PEOPLE v TRAVER Docket No. 154494. Argued on application for leave to appeal D ecember 6, 2017. Decided June 15, 2018. Gary M. Traver was convicted fol lowing a jury trial in the Mac kinac Circuit Court of assault with a dangerous weapon (felonious assault), MCL 750.82 , and possession of a firearm during the commission of a fe lony (felony-firearm), MCL 750.227 b, but was acquitted of interfering with ele ctronic communications, MCL 750.540(a), and carrying a concealed weapon (CCW), MCL 750.227. Defendant had an ongoing dispute with his neighbor over the use of their shared driveway, culminating in an altercation between th e two men that resulted in defendant being charged with the four offenses. After the jury was sworn in, the court, William W. Carmody, J., gave preliminary oral instructions to the jury, which included the elements of CCW but not the elements of the remaining charges. In addition to the oral instructions, the trial court gave the jury written instructions on the elements of CCW , felonious assault, and interfering with electronic communications, but the written ins tructions were incomplete with regard to the offense of felony-fi rearm in that only the defini tion of possession was included for that offense. Defense counsel approved the instructions on the record. After closing arguments, the trial court orally instructed the jury regarding routine po ints of law, but the court did not orally instruct regarding the elements of the offenses, stating that the jury had already received written instructions regarding those offenses and the elements for each offense. After objecting to the felony-firearm instructi on and requesting and receiving a clarifying instruction regarding that offense, defense counsel indicated that he was satisfied w ith the instructions. Defendant appealed. In a split decision, the Court of Appeals, G LEICHER , P.J., and M. J. K ELLY , J. (S AWYER , J., dissenting), reversed def endant’s convictions, reasoning that the trial court’s failure to orally instruct the jury regarding the elements of the charg ed offenses constituted plain error that affected defendant’s substantial right to have a properly instructed jury consider the evidence. 316 Mich App 588 (2016). Judge S AWYER dissented, stating that defendant had waived any claim of instructional error by expressing satisfact ion with the instructions. The prosecution sought leave to appeal in the Supreme Court, and th e Supreme Court ordered and heard oral argument on whether to grant the prosecution’s appli cation for leave to appeal or take other action. 501 Mich 938 (2017). In an opinion by Chief Justice M ARKMAN , joined by Justices M C C ORMACK , B ERNSTEIN , W ILDER , and C LEMENT , the Supreme Court held : Michigan Supreme Court Lansing, Michigan 

# Syllabus Chief Justice: Stephen J. Markman Justices: Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Kurtis T. Wilder Elizabeth T. Clement This syllabus constitutes no part of the opinion of the Court b ut has been prepared by the Reporter of Decisi ons for the convenience of th e reader. Reporter of Decisions: Kathryn L. LoomisMCR 2.512 and MCR 2.513 require that trial courts provide inst ructions orally to the jury. In this case, however, defe ndant waived his claims of in structional error. 1. A court must properly instruct a jury so that the jury may correctly and intelligently decide the case. In that regar d, the instructions to a jury mu st include all the elements of the charged offenses. A complete fa ilure to instruct a jury regard ing any of the elements necessary to determine if the prosecution has proven a charge beyond a re asonable doubt constitutes structural error that requires a utomatic reversal. In contrast , imperfect instructions that omit an element of an offense, or otherwise misinform the jury of an of fense’s elements, do not necessarily render a cr iminal trial unfair such that the convic tion must be set aside. An imperfect instruction is not grounds for s etting aside a conviction if th e instruction fairly presented the issues to be tried and adequately protected the defendant’s rig hts. Defense counsel waives any error resulting from an imperfect instruction when counsel expl icitly and repeatedly approves the instruction. 2. MCR 2.512(B)(2) provides tha t before or after arguments or at both times, as the court elects, the court shall instruct the jury on the applicable law , the issues presented by the case, and, if a party requests as pro vided in MCR 2.512(A)(2), that p arty’s theory of the case. MCR 2.513(A) provides, in part, that after the jury is sworn in, th e court must provide the jury with pretrial instructions reasonabl y likely to assist in its consid eration of the case, including instructions regarding the elements of all charged offenses. S imilarly, MCR 2.513(N)(1) requires a trial court to instruct the jury as required and app ropriate after closing arguments are made. Under MCR 2.513(N)(2), upo n concluding the final instruc tions, the court must invite the jurors to ask any questions in order to clarify the instruction s before the jurors retire to deliberate. MCR 2.513(N)(3) require s the trial court to provid e a written copy of the final jury instructions for the jury to take into the jury room for delibe ration; the court may also provide additional copies of the instructions if requested by any juror and may provide the jury with a copy of electronically rec orded instructions. 3. Neither MCR 2.512 nor MCR 2.513 expressly states whether i nstructions must be provided orally to the jury. When interpreting court rules, th e rules must be read in context and as a whole, taking into consideration the grammatical usage of the words in the rule. Reading the word “instruct” in MCR 2.512 and MCR 2.513 in context—that is, the requirement that a trial court must “instruct” the jury—the court rules affirmativ ely require oral instructions to the jury, even though neither rule exp ressly states that requiremen t. In grammatical terms, the MCR 2.513(N)(2) gerund phrase “[u]pon concluding the final instruct ions” refers to the subject of the sentence—the trial court—and it would not be correct to read th e phrase as referring to a jury’s reading of written instructi ons. In additi on, the MCR 2.513(N) (2) command that invites jurors to ask clarifying questions, coupled with the subrule’s timing ele ment—“[u]pon concluding the final instructions”—suggests that the trial court must read the instructions aloud; a jury would not be able to ask clarifying questions at the conclusion of th e final instructions if there were no oral instructions because the jury would not yet be cognizant o f what the instructions entailed had the jury just been handed wr itten instructions. The MCR 2. 513(N)(3) requirement that the court provide a written copy of t he final jury instructions to the jury and the MCR 2.513(N)(3) provision that the trial court may provide electronically recor ded instructions a lso indicate that the final jury instructions must be given orally. MCR 2.513(A) similarly suggests that the initialact of instructing the jury must be oral because the subrule re quires the trial court to instruct the jury before trial on all claims a nd then requires the court to provide each juror with a copy of the instructions. The manner in w hich MCR 7.312(D)(2)(d) refers to “jury instructions” also supports the conclusion that the court rules require oral instr uctions. 4. In this case, the trial court erred when it failed to oral ly instruct the jury regarding the elements of several offenses. The issue did not constitute str uctural error because the jury was instructed in some form or another on the elements of all the o ffenses. Instead, because the manner in which the instructi ons were given constituted nonstru ctural error, the issue was subject to waiver analysis. Here, defendant waived the claim because d efense counsel repeatedly approved the instructions as given. Defendant similarly waived his claim that the trial court failed to instruct the jury regarding felony-firearm, in light of the fact that the trial court further instructed the jury after defens e counsel objected to the initi al felony-firearm instruction and defense counsel orally approved that additional instruction. A ccordingly, although the Court of Appeals correctly concluded that instructions must be given ora lly to the jury, the Court of Appeals erred by concluding that defendant was entitled to a ne w trial because of the instructional error. Affirmed in part, reversed in part, and remanded to the Court of Appeals for consideration of defendant’s prev iously unaddressed ineffective -assistance-of-counsel claims.

Justice Z AHRA , concurring in part and dissenting in part, agreed with the ma jority that defendant was not entitled to relief on the basis of his claims of instructional error but disagreed with the majority’s conclusion that MCR 2.512 and MCR 2.513 req uire a trial court to orally deliver instructions to the jury. MCR 2.512(B)(2) and MCR 2.51 3(N)(1) require the trial court to

“ instruct ” the jury. Applying the dicti onary definition to those subrul es, the plain and ordinary meaning of the transitive verb “instruct” requires the trial co urt to provide the jury with authoritative information or advi ce as required and appropriate , including the applicable law, the issues presented, and the party’ s theory of the case if request ed by the party. These subrules do not require the trial court to deliver the instructions orally, and the instructions may therefore be delivered orally or in written form. The court rules plainly a llow trial courts the flexibility to accommodate all qualified jurors—especially those with impairme nts or disabilities for whom written instructions may be more appropriate. Justice Z AHRA disagreed with the majority’s conclusion that the MCR 2.513(N)(2 ) language “[u]pon concluding the final instructions, the court shall invite the jurors to ask any questions in order to clarify the instructions before they retire to deliberate” suggests that the trial court must read t hose instructions aloud because the jury would not be able to ask clarifying instructions without t hem. The prepositional gerund phrase “[u]pon concluding the fina l instructions” functions adv erbially because it addresses when the court must invite quest ions from jurors. While the ma jority correctly suggests that one logical reading of the sentence includes a trial court orally i nstructing the jury and then inviting questions from the jurors, that is not the only logical reading because gerunds and participles are often misplaced. The grammatical structure of the sentence cou ld be improved on to better clarify the subject o f the prepositional gerund phrase, and its weight as a contextual cue requiring oral instruction is therefore minimal. The MCR 2.513(N)(3) req uirement that the jury must be provided a written copy of the final jury instructions and that the trial court may provide electronically recorded instructions does not suggest that the instructions were originallydelivered orally; the subrule does not require that a trial cou rt read the instructions aloud, and providing a copy of the instructi ons merely allows jurors to no t remember every single instruction. The plain language of MCR 2.513(A) similarly does not suggest that preliminary instructions must be delivered orally. The majority’s reliance on MCR 7.312(D)(2)(d) is misplaced because if written instructions were provided to the jurors, they would be a relevant portion of the record required to be included in the appendix u nder that subrule. Although oral instructions are not currently required, the court rules should be amended to require a trial court to provide both oral instructions and written copies of the fin al instructions.

Justice V IVIANO , concurring in part and dissenting in part, agreed with the ma jority that defendant was not entitled to relief on the basis of his claims of instructional error but disagreed that a requirement for oral instruction arises contextually wit hin the court rules. While MCR 2.513(N)(2) suggests a sequence of events culminating in jurors being allowed to ask clarifying questions, MCR 2.513(A) and MCR 2.513(N)(3) do not require that the first step in the sequence be oral instructions. The court rules should be amended to req uire trial courts to provide oral instruction, in conformity with t he practice in the federal cir cuit courts and some states. The purpose of the 2011 amendments of the Michigan Court Rules was to require the trial court to supplement the traditional verb al instructions with a written c opy to improve juror comprehension, but the amendment did not make the intention exp licit. Because he concluded that the court rules do not prese ntly require oral jury instruc tions, Justice V IVIANO would not have addressed whether the trial court’s failure to provide the m was subject to a waiver analysis.

©2018 State of MichiganFILED June 15, 2018

S T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,

v No. 154494 GARY MICHAEL TRAVER, Defendant-Appellee.

BEFORE THE ENTIRE BENCH

M ARKMAN , C.J. At issue is whether the trial court erred by providing written instructions to the jury concerning elements of the charged offenses but failing to read those instructions aloud. Although we conclude that our court rules require oral instructions, defendant here waived any claims of instructional error. Therefore, we a ffirm the judgment of the Court of Appeals to the extent th at it held that the court rule s require oral instructions, but

we reverse to the extent that it held that this claim and addit ional claims of instructional Michigan Supreme Court Lansing, Michigan 

# OPINION Chief Justice: Stephen J. Markman Justices: Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Kurtis T. Wilder Elizabeth T. Clement2 error required reversal of defe ndant’s convictions. In additio n, we remand to the Court of Appeals for consideration of def endant’s previously unaddressed arguments relating to

ineffective assistance of counsel. 1

I. FACTS AND HISTORY Defendant shared a driveway with his neighbor, Patrick St. Andr e, and the two were involved in an ongoing dis pute regarding use of the drivew ay. As a result of allegations arising from the dispute, defendant was charged wit h carrying a concealed weapon (CCW), MCL 750.227; assault with a dangerous weapon (fel onious assault), MCL 750.82; interference with e lectronic communications, MCL 75 0.540(5)(a); and possessing a firearm during the commission of a felony (felony- firearm), MCL 750.227b. After swearing in the jury, the trial court gave preliminary or al instructions to the jury and stated the following, in relevant part: To prove the charges, the pr osecutor must prove beyond a reasonable doubt the following information that you have in you r hand. I’d ask you to take a look now at wh at has been passed out to you. In count one, the defendant is charged with the crime of carryi ng a concealed weapon. To prove this charge, the prosecutor must pr ove, beyond a reasonable doubt, those elements so listed. First, th at the defendant knowingly carried a weapon, a pistol. It does not ma tter why the defendant was carrying the weap on, but to be guilty of the crim e, the defendant must have known that it was a weapon. Second, that t his pistol was concealed, complete invisi bility is not required. A weapon is concealed if it cannot easily be seen by those who come into or dinary contact with the defendant.

1 In all other respects, we deny leave to appeal because we are not persuaded that the remaining issues in the prosecu tor’s application for leave to a ppeal should be reviewed by this Court.3 Now, as you can see in count two and count three, and count fou r, those are the elements, ladies and gentlemen, that you will nee d to pay attention to during the course of this trial. Those are the fo ur counts that Mr. Traver is charged with, and the attorneys will be discussin g all of those as we proceed through here by qu estions of the witnesses. Okay ? The trial court then provided the jury with a two-page typed do cument that

contained the definition of the t erm “possession” for felony-fi rearm and the elements of CCW, felonious assault, and interference with electronic commun ications; defense counsel expressed satisfaction w ith these instructions. Follow ing closing arguments, the trial court again orally instructed the jury, but only as to ro utine points of law, such as the meaning of reasonable doubt and the fact that attorneys’ argume nts do not constitute evidence. It did not orally instr uct regarding the elements of the charges, stating: When you go into the jury room , ladies and gentlemen, you will be provided with a written copy of t hese instructions should you s o choose. If there are instructions that I ha ve given and others that I will give that you wish copies of, they will be pro vided to you. You’ve already r eceived the charges and the elements of the same. At the conclusion of these instructions, the trial court inquir ed whether defense counsel was satisfied, and counsel sought clarification regarding the f elony-firearm instruction; the trial court responded with f urther instructions in that reg ard. Defense counsel then again expressed satisfaction with the instructions. The jury f ound defendant guilty of felonious assault and felony-fi rearm and not guilty of the rema ining charges. Following sentencing, defendant a ppealed as of right, raising n umerous issues-- in particular, that the trial cour t erred by failing to orally ins truct the jury on the elements of the charges. In a split decision, the Court of Appeals reverse d defendant’s convictions, reasoning that the trial court had failed to orally instruct th e jury regarding the elements4 of the charged offenses. People v Traver , 316 Mich App 588; 894 NW2d 89 (2016). Judge S AWYER dissented, asserting that defendant had waived any claim of in structional error by expressing satisfac tion with the instructions. Id . at 603. The prosecutor then sought leave to appeal in this Court, and o n December 6, 2017, we heard oral argument regarding whether to grant the app lication. Because there was uncertainty regarding the spe cific written instructions the jury had received, we remanded to the trial court “for appropriate proceedings to set tle the record as to the content of the written jury instructions on the elements of the charged crimes.” People v

Traver , 501 Mich 938 (2017). On remand, the trial court determined t hat the two-page typed document cited by the Court of Appeals was identical to t he content provided to the jury by the trial court. We now address the claims of instruct ional error that the Court of Appeals majority held warranted r eversal of defendant’s convict ions.

II. STANDARD OF REVIEW

“We review de novo claims of instructional error” and “must con sider the instructions as a whole, rather than piecemeal, to determine wh ether any error occurred.” People v Kowalski , 489 Mich 488, 501; 803 NW2d 200 (2011). Similarly, we review de novo the proper interpretation an d application of court rules. People v Comer , 500 Mich 278, 289; 901 NW2d 553 (2017). The same broad legal principles governing the interpretation of statutes apply to the interpretation of court rules; therefore, when interpreting a court rule, this C ourt begins with the text of t he court rule and reads the individual words and phrases in their context within the Michig an Court Rules. Id

.5 III. LEGAL BACKGROUND “A court must properly instruct the jury so that [the jury] may correctly and intelligently decide the case.” People v Clark , 453 Mich 572, 583; 556 NW2d 820 (1996) (opinion by M ALLETT , J.). “The instruction to the jury must include all elements of the crime charged, and must not exclude from jury considerat ion material issues, defenses or theories if there is evidence to support them.” People v Reed , 393 Mich 342, 349-350; 224 NW2d 867 (1975) (c itations omitted). The pertinen t rules governing jury

instructions are set forth in M CR 2.512 and MCR 2.513. MCR 2.5 12 provides, in relevant part: (A) Request for Instructions. (1) At a time the court reasonably directs, the parties must fi le written requests that the court instruct the jury on the law as stated in the requests. In the absence of a direction from the court, a part y may file a written request for jury instruc tions at or before the close of the evidence.

* * * (B) Instructing the Jury. (1) At any time during the trial, the court may, with or withou t request, instruct the jury on a point of law if the instruction will materially aid the jury in understanding the proceedings and arriving at a just verdict. (2) Before or after arguments or at both times, as the court el ects, the court shall instruct the jury on the applicable law, the issues presented by the case, and, if a party requests as provided in subrule (A)(2 ), that party’s theory of the case. MCR 2.513 provides, in relevant part: (A) Preliminary Instructions. After the jury is sworn and befo re evidence is taken, the court sha ll provide the jury with pretri al instructions reasonably likely to assist in its consideration of the case. Such instructions, at a minimum, shall communicate the duties of the jury, trial procedure, and the law applicable to the case as are reasonably necessary to6 enable the jury to understand the proceedings and the evidence. The jury also shall be instructed about the elements of all civil claims or all charged offenses, as well as the legal presumptions and burdens of proo f. The court shall provide each juror with a copy of such instructions. . .

. * * * (N) Final Instructi ons to the Jury. (1) Before closing arguments, the court must give the parties a reasonable opportunity to submit written requests for jury inst ructions. Each party must serve a copy of the written requests on all oth er parties. The court must inform the partie s of its proposed action on the requests before their closing arguments. After closing arguments are ma de or waived, the court must instruct the jury as required and approp riate, but at the discretion of the court, and on notice to the parties, the court may instruct the jury before the par ties make closing arguments. A fter jury deliberations begin, the court may give additional instructions that are appropriate. (2) Solicit Questions about Final Instructions. As part of the final jury instructions, the court shall advise the jury that it may submit in a sealed envelope given to the ba iliff any written questions abou t the jury instructions that arise during de liberations. Upon concluding the final instructions, the court shall invite the jurors to ask any ques tions in order to clarify the instructions befor e they retire to deliberate.

* * * (3) Copies of Final Instructions. The court shall provide a wr itten copy of the final jury instructions to take into the jury room for deliberation. Upon request by a ny juror, the court may provide additional copies as necessary. The court, in its discretion, also may pr ovide the jury with a copy of electronica lly recorded instructions.

In People v Duncan , 462 Mich 47, 52; 610 NW2d 5 51 (2000), we addressed a case in which the trial court failed to instruct the jury regarding any of the elements of felonyfirearm. Duncan held that “[i]t is structural error requiring automatic revers al to allow a jury to deliberate a criminal charge where there is a complete failure to instruct the jury regarding any of the elements necessary to determine if the pro secution has proven the7 charge beyond a reasonable doubt.” Id . at 48 (emphasis added). We grounded this conclusion in two general concerns with the complete failure to instruct. First, “[s]uch a defect improperly left the jury to speculate, i. e., the absence of any instructions regarding the elements of felony-firearm le ft the jury to guess what the prosecuting attorney might be required to prove.” Id . at 52-53 (emphasis added). S econd, “the failure to provide a ny of the elements of the charge ma y have suggested to the jury th at the two charges were [somehow] tie-barred, i.e., if t he jury found defendant guilty of murder, they were then to find defendant guilty of felony-firearm.” Id . at 53. “Such tie-barring would run counter to our fundamental constitutional law as it directs the jury to return a verdict.” Id . See

also id . at 54 (“Indeed, this Court has even recognized that a jury is not required to reach consistent verdicts with regard to a felony-firearm charge and the accompanying felony.”).

Unlike the situation in Duncan in which there was a complete failure to provide the jury with instructions regarding any of the elements of an offense, in People v

Kowalski , 489 Mich at 501-503, we addressed the matter of imperfect instructions in a context in which the trial court had misinformed the jury by om itting individual elements

of the offense. Kowalski explained that “[i]nstructional errors that omit an element of an offense, or otherwise misinform the jury of an offense’s elemen ts, do not necessarily render a criminal trial fundamentally unfair or an unreliable v ehicle for determining guilt

or innocence.” Id . at 501 (quotation marks and citation omitted). Rather, Kowalski proceeded to assert, “an imperfect instruction is not grounds f or setting aside a conviction if the instruction fairly presented the issues to be tried and adequately protected the defendant’s rights.” Id . at 501-502. Furthermore, although “a jury instruction that8 improperly omits an element of a crime amounts to a constitutio nal error,” such an error is waived when defense counsel “explicitly and repeatedly appro ved the instruction.” Id

. at 503.

IV. ANALYSIS

Neither MCR 2.512 nor MCR 2.513 ex pressly states whether instru ctions must be provided orally, and the prosecutor contends that the court rul es do not require oral instructions. Although the require ment to “instruct” the jury could conceivably be read in isolation as referring to providing either oral or written instructions, 2 the context in which

the word “instruct” is used in our rules leads us to conclude t hat the court rules affirmatively require oral instructions. See Haliw v Sterling Hts , 471 Mich 700, 706; 691 NW2d 753 (2005) (“The intent of the rule must be determined fro m an examination of the court rule itself and its pl ace within the structure of the Michigan Court Rules as a whole. When interpreting a court rule or statute, we must be m indful of the surrounding body of law into which the p rovision must be integrated . . . . ”) (quotation marks and citation omitted); G C Timmis & Co v Guardian Alarm Co , 468 Mich 416, 421; 662 NW2d 710 (2003) (“Although a phrase or a statement may mean one thing when read in isolation, it may mean something substantially different when r ead in context.”). As set forth earlier, MCR 2.513(N)(2) states that “[u]pon concl uding the final instructions, the court shall invite the jurors to ask any ques tions in order to clarify the

2 The dictionary defines the wor d “instruct” as “to provide with authoritative information or advice.” Merriam-Webster’s Collegiate Dictionary (11th ed).9 instructions before they retire to deliberate.” This command t o invite clarifying questions regarding the final instructions, coupled with the specific tim ing element-- “[ u ] pon concluding the final instructions”-- sugge sts that the trial court reads the final instructions

aloud. Id . (emphasis added). Absent oral instructions, the jury obvious ly would be incapable of asking “clarifying” questions at that time simply because it would yet be

unaware of what the instructions entailed. That is, it would only hav e been as a result of a prior delivery of oral instructions by the court that a “conc lusion” would be reached at which the jury would have been a fforded sufficient information upon which to base a question seeking to “clarify” the final instructions. Logicall y, the jury must be cognizant of the final instructions at the point at which the invitation to clarify occurs, and the jury can only be cognizant of the instructions at that point-- that is, when the court has “conclud[ed] the final instructions,” id .-- when the instructions have been orally communicated; jurors who still hav e to read a typed two-page st atement after it is delivered to them will not be cognizant of the content of those instructions upon delivery. 3

3 In his partial dissent, Justice Z AHRA suggests that the clause “[u]pon concluding the final instructions” could be read as referring to the jurors’ c ompletion of reading the final instructions because the clause lacks an express subject; howev er, that reading is not only strained but also grammatically incorrect. See Sun Valley Foods Co v Ward , 460 Mich 230, 237; 596 NW2d 119 (1999) (“Th e statutory language must be read and understood in its grammatical context, unless it is clear that something d ifferent was intended.”); Comer , 500 Mich at 289 (stating that t he same broad legal principles governing the interpretation of statutes apply to the interpretation of court rules). The relevant portion of MCR 2.513(N)(2) specifies, “Upon concluding the final instru ctions, the court shall invite the jurors to ask any questions in order to clarify the instructions before they retire to deliberate.” As it is empl oyed in MCR 2.513(N)(2), the word “concluding” functions as a gerund. See Garner, Garner’s Modern English Usage (Oxford: Oxford University10 Moreover, the MCR 2.513(N)(2) language “[ u ] pon concluding the final instructions” also communicates that there is some beginning, m iddle, and ending to the final instructions, a temporal sequence that makes sense only i n the context of final instructions being provided to the jury in an oral manner. Id . (emphasis added). If the

final instructions could be satis fied by merely handing the jur y a “two-page typed” document, then the phrase “[u]pon concluding the final instructi ons” would have little coherent meaning because nothing of apparent consequence would have preceded the “concluding” moment-- indeed the “concluding” instant-- at whic h the court actually provided the written instructions to the jury. Id . (emphasis added). It is a questionable use of language to refer to the “conclu[sion]” of a moment, or an instant, at which some

Press, 2016), p 1006 (defining “ gerund” as “[a] present-partici pial form that functions as a noun; a verbal noun”). That is , as employed here, “concludin g” refers to an event. That event is either the trial court’s “concluding the final in structions” or-- as Justice Z AHRA suggests-- the jurors’ “concluding [their consideration of] th e final instructions.” When a sentence begins with a gerund phrase as the sentence at issue here does, the subject of the phrase must logically agree with the subject of the sentence. See Sabin, The Gregg Reference Manual (New York: McGraw-Hill, 2011 ), ¶ 1082, p 349 (“When a sentence begins with a participial phrase, an infinitive phrase , a gerund phrase, or an elliptical clause (one in which essential words are missing), m ake sure that the phrase or clause logically agrees with the subject of the sentence; other wise, the construction will ‘dangle.’ ”); Garner’s Modern English Usage , pp 241-242 (explaining that “danglers” are problematic with participle phr ases and gerund phrases alike; t hat “danglers” render a sentence incoherent or illogical; and that “[i]n the normal wor d order, a participial phrase beginning a sentence (‘Walking down the street,’) should be dir ectly followed by the noun acting as subject in the main clause (‘I saw the house’)”) . In order to have a proper grammatical reading of MCR 2.513(N)(2), the phrase “[u]pon conc luding the final instructions” must be read as referring to the subject of the s entence here, which is the trial court. See MCR 2.513(N)(2 ) (“Upon concluding the final i nstructions, the court shall invite the jurors to ask . . . .”) (emphasis added). Giv en that the trial court is the subject, it would be improper to read “[u]pon concluding the fi nal instructions” as referring to an act of the jury.11 action is taken unless that action in some way represents the c ulmination of some apparent process that has led to, or brought into being , that concluding moment or

instant. 4 Furthermore, the notion that the word “instruct” refers to prov iding oral jury instructions is compellingly underscored by the fact that MCR 2 .513(N)(3) provides that “[t]he court shall provide a written copy of the final jury instructions to take into the jury room for deliberation.” (Empha sis added.) By communicating th at the court must provide a “written copy of the final jury instructions,” MCR 2. 513(N)(3) logically suggests that the final jury instructions were not originally provided in “writing” under

4 Interpreting the rules to solely permit the practice of having the jury read the written instructions to themselves befor e the court solicits clarifying questions would not only overlook the critical textual clues to the contrary in MCR 2.513(N)(2) but would also be inconsistent with the purposes of our court rules. See MCR 1.105 (“These rules are to be construed to secure the just, sp eedy, and economical determinat ion of every action and to avoid the consequences of error that does not affect the substa ntial rights of the parties.”). Absent oral guidance by the court, written jury instructions ca n hardly be said to advance “the just, speedy, and economical determination of” a case. Id . Take the instant case, for example, in which a time-consuming remand was required to settl e the record concerning the content of the written jury instructions because the trial court had failed to read the relevant portions of the instructions to the jury, which result ed in the instructions not becoming part of the final transcript. Moreover, allowing writ ten instructions as the sole means of instruction would deprive the jury of the active advic e of the trial court and would require jurors to read the instructions in the jury box i n open court before they retired; requiring this to be undertaken in the “fishbowl” of o pen court-- with parties, the gallery, and court officers wa tching and waiting-- makes little sense and could easily lead to a less-than-thorough and unre flective reading by the jury. By contrast, requiring oral instructions advances “the just, speedy, and economical determi nation of” a case given that the full panoply of instruc tions is explained aloud to the jury with the contents of those instructions included with in any subsequent transcript. Id . Therefore, oral instructions not only best comport with the text of MCR 2.513(N )(2) but are also most consistent with the purpose of our court rules.12 the requirement in M CR 2.513(N)(1) that “th e court must instruc t the jury as required and appropriate . . . .” MCR 2. 513(N)(3) further provides that “[t ]he court, in its discretion, also may provide the jury with a copy of electronically recorde d instructions.” That the rule contemplates the existence of “electronically recorded ins tructions” further suggests that the instructions must be provided orally. Thus, the refer ences in MCR 2.513(N)(3) to providing “a written copy of the final jury instructions” an d to “electronically recorded

instructions” both indicate that the jury instructions must ini tially be given orally. The court rules provide similar support for oral instructions i n MCR 2.513(A), which governs preliminary inst ructions. MCR 2.513(A) indicates that the jury “shall be instructed about the elements of all civil claims or all charge d offenses” and then states that “[t]he court shall pr ovide each juror with a copy of such instructions.” (Emphasis added.) Implicit, again, in the additional requirement of MCR 2.513(A) to provide a “copy” of the instructions to the jury is the understanding tha t the trial court orally instructed the jury in the first instance. Thus, as with MCR 2 .513(N)(3), MCR 2.513(A) suggests strongly that the initia l act of instructing the jury is undertaken orally. This interpretation is not only supported by the various provis ions of MCR 2.513 but also by the manner in which other court rules refer to “jury instructions.” For example, MCR 7.312(D)(2)(e) requi res that an appellant’s append ix contain “any relevant portions of the transcript, including the complete jur y instructions if an issue is raised regarding a jury instruction.” In order for the “comple te jury instructions” to have been transcribed and to compose part of the transcript, the jur y instructions must have13 been read aloud. 5 Therefore, references to jury instructions throughout the cou rt rules seemingly contemplate that the i nstructions be provided orally. In summary, when the court rules are read in context and as a w hole, it becomes reasonably clear that the commands in MCR 2.512 and MCR 2.513 t hat direct the trial court to “instruct” the jury refer to providing oral instructions. 6 Nonetheless, in the instant ca se, although the trial court failed to orally instruct the jury regarding the elements of se veral offenses, defendant, in our judgment, clearly

waived his claim of instructional error. 7 As Kowalski explained:

5 Similar court rules that govern appeals in circuit courts and the Court of Appeals lend support for the proposition that the court rules require oral i nstructions. See, e.g., MCR 7.105(B)(5)(b) (stating that to a pply for leave to appeal in ci rcuit court, the appellant must file, “unless waived by stipulation of the parties or tria l court order, a copy of certain transcripts,” including , in an appeal challenging jury instructions, “the transcript of the entire charge to the jury”); MCR 7.205(B)(4)(c) (stating that to apply for leave to appeal in the Court of Appeals, the appellant shall file with the clerk, “in an appeal challenging jury instructions, the transcript of the entire cha rge to the jury”).

6 In his partial dissent, Justice Z AHRA concludes that by allowing for either oral or written instruction, the court rules pro vide trial courts with flexibil ity to accommodate jurors who may have impairments, such as a hearing impairment. However, n othing in our interpretation of the relevant c ourt rules prevents a trial cou rt from providing the necessary accommodations for juror s who may have impairments or disabilities, and it is difficult to envision that a trial court would not affirmativel y accommodate a juror who had such an impairment. The tri al court simply must provide or al instructions in addition to providing suc h accommodations.

7 We note that Duncan , 462 Mich at 57, which held that a trial court’s complete fail ure to instruct the jury on the elements of the charged offenses const ituted structural error requiring reversal, did not address the concept of waiver. How ever, because the instant case is distinguishable from Duncan , we need not address whethe r the complete failure to instruct would evade a wa iver analysis. Unlike Duncan , the jury here received instructions in some form or another on the elements of all of the offenses-- it is only the

manner in which the instructions were pr esented that renders them impe rfect. As with14 This Court has defined “waiver” as the intentional relinquishme nt or abandonment of a known right. O ne who waives his rights under a rule may not then seek appellate review of a claimed deprivation of those rights, for his waiver has extinguished any error. When defense counse l clearly expresses satisfaction with a t rial court’s decision, counsel’s action will be deemed to constitute a waiver. [ Kowalski , 489 Mich at 503 (quotation marks and citations omitted).] Here, the jury received the document containing the definition of possession for felonyfirearm and the elements of CCW, felonious assault, and interfe rence with electronic communications. During the tria l court’s oral instructions, th e trial court told the jury that it had already been provided the charges and the elements of the charges, and at the conclusion, defense counsel was a sked whether there were any is sues with the final

instructions. Defense counsel r aised an objection regarding th e felony-firearm instruction, and additional instructions were provided. The tr ial court then asked whether defense counsel and the prosecuto r were satisfied, and defense counsel replied, “Yes, your Honor.” After the jury was excused, the trial court again asked, “All parties are

satisfied with the instructions a s given?” Both the prosecutor and defense counsel again responded, “Yes, your Honor.” As this Court concluded in Kowalski , “by expressly and repeatedly approving the jury inst ructions on the record, defen dant waived any objection to the erroneous instructions, and there is no error to review. ” Id . at 504. Therefore, the Court of Appeals majority erred by concluding that this claim o f instructional error

warranted a new trial. 8

Kowalski , the claim of instructional error here did not amount to struc tural error-- it is a nonstructural error and is clearl y subject to a waiver analysis

.

8 In his partial dissent, Justice Z AHRA asserts that “it makes eminent sense to amend the court rules to require a trial court to provide both an oral re citation and written copies of the final jury instructions.” No justice in the majority neces sarily disagrees with this15 V. OTHER ISSUE In addition to the above issue, the Court of Appeals majority h eld that there was a separate claim of instructional error that independently warran ted a new trial. Specifically, it held that there had been a complete failure to instruct the jury regarding felony-firearm, which amounted to a structural error requiring reversal under Duncan

. Here, the document containing w ritten jury instructions that wa s provided to the jury did not list the full instructions for felony-firearm; rather, the instructions listed under felonyfirearm merely pertained to what constitutes possession. Howev er, defense counsel objected to the instructions reg arding felony-firearm, and the trial court instructed the jury that “[i]f, for example, you find the defe ndant not guilty of the other three counts, you cannot find him guilty of the felony firearm. Okay? Becau se no felony has been committed.” In addition, the court explained, “If you do find the defendant guilty in count one, two, or three and understand, in your belief, that a weapon was used to commission [sic] those crimes, then count four [felony-firearm] would be applicable.” Following these additional instructions, both the pros ecutor and defense counsel indicated that they were satisf ied with the instructions for fe lony-firearm. As with the earlier claim of instructional error, “by expressly and repeatedly approving the jury instructions on the record, defendant waived any objection to the erroneous instructions, and there is no error to review.” Kowalski , 489 Mich at 504. 9

proposition. However, the court rules do not yet expressly inc orporate such language and, if and when such language i s eventually incorporated, it w ill have been undertaken in conformity and continuity with the existing rules rather than establishing an entirely

new requirement.

9 As Judge S AWYER ’s dissent recognized, there were problems with the trial court ’s16 Given the clear waiver in this ca se, the Court of Appeals major ity erred by holding that

this claim of instructional error warranted a new trial. 10

VI. CONCLUSION We conclude that Michigan court rules require that jury instructions be provided orally. However, defendant wai ved this claim and any additiona l claims of instructional error. For that reason, we affirm the judgment of the Court of Appeals but only to the extent that it held that oral jur y instructions are required; w e reverse to the extent that it

held that defendant’s claims of instructional error required re versal of his convictions; and we remand to the Court of Appeals for review of defendant’s previously unaddressed arguments relating to ineffectiv e assistance of counsel. In al l other respects, we deny

felony-firearm instructions but the claims of instructional err or were waived. Similar to the previously discussed claim of instructional error, we need not address whether the instant claim potentially evades a waiver analysis. Despite de fendant’s claimed errors with this instruction, the insta nt case did not involve a situa tion in which the trial court entirely omitted any instruction regarding the elements of felo ny-firearm; accordingly, this case is unlike Duncan . Rather, this case-- as with Kowalski -- involves a situation in which the trial court provided imperfect instructions regarding the elements of an offense, and the claimed error is subject to waiver analysis.

10 The majority further erred by holding that it need not “resort to ineffective assistance of counsel principles to circumvent potential waiver issues . . . .” Traver , 316 Mich App at 601. In this case, defendant must establish a valid claim o f ineffective assistance of counsel in order for h im to be entitle d to relief on his waived claims of instr uctional error. Defendant raised the claims of in effective assistance in the Co urt of Appeals, but they were not addressed by the majority. We decline to address them in the first instance and instead remand to the Court of Appeals for consideration of def endant’s arguments that defense counsel was constitutionally ineffective to the extent that defendant’s claims of instructional error were waived.17 leave to appeal because we are not persuaded that the remaining question raised by the prosecutor should be reviewed by this Court.

Stephen J. Markman Bridget M. McCormack Richard H. Bernstein Kurtis T. Wilder Elizabeth T. ClementS T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,

v No. 154494 GARY MICHAEL TRAVER, Defendant-Appellee.

Z AHRA , J. ( concurring in part and dissenting in part ). The majority holds that MCR 2.512 and MCR 2.513 require a trial court to orally deliver final instructions to the jury after the parties’ closi ng arguments have been made or waived. As a matter of sound policy and practice, I believe Michigan courts should instruct jurors orally and provid e jurors written copies of all applicable instructions before they commence deliberations. But the majority’s holding is not based on any explicit directive in the court rules. Rather, the majority in fers this purported mandate from the syntax of th e surrounding text of the pertinent rules. Because the plain language of these rules does not support the proposition that a trial co urt is required to read aloud the final jury instructions, as o pposed to provide the jurors w ith written instructions, I respectfully dissent.2 This Court applies the same legal principles of interpretation and construction applicable to statutes when it construes court rules. 1 Accordingly, we begin by examining the plain language of the rule. 2 In doing so, we must give effect to every word, phrase, and clause in a court rule, and, in particular, c onsider the plain meaning of the critical word or phrase to a void rendering any part of the rule nugatory or surplusage if at all possible. 3 If a word or phrase is undefined and lacks a unique legal mea ning, it must be accorded its plain and ordinary meaning, for which a la y dictionary may be

consulted. 4 There is no need for judicial construction or interpretation if the court rule is unambiguous; the plain meaning o f the rule must be enforced as written. 5 MCR 2.512 (entitled “Instructions to Jury”) and MCR 2.513 (enti tled “Conduct of Jury Trial”) set forth the procedures as they pertain to the tr ial court delivering jury instructions. In particular, MCR 2.512(B) provides as follows: (1) At any time during the trial, the court may, with or withou t request, instruct the jury on a point of law if the instruction will materially aid the jury in understanding the proceedings and arriving at a just verdict.

1 Ligons v Crittenton Hosp , 490 Mich 61, 70; 803 NW2d 271 (2011); see also People v Duncan , 494 Mich 713, 723; 835 NW2d 399 (2013).

2 Duncan , 494 Mich at 723.

3 Accord SBC Health Midwest, Inc v Kentwood , 500 Mich 65, 70-71; 894 NW2d 535 (2017); In re McCarrick/Lamoreaux , 307 Mich App 436, 447; 861 NW2d 303 (2014); State Bd of Ed v Hought on Lake Community Sch , 430 Mich 658, 671; 425 NW2d 80 (1988).

4 See Duncan , 494 Mich at 723 (“The Court may refer to dictionaries to aid in discerning the plain meaning of a rule.”).

5 Id

.3 (2) Before or after arguments or at both times, as the court el ects, the court shall instruct the jury on the applicable law, the issues presented by the case, and, if a party requests as provided in subrule (A)(2 ), that party’s theory of the case. [ 6 ]

Further, MCR 2.513( N) provides, in pertinent part: (1) Before closing arguments, the court must give the parties a reasonable opportunity to submit written requests for jury inst ructions. Each party must serve a copy of the written requests on all oth er parties. The court must inform the partie s of its proposed action on the requests before their closing arguments. After closing arguments are ma de or waived, the court must instruct the jury as required and approp riate, but at the discretion of the court, and on notice to the parties, the court may instruct the jury before the par ties make closing arguments. A fter jury deliberations begin, the court may give additional instructions that are appropriate. (2) Solicit Questions about Final Instructions. As part of the final jury instructions, the court shall advise the jury that it may submit in a sealed envelope given to the ba iliff any written questions abou t the jury instructions that arise during de liberations. Upon concluding the final instructions, the court shall invite the jurors to ask any ques tions in order to clarify the instructions befor e they retire to deliberate.

* * * (3) Copies of Final Instructions. The court shall provide a wr itten copy of the final jury instructions to take into the jury room for deliberation. Upon request by a ny juror, the court may provide additional copies as necessary. The court, in its discretion, also may pr ovide the jury with a copy of electronica lly recorded instructions.

6 MCR 2.512(A)(2) provides: “In addition to requests for instruc tions submitted under subrule (A)(1), after the close of the evidence, each party sha ll submit in writing to the court a statement of the issues and may submit the party’s theo ry of the case regarding each issue. The statement must be concise, be narrative in for m, and set forth as issues only those disputed propositions o f fact that are supported by the evidence. The theory may include those claims supporte d by the evidence or admitted. ”4 MCR 2.512(B)(2) requires that the trial court “ instruct the jury on the applicable law, the issues presented by the case, and, if a party requests as provided in subrule (A)(2), that party’s theory of the case.” 7 MCR 2.513(N)(1) similarly requires that the

trial court “ instruct the jury as required and approp riate” after closing arguments have

been made or waived. 8 The principal term of interest in both of these rules is “ins truct,”

which Merriam-Webster’s Collegiate Dictionary defines as “to provide with authoritative

information or advice.” 9 In according the transitive verb “instruct” its plain and ord inary meaning, the court rules only require that the trial court prov ide the jury with

authoritative information or adv ice as required and appropriate , which would include the applicable law, the issues presented by the case, and, perhaps, a party’s theory of the case. These rules do not, however, require any particular meth od for delivering this

7 Emphasis added.

8 Emphasis added.

9 Merriam-Webster’s Collegiate Dictionary (11th ed), def 2. The transitive verb “instruct” is also defined as “to give knowledge to,” id ., def 1, and “to give an order or command to,” id ., def 3. A court’s selection of the proper definition must be guided by the context of the rule in which the term appears. See People v Shami , 501 Mich ___, ___ n 30; ___ NW 2d ___ (2018) (Docket No. 155273); slip op at 1 0 n 30. Therefore, it is important to recognize that the t erm “instruct” in this context is used to describe the trial court’s responsibility with regard to the jury after closing ar guments. Because the dictionary uses “the judge instructed the jury” as an example for the definition of “to provide with authoritative information or advice,” id ., def 2, I believe it is the most appropriate definition for determ ining the plain and ordinary m eaning of “instruct” in MCR 2.513(N)(1). Relatedly, Black’s Law Dictionary defines the phrase “jury instruction” as a “direction or guideline that a judge gives a jury concerning the law of the case.” Black’s Law Dictionary (10th ed). This definition similarly does not dictate oral over written transmissi on of jury instructions.5 information; a trial court can provide authoritative informatio n in either oral or written

form. As plainly written, the court rules provide trial courts with t he flexibility needed to accommodate all qualified jurors, especially those who may have impairments or disabilities. On the one hand, if the jury includes one or mor e members who are visually impaired, an oral recitation of t he final jury instructions wou ld be appropriate and necessary for the trial court to properly discharge its duty to instruct the jury. On the other hand, if the jury includes one or more members who are he aring impaired, oral instructions would most likely be inadequate, and written instr uctions would be appropriate to accomm odate the needs of those jurors. 10 It is precisely this sort of flexibility that complements and accommodates the ever-increasi ng diversity of juries. Nevertheless, the majority surmises that the contextual cues in the surrounding text of MCR 2.513 justify its conclusion that the court rules r equire a trial court to orally deliver final jury instructions. For instance, the majority ex amines the language in MCR 2.513(N)(2), which states that “[ u]pon concluding the final ins tructions, the court shall invite the jurors to ask any questions in order to clarify the instructions before they retire to deliberate.” According to t he majority, this language sugge sts that the trial court must

read aloud from the final instru ctions because the jury would b e incapable of asking clarifying questions without tho se oral instructions. I disagr ee.

10 Another reasonable accommodation might involve providing the j uror with a sign language interpreter. See Frank & Aleinikoff, Juries and the Disabled , The Federal Lawyer (Dec 2012), pp 35-36.6 The phrase “[u]pon concluding the final instructions” is a prep ositional gerund phrase, insofar as the gerund phra se “concluding the final inst ructions” is serving as the object of the preposition “[u]pon.” 11 Although a gerund functions as a noun, a prepositional gerund phrase may f unction as a noun, adjective, or adverb. 12 In this context, the phrase serves an adverbial function; it is address ing when the court must invite questions from jurors to clarify any of the final instru ctions. To avoid confusion, a prepositional gerund phrase should be written in a way that it logically agrees with the subject of the sentence. Thus, the majority is correct in sugg esting that one logical reading of this sentence would have the court orally concluding the final instructions, after which the court is then required to invite questions from the jurors. But because participles and gerunds are often misplaced, I am not confident that this is the only logical reading of this sentence. For instance, when the juror s and the trial judge each

11 Although a present participial phrase and a gerund phrase both include a verb that ends in - ing , there is a distinction between the two. On the one hand, a g erund is a verb that functions as a noun, thereby occu pying some positions in a sent ence that a noun ordinarily would (e.g., subject, direct object, subject complem ent, and object of a preposition). See Strunk & White, The Elements of Style (4th ed), pp 12-13, 55-56; see also The Chicago Manual of Style (16th ed), Rule 5.109 to Rule 5.111. A present participle, on the other hand, is a verb that functions as an a djective. See Strunk & White, The Elements of Style , pp 13-14, 93. Accordingly, the difference between participles and gerunds turns on their function. A present par ticipial phrasing of MCR 2.513(N)(2) looks very similar to the curre nt language of the subrule and would appear as follows: “Concluding the final in structions, the court shall in vite the jurors to ask any questions in order to clarify the instructions before they reti re to deliberate.” For this iteration, “concluding” is the p resent participle and serves th e function of an adjective, which then raises the question whether “concluding” is modifyin g the noun “court,” the noun “jurors,” or both.

12 The Chicago Manual of Style , Rule 5.173.7 have their own individual copy o f the written jury instructions , this sentence could be read as both the court and the jurors functioning as the subjec ts of “concluding.” In other words, once the court and the jurors have finished reading the instructions, MCR 2.513(N)(2) simply requires that the court then invite the juro rs to ask any clarifying questions that they may have regarding those instructions. 13 Because this sentence itself could be improved upon to clar ify the subject of the prepositio nal gerund phrase, I believe the weight given to the majority’s implication drawn fr om this particular

contextual cue is minimal and do es not necessarily suggest that a trial court is required, in all instances, to orally de liver final jury instructions. 14 The majority also looks to MCR 2 .513(N)(3), which requires that the trial court “provide a written copy of the fin al jury instructions to take into the jury room for deliberation.” According to the majority, providing a written copy of the instructions for the jurors to take with them into the jury room suggests that t he instructions were originally delivered orally. T he majority also believes that t he sentence in this subrule

13 The majority also posits that th e phrase “[u]pon concluding” c ommunicates a “temporal sequence” that would onl y make sense in the context o f oral instructions. Ante at 10. But jurors reading to themselves from written instructi ons would also have a temporal sequence because reading has “some beginning, middle, and ending,” ante at 10, such that the trial court would still be able to invite cla rifying questions after the jurors had completed readi ng the written instructions.

14 The majority claims that perm itting jurors to read instruction s to themselves would be inconsistent with the purposes of our court rules because, with out “oral guidance” from the court, written instructions would not “advance ‘the just, s peedy, and economical determination of’ a case.” Ante at 11 n 4, quoting MCR 1.105. I question, however, how much “guidance” or “advice” a cour t is actually providing when it simply reads aloud from the same instructions the j urors could read for themselves

.8 that a trial court “also may provide the jury with a copy of el ectronically recorded instructions” suggests that the initial instructions were provi ded orally. I disagree for two

reasons. First, this subrule does not require that a trial court read th e instructions aloud. Rather, it speaks only to what is required of the trial court i n regard to what jurors may take with them into the jury ro om when deliberating. In other words, it addresses what is required after the trial court provides the final jury instructions following closing arguments and would apply regardless of whether those instructi ons were provided in

oral or written form. 15 Thus, this subrule would be consistent with providing each ju ror their own copy of the written in structions, having jurors read those instructions to themselves, having the jurors as k any questions for clarificati on, and then having the jurors take a single co py of those instruc tions with them into the jury room when they

retire to deliberate. Second, providing the jurors with a copy of the instructions fo r reference during deliberations means that jurors are not required to remember ev ery single instruction. Returning to my earlier discussion of a visually impaired juror , however, a copy of the

written instructions would not se rve this purpose. Accordingly , allowing the option for an “electronically recorded” vers ion of the instructions would serve the same purpose of a written copy of the instructi ons, thereby enabling a visually impaired juror to refer to

those instructions d uring deliberation.

15 For this reason, written instru ctions would not render this su brule surplusage, as the Court of Appeals majority suggested. See People v Traver , 316 Mich App 588, 597; 894 NW2d 89 (2016).9 Next, the majority claims that the language of MCR 2.513(A)—whi ch governs preliminary instructions and states that the trial court “shall provide the jury with pretrial instructions reasonably likely to assist in its consideration o f the case” and “shall provide each juror with a copy of such in structions”—indicates that the trial court orally instructed the jury in the first instance. Not surprisingly, I disagree with this assertion. The plain language of this subrule simply requires the trial co urt to provide pretrial instructions to the jury and makes clear that each juror is ent itled to his or her own individual copy of those instr uctions. There is nothing in thi s rule to suggest that preliminary instructions must be delivered orally, let alone th at oral delivery of the final jury instructions is required. Finally, going beyond MCR 2.512 an d MCR 2.513, the majority rel ies on a court rule that governs the preparation of briefs and appendixes for calendar cases to be argued in this Court for further support for its conclusion that a tri al court is required to read final jury instructions out loud. Specifically, MCR 7.312(D)(2 )(e) addresses the contents of an appellant’s appendix, which must contain “any relevant po rtions of the transcript, including the complete jury instructions if an issue is raised regarding a jury instruction.” In order for the jury instructi ons to become part of a transcri pt, says the majority, those

instructions must have been first read aloud and then transcrib ed. But this does not mean that the jury instructions must be given orally. Rather, if wr itten instructions were provided to the jurors, they would be a “relevant portion[] of the . . . record” required to be included in the appendi x under MCR 7.312(D)(2)(d). For these reasons, I am not willing to make the same interpreta tive leap the majority does to read into the plain language of MCR 2.512 and MCR 2.513 a10 requirement that the trial court must orally deliver final jury instructions. That being said, I believe it makes eminent sense to amend the court rules to require a trial court to provide both an oral recitation and written copies of the final jury instructions. But until

such an amendment comes to fruit ion, I must respectfully dissen t.

Brian K. ZahraS T A T E O F M I C H I G A N

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,

v No. 154494 GARY MICHAEL TRAVER, Defendant-Appellee.

V IVIANO , J. ( dissenting in part and concurring in part ). The majority holds that MCR 2.512 and MCR 2.513 require a trial court to orally instruct juries. Although I be lieve wholeheartedly that trial courts should provide oral instructions to juries, I disagree that such a requirement can be gleaned from our rules in their present form. 1 Therefore, I respectfully disse nt from the majority’s conclus ion to the contrary. I agree with the majority that “[n]either MCR 2.512 nor MCR 2.5 13 expressly

states whether instructions m ust be provide d orally . . . .” 2 But I disagree that such a requirement arises contextually from our court rules. The majo rity first examines MCR

1 Several years ago, at my urging, the Court opened an administr ative file to consider amending MCR 2.513 to clarify that trial courts must provide ju ries with oral instructions. I believe we should act with dispatch to clarify our rules to clearly require that jury instructions m ust be provided orally.

2 Ante at 8.2 2.513(N)(2), which provides that “[u]pon concluding the final i nstructions, the court shall invite the jurors to ask any questions in order to clarify the instructions before they retire to deliberate.” I agree with the majority that the rule sugges ts a sequence of events in which the instructions are presented to the jurors, who can the n ask clarifying questions. But nothing indicates that the first step in the sequence must be oral jury instructions; the trial court could just as well provide written instructions for the jury to read before the jurors are invited to ask questions. The majority also scrutinizes M CR 2.513(A) and MCR 2.513(N)(3), which require the trial court to provide each juror with a copy of certain pr eliminary instructions at the beginning of the trial and the entire jury with a copy of the f inal jury instructions to take into the jury room for deliber ation. According to the majority , these rules “suggest[] strongly that the initial act of instructing the jury is undert aken orally.” 3 I do not see how, since nothing indicates that the first version of the inst ructions—from which copies are provided—need s to be oral. Even less convincingly, the majority relies on court rules prov iding what is required to file an appeal—rules that quite explicitly do not g overn the conduct of a jury trial. Regardless, these rules do not aid our inquiry because while jury instructions read aloud to the jury would become p art of the transcript needed fo r an appeal, so too could

the trial court mark as an exh ibit a copy of the written instru ctions provided to the jurors,

which would then bec ome a “relevant portion[] of the . . . reco rd” required to be included

3 Ante at 12.3 in the appendix under MCR 7.312(D)(2)(d). 4 As I noted at the outset, and despite the foregoing analysis, I strongly believe we should amend our court rules to require trial courts to provide juries with oral instructions. This is already the dominant practice, and has b een for some time. 5 Indeed, the federal circuit courts have held that the failure to orally instruct a jury is error. 6 The Third Circuit has explained why this is so: For not only are counsel and th e defendant entitled to hear the instructions in order that they may, if they are incorrect, object to them a nd secure their prompt correction by the trial judge, but it is equally importa nt to make as certain as may be that each member of the jury has actually rec eived the instructions. It is therefore e ssential that all instructions to the jury be given by the trial judge orally in the presence of counsel and the de fendant. We

4 For good measure, the majority posits that permitting jurors t o read instructions to themselves would be inconsistent with the purposes of our court rules because, without “oral guidance” from the court, w ritten instructions would not “advance ‘the just, speedy, and economical determination of’ a case.” Ante at 11 n 4, quoting MCR 1.105. However, this rule is aspirational in nature and does not provi de much assistance to our textual analysis of the governing rules.

5 See Guam v Marquez , 963 F2d 1311, 1314 (CA 9, 1992) (“[T]rial judges and litigato rs have always assumed that jury instructions must be oral.”). Se e also United States v Robinson , 724 F3d 878, 887 (CA 7, 2013) ( “Our criminal justice system h as relied on oral jury instructions since its inception . . . .”), citing Ma rder, Bringing Jury Instructions Into the Twenty-First Century , 81 Notre Dame L Rev 449, 490-510 (2006).

6 See, e.g., United States v Noble , 155 F2d 315, 318 (CA 3, 1946) (holding that the trial court’s failure to orally instruc t the jury on the elements was error); United States v Perry , 375 US App DC 238; 479 F3d 885 (2007) (same); Marquez , 963 F2d at 1314- 1315 (“[A]ll jury instructions m ust be read aloud to the jury i n the presence of counsel and the defendant.”); Robinson , 724 F3d at 887-888 (“[A] trial judge commits error if she fails to read aloud jury instruc tions in their entirety.”) (quo tation marks and citation omitted); see also 2A Wright & Miller, Federal Practice & Proce dure (4th ed), § 483, p 421 (“All instructions to th e jury . . . must be announced or ally by the judge.”).4 conclude that the failure in the present case to instruct the j ury upon the elements of the crime was error. [7]

Several courts in other state s have also held the same. 8 In 2011, the rules governing the c onduct of jury trials in Mich igan were amended to incorporate many of the jury reform principles tested in the Court’s two-year jury reform pilot project. 9 Under the former jury instruction rule, supplemental written instructions were perm itted but not required. 10 As noted above, the current rule now requires that additional written or electronic copies be provid ed to jurors at the beginning

and end of the trial. I believe the purpose of this reform was to require the trial court to supplement the traditional verbal instructions with a written c opy to improve juror comprehension. 11 Unfortunately, the language of the rule does not make this in tention

7 Noble , 155 F2d at 318. Notably, the court concluded that the trial judge would not have fulfilled his duty even if written instructions p rovided to the jury had fully recited all applicable legal principles. Id

.

8 See, e.g., State v Lamb , 541 NW2d 457, 462 (ND, 1996) (holding that the court must read oral instructions to the jury). Accord State v Lindsey , 245 NJ Super 466, 470-471; 586 A2d 269 (1991); State v Iosefa , 77 Hawaii 177, 184; 880 P2d 1224 (1994); State v Castoreno , 255 Kan 401, 411-412; 874 P2d 1173 (1994).

9 See 489 Mich clxxvi, cxcvi (2011) (staff comment).

10 See MCR 2.516(B)(5), as amended June 2, 1998, 457 Mich xcvi (1 998).

11 See, e.g., Robinson , 724 F3d at 887-888 (“Our criminal justice system has relied o n oral jury instructions since i ts inception, and while there is ample evidence that the increasingly common use of supplem entary written instructions c an help jurors understand difficult legal concepts, a trial judge commits erro r if she fails to ‘read aloud jury instructions in their entir ety[.]’ ”) (citations omitted). See also Elwork et al, Making Jury Instructions Understandable (Charlottesville: The Mich ie Company, 1982), p 20 (“Several experimenters have shown that vocalization of written material facilitates memory. Thus, the ideal is to present material in both modes a t the same time.”), citing Murray, Vocalization at Presenta tion and Immediate Recall With Varying Methods , 18 Q5 explicit. And “[i]t is the law that governs, not the intent of the lawgiver.” 12 Accordingly, I respectfully dissent from the ma jority’s holding that oral ju ry instructions are required. 13

David F. Viviano

J of Experimental Psychol 9 (1966), and Tell & Ferguson, Influence of Active and Passive Vocalization on Short Term Recall , 102 J of Experimental Psychol 347 (1974).

12 Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton: Princeton University Press, 1997), p 17.

13 Because I do not believe that our court rules presently requir e oral jury instructions, I would not address whether the court’s failure to provide them i s subject to a waiver analysis.