People v. Clark

Mich PEOPLE CLARK 9, Argued (Calendar 9). Docket No. 103664. October No. Decided December 1996. by jury Muskegon Court, Clark Bertha was convicted in the Circuit Graves, Jr., J., involuntary manslaughter James M. in of the death four-year-old dehydration. Appeals, her of son from The Court of P.J., JJ, unpublished and Grifmn and reversed in an Sawyer, Neff, opinion per curiam, holding that the of failure the trial court to jury by agreed parties a modified instruction to the the and the —as gross likely negligence court—that involved conduct to cause death, giving and instead the standard instruction that the conduct only likely injury, involved be to cause serious after defense coun- framing closing argument, sel relied on the in modification his was sufficiently prejudicial require (Docket reversal and a new trial 144551). people appeal. No. separate opinions, Supreme In Court held: prejudiced by change The defendant was in the instructions and is to a entitled new trial. joined by Justice Justice stated court must Mallett, Levin, properly may correctly intelligently instruct the that it so and decide the case. Counsel are to be informed the instructions to given Clarity closing arguments. be before in instructions and by understanding charge counsel of exact nature of the is criti- shape arguments cal because counsel their to conform to the law by as defined the instructions. Where the trial court in errs mislead- ing misinforming regarding counsel the ultimate instructions given prejudice results, required. will be and a new trial is every require Not instance of such instructional error will rever- required only prejudicial. sal. Reversal is if the was error inquiry should focus on nature error of the and assess its effect light weight strength the untainted evidence. Prejudice is determined affect of error on substantial rights or its affect on the verdict. change A instructions at the eleventh hour should be only case, prejudice requir- made with extreme caution. this ing judge, agreeing reversal was incurred when the after to a modi- instruction, subsequently charge fied decided to with the People v Clark inadvertently misled Defense counsel was unmodified instruction. theory jury. wrong argued Conse- the court and ability impaired, quently, represent was and the cli- his client hearing prejudiced. right The modified instruc- a fair ent’s required know her actions would cause that the defendant tion death, closing argument was tailored to refute and the defense’s knowledge beyond proven requisite a rea- had this that the state actually required Conversely, given the instruction doubt. sonable in would result serious defendant know that her actions that the proof required injury. of to meet The difference between the levels theory insig- far under either is from the reasonable doubt standard remedy appropriate Reargument not have been an nificant. would validity affirmatively question into the of the error calls because jury’s the decision. should it be concluded or inferred that Under no circumstances duty jury incorrectly, judge or that the a has a to instruct the trial by refusing give judge erroneous instruc- in this erred to the case untimely improvidently proposed was and tion. The modification parties immediately, agreed have been denied to the and should alternatively, granted or, have a recess to allow the should provides request. parties the The court rule the time to consider parties opportunity only reasonable to that the court must the closing arguments. Although requests written before their submit they pre- may wise, appear requests are it does not that oral not be argument given eviscerated the defense’s cluded. The instruction requested, impaired and effectiveness. A mistrial was not and its denied. Under the circum- the defense motion for a new trial was stances, required. a new trial is pre- concurring, that the standard for Justice stated Cavanagh, judged harm- should be under the served nonconstitutional error standard, less-beyond-a-reasonable-doubt Under this standard. opinion, any error in this articulated the lead the other standard was not harmless. case part dissenting part, concurring in in stated Justice Riley, solely comply a case is not based on failure

that the error this Rather, necessary 6.414(F). of the a new trial is because with MCR despite original giving instruction trial court’s mistake in in his clos- relied on the modified version fact that defense counsel ability effectively compromised ing argument, his which turn consequence represent mis- As a of the trial court’s the defendant. ability effectively take, to cor- defense counsel the the court denied jury. rectly applicable argue law to the The ramifications in nature. such an error are constitutional Mich 572 In order constitutional error under circumstances like to find required case, showing prejudice those in this a before rever- reviewing sal ask if is warranted. A court first must the error is a mechanism, structural defect in constitution of the trial which analysis by defies harmless-error When a structural standards. automatically However, found, defect is must a court reverse. not per during presen- all errors se. Others demand reversal occur may quantitatively tation of the case to be assessed in presented the context of evidence in order to other determine beyond whether a its admission harmless reasonable doubt. require reviewing beyond These errors court to determine a possibility reasonable doubt there is no reasonable that the might error have asserted contributed to the conviction. case, In this error does not warrant automatic reversal equate deprivation process. because it to a does not total of due Thus, provide the trial failure court’s the modified instruction comparatively light must be assessed in of the record as a whole regard and a determination must be made with to whether it can be beyond said error reasonable doubt that was harmless. argued throughout closing argument, Defense counsel after the people accepted had to and consented the trial court the modified portion instructions, had defendant to have known negligence. death would result as result of her The effectiveness argument totality of defense counsel’s and the of the defense was impaired by regarding counsel’s reliance on inaccurate information jury Therefore, beyond the instructions. it cannot be concluded a provide reasonable the doubt that trial court’s failure to the instruc- jury’s jury, asking tion had no the effect on verdict. The in for a gross negligence, clarification of the definition of evidenced its regarding arguments confusion the difference between the two and the final instruction. Affirmed. joined by Boyle Chief Justice Justices and dis- Brickley, Weaver,

senting, duty give the trial stated that court was under no to the instruction, modified in that it was an incorrect statement of the satisfy requirements 6.414(F). law and did the not of MCR trials, require Michigan both civil and criminal the Court Rules requests jury writing, that all in for instructions must be served on party, brought closing the other and to the court’s before attention arguments. proposed satisfy counsel’s Defense modification did not any requirements 6.414(F). of the of MCR Because defense coun- jury brought sel’s the modification of standard was instructions too late, writing, request, and was not in it was an ineffective and the duty give court was under no to the instruction. by Opinion Mailett, court, prosecutor, agree the and defense counsel cannot to proof gross negligence change burden of for because the threshold jury duty correctly instruct the on the law. If it is the trial court’s to jury brought pursuant request to MCR for a instruction is correctly law, 6.414(F) a trial and states the it is error for court to closing arguments if the instruction after counsel’s refuse prejudicial. But reliance on the instruction would be where the duty. law, is under no similar instruction misstates the court inquiry prejudice An into focuses on the nature of the error and strength light weight in of the assesses its effect prejudice, there must be some evidence untainted evidence. To find alleged case, error affected the outcome. In this that the by prejudiced original, defendant was not the use of the correct closing argument instruction. The themes of defense counsel’s did rely injury, between death and serious but not distinction deny death, attempted negligence, alleged refute the cause of jury rejected claims, pre- shift the blame. The these and was not acquitting change as a result of the cluded from defendant jury closing argument instructions. If defense counsel’s had hinged instructions, on the difference between two the defend- prejudiced by might original ant have been the use of the instruction. Any duty that the trial court owed to defense counsel to honor request change its ill-timed for a from the standard instruc- tions, previously agreed chambers, superseded by to in responsibility correctly jury. instruct the court’s defendant prejudiced change was not instructions because the difference between the two instructions did not undermine her arguments. Attorney General, Frank J. L. Kelley, Thomas General, Solicitor Casey, Tony Tague, Prosecuting Attorney, and Kevin A. Senior Assistant Pros- Lynch, Attorney, people. for ecuting Appellate State E. (by Bell) Defender Fred for the defendant. J. The defendant was convicted

Mallett, involuntary in the death of her four- manslaughter year-old prison son and was sentenced to a term of years. Appeals reversed, seven to fifteen The Court of Mich Opinion by Mallett, prejudiced holding defendant was change We affirm the in the instructions. would Appeals the defendant of the Court of decision prejudiced by change in the instructions is entitled to a new trial.

i adopted when he was nine The decedent was unexpectedly March, months old in 1986. He died ultimately age of four. The medical examiner con- dehydration. dehydra- cluded that he died from This explained, by any however, tion could not be under- process. lying, ongoing, apparent disease Child suspected ligature abuse was in the death because of body.1 marks and on his bruises observed The decedent suffered from excessive and over- whelming thirst that seemed to have no discovered compulsive medical basis. He was described as a go drinking drinker and would as far as from toilets. frequent began He also suffered from urination and years wetting age. the bed around two On the doctor, advice of her the defendant restricted the liquid child’s intake several hours bedtime, before starting at 7:00 P.M. She asked the teachers not to let him drink more water than other children at during school. She also restricted his intake the hours that he was in her care. having

In March defendant found the child physician seizure in his room. She told the that he day. gallon Testing drank over a of water earlier that 1 Ligature may something marks be created when is tied or bound together. n by Opinion J. Mallett, unusually high

revealed salt levels that were inconsis- drinking with so much water. The cause of this tent high unknown.2 took the salt level remains Defendant family physician, him child to the who sent to the hospital follow-up for tests. The results of these tests reported were not to the defendant. prosecutor presented the defendant as a

mother who became obsessed with her son’s bed- point wetting liquids, causing that she withheld fatally dehydrated. Testimony him to be revealed that disciplined defendant her children with a belt and keep she would the child tied bed with a cloth nylon keep up stockings getting belt or him from nylon night. brought hospital, When he was into the body stockings found were under his on the stretcher. argued The defense, hand, on the other that this was frustrating many and difficult child who had medi- problems inadequately by cal that were addressed community. County medical The Kent medical exam- performed autopsy iner who concluded that the child died because water was withheld from him. charged involuntary

The defendant was with man- only slaughter. The statute for that offense defines the penalty;3 involuntary manslaughter the elements of by are defined law: common prosecutor deliberately him hinted that defendant loaded down testimony with salt to retain fluid. Medical indicated no source for the high ingested something. sodium than he have other must 750.321; provides: MCL MSA 28.553 Any person manslaughter who shall commit the crime of shall be felony guilty punishable by imprisonment prison, of a in the state years by 7,500 dollars, not more than 15 or fine of not more than or

both, at the discretion of the court. 453 Mich 572

Opinion Mallett, “Involuntary manslaughter killing is the of another with- unintentionally, doing out malice but in some unlawful felony naturally amounting tending act not to a nor to cause bodily harm, great negligently doing death or or in some act itself, perform negligent lawful in or omission to duty.” [People 106, 110; legal Ryczek, 224 Mich 194 NW (1923) (citation omitted).] required The kind of negligence manslaughter for ordinary more than something simple negligence, however, and is often described as “criminal negli- gence” “gross negligence,” People Townes, v 578, 590, 4; Mich n 218 NW2d (1974), “wilfulness, or of People Orr, wantonness and recklessness.” v 300, 307; Mich 220 NW 777 (1928). For a behavior to be considered grossly defendant’s .4

negligent, three elements must be satisfied These elements are émbodied in CJI2d 16.18 expressed that people’s theory defendant’s guilt. instruction states:

(1) negligence Gross means more than carelessness. It willfully disregarding might means the results to others that follow from an act or failure to act. order to find that the you grossly negligent, defendant was must find each of the following beyond things three a reasonable doubt: 4 These elements are: (1) Knowledge requiring ordinary of a situation the exercise of diligence injury

care and to avert to another. (2) Ability resulting ordinary to avoid the harm care and dili- gence in the use of the means at hand. (3) diligence The omission to use such care and to avert danger ordinary apparent threatened when to the mind it must be likely prove [People that the result to disastrous to another. supra Orr, at 307.] People v Clark

Opinion by Mallett, (2) First, that danger defendant knew of the another, is, required he knew there was a situation that ordinary injuring him to take care to avoid another. (3) Second, injur- that the defendant could have avoided ordinary ing using another care.

(4) Third, ordinary that the defendant failed to use care prevent injuring when, person, another ato reasonable it apparent likely must have been that the result was to be injury. serious

Before closing arguments, parties and the court agreed to this instruction.

At the end of closing argument, and reliance on 16.18, prosecutor CJI2d people noted that the did prove not have to "intended defendant the child should die, but instead that her grossly neg- ligent behavior of withholding fluids resulted in his prosecutor death. The stated: going get gross negli- You are an instruction on what gence going you is. You are to hear that it is knew of the danger, danger is, there was a to another —that she knew required that there was a situation that him to take —that required ordinary injuring another, her to take care to avoid injury by ordinary that she could have using avoided the giving the child water-—and that she failed to use care — n ordinary prevent injuring care to another when to a reason- person apparent able it must have been that the result was likely injury. to cause serious prosecutor up summed pointed the evidence that to defendant’s knowledge fluids restricting was imprudent and harmful point it could cause death and did so in this instance. prosecutor’s

After the closing argument, defense requested counsel a in change instruction on Mich 572

Opinion Mallett, phrase negligence.5 gross wanted the Defense counsel injury,” replace cause “serious “cause death” to request 16.18(4). in a sidebar occurred This CJI2d jury, hearing and was conference, out of considering the However, without not recorded. pros- proceedings, the this would have on the effect judge agreed to the modification. and the ecutor closing proceeded with his Defense counsel then argued argument. that the decedent The defense was not inatten- child, a difficult that the defendant parent doing needs, but was a concerned tive to his situation, and that it could not her best a difficult apparent possibly to her that her actions have been would result in his death. instructing jury, counsel raised

Before defense changed confirm the issue of the instruction to objection prosecutor an entered modification. previously noting that the instruction, modified people prove defendant knew did not have to that the cause death under the defini- that her actions would manslaugh- gross negligence in the tion of embodied Indicating modification ter instructions. might it also be a misstatement of the law and that required, judge higher than the law set standard changed and decided that the instruction his mind Consequently, properly given. should not be jury with the standard instruction that instructed the of the law. was the correct statement evidence in the record that defense counsel deliber There is no clear “ ately law which a verdict is reached or to create tried to ‘dictate the principles applicable given by erroneously stating legal to a mistrial ” Pena, situation,’ Quoting United States as the dissent intimates. (CA 11, 1990). Post at 612-613. F2d n Opinion by (cid:127) Mallett, J. objected

Defense counsel because he had relied on the modified instruction in his formulating closing argument. judge, acknowledging predicament that had been created, offered the oppor- defense the tunity reopen the closing argument. Defense coun- sel declined this invitation, that in stating the modified instruction was a not misstatement of law and that to reargue only would accentuate issues that should not be accentuated and create credibility problems jury. with the Further, he noted that he prepare could not a new argument on such short notice.

During deliberations, requested of the guidelines to find negligence.” The “[definition parties and the court determined that this awas request for clarification of the definition gross of neg- ligence agreed to a of rereading 16.18, CJI2d legal instruction on gross negligence. Eventually, jury returned a verdict of guilty.

Defense counsel moved for a new trial, arguing his client’s right to a fair trial was irreversibly prejudiced when the judge changed the content of the instruction after defense counsel relied previ- on the ous modification. This motion was denied. At no time parties did the or the court possibility raise the declaring mistrial.6 might A mistrial have been declared on the basis of manifest neces sity. However, imply any judge we do not wish to that the trial is under obligation sponte. to do so sua This is within the sound discretion of the judge prohibited

trial and would not be under either the federal or state persuaded emergent constitutions if the that such circumstances “justice aborting exist . . . cannot be achieved without People Henley, App 15, 29; trial . . . .” (1970), 26 Mich 182 NW2d 19 citing Perez, (9 Wheat) 579, 580; (1824). United States v 22 US 6 L Ed 165 Declaring accomplished a mistrial could have been without the consent of violating jeopardy the defendant and without double concerns if dictated 453 Mich

Opinion by Mallett, appealed defendant her in the conviction Court Appeals, arguing that the modification of the instruction and defense counsel’s reliance on the judge’s modification, and the decision to sufficiently prejudicial instruction, unmodified was to require Appeals agreed. reversal. The Court of It found that the difference between the two instruc tions was critical. The Court could not find that this was a case which the error was so minor as to be harmless or that this was error that could be cured easily by reargument. Reargument only would be appropriate prejudice if it would not the defendant. “Clearly, noted, The Court there is a substantial dif having prove ference between to that a reasonable person likely would know that the conduct would proving person cause death and that a reasonable likely would know that his conduct would cause seri injury.” Unpublished opinion per ous curiam, issued (Docket slip op 144551), 23, June No. at 2. The agreed reargument Court with the defendant that not a reasonable resolution in this case for the same argued reasons at the trial. do not believe that it would be a reasonable resolu-

[W]e closing arguments tion of the matter to allow to be reopened. pointed out, only As defendant that would have issue, difficult, accentuated and it would be if not by necessity. prosecution manifest Id. The has not raised before this request Court the claim that the defendant’s failure mistrial waived the error. appeal. Defendant raised two other issues in her These involved the prosecutor’s handling autopsy process. Appeals The Court of held although prosecutor improperly, acted this misconduct did not deprive ability trial, the defendant of the to have a fair and the Court basis, finding refused to set aside the convictions on this the issue of the changed dispositive. [Unpublished opinion per curiam, instructions 23, (Docket 144551), slip op issued June No. at 2.] People v Clark Opinion by Mallett,

impossible, credibly put together closing argument a new designed injury involving around a definition serious after having already argued to the on the basis of a defini- involving Finally, tion death. it should not be overlooked agreed prosecu- that the first instruction had been tor. [Id.] Appeals Court of held that the defendant was

prejudiced change instruction and therefore entitled to a new Id., citing trial. United States v White, 27 F3d (CA 11, 1994).

II A court properly must instruct so that it may correctly and intelligently decide the case. Townes, supra at 586, citing People v Murray, 72 10; Mich NW40 29 (1888). See also Ross v United States, 180 F2d 160 (CA 6, 1950). pertinent The rule in criminal trials is MCR 6.414(F), provides: which closing arguments, give parties

Before the court must opportunity a requests jury reasonable to submit written for party copy instructions. Each must serve a of the written requests parties. all par other The court must inform the proposed requests ties of its action on the before their clos ing arguments. closing arguments waived, After are made or jury required appropri court must instruct the as and ate, parties’ consent, may but with the the court instruct the jury parties closing arguments. before the make After may begin, give deliberations the court additional instruc appropriate)[8] tions that are 2.516(A)(1) governing similarly MCR is the rule civil trials and provides: reasonably directs, parties At a time the court must file writ- requests

ten that the court instruct the on the law as stated in requests. court, party In the absence of a direction from the 453 Mich by Opinion Mallett, Clarity The reason for this is obvious. instructions understanding by exact nature of and counsel of the shape charge is because counsel their critical, arguments to conform to the law as defined Supreme instructions. As the United States Court Herring York, 853, 862; stated in v New 422 US 95 S (1975): L 2550; Ct 45 Ed 2d 593 hardly questioned argument closing It can be serves clarify sharpen and the issues for resolution the trier only of fact in a criminal case. For it is after all the evi- parties position dence is in that counsel for the are in a present respective their versions of the case as a whole. Only they argue then can the inferences to be drawn from testimony, point all the and out the weaknesses of their positions. defense, closing argu- adversaries’ And for persuade ment is last clear chance to the trier of fact may guilt. that there be reasonable doubt of the defendant’s People Patskan, 701; 387 Mich 199 NW2d 458 (1972), par this Court addressed a similar issue. The requested ties instructions on both the crimes attempted robbery attempted armed assault with robbery. intent to commit armed decided only attempted he would an instruction on .9 robbery assault with intent to commit armed may request file written for instructions at or before the close of the evidence. provides attorneys This rule further that court shall inform the of its “[t]he proposed requests arguments jury.” action on the before their to the MCR 2.516(A)(4). initially Appeals The Court of noted that there is no offense of attempted assault, but this Court did its not address issue because jury regarding dispositive. decision instruction was Id. at 711. v Clark Opinion Mallett, defense, therefore, made its closing argument reli- of this giving judge, ance on instruction. The how- ever, give instruction, parties did not either and both objected. properly Id. at 706-707. This Court held that violated GCR 516.110 judge 1963, when he failed to give the instruction. The lead stated: people point out,

As the defendant’s basic defense was participant However, that he was not a in the crime. this prejudice does not lessen the himto where the court has agreed give specific charge and then fails to do so. His forcefully any argued counsel that if crime was committed attempted being it was assault with intent to rob armed. the trial the instruction failure of after indicating so, fundamentally unfair, he would do was vio- 1963, and, also, right lated GCR 516.1 to due defendant’s process Therefore, law. the conviction must be reversed and a new trial held. (emphasis added).] at 710 [Patskan Although the reasoning Patskan did not command majority, we persuasive find it and instructive here. 1963, basically 2.516, provided: GCR 516.1 was the same as MCR Request evidence, for Instructions: At or before the close of the any party may, any reasonably directs, par- or at time the Court shall, requests ties file written that the Court instruct the request. copy requested the law as set forth in the A of such parties instructions shall be served on the adverse in accordance pro- with GCR 107. The court shall inform counsel of its posed requests prior arguments action on the to their to the and, subject provision 516.3, of subrule shall instruct the arguments completed. after the are only Patskan was written Justice with whom Justice Swainson concurred. Chief Justice T. M. and Justice Adams con Williams Kavanagh only result, curred in the result. Justice T. G. concurred in the Kavanagh agree judge’s but did not that the trial omission “constituted reversible error.” Id. at 716. 586 453 Mich 572 Opinion by J. Mallett, Appeals People Court of relied on Patskan in v The App Swejkowski, (1979). 366; 90 Mich 282 NW2d 5 judge give regarding The trial failed to an instruction circumstantial evidence. This instruction had been requests, to the court with other and the submitted judge given said that all of instructions would be jury. judge give to the failed to the instruction on despite circumstantial evidence objection. defense counsel’s prosecutor argued instructions given were sufficient. The reasoned that the unnecessary omitted instruction was because there enough was direct evidence to establish the defend- guilt. Appeals disagreed. ant’s The Court of It noted: required proposed

“The court is to inform counsel its requests prior jury. arguments action on the to their purpose provision The obvious of this is to enable counsel requests granted denied, to know which will be in order argue light charge the facts in of the law will as the court jury.” 370, quoting Honigman Hawkins, & Michi- [Id. gan (2d ed), comments, p (cita- Court Rules Annotated omitted).] tion

Citing judge previ- Patskan, the Court held that if the ously agreed give a certain instruction and counsel closing argument, relied on this in then failure to requiring the instruction was error reversal. Id. at 371. People App Paxton, 144; Mich 209 NW2d (1973), Appeals the Court of reversed a convic- tion and ordered new trial in a case in which the incorrectly charged regarding the elements of self-defense. The trial court failed to inform the jury that one need not retreat from one’s own home in order to establish self-defense. The Court stated allowing that the “trial court was in error in Opinion by Mallett, proceed defendant on the wrong theory,” and that reversal. Id. at 149. Although not required this error Paxton is helpful. In the instant directly point, case, problem was not an incorrect instruction to jury, but an instruction support that did not In Paxton, theory argued by the defense. operated assumption under the defendant had to retreat from a threat in her own home. In the case, instant defense counsel argued that the defend- ant should acquitted be because she did not know her actions would result in death. In case, each there was reliance on a mischaracterization of a critical issue directly affected the by theories argued defense counsel prejudice that resulted in to the defense. We think the reasoning in Paxton persuasive is sup- and ports granting a new trial.

Our cases, as well as federal authority, indicate that where the trial court errs in misleading or misinform ing counsel regarding the ultimate instructions will given be prejudice and results, new trial required.12 note, We however, every that not instance type of this of instructional require error will reversal.13 “Simply stated, employed and in both fed eral rule and case law and state statute and court rule, required reversal is only if the prejudi error was example, States, supra, For in Ross v United the United States Court Appeals that, being duty of for the Sixth Circuit noted “it of the court charge jury correctly, proposition clear, restatement of the in explicit, language demanded, and correct so that no confusion could possibly jurors be left in the minds of the . . . .’’Id. at 166. Counsel charges they may should know ahead of time what will be so that properly argue jury. the case to the Id. at 165. This case was remanded for Harvill, (CA 9, a new trial. See 1974); also United States v 501 F2d 295 Gaskins, (CA 9, 1988). United States v 849 F2d 454 13Michigan doctrine, courts adhere to the harmless error set out both by by provides: statute and court rule. The statute 453 Mich by

Opinion Mallett, of the error the nature inquiry focuses on That cial. weight light its effect and assesses People Mateo, evidence.” of the untainted strength Peo citing 215; (1996), 551 NW2d 891 Mich NW2d 857 349, 377-378; Mich Peterson, 450 ple v by the affect of Prejudice is determined (1995). verdict. its effect on the rights or error on substantial at 219.14 Mateo judgment reversed or a new or verdict shall be set aside or No any case, by any granted of this state in criminal court

trial be jury, improper ground or the admission of misdirection of the any pleading evidence, rejection matter of or for error as to or of court, procedure, after an examina- unless in the or affirmatively appear cause, the error it shall tion of the entire justice. 769.26; miscarriage complained resulted in a [MCL of has MSA 28.1096.] Similarly rule states: the court evidence, an error admission or the exclusion of An error anything order, ruling or omit- or an error or defect in done

in a or parties ground granting a new is not for ted the court or verdict, vacating, modifying, setting trial, or other- aside a or for for judgment order, disturbing take this unless refusal to wise justice. appears inconsistent with substantial action to the court 2.613(A).] [MCR conviction, prejudice required assessing a level of to reverse In the the standards for evalu addressed the differences between Boyle Justice preserved preserved ating nonconstitu constitutional and the effect of rejected Mateo, majority of this Court the Id. at 216-217.In a tional error. error, stating Chapman in cases of nonconstitutional use of the standard protections individual liberties embodied fundamental of that “[t]he rights is not of constitu are not at issue when the error constitutional 18; Chapman California, US 87 S at 217. See tional dimension.” Id. (1967). 824; 17 L Ed 2d 705 Ct employ several standards that the federal courts Justice noted Boyle evaluating the outcome of of nonconstitutional error on when the effect not, probable, probable proceedings. “highly more than These are the affected. Id. at 219. likelihood” that the outcome was and a reasonable Traynor suggested by in his book Chief Justice She further noted the tests rejected Chapman error, are standard. These tests which on harmless probable Id., highly probable than not standard. ns standard and a more People Opinion by Mallett, III jnry A instructions at the eleventh change hour, here, as be only occurred should made with extreme In this was case, caution. defense counsel inadver- tently by the court and argued wrong misled the- ory jury. Consequently, ábility represent impaired, his client was with the result the cli- ent’s to a fair was right hearing prejudiced. The rule be counsel informed of the instructions to be given to the before closing arguments enables arguments counsel to tailor to the proper legal stan- dards. If the instruction is an changed attorney after it, it impairs only relies on not and quality content argument, final but the rep- effectiveness as well. resentation

In case, prosecutor this does disagree, not but any claims that the did not prejudice defendant suffer because the difference between the two theories is not significant consequently the outcome States, 750; 1239; 18-19.See also Kotteakos v United 328 US 66 S Ct L90 (1946) (substantial standard). Ed 1557 influence the outcome We propor- do not believe that the error in this case is of constitutional speedy, ineffective, tion. The trial was fair and counsel was not and the properly charged. (After Remand), v Anderson 392, 405; (1994), properly may Mich 521 NW2d 538 this Court listed what warranting be considered constitutional error automatic reversal. These deprivation right counsel, impartial include: total to trial an “[T]he judge, excluding grand jury defendant, members who are the race as same right self-representation, right public denial of denial of the to a trial, constitutionally improper and a reasonable instruction.” doubt However, Mateo did not define the ultimate standard which the analysis effect of gests sug- nonconstitutional error be should evaluated. The appropriate that the lies standard somewhere between a reasonable doubt on the one hand and a reasonable likelihood that the outcome was high probability affected on the other. Id. at 218-219. While standard may appropriate majority test, pointed be the most out that without input bar, unilaterally from the bench and is unwise “it for this Court to adopt a definitive standard.” 220. Id. at 453 Mich by Opinion Mallett, J. prosecutor further the same. have been would attorney gain an argues should not the defense deliberately injecting advantage into the error after by refusing proceedings error to correct the and then opportunity given do rearguing when he was so. disagree. not a minor one. here is The error

We required by counsel relied on defense instruction death. actions would cause know her the defendant closing argument to refute was tailored The defense’s knowledge requisite proven this state had that the beyond Conversely, the instruc- a reasonable doubt. actually required given the defendant know tion injury. The result in serious actions would that her insignifi- gap far from standards is these two between proof between the levels The difference cant. required standard under reasonable doubt to meet the theory insignificant. Further, also far from either of the definition asked for a reclarification apparent gross negligence; that the thus, it is argu- between the two the difference confused ments and the final instructions. prejudice requiring reversal case, instant judge, agreeing to a mod- when the after

was incurred subsequently charge decided to instruction, ified defense instruction after with the unmodified closing argu- relied on and conformed counsel Defense counsel modified instruction. ments to the closing argument with to be consistent tailored his possibly theory have could not that the defendant withholding child would water from the known that greater threshold of This is a far lead to his death.15 15Excerpts closing argument are illustrative: from the Opinion Mallett, prove knowledge prosecutor for the than proving merely that the defendant knew her actions would cause which the injury, theory argued by serious was prosecutor. the impossible

We find it to that last min- conclude the change ute the instructions did not affect ver- argued by dict. Under the standard higher defense counsel, might defendant have been acquitted. We agree Appeals with the Court of reargument inappropriate. would be This would have accentuated impaired the issue and credibility defense counsel’s jury. with the Because this jury’s error affected the result, it is prejudicial error reversal requiring it affirmatively because question calls into validity jury’s Mateo, decision. supra-, see also 535; 445 Mich 520 NW2d 123 (1994). Grant,

IV no Under circumstances do we conclude, advocate, that a imply judge duty trial has a to instruct jury incorrectly, say nor do we by that the erred judge to refusing give the erroneous instruction.

The prejudice to defendant in this case was incurred virtue of defense counsel’s argument reliance on one instruction and the judge’s subse- quent to decision instruct on a different one. This misled defense counsel in formulating his closing you grossly negligent The issue before is whether she acted in a and manner caused . . conduct his death. . It is she did what Rodney apparent and whether under the circumstances it was her she did what caused death. . . . was never told medi- [S]he cally any dangerous that that —her conduct would lead to condi- anyone. got sup- tion. We have not heard that from ... So she no

port doing is, denying or no clue that she what was him —that wrong when wanted he more water —that that was or that would lead to death. 453 Mich

Opinion Mallett, complied attorneys argument.16 the court up counsel that defense the time rule with the requested lack of violation or the modification. compliance fact that as much the rule is not with the pro- requests it was that the written, as were not requested posed the two between was modification prosecutor closing arguments, nor the and neither the opportunity ample judge its full to consider had again closing argument. import noteWe either before initially agreed prosecutor with and the that the the modification. argues modification

The dissent inappropriate not sat- because it did from the outset 6.414(F). isfy requirements The modifica- of MCR pros- was it served on the written nor tion was not proposed agree that the We with the dissent ecutor. untimely improvidently agreed and was modification parties on the have been denied and should the granted alternatively, judge spot should have the or, parties time to consider some recess to allow peo- request. the dissent’s nor However, neither authority support proposi- any ple’s briefs cite only requests submit- can be for instructions tion that only writing. that the court The rule states ted in opportunity parties sub- reasonable must arguments. requests closing before their mit written appear may requests does not wise, be but it Oral not they precluded.17 are 16 comply reversible failure to with Rule 30 constitutes “The trial court’s unfairly prevented arguing only party his defense to from if error arguments.” United substantially formulating or was misled omitted). Smith, 650, (CA 10, 1980) (citations FR F2d States counterpart at 612-613. 6.414. See dissent of MCR Crim P 30 is the federal may noted that a trial This Court has Opinion by Mallett, opines

The dissent that because defense counsel comply did not with the strictures of the court rule, and judge subsequently because the did instruct jury correctly, there was no error. What the dissent fails to consider, however, is prejudice the resulting to the defendant. The fact that the judge correctly instructed the is not the issue. Nor is it the fact requested that the instruction was untimely, unwrit- ten, incorrect. issue prejudice is the suffered “ by the defendant ‘when the change the instruc- tions substantial, when the judge’s instructions repudiate counsel’s argument, or when the judge’s impair instructions the effectiveness of attorney’s ” argument.’ United White, supra States v at 1538, quoting United Clark, States- v 732 F2d 1536, 1541- 1542 (CA 11, 1984). We maintain that the difference between the incorrect instruction upon relied and the instruction given was substantial. The resulting prejudice could not effectively be cured through reargument. The given instruction eviscerated the defense’s argument impaired its effectiveness. A mistrial was not requested, and the defense motion for a new trial was denied. Under these circum- stances, new trial is required.18 comply request proper so, but, with an oral if he thinks it to do if declines, proper he such assignment refusal is not a basis for an suggested by Anthony error. As County this Court in v Cass Home Telephone Co, (1911)], 165 Mich prac- NW 659 [130 such many tice “is not to be appar- commended for reasons that must be profession.” However, ent to the without reference to the form in request which case, was made in the instant its denial was not [Corpron Skiprick, 311, erroneous. 319; v 334 Mich 54 NW2d 601 (1952).] 18 Smith, supra See (error also United v n requiring States 16 at 653 “only party unfairly prevented reversal occurs if the arguing from his Mich 572 453 594 Opinion Mallett, judge’s agreement relied on the Defense counsel relating jury with a modified instruction instruct closing in his negligence gross the definition of decision to instruct subsequent judge’s argument. erroneous or instruction, unmodified jury with the theory as the defense’s not, effectively nullified consequently prejudiced and jury argued about the definition jury was concerned defense. requested clarification on this gross negligence say with Because we cannot confidence element. jury’s that, final outcome or had did not affect the this with the modified instruc- charged the court acquitted, tion, the defendant would not have been Appeals we would affirm the decision of the Court of defendant is entitled to a and would hold that new trial. substantially formulating argu misled in defense to the or was 9, ments”); Wright States, 578, (CA 1964) v United 339 F2d theory closing upon (“[cjounsel’s argument was based of defense which rejected, ignored, subsequent at in its instructions. We the court least say impair argument the effectiveness of counsel’s cannot that this did not Gaskins, appellant’s defense”); v n 12 and hence of accord United States Harvill, 296-297; supra 458-459; supra n at United States v at United 92, (CA 10, 1974); Pommerening, F2d United States v States 5, Mendoza,

Mendoza, (CA 1973). 473 F2d the United States Appeals despite overwhelming for the Fifth Circuit noted that Court compliance guilt a “failure of substantial with the evidence of there was rule.” The court stated: [court] Although recognize against we that the evidence the defendants nearly say certainty overwhelming, we cannot with reasonable argued the same if the defense had that the outcome would be Judge’s before the with accurate information about the Trial requested jury Therefore, proposed upon action instructions. granting we think the warrant defendant a new trial. circumstances [Id. 701.] by any In a footnote the court noted: “This action is not taken constitu- mandate, supervisory capacity in our to assure that the tional but rather Id., n 4. Federal Rules of Criminal Procedure are followed.” People 595 Opinions Cavanagh Riley, JJ. and Levin, J., Mallett, concurred with J. I (concurring). concur with the result

Cavanagh, J. lead reasoning opinion, exception and of the with the of the harmless error As I in standard. articulated v Mich People Mateo, 203; (1996), 453 551 NW2d 891 I preserved the standard for believe nonconstitutional judged harmless-beyond-a- should error be under the reasonable-doubt standard. Under this standard, or any by the opinion, other standard articulated lead I the error here was believe not harmless. J. (concurring part in and dissenting in

Riley, I agree opinion with the lead part). a new trial is warranted. separately write because I disagree that I solely the error here any is based to com failure ply 6.414(F).1 with MCR I Rather, conclude that a new 1 The lead the error a treats as technical violation of MCR Supreme Court, Court, long 6.414 The United States as well as had this attempted ago to avoid reversal on the of basis mere technicalities. In States, 750, 760; 1239; v 328 Kotteakos United US 66 S Ct L90 Ed 1557 (1946), Supreme observed Court that the effort to revise Federal had, goal, Rules Criminal of Procedure as its ultimate technical, technicality really "not be where [to] does not hurt the

party rights technicality whose in trial and in its outcome the party [Rather,] seeking . . . affects. new trial the bur- [has] any showing complain may of den technical errors he rights, they have affected his substantial otherwise are to be disregarded.” Thus, merely rule, if this is technical of a violation court then we reviewing should be the record to determine the credible amount of evi establishing guilt. People 203, Mateo, dence 215; defendant’s v 453 Mich only (1996) (“[R]eversal required NW2d if the error was prejudicial. inquiry That focuses on the nature the error and assesses light weight strength evidence”), its effect of the untainted alia, citing, People Peterson, 349, 377-378; inter v 450 Mich 537 NW2d 857 (1995); Straight, 418, 427; (1988); v Mich 424 NW2d 257 Peo ple Young (After Remand), 470, 505; (1986). 425 Mich 391 NW2d 270 Mich 572

Opinion Riley, mis trial court’s basis of the necessary on the trial is the fact despite instruction original in giving take modified version on the counsel relied that defense compromised which in turn closing argument, effectively represent ability to counsel’s defense mis the trial court’s consequence of As a defendant.2 counsel the effectively defense denied the court take, law to the applicable correctly argue ability to an error of such the ramifications also believe jury.3 I in nature. are constitutional

i persuasive opinion finding with the lead agree I 701; 199 NW2d 458 Patskan, 387 Mich People v the fact is based on My however, persuasion, (1972). Ante, as “instructional error.” frames the error here The lead description p However, because the I this to be an inaccurate find 587. legally upon realizing were court, amended instructions trial pros provide because the wrong, these instructions that it could not ruled heightened. Hence, inappropriately be under them would ecutor’s burden error”; rather, it centers on “instructional does not involve the error here granting prejudicial trial court’s the defense as a result of the effect on immediately argu closing before his motion to amend defense counsel’s jury. original giving the instructions to the version of ment and then by agreed given as the modified instructions If the trial court had satisfy, higher jury, people people burden to would have had a burden, ipjury. Yet, higher had i.e., causing with this death versus serious guilty manslaughter, reversal would not have of found defendant charged required would be of the crime as because all the elements been beyond a reasonable doubt. satisfied concurring opinion in Peo- conflicts with the that this conclusion I note J., 716; (1972) (T. Patskan, ple 199 NW2d 458 G. 387 Mich Kavanagh, J.). “had the joined was concerned that The concurrence Williams, thereunder, given, we and defendant been convicted been instruction However, to reverse the conviction.” have no choice but would arguably Patskan, was unwar- relied on defense counsel instruction While, here, man- the crime of crime existed. ranted because no such and, thus, culpable the essential slaughter had the found offense is a i.e., reverse, necessary conviction, not we this Court would for a elements higher people would have sustained because the would not reverse threshold. People v Clark

Opinion by Riley, Patskan Court stated that the error before it that the “fundamentally unfair” and an infringement of law.” at right process the “defendant’s to due Id. Additionally, Supreme the United States Court in 710.4 n Cronic, 648, 659, 25; United States v 466 US 104 S alia, L inter Her- 2039; (1984), citing, Ct 80 Ed 2d 657 L ring York, 853; 2550; v New 422 US 95 S Ct 45 Ed 2d 593 noted that it (1975), uniformly any

has found constitutional error without show- prejudice totally ing absent, when counsel was either prevented assisting during stage from the accused a critical proceeding. supra In Herring, 860, 862-863, Supreme Court concluded: right

“The Constitutional a defendant to be heard through necessarily right counsel includes his to have his proper argument counsel make a on the evidence and the applicable law in . . . his favor aspect advocacy important of such could be more

[N]o opportunity finally than the to marshal the evidence for judgment. each side before submission of the case to People Swejkowski, App 366, 371; (1979). See v 90 Mich 282 NW2d 5 give The Court observed that the failure of a trial court to an instruction acknowledging on circumstantial evidence after it would do so is “funda mentally requires Furthermore, unfair and reversal.” the Court stated: appears language unequivocal in Patskan to be that where previously agreed

the court fails to an instruction that it give, party requesting closing argument, and the it relies on it in it is reversible error. also, cf., People Brown, 1, 16; (1988); See v 136 AD2d 525 NYS2d 618 People Reina, 727; (1983). v 94 AD2d 462 NYS2d 264 453 Mich 572 Opinion by Riley, J.

* * * any in case between total denial of final difference [T]he persuasive argument and a concise but summation could liberty spell difference, defendant, between and for the unjust imprisonment. Supreme United States Accordingly, because the “

Court held that the ‘necessa- closing argument has rily right includes to have his coun- [the defendant’s] make a proper argument sel admissible] [all ”5 I presented jury, evidence’ that had been before the conclude that the error here is constitutional dimension.6 supra Herring, at 860. 6 Similarly, jurisdictions other have also such errors as the concluded See, cf., one now before this Court to be constitutional in nature. State v

Barton, (Mo, Barton, argued 1996). In 936 SW2d 781 the defendant people’s objec the trial court abused its discretion when it sustained the closing argument, though argument tion to defense counsel’s supported by even Supreme credible evidence on the record. The Court of Mis held, notwithstanding souri majority vast of case law in this issue in Missouri has resolved [t]he prejudice finding overwhelming

favor of a of no because of evi- against right dence the defendant. . . . defendant has the [The] impartial trial, opportunity a fair and a reasonable [which includes] present theory during closing argu- the defendant’s of the case 787, 783, citing Const, VI; Const, I, ment. at US Am Mo art [Id. 18(a); Herring, supra 860-861; Williams, § at v State 948, (Mo App, 1984).] SW2d While, Murray State, (Tex App, 1993), 857 SW2d 806 the defendant supplementation charge, averred that the trial court’s after the already begun right deliberating, had violated his Sixth Amendment initially Murray to effective assistance of counsel. The court observed “ Supreme ‘uniformly that the United States Court has found constitu- any showing prejudice tional error without when counsel prevented assisting during stage was . . . from the accused critical ” proceeding.’ 809, quoting Cronic, supra 659, Id. at n 25. The court stage closing argument.” added that citing such critical Id. at “[o]ne supra Herring, at 858-859. People v Clark 599 Opinion by Riley, J.

II In order to find constitutional error under circum stances like those in the case, instant a showing of d.7 prejudice required is before reversal I warrante proper analytical believe the prejudice framework for analysis is found v (After Anderson Remand), 392, 405; 446 Mich 521 NW2d 538 (1994). it, Commensurate with the fundamental nature of the error before concluded, alia, counsel, court inter that defendant’s without notice that supplemental instruction, the court would was misled in his defense, and, result, effectively repudiated as a the court the defendant’s argument; argument originally Murray, supra an the court allowed. at 808-811. also, cf., Miller, 915, See (NC, 1996); North Carolina v 477 SE2d 924 People Marshall, 799, 853; (1996); v 13 Cal 4th 919 P2d 1280 South Caro- Mouzon, 122, (SC, 1995); People Middleton, lina v 467 SE2d 124-125 v 212 809, 811; (1995); People AD2d Rodrigues, 1060, 623 NYS2d298 v 8 Cal 4th 1183; (1994); Crooks, 90, 1 (Mo App, 885 P2d 1994); State v 884 SW2d 94 State, 920, (Tex App, 1993); Hickey Moore v 848 SW2d State, 923 v 484 So 1271, (Fla, 1986); Williams, supra 2d 950, 1274 citing Herring, State v at supra; King, (CA 4, 1981); United States v Texas, 650 F2d 534 Ruedas v 520, (Tex App, 586 1979); Page, SW2d 523-524 Crim State v 21 Mo (1855). 7 Consequently, agree I every with the lead that “not instance type require Ante, p of this of . . . However, error will reversal.” 587. I Mateo, supra, inapplicable particular find n 1 to be under these circum My framing stances. concern in significant this error as constitutional is dispositive because I believe it is of whether the circumstances demand a applied, sought by may new trial. If Mateo is the relief defendant not be warranted. Mateo, supra 206-207, reviewing court, Under n 1 “examin[ing] engag[ing] comparative the record as a . . analy- whole . . . . in a [and] likely sis light effect of the error of the other evi- prejudicial . . dence . the actual [determines] effect of the error on the Id., citing People Lee, factfinder in the case 59; at hand.” 434 Mich (1990). NW2d 883 “overwhelming If the guilt,” court finds evidence of unnecessary question then “it is to reach the of the level of confidence the reviewing preserved error,” i.e., court must have in the harmlessness of “highly probable, probable not, more than and a reasonable likelihood rights.” Mateo, that the error supra affected substantial n 1 at 219. Accordingly, if “overwhelming this Court were to find evidence of guilt,” arguably is, which [defendant’s] there her must be conviction affirmed. Mich Opinion by Riley, J. inquiry the United States There, we outlined by a reviewing held must be made Supreme Court the federal court error violates regarding “[a]n Chapman 404, citing . . . Id. at v constitution 18, 24; 824; Ct 17 L Ed 2d 705 California, 386 US 87 S 279; 111 Fulminante, and Arizona v 499 US (1967), 1246; Anderson, S 113 L Ed 2d 302 In (1991).8 Ct Fulminante, at noted that the Court in supra 405, we supra 309, renewing at stated that the court: . . . ask if the is a

First must “structural error defect[ ] mechanism, in the constitution of the trial which def[ies] standards.”[9] analysis by ‘harmless-error’ found, “a must auto- When structural defect court matically Anderson, supra However, reverse.” at 405. per Instead, not all errors demand reversal se. other errors during presentation jury, case to “occur[ ] [ ] may quantitatively

which be assessed in the context of [ ] presented in whether other evidence order to determine its 8 See, e.g., Hamlin, Argersinger v 25; 2006; 407 US 92 S Ct 32 L Ed 2d Wainwright, (1972), 335; 792; and Gideon v 530 372 US 83 S Ct 9 L Ed 2d Louisiana, counsel); 145; (1963) (assistance Ducan v 799 of 391 US 88 S Texas, trial); Washington 1444; (jury (1968) v L Ct 20 Ed 2d 491 388 US (1967) (compulsory process); Klopfer 1920; 14; v 87 S Ct 18 L Ed 2d 1019 Carolina, 213; 988; (1967) (speedy North 386 US 87 S Ct 18 L Ed 2d 1 Texas, trial); 400; 1065; (1965) Pointer v US 85 S Ct 13 L Ed 2d 923 (confrontation); Payne Arkansas, 844; 560; v 2 L 356 US 78 S Ct Ed 2d 975 Oliver, (1958) (coerced confession); 257; 499; In re 333 US 68 S Ct 92 L Arkansas, (1948) (public trial); 196; 514; Cole v 68 S Ct Ed 682 333 US accusation); Turney (1948) (notice L Ed 644 of nature and of cause Ohio, 510; 437; (1927) (impartial judge). 273 US 47 S Ct 71 L Ed 749 Anderson, supra at we observed these errors include the deprivation counsel, impartial judge, excluding grand of “trial an defendant, right who denial of the to self- members are the same race as constitutionally representation, right public trial, denial of the to a and a improper reasonable doubt instruction.” Opinion by Riley, J.

405-406, quoting Fulminante, admission was harmless beyond supra at 307-308.] a reasonable doubt.” ^[10] [Id. at require These errors court reviewing determine, beyond a reasonable doubt that there is no possibility complained “reasonable the evidence might 406, quot- have contributed to the conviction.” [Id. Chapman, supra ing at 23.] inquiry The lead refers to the first set forth supra in Fulminante, the Court at 309. However,

the lead opinion inadvertently only mentions the first part the “two-part inquiry,” i.e., court reviewing must ask if the error a defies harmless error standard because it deprivation proc constitutes total “of due agree ess.”12 I the error in this case does not warrant automatic reversal because it equate does not deprivation process.”13 to a “total of due I conclude that the issue here is whether defendant was denied her right representation to under the Sixth Amend ment of the United States Constitution as conse quence of the trial court’s provide decision not to modified instruction jury, i.e., may whether we Chapman, supra 24, See at where the Court held: harmless, a federal constitutional [B]efore error can be held beyond

court must be able to declare a belief that it was harmless a reasonable doubt. 11 Ante, p 588, 14, citing Anderson, supra n at 405. Fulminante, supra Id. See also at 309. 13 Chapman, supra 22, adopt at the Court declined to an automatic may rule of reversal because “there be some constitutional errors which setting particular unimportant insignificant in the of a case are so they may, Constitution, consistent with the Federal be deemed harmless . . . .” 453 Mich

Opinion by Riley, J. beyond no conclude a reasonable doubt that there is provide possibility that the trial court’s failure to modified instruction contributed to defendant’s conviction. part “two-part inquiry”

Accordingly, two of the supra applied Fulminante, from at should be determining the error in this case. In whether a new people required prove demanded, trial is are “ beyond a doubt that there is no ‘reasona- reasonable complained ble doubt that the error of did not con- ” supra Anderson, tribute to the verdict obtained.’ quoting Chapman, supra n 406, 36, at 24.14

III people argue that defendant was not prejudiced because, even if the trial court had instructed instruction, the modified jury’s focus still would have been on whether a rea- person position sonable in defendant’s could have injury Rodney by ordinary using avoided the care.15 Regardless people’s contention, I conclude Appeals that the Court of reversal of defendant’s con- closing viction should be affirmed if defense counsel’s prejudicially argument affected as a result of the acknowledgment trial court’s of defense counsel’s basis, On this in order to determine whether defendant was prejudiced, inquiry must be made into what effect the trial court’s error granting jury’s defense counsel’s amendment had on the verdict or reason ably may Lee, supra 86, quot be inferred to have had on its verdict. n 7 at ing supra reasonably Young, reviewing n 1 If at 505. it is clear to the court weighing against setting after “the error’s effect the entire of the record judgment” prejudi without relation to the verdict that the error had no defendant, may rights cial effect on the substantial of then it conclude Kotteakos, supra 764; Lee, supra that the error was harmless. n 1 at n 7 at 86, citing Young, supra. 15Ante, pp 589-590. Opinion by Riley, J. Kotteakos United

proposed See modification. States, 750; 66 S Ct L Ed 1557 1239; (1946), 328 US Chapman Anderson, supra. Hence, and the trial provide court’s failure to the modified instruction must be comparatively light assessed the record a a as whole and determination must be made with beyond to it can be regard whether said reasonable Anderson, supra doubt that the error was harmless. citing Fulminante, supra at 307-308.16 at instance, people this after the consented and to17 accepted portion trial court the modified instructions, defense counsel argued throughout closing to be argument defendant, guilty, found Rodney’s would had to have known that death would consequence result as a of her conduct.18 Defense similarly say “[bjecause The lead stated we cannot with jury’s that, confidence that this did not affect the final outcome or had the charged instruction, court with the modified the defendant would acquitted, not have been we would affirm decision of the Court of Appeals and would hold that the entitled defendant is new trial.” Ante, p 594. people contend that defense failed to counsel adhere to MCR 2.516(A)(1) 6.414(F) (the requested and instructions must be submitted writing court). However, lacking people’s to the trial contention is agreed closing because it amendment before defense counsel’s argument. Hence, object. people right waived its people also contend defense counsel created the error in the by suggesting wording agreed instructions an amendment of after he upon people closing argument. to the instructions which the based its people, This contention is baseless also because the the sidebar confer- immediately closing argument, ence held before defense counsel’s con- object sented to the amendment did not until after defense counsel argument closing had based his on the amendment. counsel, people, A review of the record discloses that the not defense expressed charged. first as an “death" essential element the crime as Specifically, people closing argument: stated in its [restricting wrong knew and it [Defendant] fluids] give [Rodney] was ... a concern not to fluids. knew [Defendant] bed-wetting you only

because the doctors told her that his should — general evenings, discharged restrict in that she him on a An diet. 453 Mich Opinion by Riley, J. instruction on the modified counsel’s reliance by closing argument clearly throughout evidenced transcript, i.e., from the trial following sampling hydrate not realize her failure to that defendant did Rodney would cause his death: Rodney did to and whether under

It is what [defendant] apparent it was to her what she did the circumstances caused his death.

[*] ^{[*] [*]} support got or no clue that what she was no [Defendant] doing n he wanted more water'— n is, denying him when —that wrong that would lead to death. that was ^{[*] [*] [*]} suggestion if reduce was no [defendant] [d] [T]here you water], going any you are to cause are the intake [of — death, you got going have to look to cause and that’s what to.

[*] ^{[*] [*]} any- will not find from the evidence that there was [Y]ou apparent [defendant], thing would lead a reasona- to which by person denying to conclude that his excessive ble demand, [Rodney] would die.

[*] ^{[*] [*]} apparent got conclude that it was You have [defend- caring conduct would as she was for her child that her ant] continued, [Emphasis his death. lead—'if she would lead to added.] ordinary person prudent would know that it is not and it would be young dangerous to restrict fluids to a child and that could result [Emphasis

in the death. added.] Clark Opinion Riley, J. argument defense counsel’s

The effectiveness impaired totality coun- defense was and the regarding the inaccurate information sel’s reliance on such, be concluded As it cannot instructions. beyond court’s fail- doubt that trial a reasonable provide on the instruction had no effect ure jury’s verdict. jury’s people argue the would not that verdict had defense counsel based

have been affected argument closing Never- on accurate instruction.19 the persuaded am it cannot be concluded theless, I that beyond if doubt that defense counsel's a reasonable vigor- argument more been retailored to focus had Rodney’s ously and not on on defendant’s conduct resulting death, there would not have been different Having it whole, record as a is verdict.20 reviewed the apparent “causing relied on that defense counsel gross neg- to fourth element of death” as essential the ligence.21Therefore, reasonable to conclude it seems argument closing counsel’s that most defense repudiated by the trial court’s instructions. Had the jury pursuant modi- trial the the court instructed completely impossi- I is instruction, fied believe “it say [people] . ha[ve] that . . demon- ble ... the beyond a that the trial strated, doubt,” reasonable provide instruction court’s failure to the modified 19 Kotteakos, supra at the Court stated: judg- question jury right in is not the their [whether [T]he was] reasonably may . . rather what effect error had or ment . the [but] upon jury’s thing crucial be taken to have had decision. The men, thing wrong impact of other not done minds own, setting. on one’s in the total 20 Ante, p 591.

21 See CJI2d 16.16. 453 Mich

Dissenting Opinion by Brickley, C.J. [defendant’s] “did not contribute to convic- Chapman, supra tion[ ].” 26. jury, asking

Therefore, I conclude that the for gross negligence, clarification of the definition of evi- regarding denced its confusion the difference arguments between the two and the final instruction. Consequently, I am unable to declare a firm belief providing trial court’s error in with original despite instruction, the fact that defense closing counsel relied on the modified version in his argument, beyond was harmless a reasonable doubt. (dissenting).

Brickley, C.J. In this case, we look at whether the trial court’s refusal to an instruction law, misstated the but which defense expected given, requiring counsel to be is error rever- sal. The lead concludes erred giving not the erroneous instruction because the prejudiced. position defendant was of the lead part, possibility is based, in on the that the might acquitted defendant have been if the erroneous given. p instruction had been ante, See I 591. do not agree prejudice can be based on the defendant’s opportunity acquitted missed to be under an errone- ous standard. Further, the defendant was not prejudiced by change juiy the instructions because the difference between the instructions did not under- arguments. mine the defendant’s Because I conclude duty trial the was under no to the instruction, modified in that it was an incorrect state- satisfy requirements ment lawof and did not the 6.414(F), respectfully MCR I dissent. Dissenting Opinion by C.J. Brickley,

I closing argument, the chambers, before either parties agreed use 16.18 for the element of to CJI2d prosecution gross negligence. its After the finished closing argument, however, counsel called defense orally to amend for a sidebar conference and moved gross negligence instruction the third element “likely “likely injury” be serious to to cause from to prosecution initially The and the trial court death.” agreed presented change. its to The defense then arguments. closing Before the trial court instructed jury, prosecution objected changed noting instruction, that misstated the standard for it objected, gross negligence. stating The that it defense changed closing in its had relied on the standard reopen argument. argument. The court offered stating reargument fur- would declined, defense inconsistency. accentuate the The court subse- ther quently jury jury with standard instructed parties gross negligence on on which the instruction agreed. guilty originally had returned a verdict.

n Michigan trials, and In both civil1 criminal2 require requests Rules that all for instruc- Court writing, (2) (1) in other tions must be party, served brought (3) to the court’s attention before arguments. 6.414(F) closing MCR states: parties closing arguments, give the the court must Before requests opportunity reasonable submit written for 2.516(A)(1). MCR 6.414(F). MCR Mich Dissenting Opinion by Brickley, C.J. parly copy Each instructions. must serve a of the written requests parties. all par- on other The court must inform the proposed requests ties of its action before their clos- ing arguments. apparent: parties,

The intent of MCR 6.414 is both should have sufficient notice of how the will court jury they argu- instruct the so that can frame their appropriately. By requiring requests ments be parties writing, submitted in both the trial court proposed will have time to on the reflect instructions. complied 6.414(F), Had defense counsel with MCR it today. is doubtful that this case would be before us proposed Defense counsel’s modification did not satisfy any requirements 6.414(F). of the of MCR The proposed modification was not written.3 It was brought to the sidebar, court’s attention at outside of hearing jury, and was not recorded. Written copies prosecutor. pros- not were served on the proposed ecutor first learned of defense counsel’s departure from the standard after instructions closing argument. request brought her after prosecution closing argument. had made her prosecutor argu- Thus, the was unable to frame her ment to new this standard.

Because defense counsel’s modification of stan- brought dard instructions was late, too and was writing, request. not in it was an ineffective As an attempt modify ineffective instructions, duty was under no the instruction. 6.414(F). By giving MCR effect to the defense coun- appropriate may comply Under circumstances trial court with an request; however, oral pitfalls facts this case demonstrate the doing so. 609 People by Dissenting Opinion Brickley, C.J. opinion disregards request, the the lead

sel’s ill-timed 6.414(F). of MCR clear dictates

III prosecutor, counsel can- court, the and defense The proof change agree of for the threshold burden not to duty gross negligence it is the trial court’s because correctly 768.29; on law. MCL instruct 578; 391 Mich 28.1052; Townes, MSA v (1974). flaw in rea- The fundamental NW2d 136 opinion distinguish soning is fails to the lead that it judge’s give an on which the refusal to instruction correctly parties agreed states law from have law. difference between one that misstates the request significant. If a for a instruc- the two is pursuant 6.414(F) brought and cor- tion is MCR rectly judge is error for a trial law, states the it closing arguments give the instruction after refuse to prej- if the instruction would be counsel’s reliance on App People Swejkowski, 366; v Mich udicial. (1979). where the instruction misstates NW2d 5 But People Patskan, 701; in v 387 Mich law, as duty. (1972), judge is no similar NW2d458 under precedential Although value limited Patskan’s undisputed opinion, its it is because of fractured justices rejected approach opin- that the four lead ion now recommends. that defense counsel used

The erroneous standard closing argument raised threshold burden proof gross negligence. lead for The dilemma the faces is it would hold that the paradox by committing error. This erred not supra People Patskan, relied on noted in 453 Mich 572 Dissenting Opinion Brickley, C.J. opinion, closing the lead where defense counsel’s argument was based on misstatement of law. anomaly my position Brother’s is that had given,

instruction been and defendant been convicted there- under, we would have no choice but to reverse the convic- Kavanagh, Williams, JJ., concurring.] tion. G. [T.

In Patskan, the trial court refused to an attempted on instruction assault with intent to com- robbery parties agreed. mit armed on which the appeal argued Defense counsel that he had relied argument. closing on that instruction in his present As in case, the defense counsel in Patskan also relied on an erroneous instruction. clos- Before ing arguments, requested defense counsel trial attempted court to instruct the on the offense of robbery. assault with intent to commit armed Michi- gan, recognize however, does not such a crime. Attempted logical impossibil- assault is considered a ity “attempt attempt.” People because it is an to v (1993). During Jones, 443 88, 93; Mich 504 NW2d 158 closing arguments, urged defense counsel to guilty, guilty find his client or, not alternative, attempted assault. Although granted the defendant in Patskan was by new Court, trial it this is not clear that the failure attempted to instruct the on assault was essential judgment. holding was based on two give errors. One was the failure to an instruction parties agreed. which the other the failure of judge to instruct on lesser included offense of attempted robbery. armed People Dissenting Opinion C.J. Brickley, opinions, produced no three but

The Patskan Court prop- justice supported Only majority. one clear proposes. opinion Two now the lead osition justices, disagreed that conclu- however, with other joined separately, Writing Justice sion. judge stated that the T. G. Justice Kavanagh Williams, duty give because the the instruction no had proposed law. misstated the instruction defense’s closing argument indicates Although defense counsel’s promise give he the instruction on the court’s reliance complain requested, heard to he should not be escaped 716- error he invited. Mich court somehow [387 717.] yet support Patskan, finds from

The lead justices supported only arguably its three — one— rejected justices position. hand, four the other On very position. four Moreover, two of those same concurring before us now their addressed the issue duty opinion, stating is under no that a regardless of what he tells instruction, an erroneous Consequently, does not Patskan defense counsel. present require grant in the a new trial this Court to case. supra, distinguishable Swejkowski, from present which the the instruction on case because

the parties of the law. was a correct statement

relied opinion’s Paxton, 47 on The lead reliance App (1973), also mis- 144; 209 NW2d Mich placed. in a case was ordered Paxton, a new trial In incorrectly charged regarding jury the in which opinion argues The lead elements of self-defense. the “helpful” it demonstrates because that Paxton is support jury not instruction does when a it is error 453 Mich 572 Dissenting Opinion by Bkickley, C.J. theory Instead, the relied on the defense. the deci- principle sion Paxton is based on the that it is error for the trial court to misstate the law in the jury. opinion instructions to Further, the even position opinion. undermines the of the lead primary judge One of the functions of the trial is to jury correctly applicable given inform the of the law in a case. [Id. 149.] supports opposite

Thus, a Paxton conclusion opinion proposes: primary which the lead that a correctly judge jury. function of the is to instruct the Instead, the lead concludes that the by misinstructing jury. erred not incorporates provi- MCR6.414is after modeled sions from Rule Federal of Criminal Procedure 30.4 upheld requiring Federal courts have a rule “substan- compliance” tial Rule 30 with and have reversed con- prejudice. victions where the defendant establishes (CA 1984). Clark, United States v F2d 1536 rejected, proposi- Federal however, courts have right jury tion that a defendant has to an incorrect merely argues instruction because defense counsel an inappropriate upholding change standard. of a jury properly instruction that informed the of provides part: Federal Rule of Criminal Procedure 30 during At the close of the evidence at such time earlier reasonably directs, any may party trial as the court file written requests that the court instruct as set the law forth in requests. copies requests At the time same of such shall be fur- parties. proposed nished to all The court shall inform of its counsel upon prior requests jury. arguments action to their may arguments court instruct before or after the are com-

pleted or at both times. 613 People Dissenting by Opinion C.J. Brickley, (CA charge, 1075, F2d 1085 Pena, 897 States v United 1990) stated: requirements of Rule 30 func- that the not believe We do obligation to court’s on the district as a limitation tion properly governs a case. the law which of inform in Rule 30 limitations contained that the Nor do we believe empower counsel, through mechanics of the operate law which a ver- Closing argument, dictate the either to erroneously stating create a mistrial is reached or to dict given principles applicable situation. legal applicable principle case before The same us.

IV erroneously believes that The lead prejudiced because it focuses on defendant jury instructions, instead the two difference between jury’s verdict. difference on the the effect of that of prejudice inquiry the nature of “focuses on An into light weight and assesses its effect the error strength evidence.” of the untainted (1996). NW2d 891 203, 215; Mich Mateo, prejudice, going there if we are to find Therefore, alleged error affected evidence that the must be some the outcome. closing argument, beginning the defense’s

In the argued reasona- that the defendant had acted counsel despite bly that, circumstances. He claimed under the had acted the defendant circumstances, difficult responsibly, that other reasonable and in a manner people might were Further, because there have also. physical signs was said distress, the defendant no depriving her had no reason to conclude to have dehydrated. be would cause him to son of water Mich Dissenting Opinion by C.J. Brickley, say you people, And I if fig- medical who are trained to things out, us, ure these cannot tell how can a reasonable layperson you like Bertha Clark or know what to do?

[*] ^{[*] [*]} And so it’s conclude, reasonable for her to and I think any person conclude, you reasonable that right, have the intake, particularly should reduce water night.

Notably, relying defense counsel was not on the dif- ference between the standard of death and serious injury. presented Instead, defense counsel the defend- person reasonably. jury ant as a who had acted If the accepted had claim, this it could have returned a ver- guilty dict of not under either instruction. There- regard argument, fore, with to this the difference between the two instructions was irrelevant. theory Rodney

The defense also advanced the dehydration. empha- did not die of Defense counsel testimony sized the inconsistencies in the of the doc- Rodney performed tors who either treated or his autopsy. alluding possibility In addition Rodney had died of a seizure, defense counsel also argued Rodney dehydration, had died, not of but insipidus. arguments diabetes Because these presented theory Rodney’s a different of the cause of acquitted death, could have the defendant regardless negligent. of whether the defendant was Accordingly, change the effect of the in instructions negligible, regard argument was with to this because theory. it advanced a different Finally, attempted defense counsel to shift the Rodney’s blame for death. Opinion by Dissenting Brickley, C.J. personnel Dr. Ponstein in this case blew it.

The medical correctly. Department of Social Ser- it didn’t handle slipped prudent manner. The schools did not act vices prosecutor’s somewhat, office fum- all even the and of—and they coming together, and And now are all bled the ball. they say: they culpable point it, we can although are happening We didn’t know what Don’t think about that. have, all her fault. The Clark should and it is there. Bertha support acted as best she could and it facts don’t that. She surely negligent grossly in a manner. wasn’t this preceding arguments, argument each of the Like two rely on the difference between the did not place If the had chosen to the blame instructions. Rodney’s teachers, doctors, or social for death on the defendant workers, acquitted it could have gave original of whether the court regardless the modified instruction. prejudiced was not the use

Thus, the defendant correct instruction. Defense counsel’s original, had four themes: the defendant closing argument reasonably; Rodney dehydration; did not die of acted by a seizure or diabetes Rodney’s death was caused teachers, and it the fault of and insipidus; dss, arguments him. These did the doctors who treated rely on the distinction between “death” “seri- not attempted deny injury.” Instead, neg- ous each one death, or shift the alleged refute the cause ligence, blame. White, States v to United analogous

This case is White, a trial simi- (CA 11, 1994). F3d 1531 par- larly an on which the give refused to instruction counsel, here, as referred to the agreed. ties Defense closing argu- After during closing argument. standard instruction after trial court withdrew the ment, 453 Mich Dissenting Opinion by Brickley, C.J.

discovering that the instruction misstated the law. The trial court did not the instruction that closing argument defense counsel had referred to in “expressly jury and, fact, informed the of the dele- delivering charge.” supra tion when its oral White, at appeal, 1537. On the Eleventh Circuit held that the prejudiced. defendant had not been The defendant’s argument good was based on a defense of faith, noted the court, which was not affected the withdrawal of the instruction. program

The fact pay- that the Medicare never authorized diagnostic ment for tests ordered or furnished a chiro- practor preclude jury did not finding from that good contrary. By Whites had a faith belief to the its ver- dict, however, jury rejected they the Whites’ claim that had acted on the basis of such a belief. [Id. 1539.] present rejected In the case, the likewise reasonably, defendant’s claims that she had acted Rodney dehydration, had died of a cause other than and that others were to blame for his death. The precluded acquitting was not from the defendant as a change result of the in the instruction. closing argument hinged

If defense counsel’s had on the difference between the two instructions, the might prejudiced by defendant have been the use of original example, attorney instruction. For her might argued may have the defendant have depriving Rodney might known that of water seri- ously injure thought him, but never would have death could result. In case, the distinction would important. judge changed be Once the the instruction by Dissenting Opinion Brickley, C.J. argu- injury,” defendant’s “serious “death” to

from opin- lead “eviscerated,” as the have been ment would Nothing happened have would here. contends ion acquit jury the defendant. for the remained closing argument was counsel’s Instead, defense theory reasona- acted that the defendant on a based dehydra- Rodney bly, other than of causes died for his death. were to blame others tion, and that closing argument did not counsel’s defense Because rely instructions, I difference two between the any jury prejudice. believed Had the find no would acquitted arguments, it could have defendant’s By change despite its in instructions. defendant, rejected jury claims, defendant’s all the verdict, difference between on the which relied none of instructions. two trial court erred that the states

The lead when, subsequently instruction, agreeing to a modified [it]

after instruction charge with the unmodified decided to closing relied on and conformed defense counsel after [Ante, p instruction. arguments to the modified 590.] judge’s agree decision to cor- trial that the I cannot prom- jury, regardless rectly of what he instruct the Any “duty” error. counsel, constituted defense ised to honor defense counsel court owed to that the trial change request from the standard for a ill-timed its previously agreed chambers, instructions, responsibility superseded cor- the court’s was rectly jury. Further, the defendant instruct change prejudiced instructions not 453 Mich 572 Dissenting Opinion by Brickley, C.J. because the difference between the two instructions arguments. did not undermine her This Court should vacate the decision of the Court Appeals and reinstate the verdict of the trial court. Boyle JJ., and Weaver, concurred with Brickley, C.J.

Case Details

Case Name: People v. Clark

Court Name: Michigan Supreme Court

Date Published: Dec 27, 1996

Citation: 556 N.W.2d 820

Docket Number: 103664, Calendar No. 9

Court Abbreviation: Mich.