People v. Reichert

437 N.W.2d 274, 175 Mich. App. 228

• Court: Michigan Court of Appeals
• Decided: November 22, 1988
• Docket: Docket No. 101752
• Status: Published

Opinions

Per Curiam.

Defendant was found guilty by a jury of felonious assault, MCL 750.82; MSA 28.277. He appeals and we reverse.

On appeal, defendant raises four issues. One issue, which requires reversal, merits discussion.

DID THE TRIAL COURT ERR IN INSTRUCTING THE JURY THAT THE VERDICT "WOULD BE GUILTY” IF THE EVIDENCE SHOWED GUILT BEYOND A REASONABLE DOUBT?

In the instant case, during voir dire, the following occurred in the presence of the entire jury:

Q. [By Prosecutor Dickerson]: Miss Reese, I think we covered this somewhat in another jury selection, would you have a problem finding the Defendant guilty if you are convinced beyond a reasonable doubt?

A. (Juror No. 8) Yes.

Mr. Dickerson: Thank you. Your Honor, I would challenge Miss Reese for cause.

The Court: Mrs. Reese, if I may, we will go over this one more time. I don’t want you to be nervous or anything at all, but if after you have heard all the evidence in this case and I instruct you that the burden of proof is on the Prosecutor to establish each and every element of the crime — let’s assume for purposes of illustration that there are four elements of the crime that the Prosecutor has to prove to you beyond a reasonable doubt, and after hearing all of the evidence, you are convinced beyond a reasonable doubt that the Prosecutor has established each and every one of those four elements. Do you understand that the verdict in that instance, if you were convinced beyond a reasonable doubt, would be guilty? Do you understand that ma’am?

Juror No. 8: Okay.

The Court: And you think you’d be able to return a verdict of guilty if you were convinced that he had established his burden of proof?

Juror No. 8: No.

The Court: You don’t think you could?

Juror No. 8: Well . . .

The Court: You want me to cover it one more time for you?

Juror No. 8: Okay.

The Court: Again, if there are four elements that he has to prove beyond a reasonable doubt and you personally are convinced that he did prove all of those elements beyond a reasonable doubt, would you vote guilty then?

Juror No. 8: Yes, I will.

At the close of voir dire, defense counsel moved for a mistrial on the basis that the instructions implied that the jury must convict if it found guilt beyond a reasonable doubt. The trial court denied the motion.

Regretfully and on a very close issue, we conclude that the jury was misled by the trial court’s initial instruction and that subsequent instructions did not cure the error. The trial court’s statement to the jury that, if the prosecutor established the elements of the crime, "the verdict in that instance, if you were convinced beyond a reasonable doubt, would be guilty,” implies that the jury must convict. The instruction which immediately followed did not address the issue at all, nor did the final instructions clarify it. Even though it is obvious, as plaintiff argues, that the trial court was trying to determine if a juror could convict defendant, the actual instruction given removed from the jury its right to acquit as a matter of leniency, or at least was misleading as to that issue. Further, that instruction was not cured.

Reversed and remanded for a new trial.