*1
App 160 v WILSON
BOGGERTY
14, 1986,
January
at Detroit. Decided
No. 82510. Submitted
Docket
2, 1987.
appeal applied for.
Leave to
June
brought
Boggerty
in the
Major Boggerty
an action
and Aden
F.
Wilson,
against
Jackie Veas-
Wayne
Earnestine
Circuit Court
Martin,
Murray,
ley, Cynthia
Coleman and the
David
Warren
arose out of an incident
of Detroit. The action
following
the arrest
at the 11th Precinct station
occurred
Major Boggerty
(hereafter
injuries
plaintiff).
received
Plaintiff
phone
jury
being
a
call. The
from his cell to make
while
taken
of action as to the individual
verdict of no cause
rendered a
defendants,
officers,
police
of false
on
claims
Detroit
negligence
battery,
imprisonment,
and denial of
assault
against
plaintiffs
rights.
The
also rendered
verdict
civil
court,
rights.
plaintiffs
city
civil
The trial
for denial of
J.,
judgments
Foley,
that effect. The
entered
Thomas J.
judgment against
appeals
it and the
cross-
from the
appeal
judgment
defendants.
in favor of the individual
from the
Appeals held:
The Court of
presented
sustain the
insufficient evidence to
1. Plaintiffs
clearly presented
against
city.
no facts in
verdict
police
regard
practices
officers that tended to
to certain
statement,
executing
policy
implementing
or
show conduct
promul-
ordinance,
officially adopted
regulation
or decision
gated by
city.
link between
There must be an affirmative
where,
here,
(especially
the custom itself
at issue
the custom
depriva-
wrongdoing) and the constitutional
establish
does not
Here,
city.
alleged
link
the affirmative
tion
to сast blame on
missing.
training
up
published
city’s
failure to measure
_2.
References
2d, Appeal
605.
Am Jur
and Error §
2d, Negligence
272.
§§
Am Jur
seq.
2d,
17 et
and Correctional Institutions §§
Am Jur
Penal
2d,
Am Jur
Trial 267.
§
(42
Rights
of 1871
USCS
Supreme
of Civil
Act
Court’s construction
1983)
right
providing private
federal
of action for violation of
§
rights.
rules and was not where the admis- regarding sion of the evidence the violations would have been otherwise denied. — 7. Courts Orders. speak through orders,
Courts their written not their oral state- ments. Saperstein, Fried & P.C. (by Saper- D. Melvyn stein, Mated), James C. Howarth A. Juan for plaintiffs.
Garan, Lucow, Miller, Seward, Becker, Cooper & P.C. A. (by Matthew Seward and Rosalind H. Rochkind), for the individual defendants. McGiffert,
Laurel Counsel, Assistant Corporation for the City Detroit. Hood, P.J.,
Before: and J. H. Gillis and J. M. Bаtzer,* JJ. Batzer, trial,
J. M. J. Following a defen- dant of Detroit found City liable under 42 USC 1983 violating the constitutional rights (hereafter plaintiff Major Boggerty plaintiff). The city appeals right as of from the judgment to that effect. cross-appealed
Plaintiffs have from judgment of no cause of action favor of the individual defendants, police officers for the of Detroit.
i The instant action arises out of the arrest of *4 in the of plaintiff City Detroit on October 1979. Plaintiff was arrested at the time of the arrest of brother, Robert, his a felonious assault and suspect * judge, sitting Appeals by assignment. Circuit on the Court of App 160 Opinion of Court testified car. Plaintiff plaintiff’s in passenger time of him at Robert’s informed the officers him to take down would have to they arrest there were He testified that police station. passen- the rear liquor оf unopened three fifths area of his car. ger to the 11th policemen taken two by
Plaintiff was station, plaintiff’s belongings at the Precinct. Once was broken removed and his watchband were func- he was According plaintiff, to process. booking procedure. tioning during normally removed, were he belongings After plaintiff’s door where he was met an officer to a taken plaintiff to Murray escorted Murray. Officer David approximately plaintiff remained for a cell where hour. one requested to repeatedly
Plaintiff testified that he make a call phone let out of his cell to but be ignored his After several Murray requests. at first from minutes, plaintiff and took Murray responded room. Plain- fingerprint in the phone his cell to a Carreker, friend, home his James tiff cаlled the After wife of his arrest. and informed Carreker’s call, to table and phone plaintiff was taken fingerprinted. hands, wiped after he his
According plaintiff, to Murray given and a blank approached by he was told Murray Plaintiff testified paper. sheet and sign paper pay him: "You this sheet $100 his go.” At that time heard you can brother, Robert, cell, to yell in a precinct detained if you red ass in here want Murray: "Bring your allegedly plaintiff by fight.” Murray grabbed then upper kneed him in the left his shirt collar and groin. near leg, of his his side he fell floor According plaintiff, in the back. kicking him lower Murray continued police Murray grabbed joined Three officers *5 Opinion op the Court plaintiff "spread eagle” on the floor. The officers plaintiff hit a few more times in the abdominal leg previously area. Because his had been broken reinjure plaintiff ap- it, and he did not want pealed stop beating, to a black officer to but responded: your leg you the officer "If broken, plaintiff should have a cast on it.” When looked up, standing doorway. he saw a white officer in the stopped assaulting plaintiff The officers and or- dered him onto a bench. He remained on the friend, bench until his wife and his James Car- paid reker, arrived. Plaintiff’s and, wife his bond help plaintiff Carreker, with the drove to Sinai Hospital. Although a Detroit ems unit had been transport plaintiff Receiving called to to Detroit Hospital plaintiff attention, for medical refused to go because Sinai was closer to his home. Plaintiff testified that sometime after the incident he poured learned that his wife had him a tumbler whiskey full of which he drank in the car on the way hospital. to the Plaintiff remained in the hospital until December 1979. He continues to pain hip leg. suffer in his left and Gray wife, Plaintiff’s James Carreker and Ruth plaintiff’s Chambers events corroborated account of occurring plaintiff’s before and after arrest subsequent injury and to his at the station. conflicting presented by A account of events was police police the Detroit officers. The Detroit re- report p.m. approximately ceived a 4:00 of a felonious assault. A woman at the location of the alleged driving assault described the assailants as heading northerly car blue in a direction. partner Defendant Wilson and her left the scene in search of the car but werе unable to locate it and returned to the scene of the crime. As
they speaking were with other officers back at the scene assault, a blue car turned onto that street Opinion op the Court stopped The woman identi- mid-block. about plaintiff approached who car Wilson fied the was the driver. holding plaintiff
According Wilson, cup, plastic she assumed contained small step out of the asked alcohol. She fifth Canadian Club also saw a vehicle. She *6 plain- sitting alongside plaintiff. She recalled that comply "mum- and started tiff was reluctant cussing.” Boggerty bling was and After Robert placed plaintiff arrested, having under arrest for Wilson disturbing open in his car and alcohol plaintiff peace. accompanied to the station Wilson pursuаnt where, to Lt. Warren Coleman’s direc- changed driving charge tions, was under the Breathalyzer liquor. a of Plaintiff refused influence charges that the duil were Wilson testified test. eventually dropped to insufficient evidence. due charges regarding plaintiff’s take failure to The Breathalyzer finding dropped upon
test a referee’s were plaintiff’s for arrest was that the reason belligerence. Lt. Coleman as an ad-
Plaintiffs called Warren thought testified that he verse witness. Coleman plaintiff "quite intoxicated” when he was was brought it the station. Coleman believed plaintiff proper out his cell to make a to let was thought assuming Murray, doorman, call plaintiff that the capable making the call. Coleman was Murray of the offense that on the date testified acting precinct. doorman at the Coleman injury occur, but entered the did not see hearing fingerprinting after room within seconds something falling. When the sound of someone plaintiff Murray lying entered, on he saw he anyone he assault floor. He denied that saw the plaintiff. McCollough physicians, Poliak, testified Two Opinion op the Court concerning injuries. Both testified plaintiffs femur and that it was plaintiff suffered a fractured age unusual for a man of to have sus- result of a fall tained such a fracture as the required higher injury generally because excerpt read an degree of external force. Poliak from the room admission records indi- emergency it was difficult to examine plaintiff cating because was intoxicated with alcohol. introduced the additionаlly in the experts hiring training of two area of experts officers. Both testified on the basis of police criminal published justice standards various associations. that,
Dr. upon Beckman testified based his re- deposition, view of had had no Murray’s Murray his special training position as doorman and properly had not been trained. He also accordingly Lt. Coleman nor Wilson opined neither Officer questioned had been trained. When properly training provided by overall doormen of Detroit between the 1970 and years *7 responded training Beckman the methods "did not and never have” met the standards on acknowledged which he relied. Beckman on cross- through police go examination that Detroit officers training training all state-mandated and that the оf Detroit met all state standards. City the Mr. concurred Beckman’s assess- Donley Beckman, ments. Like testified that Mur- Donley had not trained as a doorman. ray properly been in 1978 and 1979 the of Donley City asserted training had program” Detroit a "well written doormen, program but the had not been Finally, Donley explained carried out. effectively prisoner that a intoxicated should not be visibly his cell to make a call for a phone removed from reasons, including possible of to the injury number 160 Mich op Opinion the Court person person. Instead, intoxicated an intoxicated being prior phone permitted call his should be to his cell. taken jury on a to the submitted case was charged
special the individual form which verdict imprisonment, variously, false defendants, with negligence battery, of denial assault plaintiffs against rights. defendant The case civil city’s premised of City denial Detroit was of training, improper rights by plaintiffs or civil procedure” "policy, violated custom rights. jury plaintiff’s a verdict rendered The civil individual defen- as to the of action of no cause against a verdict and rendered on all counts dants $550,000 of for denial of in the amount rights. plaintiffs civil defendant-appellant’s claim first address
We error.
ii plaintiffs of Detroit claims Defendant presented rights of a denial of civil insufficient evidence jury verdict.
to sustain reviewing city’s claim, Court must this In light in a most favorable the evidence view every give plaintiffs the benefit from the that can be. drawn inference reasonable viewing in this If, evidence after evidence. question differ, the mаnner, could reasonable men Napier jury. properly Jacobs, left to App 290-291; 377 NW2d special clear that verdict makes city’s city’s liability premised failure to on the negli- properly gent the resultant its doormen and train When we from his cell. removal *8 light favorable in a most the evidence view 523 Opinion of the Court presented that plaintiffs conclude we plaintiffs, to sustain this verdict. evidence insufficient municipal liability may A establish plaintiff protected constitutionally of a federal deprivations or policy the existence of if he can show interest causal link between a sufficient custom and depriva- and the constitutional or custom policy Services, 658; 436 US Dep’t Monell v of Social tion. L 2d 611 Monell’s 2018; 56 Ed 98 S Ct respondeat on a liability of vicarious proscription " 'policy or plain makes superior theory prevent . . . intended to requirement custom’ circum- under municipal liability imposition mu- ascribed to wrong no could be stances where Tuttle, decisionmakers.” Oklahoma nicipal 791 808, 821; 2427; 85 L Ed 2d 105 S Ct 471 US (1985) (Bren- Id., 471 US opinion); (plurality nan, J., concurring). 1983 ac- appears it now
Additionally,
§
proof of fault
present
has to
tions
part
city
on the
negligence
mere
beyond
tolerating
the custom.
or
establishing
policy
662;
Williams,
327; 106 S Ct
474 US
See Daniels v
(1986)
negligent
official’s
(prison
However, in contrast governmental approval not receive "formal policies, do official *9 App 514 160 op Opinion the Court government’s] through decision- official [the local making Rather, Monell, 691. 436 US channels.” " widespread 'persistent simply . . . they practices are ” . Id. of. . officials.’ practices testimony of certain if there were
Even
it could
from which
11th Precinct
officers at the
reasonably
existed a custom
that there
be inferred
published
training
failed to meet
standards that
of
standards and which
city’s
in accord with the
were not
program,
not,
does
such a "custom”
own
prima
There must be
itself,
facie case.
establish a
at issue
link”
custom
an "affirmative
between
(especially where,
here,
itself does
as
the "custom”
wrongdoing)
constitutional
and the
not establish
alleged
city.
deprivation
on the
to cast blame
Tuttle,
courts have
In the police training of Detroit officers that the testified v Wilson Opinion of the Court presented met all state standards. Plaintiffs no experts evidence that the standards their relied on accepted generally by municipal departments were up or were of such a nature that the failure to live substantially likely to them was to result in in- jury. presented no evidence of similar precinct lockups.1 city’s incidents at other mere failure to measurе
up published training thought expert supe- standards to be Michigan rior to the standards of law and its *10 through failure to follow on its own written stan- prima dards does not make a facie case. Plaintiffs’ expansively, evidence, when viewed most can es- negligence city’s part. tablish no more than on the quantum a Such of fault is insufficient. supra, plaintiff sought Williams,
In Daniels v
damages
injuries allegedly
§
in a
1983 action for
by
jail
slipped
sustained
pillow
a
inmate when he
on a
jail
by
guard.
left on the
stairs
a
In affirm-
ing summary judgment
defendant,
for the
Supreme
United States
Court stated:
Our
large
Constitution deals with the
concerns
governors
governed,
of the
purport
and the
it
but
does not
supplant
to
traditional
tort
in laying
law
down
regulate
rules of conduct
liability
to
for
injuries
living together
that attend
society.
injuriеs
That
by governmental
inflicted
negli-
gence
by
are not addressed
the United States
say
Constitution is not to
they may
that
not raise
significant
legal concerns and lead to the creation
protectible legal
interests. The enactment of
statutes,
tort claim
example,
for
reflects the view
injuries
that
negligence
caused
such
should
generally be
It
redressed.
is no reflection on either
circumstances,
appropriate
single
by municipal
In
decision
policymaker may
municipal
liability
result
under
1983. Pembaur
§
Cincinnati,
—;
1292;
475 US
106 S Ct
they [106 do 2d 88 L Ed 669.] insuffi- presented Having found that plaintiff’s to recover violation cient evidencе it find unneces- rights, we federal constitutional remaining defendant-appellant’s address sary to to claims on plaintiffs’ move of error. We claims cross-appeal.
hi the trial court erred Plaintiffs contend objections make permit plaintiffs to refusing deposi- the video trial introduction of during witness, Mitchell tion Dr. Poliak. reading to Poliak’s from sought object discharge a statement summary his being involved in an alterca- after admitted his and fell down. tripped leg tion he in which The applica- too late. objection Plaintiffs’ came 1963, 315.6(2), rule, now MCR ble court GCR unless 2.315(F), are waived provides objections *11 along with his deposition, presents a party ten before trial. days trial court objections, argument availability plaintiffs’ We reject waiver, negates which transcript of a written the court rule. in terms in mandatory was couched little transcript The of the written has availability by objec- in caused avoiding delay or no effect the time of or near deposition tions to a video Co, Wayne v App 106 Mich Sponenburgh trial. (1981), 628; upon plain- relied 308 NW2d Moreover, Sponenburgh, tiffs, inapposite. is as not here since were required reversal is of the testi- a fair trial admission not denied Opinion op the Court mony, supported at least one of against liability city. alternative theories of iv complain they prejudiced were when defense counsel commented on and cross- plaintiff concerning examined the factual inconsis- pleadings, tencies between his various ments thereof and his trial the amend-
testimony. In a similar рlaintiffs allege they vein, are entitled to a new trial because defense counsel for the individ- improperly ual defendants commented on the his- tory pleadings, noting of the the number of amend- ments and the addition of claims. regard
With
contention,
the former
"counsel
should be afforded a summational
free rein in
comparing” pleadings
before the
trier of
Todorovich,
fact. Vachon v
356 Mich
(1959).
discourages
187;
Plaintiffs assert two errors to their *12 528 Opinion Couet and defendants Coleman that the individual claim Murray plaintiff, negligent a in their care of were lockup. prisoner in a local they plaintiffs argue were entitled to First, that jury present a instruc- of, entitled to and evidence regu- Department and on, rules of Corrections tion promulgated pursuant 791.262; to lations, MCL supervision dealing 28.2322, and with the MSA Specifi- penal of local institutions. administration cally, relating application expert present to wished rules to of the administrative re- defendants and conduct of individual quested of the rules an instruction that violation negligence. The trail court denied was evidence these administrative requests ground that violation of on the pled. properly not
rules had
been
regulations
rules and
of administrative
Violation
negligence, and,
such,
when
is evidence
violation is
submitted
416 Mich
alleged
properly
pled,
properly
is
the violation
Walker,
v
Beals
determination.
(1982). Plaintiffs
469, 481;
erly
trial court erred
contrary. However, we
that the admis-
believe
regarding these violations would
sion of evidence
denied, and,
therefore, we
have been otherwise
Hammond,
v
Ins Co
Queen
decline
reverse.
655, 658-659;
132 NW2d
Before
Mich
evidence
or
of violation of an administrative rule
regulation
trial,
must
admitted at
the trial court
the harm suffered was
consider whether
designed
pre-
regulation
rule
regula-
Walker,
in other areas of a local Plaintiffs contend that the trial court erred refusing permit expert Donley to their witness opinion Murray offer an acted on whether defendant had properly handling plaintiff. in his In each opinions sought, instance fense counsel which the were de- objected questions that the embraced the ultimate issue of fact. The trial court sustained objection reasoning counsel, of defense that the opinions expertise. beyond expert’s were the areas of the agree
We with the trial court. Donley qualified expert as an in the area of police hiring training. such, As we find no abuse of discretion in the court’s exclusion of his opinion testimony concerning whether individual police officers breached their standard of care.
VI
Finally, plaintiffs claim that
the absence of de-
Murray
fendant David
from the trial entitled them
judgment,
506.6(2),
to a
1963,
default
or,
GCR
at
least, entitled them to an instruction that Mur-
ray’s
permitted
absence
an inference that
his
would have been adverse to defen-
premised
cause,
dants’
SJI2d 6.01. Plaintiffs
their
request
alleged previous
for default on oral
Judge
April,
Dunn,
command of
1984,
at an
hear-
2
subsequent
Young
Arbor,
We note
App
v Ann
119 Mich
512,
(On
517;
(1982),
Rehearing),
326
App 459;
NW2d 547
125 Mich
(1983),
grounds,
336
24
NW2d
remanded on other
Courts Brown, Hosner oral their statements. (1972). The con- record 199 NW2d court, trial GCR no order of the
tains written 1963, 506.4, 1963, 506.1, com- subpoena,4 GCR agree presence. Accordingly, we pelling Murray’s sanc- that neither the default with trial court 506.6(2) the jury nor instruc- tions GCR *14 Cavanaugh tion, 6.01, here. has application SJI2d Cardamone, 159; 383 601 v App 147 Mich NW2d Emmerson, Kaniewski v (1985). See also (1973). 737, 738-739; 205 812 NW2d App plaintiffs in favor of judgment The trial court’s The trial of Detroit is reversed. against City the action the against of no cause of judgment court’s is individual defendants affirmed. Gillis, J.,
J. H. concurred. (dissenting Hood, part). respect- I P.J. must portions majority from those the fully dissent against jury’s vacate the verdict decision which approve the trial of Detroit David ruling as to of defendant court’s absence Murray.
First, I conclu- agree majority’s cannot with 3 hearing stеnographer’s notes from that were never located. 4 posttrial appeal, judgment for below and on In a motion default present subpoena on counsel for the individual a served 9, 1984, Murray’s compelling January a. attendance defendants trial That tantly, prior trial this matter. date six months to the actual some impor subpoena part not a lower court record. More is date, we of service the ultimate June trial absent a record for give decline to this nonrecord order credence. 531 by Hood, P.J. Partial Dissent sion that evidence was insufficient support a jury verdict. Jacobs,
In Napier v 285, 145 App 291; Mich 377 (1985), NW2d 879 this Court stated that the stan- dard for review of a sufficiency evidence claim in a civil case is comparable to the standard used in ruling on a motion judgment for notwith- standing the verdict: judgment
"A
notwithstanding
the verdict on
defendants’
appropriate
motion is
only if the evi-
dence is insufficient as a
support
matter of law to
judgment
plaintiff.
Industries,
Basic Food
Inc
Grant,
v
(1981).
685, 695;
107
App
Mich
In support of this theory, plaintiffs introduced the testimony of two expert witnesses. Dr. Beck- man stated that according to national standards a App 514 160 by Hood, P.J. Partial Dissent the and in care training must have
doorman of degree a prisoners’ to detect safety prisoners of Based his drugs. upon the of or effects intoxication Beckman concluded Murray’s deposition, review of training for his special had no that had Murray and, Murray accordingly, as doorman position addition, In Beck- trained. properly had not been nor Lieutenant Coleman that neither opined man Finally, trаined. properly had been Officer Wilson training provided on the overall when questioned years between the of Detroit City meth- training responded Beckman and never have” met national ods "did not standards. in Beckman’s assess- Donley
Mr. concurred Beckman, Mur- Donley ments. Like testified that trained as a doorman. ray properly not been had Beckman, however, in asserted Donley Unlike of had "well Detroit a doormen, training but program” written out. effectively had not carried program been that, for a Donley number Finally, explained not reasons, visibly prisoner intoxicated should a phone from cell to make a call: be removed his Well, person A there is number reasons. a cell, cell, in fight. When he is in locked a could it is unlikely much can be very harm donе —not is the cell and his anybody. If he taken out of lobby people an out contact with area, intoxicated, officer quite person is in fact he can cause —if injury. and fall and cause an stumble addition, let- In Lieutenant Coleman testified that prisoner, out allegedly an intoxicated ting plaintiff, phone his call was consistent cell make procedures precinct. with effect in a most light When this viewed given are plaintiffs to the favorable *16 533 by Hood, Partial Dissent P.J. every the benefit reasonable inference which evidence, can be drawn I from the conclude that presented sufficient evidence was to establish that city policy failing the either had a to train its training provided doormen was so negligent grossly it amounted to "deliberate Donlеy’s testimony Furthermore, indifference.” es- adequate training tablishes the lack of likely danger very plain- to cause the which befell inadequately tiff. Because the doorman was permitted visibly person trained, he a intoxicated thereby rendering likely leave his cell it that an injury Accordingly, jury would occur. could by failing city that, doormen, infer exhibited to train its resulting deliberate indifference to the testimony city violation. That there was dispositive met state standards is not if those inadequate. are standards themselves municipal policy contends that could by never be established absent deliberate action designated municipal policymaker. While, conced- edly, Rehnquist, Justice in a footnote to Oklahoma City Tuttle, 2427; US 105 S Ct 85 L Ed (1985),1 question, specifi- 2d 791 raised the he alsо cally refused to it. address See 471 US n 7. holding And the actual limited. Tuttle stands for the isolated incident of establish gations municipal of Tuttle is far more
proposition that an police misconduct can never municipal liability. Since alle- supported policy are more single complained of, than the incident Tuttle does recovery Moreover, bar not in the instant action. light expert regarding city’s training program, could infer that adequate training the absence of or the failure to routinely implement adequate training was a con- city’s policymakers. scious decision opinion. majority Relied on in the App 514 by Hood, P.J. Dissent Partial Tuttle, here situation Unlike *17 adequate lack of city-wide of a evidence presented least, training or, negligent grossly training the not based on decision was jury’s The program. rather, incident, but, on the city’s single, isolated training provide adequate overall failure expert The Donley. testified to Beckman municipal to establish a testimony was sufficient city to render the liable. While upon which policy the doubt on cast considerable the defendant weighing the in experts, jury, opinions those resolved obviously experts’ testimony, the plaintiffs. in favor of doubts I hold that Unlike the would majority, link” the an "affirmative between did establish deprivation. Tut- and the constitutional city policy tle, proper experts 823. Both testified US a doorman to the have alerted training would caring prison- in for intoxicated dangers inherent Moreover, stated that one specifically ers. Donley upon letting an intoxi- dangers attendant prisoner the of his cell was person cated out stumble, himself. Accord- might injure fall and failure to train doorman complete ingly, personal injury highly likely the risk of made viewed as the failure train could be city’s violation, i.e., the I injury. "moving force” of would affirm.
I agree majority cannot with also was ade- Murray defendant David absence Murray of David handled. The absence quately through- contention of confusion and point was a I am convinced that proceedings. out these at least entitled to an instruction as plaintiffs were Murray’s absence. Instructions, Jury the Standard One variation of 6.01, 2d reads: SJI by Hood, Partial Dissent P.J. (The [plaintiff/defendant] case this has not testimony of_/_]. offered You [the
may infer that this evidence would have been [plaintiff/defendant] adverse to the you if believe the evidence was under the control of the [plaintiff/defendant] produced and could have been [him/her], no [plain- reasonable excuse for produce failure to the evidence tiffs/defendant’s] shown.) been has instruction, This if requested, should be given when a question of fact regarding arises both "control” and "reasonable excuses.” Both ques- and, tions were present raised case there- fore, the instruction was applicable. Supreme Court has held that when an
accurate and applicable Standard Jury Instruction
*18
has been requested
it
by
party
given
should be
trial
if
gives
the
court
the
any
court
instruction
at all on the subject
covered
the
requested
Passino,
instruction.
Socha v
467;
405 Mich
Rather, the Johnson Court concluded that fail- give ure a requested applicable to jury and instruc- tion should be reviewed under the harmless error 1963, 529, standard of 2.613(A), GCR MCR now the appellate court should set aside a verdict if jury the failure only to do so be would "inconsistent with justice.” substantial
In my opinion, the Jury Standard Instruction clearly applicable was appropriate to the pres- ent is case. The instruction meant to encompass App 160 by Hood, P.J. Partial Dissent regard- question fact there is a of
situations where Such a absence. ing cause the defendant’s the case. this obviously present question fact the asked addition, jury the questions In com- judge’s and the Murray’s absence regarding the indicate on his absence further ments Moreover, the instruc- applicable. instruction was from the deviated widely tion trial court given by any and failed to make instruction the standard in the in- the inferences contained reference to struction. absence was question Murray’s
Because the trial the court itself during raised and because jury Murray’s noted and instructed ab- sence, give SJI2d 6.01. failing erred in court role in Considering Murray’s pivotal David give in the the failure to resulting injuries, events viewed as instruction cannot be appropriate error, a new are entitled to harmless if even verdict Murray, trial as David overturned. I points, two concur Except for these opinion. majority