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STATE OF MICHIGAN
COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v WILLIAM FATE WARD, Defendant-Appellant.

UNPUBLISHED April 13, 2006

No. 258672 Macomb Circuit Court LC No. 2004-000357-FH

Before: Fort Hood, P.J., and Sawyer and Meter, JJ. PER CURIAM. Following a jury trial, defendant was convicted of two counts of counts of embezzlement over $1,000 but less than $20,000, MCL 750.174(4)(a), and was sentenced to 18 months' probation, costs, and restitution. He appeals as of right. We affirm. I. Basic Facts Defendant was convicted of embezzling bingo proceeds from St. Steven Decanski Church in April and August 2003. On the relevant dates, defendant was the chairman and bookkeeper for Tuesday night bingo. Zivan Jovic, the church president, explained that the chairman position is a paid position, and the duties include collecting the bingo proceeds, filling out the corresponding documents, and depositing the money into the church's bank account. In August 2003, the State of Michigan Lottery Bureau conducted an audit of the church's bingo, which disclosed that $3,031 was collected at the April 22, 2003 bingo, but no corresponding bank deposit was made. Allison Woodruff, the auditor, explained that the chairperson is responsible for making the deposit, which must be made within 48 hours, and confirmed that, on April 22, 2003, defendant signed the relevant records as the chairman and record keeper. Helene Gvozdich, a church board member, testified that, after receiving the audit results, she examined certain documents, and discovered that an August 5, 2003, deposit was also missing. John Ristich, the church financial secretary, explained that the records indicated that $2,768, in bingo proceeds was collected on August 5, 2003, but no corresponding deposit was reflected in the church's bank records. The pertinent August 5, 2003, records were signed by defendant as chairperson. When Woodruff discussed the April 22, 2003, discrepancy with defendant, he claimed that he deposited the proceeds in a night deposit box, and that the discrepancy was a bank error. No bank error was revealed. Jovic and Gvozdich indicated that when they, along with the church -1-


priest, asked defendant about the missing money, defendant told them that he may have misplaced it during a move, would check, and contact them. Defendant never contacted anyone. When initially questioned by the police, defendant explained that he inadvertently put the wrong account number on the April 22, 2003, deposit slip, and put it in the night deposit box, and that he was not responsible for deposits after May 2003. In a subsequent statement to the police, defendant stated that he put the money in a closet because Ristich had instructed him to do so, that Ristich had taken deposits in the past, and that Ristich had given him money from certain deposits in the past. Gvozdich explained that money is never to be placed in a closet, but the chairperson is to take the money home and deposit it within two days. Defendant testified at trial and denied any wrongdoing. Defendant asserted, inter alia, that bingo proceeds are occasionally put in a closet in the bingo hall, and that anyone could have removed the money. Defendant also presented defense witnesses who testified concerning his veracity and character, the non-rigid procedures of handling bingo proceeds, and Ristich allegedly directing one witness to put bingo proceeds in a closet. II. New Trial Defendant argues that the trial court abused its discretion by denying his motion for a new trial. We disagree. This Court reviews a trial court's decision denying a motion for a new trial for an abuse of discretion. People v Crear, 242 Mich App 158, 167; 618 NW2d 91 (2000). An abuse of discretion is found only if an unprejudiced person, considering the facts on which the trial court acted, would say there was no justification or excuse for the ruling. People v Ullah, 216 Mich App 669, 673; 550 NW2d 568 (1996). A. Right to an Impartial Jury and a Fair Trial Defendant contends that he was denied his right to an impartial jury and a fair trial because, during deliberations, the trial court (1) had ex parte communications with a juror in violation of MCR 6.414(A), (2) impermissibly inquired into the numerical division of the jury, and (3) foreclosed any possibility of the jurors examining trial testimony in violation of MCR 6.414(H). 1. Ex parte Communication During deliberations, the jury requested a rereading of the reasonable doubt instruction. Before the jury was brought out for that purpose, the court officer advised the trial court that a juror wished to speak with it. The trial judge advised the attorneys that he would meet in chambers with the juror, and there was no objection to that course of action. After the brief meeting, the trial court advised the attorneys on the record that the juror indicated that the other jurors were "ganging up on him." The trial court advised the juror that he could not be excused on that basis and to vote his conscience. Defense counsel did not comment, or otherwise object to the court's handling of the matter despite the court's invitation.

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Defendant correctly argues that a trial court's ex parte communication with a deliberating jury is prohibited by MCR 6.414(A).1 See People v France, 436 Mich 138, 142; 461 NW2d 621 (1990). But a trial court's communication with the jury in violation of MCR 6.414(A) does not require automatic reversal. Rather, the determination whether reversal is required "centers on a showing of prejudice." Id. To determine the prejudicial effect, the communication must first be categorized into one of three categories: (1) substantive, (2) administrative, and (3) housekeeping. Id. at 142-143. Substantive communication encompasses supplemental instructions on the law given by the trial court to a deliberating jury. A substantive communication carries a presumption of prejudice in favor of the aggrieved party regardless of whether an objection is raised . . . . Administrative communications include instructions regarding the availability of certain pieces of evidence and instructions that encourage a jury to continue its deliberations. An administrative communication carries no presumption. The failure to object when made aware of the communication will be taken as evidence that the administrative instruction was not prejudicial . . . Housekeeping communications are those which occur between a jury and a court officer regarding meal orders, rest room facilities, or matters consistent with general "housekeeping" needs that are unrelated in any way to the case being decided. [Id. at 143-144 (emphasis in original).2] We agree with the trial court that the communication falls squarely within the administrative category. The juror relayed his discomfort with the deliberation process and the other jurors and asked to be excused. The court instructed the juror to continue deliberations and to vote his conscience. The court specifically indicated that it did not inquire into the problem or otherwise discuss the case. As previously noted, an administrative communication carries no presumption of prejudice, and defendant's failure to object indicates that the communication was not prejudicial. On appeal, defendant has failed to persuasively demonstrate that he was prejudiced. Because the communication was not prejudicial, reversal is not warranted. 2. Coerced Verdict

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MCR 6.414(A) provides, in relevant part: The court may not communicate with the jury or any juror pertaining to the case without notifying the parties and permitting them to be present. The court must ensure that all communication pertaining to the case between the court and the jury or any juror are made a part of the record.

The France Court noted that the "three paragraphs provide examples of what may constitute substantive, administrative, or housekeeping communications. The examples included within each category are not intended to be an exclusive list of the communications that may be included within each category." Id. at 143 n 4.

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Defendant argues that when the jury sent a note indicating that it was deadlocked, the court impermissibly inquired into the numerical division of the jury. Defendant contends that the trial court's inquiry, combined with its earlier ex parte discussion with one juror, resulted in a coerced verdict. At 11:22 a.m., the jury sent a note, and the following exchange occurred: The court: I have received your note, and it is kind of curious. I'm noting the wording here. I don't want you to disclose to me even in the courtroom the state of your deliberations from that standpoint. I was interested in what you have said here. We have a hung juror. Maybe you mean a hung jury because there is apparently one holding out. Is that correct Mr. Foreman? Jury foreperson: Yes. [Emphasis added.]

The trial court then read the deadlocked jury instruction. Defendant did not object. "Claims of coerced verdicts are reviewed on a case-by-case basis, and all of the facts and circumstances, as well as the particular language used by the trial judge, must be considered." People v Malone, 180 Mich App 347, 352; 447 NW2d 157 (1989). In People v Lawson, 56 Mich App 100, 105; 223 NW2d 716 (1974), this Court explained that a trial court may not inquire into or attempt to discover the numerical division of the jury members because [s]uch an inquiry . . . carries the improper suggestion that the numerical division at the preliminary stage of deliberation is relevant to what the final verdict will, or should, be. By establishing one viewpoint as the "majority view," the inquiry "has the doubly coercive effect of melting the resistance of the minority and freezing the determination of the majority." It places the trial court's imprimatur upon what was but a tentative result. [Citation and footnote omitted.] Under the circumstances here, the trial court's inquiry and the foreperson's response do not require reversal. First, the jury's note seemingly volunteered the information that the jurors were deadlocked, eleven to one. After reading the jury's note, the trial court posed a question apparently intended to clarify the meaning of "hung juror."3 After the foreperson responded to the trial court's inquiry, the court immediately read the deadlocked jury instruction, CJI2d 3.12, without any comment. Even if the trial court's inquiry could be considered unnecessary, defendant has failed to show that the nature of the inquiry was coercive. The trial court affixed no special significance to the jury's state of disagreement, and there was no indication which way the majority or minority had voted. In short, the record does not suggest that the trial court acted in a manner or gave any instruction that would have caused a juror to abandon his or her own conscientious opinion and defer to the decision of the majority solely for the sake of reaching a unanimous verdict.

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Even appellate counsel conceded during the hearing on defendant's motion for a new trial that "the jury came back with an unusual note saying that there was a hung juror."

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3. Foreclosed Review of Testimony During deliberations, the jury sent a note requesting the testimony of two police officers. The court responded that it was "unable to provide the transcript of that testimony," and instructed the jury to use their collective memories for that testimony. Defendant did not object to the trial court's handling of the matter. A trial court cannot refuse a jury's reasonable request to review testimony, MCR 6.414(J),4 but it can instruct the jury to deliberate further without the requested review if the instruction does not foreclose the possibility of review in the future. Id. Contrary to defendant's argument, the trial court's response did not foreclose the possibility of future review and accurately advised the jury that a transcript was not available. Defendant did not object to the court's statements to the jury. Under these circumstances, reversal is not warranted. B. Right to Present a Defense

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