*1 1983]
PEOPLE v ANDERSON 6) (Calendar 5, April Argued No. Docket No. 68053. . Decided 22, 1983. November Presque by Isle a was convicted James Anderson J., Court, Swallow, conspiracy Joseph commit P. of Circuit to commit mur- first-degree with intent murder and of assault MacKenzie, P.J., Appeals, B. and R. Burns der. The Court of per O’Brien, JJ., unpublished opinion J. reversed in an and N. ground the dismissal on the curiam separate charge of trial insufficient evidence in for charged person barred the defen- in the same other 52147). (Docket appeal. people conviction No. dant’s Ryan, joined by Brickley, opinion by Justices In an Justice Cavanagh, Boyle, Supreme held: Court conspiracy” applies rule "no a The common-law one-man guilty alleged co-conspirators joint where verdicts of as of trial conspirator guilty as to the other would be and not apply inherently It not defective. does inconsistent and alleged co-conspirators, return because the of trials of separate juries inherently by not defective. is different verdicts in this case is reinstated. The conviction law, law, Michigan Conspiracy 1. as at the common under agreement persons requires proof at least two for of an between co-conspirators, joint conviction. In a of two a verdict of trial guilty conspirator guilty as to the other not as to one both, requires judgment acquittal of the two a of because inconsistent; are has found simultane- verdicts factfinder ously did not exist between did and separate, persons. same where are But the trials conspirator by finding by acquittal jury or a trial a presented support insufficient evidence was with the conviction of in one is inconsistent [1, [2] [3, 75 Am Prosecution or conviction of one 3, 58 Am Jur tion 4] Am Jur case Jur 2d, References against coconspirators. 2d, New Trial 51. 2d, Conspiracy Trial §§ for Points in § 492. § conspirator 26. 19 ALR4th Headnotes affected disposi- Mich trial, conspirator subsequent another in a because quality separately evaluated in the two trials. Whether the evaluation in the first trial was on a motion for a directed verdict of in a *2 guilty bearing quality verdict of not has no on the of the evidence in the second trial. required parte 2. Reversal was not because of ex commu- the case, jury nication between the trial and the in this but that result should not turn the on fact that the communication began jury jury occurred before the to deliberate. Whether the begun deliberating had or not is irrelevant to a determination prejudice. that the defendant must show actual The crucial fact determining obliga- whether the defendant is relieved of the showing prejudice jury actually tion of is whether the had jury parte retired and was in the room when the ex communi- retired, Generally, jury cation occurred. where the has so a new may separate showing prejudice. trial be ordered without a of However, case, parties in this the trial announced to the pres- his intention to communicate with the outside their ence, parties agreed procedure. parties’ the rights violated, to fair deliberations were not and a new trial is required better, showing prejudice. simpler, not absent a of A practice require and wiser would be to a trial to commu- jury only nicate with a from the bench and on the record. Levin, joined by Justice Chief Justice Williams and Justice Kavanagh, conviction, would also reinstate the defendant’s but sepa- for different reasons. Inconsistent conclusions of law in alleged conspirators concerning sufficiency rate trials of the of require of do not of dismissal conspiracy charge against conspirator one or a of a reversal appeal ground conviction of on on the that a similar charge conspirator. was dismissed in the trial of another Rather, may post- the defendant move for a directed verdict or court, ground appeal conviction relief in the trial or on the presented the evidence was insufficient to allow the case to be jury. submitted to the law, jointly 1. At common because were tried and because a involved the combined acts of two or persons, generally more it was held that where a convicted person conspiracy, acquitted one of a but all other conspirators, the conviction trials could not stand. As alleged conspirators began greater frequency, of to occur with re-examined, leading prece- growing body the rule was of to a alleged conspirators dent to the effect that of all but preclude remaining conspirator one does not of v Anderson require setting appeal. or aside of the conviction More- over, juries acquitted one in case is not which a all one, alleged conspirators but thus arrived at inconsis- facts; of tent determinations it one in is which two courts assertedly legal arrived at inconsistent conclusions. law, Sufficiency question of the evidence is a fact. power A court has no decide which two inconsistent by jury juries factual determinations made on insufficient one, law, evidence is the correct but on evidence, only there correct determina- appellate A tion. trial or court can review record evidence conspirator adduced at the trial of the who is convicted to sufficient, obliged determine whether it and is set aside properly the conviction if it was not. But the defendant cannot seek benefit of the determination made in the conspirator insufficient, other evidence was if that demonstrably determination was incorrect. In the defendant’s trial, sufficient; the court determined that the evidence was alleged conspirator, the trial of the other the trial court deter- charge. mined that it was not and dismissed The defen- court, persuade dant’s recourse is to his trial on a motion for a relief, court, post-conviction appellate directed verdict or or an *3 precluded that the evidence was insufficient. should He not be filing delayed post-conviction from a motion for relief ground. judge 3. The defendant’s contentions that because the trial jury instructing communicated with the after to it to it advise deliberations, commence because the trial court denied the pretrial suppress expert testimony defendant’s motion to of- people regarding fered the the size of a which bullet victim, presentence report wounded the and because the in- polygraph opinion a cluded examiner’s that the defendant had lied, reversal, he is entitled to without are merit. trial judge announced his intention to discuss the he instructions given just lawyers jury had with both and then to to advise the instructions, commence if deliberations there no more were and objection. there was no jury Where the has deliber- commenced parte ations and there ex is an communication between the judge jury ordered, and only a new trial will be but in case elapsed a jury begun few minutes had and the had not delibera- only jury begin tion and the communication that the could objec- deliberation. of Because this and because there nowas intention, required. tion to the announced a new trial is not provide public The trial court offered to funds to defendant expert bullet, testimony regarding to obtain size but stipu- because defense counsel introduced evidence was not objection Finally, raised no the defendant the size. lated to presen- sentencing in the of a reference to the inclusion before examination, request polygraph nor did he report to the tence report exclude the be redacted to court that the trial therefore, and, be considered on the claim cannot reference appeal. Reversed.
Opinion of the Court — — Conspiracy — Valid- Convictions Inconsistent 1. Evidence ity. conspirators guilty a verdict to of two A of not as one verdict joint requires judgment guilty a a of trial of other both, acquittal are where the trials of of but finding conspirator jury separate, of a or a a presented support evidence was a trial that insufficient conspiracy in case is not inconsistent with of subsequent conspirator in a case of another the conviction (MCL 28.354[1]). 750.157a; MSA Prejudice. — Jury — Ex Parte Communication With 2. New Trial parte between a trial and a an ex communication Whether showing jury requires of a conviction without a of reversal depend prejudice on whether the communication does deliberate, began but whether before the occurred and was in the room at the time had retired communication, obligation which relieves' the defendant however, showing prejudice; announced where parte, jury ex and the to communicate with the his intention parties agreed, rights parties’ to fair deliberations were not showing required, new trial absent a violated was not prejudice. Separate Opinion by Levin, J. Conspiracy Sufficiency — — — Conclu- Evidence Inconsistent Validity. — — sions of Law Convictions trials of con- Inconsistent conclusions law in spirators concerning of evidence of *4 charge against require conspiracy do not the dismissal appeal conspirator conspiracy on or reversal of his conviction of ground charge in the trial on the that a similar was dismissed rather, conspirator; may move for a of another the defendant court, post-conviction directed verdict relief in presented appeal, ground was insufff- on the v Anderson Opinion of the Court (MCL to be submitted to the to allow the case
dent 760.157a; 28.354[lj). MSA Sufficiency — — Conspiracy — Inconsistent Conclu- Evidence Validity. — — Convictions sions Law regarding of law of evi- Inconsistent conclusions alleged conspirators which trials of resulted dence in conspirator where the evidence was in the conviction of one and the dismissal submitted require charge against other where it was not did hot conspirator conspiracy charge against the ffrst dismissal of the (MCL 750.157a; 28.354[1]). MSA or a reversal his Kelley, Attorney General, J. Frank J. Louis Caruso, General, McLennan, Donald J. Solicitor Prosecuting Attorney, Malinowski, J. and Leonard people. Attorney General, for the Assistant Appellate (by State Defender Richard B. Gins- berg) for the defendant. agree my colleague IJ.
Ryan, Appeals reversibly Court of erred in this case when it set aside the defendant’s conviction for conspiracy to commit I murder. am constrained to separately, however, write I because believe there is a different decision we reach on both more correct rationale for the
points my to which colleague has written.
I Michigan There can be no is a "no conspiracy” one-man state. Our statute requires is a bilateral statute which proof agreement per- of an between two or more people not, sons. It is contend, as the a unilateral conspiracy statute that allows conviction without proof persons. between two or more Michigan provides: statute *5 Mich 31 Opinion of the Court 1 or more law, conspires together with "Any person who or to prohibited commit an offense
persons guilty of illegal manner is legal in an act commit crime of (Emphasis herein”. provided as conspiracy punishable 28.354(1). added.) 750.157a; MSA MCL as statutory language foregoing interpret To write effectively conspiracy law would a unilateral Moreover, "together”. the statute the word out of "there can be consistently held that cases have our two or without combination no conspiracy 298, 310; People Atley, persons”. more DiLaura, 259 Mich (1974); People NW2d (1932). 260, 262; 243 NW agreement requires proof of the statute Since "no common-law one- persons, at least two rule pro- That applicable. rule conspiracy” man conspir- for a together "if are tried vides that two are implicated, persons in which no additional acy the other not finding guilty one a verdict both”. guilty requires judgment (2d ed), p 622. The Perkins, See Criminal Law at common law was purpose of the rule inherently defective prevent enforcement Such cases. inconsistent verdicts when, prosecu- inconsistency joint resulted alleged conspirators, co-conspir- tion of several co-con- alleged ator convicted while all of his spirators analytically were The effect acquitted. found simul- was that factfinder such cases two or taneously "an between it did not exist persons” more existed and At conspirators. regard alleged same since co- easily applied common law the rule was per and a se conspirators always jointly were tried rule fulfilled the rationale the common- underlying rule, in- precluding one-man conspiracy” law "no herently defective inconsistent verdicts. v Anderson Opinion of the Court points my out, however, it
As brother has come commonplace to be more and more co- separately in the at are tried case arises then whether the "no one- bar. conspiracy” man alleged co-conspirators rule is violated when one of two following
is convicted *6 acquit- verdict of or a directed verdict of insufficiency conspiracy tal of the for of evidence against charge co-conspirator previ- the other in a colleague My appears to ous trial. conclude that conspiracy” the reason the "no one-man rule is inapplicable in the case before us is that charge against alleged co-conspirator conspiracy Margaret by judge Craze was dismissed the trial verdict, a matter of law a motion for on directed while defendant Anderson was later convicted of alleged conspiracy by jury. my the same a judgment, significance. that distinction is of no purposes application
For of the "no one-man conspiracy rule”, whether, it matters not in the separate judge Craze, trial of the trial found as a upon fact a motion for a directed verdict of not guilty that there was insufficient evidence of the question to submit the or a guilty returned a not verdict in the case. The result spiracy is the same: a determination that no con conspiracy”
existed. Whether the "no deci sion was made the trial in the Craze case ruling upon in a motion addressed to the suffi ciency evidence, was, as indeed it jury, bearing quality has no whatever on the proof subsequent of a in the and separate trial of Anderson.1 The reason the "no jointly Had Anderson and Craze been tried and the case dismissed Craze, "as a matter of law” the trial as to and Anderson verdict, conspiracy by later convicted of the the distinction "legal” between the factual determination on the determination of no and the later would be of no moment in Opinion of the Court Ander- inapplicable rule is conspiracy”
one-man jointly he was not tried is son’s case because irrelevant simply bis It co-conspirator. is insufficient case were in Craze’s proofs Anderson’s for a directed verdict. motion survive a the evidence quality separate and trial was separately evaluated. that case therefore, common-law "no conclude, I typical applies rule conspiracy” one-man alleged co- situation, trial joint common-law there- resulting inconsistent apply It does not verdicts. inherently defective fore tried separately are alleged co-conspirators where no defect when the there is inherent because different verdicts return separate juries State, in Platt trials. As shown (1943), progeny, its 131; 8 NW2d Neb conspiracy trials do in different verdicts different of ac- since verdict impeach one another other than a many factors may be based quittal Similarly, agreement. failure to establish finding makes fact *7 evi- insufficient attorney produced prosecuting finding support dence to conspirator does not separate against case in a trial from conclud- preclude jury subsequent in that case ing that the evidence of conspiracy guilty. verdict of was sufficient warrant rationale, however, is case in one rejected it. The jury rejecting inapplicability rather than a arises from conspiracy” of the "no one-man rule fact of trials. II colleague my While I am determining conspiracy” rule had been whether the "no one-man apply. conspiracy” "no violated. The one-man rule would People v Anderson Opinion op the Court no reversible error resulted in this case from the parte ex communication with the I cannot jury, fully concur in the rationale ad- vanced. the ex
My colleague suggests three reasons that parte communication with jury was not preju- 1) dicial: the communication occurred before the 2) jury began, deliberations the judge expressed his intention to engage in an ex parte communication 3) with the and jury, neither party objected communication though even they put had been notice by the court. I agree
While
with the second and third of the
foregoing points,
judgment
my
the first of the
factors
noted
my colleague
consequence.
is of no
Whether
had
begun deliberating or not is
irrelevant
to a determination
the defendant
must show actual prejudice.
fortified,
view
My
I
believe,
decisions of this Court
in the three
cases cited by my colleague: People Kangas,
201;
Mich
Zaitzeff v
(1962),
NW2d
Raschke, 577;
(1972),
NW2d
Cain,
In Kangas, 206, p this Court declared defendant need not show prejudice when the ex parte communications between the occur "after jurors] have retired for delibera- [the added.) tions”. (Emphasis Zaitzeff, p Court stated that the defendant need not show prejudice when the parte ex communications be- tween the judge and the jury involved "entering while room jurors are there”. (Empha- *8 added.) Cain, sis the dissent which we adopted merely quoted the language Kangas and Zait- of Mich the Court significant Consequently, in deter- factor the
zeff. mining of the is relieved defendant whether a upon prejudice obligation of ex a claim to show jury parte is not the communications begun actually jury deliberations. has the whether The jurors "re- had fact is whether crucial ex in the room when and were tired” parte occurred. communications jurors retired and indeed had
In this case judge went when the trial in the room were general Consequently, jurors. spoke to the and expressed Kangas Zaitzeff would allow in and rule a new without the defendant showing prejudice. However, is not this general ordinary case, the trial In this case. expressed judge, record, from the and on bench jury outside with the intention to communicate his parties agreed parties. presence Both of the go procedure whereby the would and instruct to the opened, jury room, have the door begin purpose jurors deliberations. prohibiting parte between a ex communications parties’ rights protect is to and the here, Where, as to fair deliberations. party parties’ and no
acted with the leave any objection any party voiced counsel for underly- judge’s proposed procedure, the rationale prohibition ing against parte jury ex communi- parte violated, is not the ex communi- cation cation a new trial without does mandate showing prejudice. simply showing prejudice no
There is colleague’s my case, I conclusion concur with required, the com- that a new trial is not but a factor mencement of deliberations should not be be This should not the determination. view practice approval any way taken in *9 People v Anderson Opinion employed poten- It this case. was an unwise and tially prejudicial procedure. simpler, better, The practice require and wiser would the trial to jury only communicate with the from the bench in experience the courtroom and on the record. While suggests may sometimes be a cumber- time-consuming procedure, price some and it is a paying preserve integrity worth factfinding process, appearance inde- pendence, expense, delay, and the avoidance of the consumption judicial resources involved in appellate evaluation of room contact between jurors. the court and the
Reversed. Boyle, JJ., Brickley, Cavanagh, concurred J. Ryan, reversal). (concurring Levin, J. James Ander conspiracy son was convicted of assault with intent to murder1 and to commit murder.2 The other alleged conspirator, Margaret Craze, was tried separately and convicted of assault with intent presided commit murder. The who at her conspiracy charge trial dismissed the because he conspiracy determined that the evidence was insufficient. Appeals
The Court of reversed Anderson’s con conspiracy ground viction of to murder3 on the conspiracy charge against that the dismissal of the 750.157a, 750.316; 28.354(1), MCL MSA 28.548. exchange testimony against for his conspirator, the other Margaret Craze, Anderson’s conviction was reduced to a conviction of second-degree 750.317; commit murder. MCL MSA 28.549. 750.83; MCL MSA 28.278. opinion Appeals published. of the Court of was not was years sentenced to concurrent terms of 10 to 20 on each count. Margaret Craze, murder, convicted of assault with intent to commit placed probation. Mich Levin, J. conspir conviction vitiated his Craze
Margaret one-per cannot be there to murder because acy and rein in reversal We concur conspiracy.4 son of Anderson’s statement to murder.
I a combination of at common law is A *10 basis, gener it was persons.5 more On two convicting one and a verdict held that ally could alleged conspirators the other all acquitting Michigan in a case There dictum not stand.6 rule.7 stating that applicable the rule is
It has been said
the inconsistent
ver
regard to whether
without
trials.8 More
separate
in one or
dicts were
alleged conspirators,
as
trials of
recently,
4
Appeals
of
declared:
The Court
conspir-
conspiracy.
be
Because the crime of
"There can
no one-man
purposes’,
acy
'partnership
as
in criminal
United States v
is defined
124;
(1910),
Kissel,
601, 608;
acquittal
S Ct
L Ed 1168
of
218 US
31
54
charging
parties
partner
two
with
in an information
person
operates
prosecution
to the other
to bar
or conviction as
Alexander,
281,
App
People
charged
283;
v
the same act.
35
With
see,
(1971);
generally,
Prosecution or
it concerns
is sufficient
fact. Where there
and not of
law
justify
submission and inconsis-
determinations, either determination
factual
tent
*11
juries
arguably
the
have
correct. The
or
is
power
bring
and to
to reach either determination
9
(1980).
544, 552;
Byrd,
173
490 Pa
417 A2d
See Commonwealth v
10
Holzer,
Byrd,
supra; People v
25 Cal
fn 9
See Commonwealth
State,
456,
(1972);
App
460;
Rptr
App
41 Md
102 Cal
Gardner v
3d
(1979);
State,
131;
187;
in asymmetrical is to decide which empowered is court appellate an or result or to conform determination the correct however, Where, question con- the the verdicts. ques- legal of the evidence —a sufficiency cerns A correct determination. is only tion —there the record court can review or appellate trial of the con- at evidence adduced in the instant is convicted —Anderson who spirator there was sufficient whether case —to determine if a conviction evidence, obliged is to set aside that Anderson claims is not sufficient. the evidence his case and that of evidence both the record Margaret substantially Craze is same. conspiracy may A convicted of under- defendant that the correct determination standably maintain which, acquitting was reached found alleged conspirator, implicitly other prove conspiracy. there was failed people cannot, however, properly seek the A defendant is, a matter of benefit of a determination law, incorrect. demonstrably decisions concern-
We conclude that inconsistent of evidence of a do ing the sufficiency conspiracy charge of a require not dismissal His re- conspirator. sole convicted against court, the trial on a motion persuade course relief, post-conviction for directed verdict or court, insufficient appellate there was submit his case to the jury. ground that sought reversal on the requiring setting there is a rule aside of charges where are per se alleged conspira- all the other against dismissed briefing argument tors. There has been no writing for evidence. conviction, we affirmance of Anderson’s would *12 v Anderson filing post- preclude delayed of a motion for ground on the the evidence conviction relief was insufficient.
II cross-appeal, Anderson, issues, three raises opinion, justifies which, in our reversal. none judge concluded instructions with the his jury would, com- statement that he before the lawyers deliberations, menced discuss with the given. just instructions he had If there were no "personally instructions, additional he would then your jury you come to room and advise that there whereupon "any instructions”, will no more be verbal communication between us shall cease”. determining further After instructions, there would be no judge would, announced that he jury counsel, with the consent of both advise the apparently deliberations, commence did so. Appeals, On remand from the Court of there hearing regarding evidentiary was an the commu- judge jury. nication between the and the We are persuaded, Appeals, as was the Court that not elapsed more than a few mintues had between the jury time the left the courtroom and the time begin jury deliberations, told the during jury begun that time the had not delibera- place tions, and that all that took between the jurors judge’s and the was the statement begin that the should its deliberations.
This Court has said that a new trial will be ordered where the has commenced delibera parte tions and there has been an ex communica tion between the and the without re gard inability to the defendant’s failure or to show *13 31 Mich
46 by Opinion Levin, J. case, however, the communica In this prejudice.11 began and deliberation before occurred tion he procedure the had announced the judge after by An follow, was made objection no would lawyer. derson’s judge announced the that because conclude
We the come door of personally his intention to and because objection, no and there was room began, deliberations all occurred before stating that communication judge’s re- does its deliberations it could commence trial. quire a new erred claims next
Anderson testi- suppress expert motion to pretrial denying preliminary at people offered mony of a bullet which concerning the size examination denying husband. Mrs. Craze’s wounded Anderson with motion, provide to offered Anderson expert testimony. funds to obtain county trial, At the his of this offer. avail himself did not concerning the size stipulate to agreed counsel stipulation, expert Because of bullet. not introduced. was testimony different counsel represented Anderson was stated, counsel Appellate at trial. than appeal holding that the testi- trial, with the "At faced admissible, stipulated defense counsel mony was requiring without testimony the content of that not, does The record appear.” the witnesses lawyer stipu- so however, Anderson’s why indicate lated, or have been the may what in that understanding lawyers regard._ 11 (1980), Cain, 858; granting People NW2d 692 v 409 Mich 294 See in Justice reasons stated for a trial for the defendant’s motion new Cavanagh’s Cain, App People dissenting 94 opinion Mich 201, 206; 647; People Kangas, 113 (1980); NW2d 577, 579; Raschke, (1962); NW2d 387 Mich Zaitzeff v NW2d (1972). v Anderson While it not have An- may necessary been for derson’s his lawyer pretrial objection, renew absent a statement the stipulation was on the understanding the objection preserved, we have no for proceeding basis on the assump- tions stipulation did not constitute waiver of the and that objection Anderson’s counsel did not have an adequate agree- reason for ing expert so to waive the issue. testimony
Finally, contends that he is entitled to resentencing presentence because the report con- *14 tains the statement during the investigation of the shooting husband, of Mrs. Craze’s a poly- graph examination was administered to Anderson and that the examiner was of the opinion that "lied about all his answers regarding knowledge of the shooting, but [the examination] was inconclusive as to whether he was being truth- ful in his answers about whether he had shot Mr. Craze”.
The Court of Appeals decisions
relied on by
Anderson "stand for
proposition
that a trial
court cannot
induce a defendant
to take a poly
graph test with hints of favorable consideration
at
sentencing”. People
Towns,
v
69 Mich App
478;
(1976).12
Anderson raised no objection before sentencing
to the inclusion of
information,
nor did he ask
the report be redacted to exclude reference to
the polygraph examination. The record is silent as
to why Anderson
did not seek redaction. Trial
counsel’s decision to voice no objection may have
been a
indeed,
deliberate
choice and may,
have
Appeals
The Court of
People
discussed its earlier decisions in
v
Allen,
148;
App.
(1973),
People Dockery,
Mich
been sentence.13 Anderson’s presentence of a contents objection
An ap- first time for be voiced cannot report relief seeking appellate precondition As a peal. file a motion must a defendant regard, opportunity there is so that trial court concerning review appellate for compile a record matter. subject Kavanagh, J., concurred C.J., Williams, (1981). 523; Pulley, NW2d 170 See