prejudice to the defendant.

32 Reynolds, supra at 8.

33 See n 4.

34 The prosecution may rebut the presumption of prejudice with a showing that the instruction was merely a recitation of an instruction originally given without objection, and that it was placed on the record. See Black, supra. In addition, the presumption of prejudice would be overcome with a showing that the trial court had expressed its intent to communicate with the jury and counsel had given prior consent to the communication, as well as to the substance of the instruction. Anderson, supra.

35 Here we depart somewhat from the Aeree rule. In order to best safeguard the defendant’s right to a fair trial when balancing it against the state’s interest in effective use of its judicial and law enforcement resources, we believe that the burden of persuasion should remain with the prosecution to show a lack of prejudicial effect. However, we reiterate that there is no presumption of prejudice to overcome with regard to administrative communications.

36 See United States v Dinorscio, 661 F Supp 1041, 1045 (D NJ, 1987), which held that the Remmer rule (the burden is on the government to prove that the presumptive prejudice was harmless) only shifts the burden to the government "if the improper contact involves the matter pending before the jury”—the guilt or innocence of the defendant.

37 See n 34.

38 Delaware v Van Arsdall, 475 US 673, 681; 106 S Ct 1431; 89 L Ed 2d 674 (1986); Brown v United States, 411 US 223, 231-232; 93 S Ct 1565; 36 L Ed 2d 208 (1973); Bruton v United States, 391 US 123, 135; 88 S Ct 1620; 20 L Ed 2d 476 (1968).