People v. Carter

Following a jury trial, defendant was convicted of first-degree (felony) murder, armed robbery, and possession of a firearm during the commission of a felony in the shooting death of a Detroit convenience store clerk. The issue before the Court is whether defendant’s convictions must be reversed because the trial court refused the jury’s request for the testimony of four witnesses, in violation of MCR 6.414(H).

Although the trial court violated the court rule by foreclosing to the jury the possibility of later reviewing the requested testimony, we hold that this error does not warrant reversal of defendant’s convictions because defense counsel specifically approved the trial court’s refusal of the jury’s request and the court’s subsequent instruction to the jury. Thus, defendant waived his rights under the rule. This waiver extinguishes any error and precludes defendant from raising the issue on appeal.

i

On March 20, 1992, Nidhal Jarbo and her brother-in-law, Hani Naemi, were working at the family store, the Eight Mile Express. Defendant was a regular customer of the store. As Ms. Jarbo left the store to go to the bank, she observed the defendant outside the store with what appeared to be a gym bag. When she returned to the store about fifteen or twenty minutes later, the police were present; Hani Naemi had been shot dead in the cooler.

Police suspected defendant, but released him because there was not sufficient evidence to charge him with the crime. Shortly thereafter, defendant was imprisoned on an unrelated parole violation. While imprisoned in the Muskegon Correctional Facility, defendant shared a cell with Norman Mackin. Mr. Mackin testified that sometime in February 1993, defendant divulged to him his role in an unsolved Detroit murder. The details provided by Mr. Mackin were sufficient to permit the police to tie defendant to the murder of Mr. Naemi.

At trial, defendant’s theory was that, as defendant’s cellmate, Mr. Mackin had access to the grievance papers that defendant was drafting in an attempt to have the fact that he was a suspect in the Detroit murder removed from his record. Defendant alleged that these papers would have provided Mr. Mackin with enough information to fabricate a story implicating defendant. The jury rejected this theory and convicted defendant on all three counts.

Defendant appealed his convictions to the Court of Appeals, arguing, among other things, that the trial court had violated MCR 6.414(H) by refusing the jury’s request, received fifteen minutes into deliberations, for the testimony of four witnesses, including that of Mr. Mackin. The Court of Appeals agreed, concluding that the trial court’s response to the jury’s request had impermissibly foreclosed the possibility of having the testimony reviewed at a later time. The Court of Appeals then applied a harmless error analysis, finding that it could not conclude that the trial court’s error was harmless. Consequently, it reversed defendant’s convictions and remanded the case for a new trial.

Both parties appealed to this Court, which granted the prosecutor’s application for leave to appeal and denied defendant’s applications. 461 Mich 880 (1999).

ii

The court rule at issue in this case, MCR 6.414(H), states:

If, after beginning deliberation, the jury requests a review of certain testimony or evidence, the court must exercise its discretion to ensure fairness and to refuse unreasonable requests, but it may not refuse a reasonable request. The court may order the jury to deliberate further without the requested review, so long as the possibility of having the testimony or evidence reviewed at a later time is not foreclosed.

In the present case, about fifteen minutes after the jury began to deliberate and shortly before breaking for lunch, the jury sent out a note requesting “Dale Collins’ testimony, Mackin’s testimony, pictures and illustrations, Presley’s testimony and Rice’s testimony.” The following colloquy between the trial court and the attorneys ensued:

The Court: . . . Now, obviously what I will do when they come back is I will sit them down in the jury box and respond, as to Dale Collins’ testimony, Mackin’s testimony, Presley’s testimony and Rice’s testimony, as I indicated in the beginning, they are to rely on their collective memories, there’s no testimony they can read from.

The Court: And as to the pictures and illustrations that have been admitted into evidence, are they already in there?

Mr. Cox : They’re in the folder right there.

The Court: All right. So both counsel have no problem with that?

Mr. Cox: No.

The Court: The exhibits that have been admitted and they’re all in the folder.

Mr. Lar$on : Right here.

After returning from the lunch recess, the trial court once again discussed the matter with the attorneys outside the jury’s presence:

The Court: . . . Back on the record. Dealt with the note pretty much at lunch, prior to breaking for lunch. The court received a note at 12:50, right before it was time for the jurors to go to lunch, and we indicated we would bring them back at 2:00 and address the note. The note reads as follows: Dale Collins’ testimony, Mackin’s testimony, pictures and illustrations, Presley’s testimony and Rice’s testimony.

And what we decided prior to lunch, Counselors, all of us together I think, is that we would—all of the admitted exhibits had been placed in a folder which we will submit to the jury after the jury—the court.calls the jurors out and sits them in their seats and indicates to them that as to all of the testimony that they’ve requested, as I indicated in the beginning, there are no—the transcripts are not typed and will not be typed for some weeks and months to come. They must rely on their collective memories. Any input, any—anything else?

Mr. Larson: Satisfaction with that part of it, Judge.

The second part, may I go into that? They asked for illustrations and things of that nature.

The Court: M’hm.

Mr. Larson: You’re going to instruct them that other than the evidence that has been admitted—I don’t know if they’re requesting other notes or pictures.

The Court: Well, what I will say to them with regard to the request for the pictures and illustrations, all of the exhibits that have been admitted into evidence and have been placed into a folder and we’ll send them with you into the jury room. Is that all right?

Mr. Larson: That’s fine, yes.

The trial court then had the jury brought into the courtroom and instructed them as follows:

The note reads as follows: Dale Collins’ testimony, Mackin’s testimony, pictures and illustrations, Presley’s testimony and Rice’s testimony. Let me indicate to you that, first of all, I’ll deal with the request for the pictures and illustrations. The counselors have placed all of the exhibits that have been admitted into evidence in a folder, and when you return to the jury room, you’ll be able to take all of the exhibits that have been admitted into evidence with you for your review as requested.

With regard to the remainder of the note, which again asks for various people’s testimony, again, that being Dale Collins, Mack [sic] and Presley and Rice’s testimony, one of the things the court explained to you in the beginning, that the transcripts will not be typed for some weeks and months way into the future and you must listen very carefully because you must rely on your collective memories to resolve any issues with regard to that!

So that is the court’s response to your question. You now may return to the jury room and resume your deliberations.

The prosecution concedes that the trial court’s instructions to the jury violated MCR 6.414(H). However, the prosecution argues that defendant waived the issue when defense counsel expressed satisfaction with the trial court’s refusal of the jury’s request and its subsequent instruction to the jury. We agree.

The rule that issues for appeal must be preserved in the record by notation of objection is a sound one. People v Carines, 460 Mich 750, 762-765; 597 NW2d 130 (1999). Counsel may not harbor error as an appellate parachute. People v Pollick, 448 Mich 376, 387; 531 NW2d 159 (1995), quoting People v Hardin, 421 Mich 296, 322-323; 365 NW2d 101 (1984). “Deviation from a legal rule is ‘error’ unless the rule has been waived.” United States v Olano, 507 US 725, 732-733; 113 S Ct 1770; 123 L Ed 2d 508 (1993).

In two recent cases with similar facts, the Court of Appeals has agreed with the argument advanced by the prosecution in the present case. In People v Fetterley, 229 Mich App 511, 518-519; 583 NW2d 199 (1998), the trial court denied the jury’s request for a transcript of the testimony of one of the witnesses. The court explained that it did not have a transcript and instructed the jury to remember the testimony as best it could. Both attorneys indicated that they had no objection to the trial court’s decision. Id., 519. Rejecting the defendant’s argument that this constituted an error requiring reversal pursuant to MCR 6.414(H), the Court of Appeals explained, “defense counsel expressly acquiesced to the court’s handling of the jury’s request. A defendant may not waive objection to an issue before the trial court and then raise it as an error” on appeal. Id., 520. The Court of Appeals made a similar conclusion in People v Crawford, 232 Mich App 608, 620; 591 NW2d 669 (1998), where, again, the matter was discussed between trial counsel and the trial court, and counsel agreed with respect to how the jury would be instructed.

When asked by the trial court in the present case for a response to its proposed instructions, defense counsel expressed satisfaction with the trial court’s decision to explain that the transcripts were not available and that the jury must rely on its collective memory. Because defense counsel approved the trial court’s response, defendant has waived this issue on appeal.

Waiver has been defined as “the ‘intentional relinquishment or abandonment of a known right.’ ” Carines, supra at 762, n 7, quoting Olano, supra at 733. It differs from forfeiture, which has been explained as “the failure to make the timely assertion of a right.” Id. “One who waives his rights under a rule may not then seek appellate review of a claimed deprivation of those rights, for his waiver has extinguished any error.” United States v Griffin, 84 F3d 912, 924 (CA 7, 1996), citing Olano, supra at 733-734. Mere forfeiture, on the other hand, does not extinguish an “error.” Olano, supra at 733; Griffin, supra at 924-926.

It is the difference between waiver and forfeiture that makes the present case distinguishable from the cases of People v Howe, 392 Mich 670; 221 NW2d 350 (1974), and People v Smith, 396 Mich 109; 240 NW2d 202 (1976). While the present case deals with waiver, Howe and Smith addressed situations in which the error was forfeited. Griffin provides a clear example of the effect of this difference. In Griffin, the court concluded that the defendant waived any objection to a jury instruction because his counsel affirmatively approved the instruction. Griffin, supra at 923-924. This approval extinguished any error. Id. However, counsel's approval of the instruction did not preclude the court from reviewing a codefendant’s challenge to the instruction. Codefendant’s counsel, rather than affirmatively approving the instruction, failed to object to the instruction. The failure to object qualified as a forfeiture, and the court reviewed the instruction for plain error. Id., 924-926.

Justice Kelly, in her dissent, ignores this crucial distinction. She characterizes the majority opinion as holding “that defense counsel’s failure to object when the judge announced her decision foreclosed reversal by this Court,” and she would analyze the issue under the standard for unpreserved, forfeited error. Post at 222, 224 (emphasis added). This is clearly incorrect. Defense counsel in the present case did not fail to object. Rather, counsel expressly approved the trial court’s response and subsequent instruction. This constitutes a waiver that extinguishes any error. Thus, this case does not concern unpreserved error where no timely objection was made.

Justice Cavanagh, in his dissent, would conclude that the error could not be waived. We disagree with this approach. “Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.” Olano, supra at 733. It is presumed that waiver is available in “ ‘a broad array of

constitutional and statutory provisions’ . . . New York v Hill, 528 US 110, 114; 120 S Ct 659; 145 L Ed 2d 560 (2000), quoting United States v Mezzanatto, 513 US 196, 200; 115 S Ct 797; 120 L Ed 2d 697 (1995). While the defendant must personally make an informed waiver for certain fundamental rights such as the right to counsel or the right to plead not guilty, for other rights, waiver may be effected by action of counsel. Id., 528 US 114-115.

“Although there are basic rights that the attorney cannot waive without the fully informed and publicly acknowledged consent of the client, the lawyer has—and must have—full authority to manage the conduct of the trial.” As to many decisions pertaining to the conduct of the trial, the defendant is “deemed bound by the acts of his lawyer-agent and is considered to have ‘notice of all facts, notice of which can be charged upon the attorney.’ ” Thus, decisions by counsel are generally given effect as to what arguments to pursue, . . . what evidentiary objections to raise, . . . and what agreements to conclude regarding the admission of evidence .... Absent a demonstration of ineffectiveness, counsel’s word on such matters is the last. [Id. (citations omitted).]

A defendant does not have a right to have a jury rehear testimony. Rather, the decision whether to allow the jury to rehear testimony is discretionary and rests with the trial court. MCR 6.414(H); Howe, supra at 675. In our opinion, the decision whether to oppose the trial court’s refusal of the jury’s request for testimony is akin to an evidentiary decision. Because counsel has full authority to manage the conduct of the trial and to decide matters of trial strategy, we conclude that in this instance, waiver could be effected by the action of defense counsel. Hill, supra, 528 US 115; see also 3 LaFave, Israel & King, Criminal Procedure (2d ed), § 11.6, p 593.

In the present case, counsel clearly expressed satisfaction with the trial court’s decision to refuse the jury’s request and its subsequent instruction. This action effected a waiver. Because defendant waived, as opposed to forfeited, his rights under the rule, there is no “error” to review.

m

We conclude that, although the trial court violated the court rule by foreclosing to the jury the possibility of later reviewing the requested testimony, this error does not warrant reversal of defendant’s convictions because defense counsel specifically approved the trial court’s refusal of the request and its subsequent instruction to the jury. Defendant’s waiver of his rights under the rule has extinguished any error. Therefore, we reverse the judgment of the Court of Appeals and reinstate defendant’s convictions.

Taylor, Corrigan, Young, and Markman, JJ., concurred with Weaver, C.J.

Defendant was sentenced to imprisonment for natural life without the possibility of parole for the felony-murder conviction. He was also sentenced to the mandatory term of two years’ imprisonment on the felony-firearm conviction. His sentence of 20 to 40 years’ imprisonment on the underlying armed robbery conviction was vacated.

MCR 6.414(H) states:

If, after beginning deliberation, the jury requests a review of certain testimony or evidence, the court must exercise its discretion to ensure fairness and to refuse unreasonable requests, but it may not refuse a reasonable request. The court may order the jury to deliberate further without the requested review, so long as the possibility of having the testimony or evidence reviewed at a later time is not foreclosed.

At a subsequent Ginther hearing (see footnote 14) defense counsel explained that the grievance papers were not introduced into evidence because Mr. Mackin was able to testify regarding facts about the incident that were not contained in the grievance reports. People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

In response to the jury’s request, the trial court explained that the transcripts would not be typed for weeks and instructed the jury to rely on their collective memories.

5 This rule is consistent with case law. See People v Howe, 392 Mich 670; 221 NW2d 350 (1974).

Collins, Presley, and Rice were three of nine police officers who testified.

7 Mr. Cox was the assistant prosecuting attorney.

8 Mr. Larson was defense counsel.

9 At the beginning of voir dire, the trial court had explained that the jurors must speak loudly and clearly so that the court reporter could take down everything that was being said. The trial court also gave the following cautionary instruction:

And even though [the court reporter’s] taking down what’s being said, ladies and gentlemen, you’re going to have to listen very carefully because you will not have transcripts to refer to during these proceedings. Those transcripts aren’t typed for some weeks and months into the future. So again, you’re going to have to listen very, very carefully during these proceedings.

While it is true that trial transcripts often are not prepared until well after trial, we caution against instructing the jury in this manner as such instruction forecloses to the jury the possibility of later reviewing the requested testimony, e.g., by having the court reporter read back the testimony, and consequently, violates the court rule. However, we also note that, given that the jury made the request for the testimony of four witnesses only fifteen minutes into deliberations, the trial court could have properly refused the request and instructed the jury to continue deliberating had it done so in a manner which did not foreclose the possibility of having the testimony reviewed at a later time.

Contrary to Justice Kelly’s assertion, our opinion does not contradict the principles established by the cases she cites.

First, the crucial distinction between waiver and forfeiture makes much of the case law on which she relies inapposite. People v Dorrikas, 354 Mich 303; 92 NW2d 305 (1958), and People v Snow, 386 Mich 586; 194 NW2d 314 (1972), both concerned situations where counsel had failed to object, not situations in which counsel had affirmatively approved the trial court’s action. Moreover, both cases note that it is only in unusual circumstances that the Court will consider unpreserved error. Snow, supra at 591; Dorrikas, supra at 316-317. In People v Shirk, 383 Mich 180, 189-193; 174 NW2d 772 (1970), counsel actually preserved the error by objection.

People v Harrison, 386 Mich 269; 191 NW2d 371 (1971), involved the defendant’s constitutional right to a speedy trial. The defendant’s trial was adjourned on six separate occasions, including one occasion in which the trial was adjourned until the expiration of the defendant’s “appeal time” in another case. Id., 274 The defendant was advised by his attorney that the remaining charge against him would be dropped if he did not file an appeal from his other conviction. Id. Although the defendant failed to demand trial or move to have the charge against him dismissed, the Court allowed the issue to be considered because the trial court’s action served to chill the defendant’s exercise of his right to appeal. Id., 275-276. (Defendant had a right to appeal under the Michigan Constitution. See Const 1963, art 1, § 20.) The present case does not implicate similar constitutional rights.

Finally, People v Lenkevich, 394 Mich 117; 229 NW2d 298 (1975), concerned self-defense instructions. The Court did consider the erroneous instruction, despite the fact that counsel expressed satisfaction with the jury instruction. However, the instruction was relevant to one of the very elements required to be established to sustain the plea of self-defense: that the defendant must have had no way by which she could have retreated to a place of safety. The Court rejected this element and held that when an attack occurs in one’s home by an assailant who has a right to be on the premises, the assailed need not “retreat to the wall” before defending herself. Id., 121. The instruction given in the present case does not concern an element of the crime or an affirmative defense.

Justice Cavanagh also suggests that the trial court’s error was compounded when the trial court refused to permit the jurors to take notes. We observe that MCR 6.414(C) places the decision regarding note taking with the trial court and states in pertinent part:

The court may permit the jurors to take notes regarding the evidence presented in court. If the court permits note taking, it must instruct the jurors that they need not take notes and that they should not permit note taking to interfere with their attentiveness. [Emphasis added.]

Many other states also treat this decision as a discretionary one. See generally 75B Am Jur 2d, Trial, §§ 1685-1688, pp 467-472; anno: Bight to have reporter’s notes read to jury, 50 ALR2d 176.

Defendant argues, and Justice Cavanagh agrees, that defense counsel’s acquiescence denied defendant his right to effective assistance of counsel. However, we point out that at the Ginther hearing, both defendant himself and his appellate counsel questioned defendant’s trial counsel about various claimed errors. At no point was there questioning directed to the issues surrounding the jury’s request to review testimony. Defendant, assisted by appellate counsel, had the opportunity at this hearing to raise any and all perceived errors of his trial counsel and chose not to address the issue of his counsel’s actions in response to the jury request to review certain testimony. This choice indicates that defendant and his appellate counsel did not believe that the waiver at trial constituted ineffective assistance of counsel.

Defendant’s failure to explore at the Ginther hearing trial counsel’s conduct concerning the trial court’s refusal to reread the requested testimony is strongly suggestive that trial counsel’s conduct was the product of trial strategy. Although defense counsel sought to attack Mackin’s credibility during trial, and the rereading of his testimony might have reinforced that defense strategy, it is also true that having the jury revisit Mackin’s testimony would reexpose the jury to his very damaging testimony. Thus, it is entirely understandable why trial counsel was not questioned about this issue at the Ginther hearing—the very place where one would otherwise have expected the issue of claimed ineffective assistance of counsel to have been thoroughly explored.