PEOPLE v WALKER Docket No. 155198. Argued on application for leave to appeal J anuary 24, 2019. Decided July 11, 2019. Harold L. Walker was convicted following a jury trial in the W ayne Circuit Court of being a felon in possession of a fir earm, MCL 750.224f; carrying a co ncealed weapon, MCL 750.227; and possession of a firearm when committing or attempting to co mmit a felony, MCL 750.227b(1). In August 2014, defendant was on parole from a prior felony con viction; conditions of defendant’s parole prohibited him from possessing a weapon and from being a round alcohol. On August 5, 2014, police officers saw a group of four individuals drinking beer and listening to loud music near a vehicle in Detroit. As the officers approached the group, de fendant walked toward the nearby house, holding something in the front pocket of his pants that appeared to be heavy. When he reached the front porch of the house, defendant threw something into a bush beside the porch; the police arrested defendant after t hey recovered a loaded revolve r from the bush. Defendant asserted through his own testimony as well as that of a corroborating wi tness that the witness had earlier hidden the gun in the bushes and that defendant had tossed a be er bottle into the bush, not a gun. After the jury was picked, the court noted that Juror No. 8 was late, had not called in, and that “bad things might happen to that person.” When the juror arrived, t he juror was seated in view of the other jurors in the area reserved for in-custody criminal defen dants before being dismissed from the jury. Approximately 75 minutes after it began deliberating , the jury notified the trial court that it was deadlocked. The trial court gave a supplemental, ad-lib instruction to the jury (instead of the M Crim JI 3.12 deadlocked-jur y instruction), sent the jury members to lunch, and twice instructed the jury to let the court know if any jurors were fa iling to follow the instructions or failing to participate in deliberations. The jury found defend ant guilty of all charges approximately 90 minutes after resuming deliberations following lunch. Defen dant appealed in the Court of Appeals, arguing that he was entitled to a new trial because th e trial court’s deadlocked-jury instruction was impermissibly coercive. In an unpublished per curiam opinion issued December 1, 2016 (Docket No. 327063), the Court of Appeals, F ORT H OOD , P.J., and O’B RIEN , J. (G LEICHER , J., dissenting), affirmed, reason ing that, in context, the inst ruction did not coerce a verdict. Defendant sought leave to appeal, and the Supreme Court ordered and heard oral argument on whether to grant the appli cation or take other action. 501 Mic h 1088 (2018). In an opinion by Justice C AVANAGH , joined by Chief Justice M C C ORMACK , and Justices V IVIANO , B ERNSTEIN , and C LEMENT , the Supreme Court, in lieu of granting leave to appeal, held : Michigan Supreme Court Lansing, Michigan 

# Syllabus Chief Justice: Bridget M. McCormack

C hief Justice Pro Tem:

David F. Viviano Justices: Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh 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. LoomisM Crim JI 3.12 provides model jury instructions that may be us ed when a jury appears to be deadlocked. Although every de viation from M Crim JI 3.12 do es not constitute error requiring reversal, the trial court’s ad- lib supplemental instruction omi tted nearly every s afeguard provided by the model instruction and crossed the line from appropriatel y encouraging deliberation to being unduly coercive: the instruction (1) failed to offer constructi ve advice to encourage further deliberation, (2) omitted important safeguards of jurors’ hones t convictions, and (3) included coercive language. In addition, the instruction was delivered in a coercive atmosphere given the tenor of the proceedings. Taken together, these circumstances impermissibly coerced jurors to surrender their honestly held beliefs for the sake of reaching a verdict. The Court of Appeals judgment was reversed and the case remanded for a new trial bef ore a different judge. 1. When a jury indicates that it cannot reach a unanimous ver dict, a trial court may give a supplemental instruction to encou rage the jury to continue deli berating. If a jury i ndicates that it is deadlocked after deliberati ng too short a period for thought ful deliberation, the trial court may simply instruct the jury to continue their deliberations. The goal of an instruction to a jury that cannot reach a verdict is to enc ourage deliberation without coe rcing a verdict and to offer constructive guidance on how to deliberate. In that regard, gi ving an honest-conviction reminder tempers the trial court’s simultaneous emphasis on reaching a u nanimous agreement. Encouraging jurors to single out jurors who are not participating when ther e is no indication that a juror has refused to deliberate can consti tute undue pressure, threats, o r embarrassing assertions that would tend to force a decision or cause a juror to abandon his or her conscientious dissent and defer to the majority. M Crim JI 3.12, the model deadlocked-jury instru ction, balances the goal of encouraging deliberation without c oercing a verdict, but that i s not the only instruction that may be given to a deadlocked jury. In other words, every deviation from the model instruction does not constitute error requiring re versal. The relevant inquiry— considering the factual context in which the instruction was given on a case-by-case basis—is whet her the instruction given could cause a juror to abandon his or her conscientious dissent and d efer to the majority solely for the sake of reaching agreement. 2. Taken together, the trial c ourt’s ad-lib supplemental inst ruction to the jury was unduly coercive because (1) the instruction lacked constructive guidan ce to the jury on how to continue deliberating and break through the impasse and encouraged an an tagonistic relationship among the jurors when it prompted them to single out any juror who was re fusing to deliberate when there was no indication that a juror had refused to deliberate; (2) t he instruction failed to remind the jurors that they should not give up their honestly held beliefs for the sake of reaching an agreement; (3) rather than simply instructing the jury to continue its del iberations, the instruction contained coercive language that telegraphe d to jurors that failure to re ach a verdict was not an option and suggested that jurors single out other jurors for refusing to d eliberate when there was no indication that a juror had refused to deliberate; and (4) the trial court ’s conduct during the trial telegraphed that the court would not tolerat e a hung jury. In addition, th e quick turnaround in arriving at a guilty verdict after the court’s supplemental instruction sugge sted that the verdict was coerced. Therefore, the instruction given not only omitted nearly every safeguard contained in M Crim JI 3.12, but it was administered in a coercive atmosphere. The in struction affected defendant’s substantial rights and the fairness, integrity, and public repu tation of the judicial proceedings by affecting the jury’s verdict.3. The case was assigned to a different judge on remand becau se, given the trial court’s interactions with defendant during sentencing, the original tri al judge would have substantial difficulty setting aside her prev iously expressed views. Reass ignment was necessary to preserve the appearance of justice given the court’s hostility and bias toward defendant, and any waste or duplication was not out of propor tion to the gain in preserving the appearance of fairness.
Reversed and remanded for a new trial.
Justice Z AHRA , joined by Justice M ARKMAN , dissenting, disagreed with the majority’s conclusion that the trial court’ s supplemental instructions wer e unduly coercive. The majority’s holding did not reflect the tradi tional notion of jury coercion . While the majority acknowledged that it would have been permissible for the trial court to inst ruct the jury to continue its deliberations after it was deadlo cked, the two statements relie d on by the majority to support its coercion conclusion ignored the practical realities the trial c ourt faced when the jury indicated it was deadlocked after deliberating for only 75 minutes. The tri al court was uniquely situated to determine whether the jury needed a break or was at a true impa sse, and the court reasonably concluded that that the jury had not engaged in a meaningful de liberative process that led to an impasse. Thus, the trial court’s statements were directed at the jury’s failure to engage in fullfledged deliberation, not its failure to reach a verdict. No r easonable juror would have interpreted the court’s statements as compelling a verdict by force or inti midation. Instead, the trial court appropriately gave the jurors a lunch break to help them engage in the deliberative process when they returned. The trial court’s instruction that the jury sho uld let the court know if any juror was failing to follow instructions or refusing to participate in th e process did not amount to undue pressure, threats, or embarrassing assertions that tended to fo rce a decision or make a juror abandon his or her conscientious dissent a nd defer to the majority. Si gnificantly, the trial court did not appeal to civic duty or assert t hat failure to reach a verdict constituted a failure of purpose; the only requirement imposed by the trial court was that the jurors go to lunch, which did not coerce one or more jurors to vote to convict. The trial court’s failu re to remind the jurors that they should maintain their honest convictions after the jury suggested it m ight be at an impasse was not dispositive of whether the instructions were coercive; the inst ruction emphasized that the jurors had not deliberated a sufficient amount of time rather than emp hasizing the need to reach a unanimous verdict, making the honest-conviction reminder unnece ssary. Because the jury had been given a written copy of the court’s final instructions tha t included honest-conviction reminders, the trial court’s failure to reiterate that instruct ion did not transform the instruction to deliberate after returning from lunch into an unduly coercive o ne. The trial court did not have to provide guidance on how to continue deliberating and how to bre ak through the impasse because it correctly decided that the jury was not truly deadlocked. W hile the correct inquiry was whether the supplemental instruction was coercive, the majority’s holdi ng promoted a per se rule that any departure from M Crim JI 3.12 would necessarily result in the i nstruction being unduly coercive. In addition, the majority incorre ctly relied on portions of the lower court record that were unrelated to whether the supplemental instru ction was coercive, and those portions did not support its conclusion that the instruction was coercive. The majority’s c onclusion demonstrated that it was disconnected from the trial-cour t process because the court’s s tatements to Juror No. 8, which the majority relied on to support it s ultimate conc lusion, exhibite d the trial court’s interest in running a timely and efficient, no-nonsense courtroom; the statements d id not signal to the remaining jurors that they should ignore the jury instructions and, instead, fol low the court’s implicit views of the case. Even if the trial court erred by giving the supplemental instruction, reversal was not requiredbecause defendant failed to demonstrate that the instruction af fected the fairness, integrity, and public reputation of the judicial proceedings. Justice Z AHRA would have affirmed the judgment of the Court of Appeals.

©2019 State of MichiganFILED July 11, 2019

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

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v No. 155198 HAROLD LAMONT WALKER, Defendant-Appellant.

BEFORE THE ENTIRE BENCH
C AVANAGH , J. At issue in this case is whether the trial court committed erro r requiring reversal when it gave an ad-lib deadlocked-jury instruction. We conclud e that it did. The instruction given by the trial c ourt lacked constructive advice to encourage further deliberation, omitted important s afeguards of jurors’ honest co nvictions, included coercive language, and was delivered in a coercive atmosphere. We hold that the instruction crossed the line from appropriately enc ouraging deliberation and candid consideration to impermissibly coercing jurors to surrender their honestly held beliefs for the sake of Michigan Supreme Court Lansing, Michigan 

# OPINION Chief Justice: Bridget M. M cCormack

Chief Justice Pro Tem:

David F. Viviano Justices: Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh2 reaching a verdict. The error was plain, affected defendant’s substantial rights, and affected the fairness, integrity , and public reputation of the judicial proceeding. Accordingly, we reverse the judgm ent of the Court of Appeals an d remand the case to the Wayne Circuit Court for a new trial. Additionally, in light of the trial court’s conduct during defendant’s sentencing, we direct that defendant be retr ied before a different judge. Because we hold that defendant is entitled to a new trial, we d o not address his remaining issues.
I. FACTS AND PROCEDURAL HISTORY On August 8, 2014, defendant, Harold L. Walker, was charged wit h being a felon in possession of a firearm (felon-in-possession) under MCL 750. 224f; carrying a concealed weapon (CCW) under MCL 750.227; and possession of a firearm whe n committing or attempting to commit a felony (felony-firearm) under MCL 750.22 7b(1). At trial, multiple police officers testified that on August 5, 2014, while on rout ine patrol in a high-crime residential area of Detroit, they saw four people standing and drinking beer on a sidewalk outside a home, near a vehicle playing loud music. As the poli ce officers approached the group, defendant quickly walked away, holding something that ap peared to be heavy in a front pocket of his pants. When he reached the home’s porch, d efendant pulled from his pocket what looked to the officers like a large-frame revolver and threw it into a bush beside the porch. The police recovered a loaded revolver from the bush and arrested defendant. As a condition of his parole from a prior felony co nviction, defendant was not allowed to possess a weapon.3 Defendant offered an alternative explanation for the revolver b eing in the bush. Darryl Jevon Williams, Jr., lived in the neighborhood and was w ith defendant on the night in question. Williams testified that he knew defendant was on parole and that defendant could not be around guns, so Williams hid his gun in the bush before defendant arrived. Both Williams and defe ndant testified that it was a Budweiser b eer bottle that defendant had tossed into the bush and that defendant had tossed the bott le because he could not be around alcohol while on parole. At his trial, defendant presented one witness (Williams) and te stified on his own behalf. The jury began deliber ating at 11:19 a.m. At 12:36 p. m., the trial court announced to counsel that the jur y “sent out a note s aying that they can’ t reach a decision and they’re deadlocked.” The court stated t hat, later, if there was anothe r note from the jury, it would “read the Allen [1] Instruction, but at this point after one hour of deliberations I don’t think, you know, that they’ve eve n made a [sic] effort.” When the jury reentered the courtroom, the trial court stated t hat it had received two notes: one requesting to see the gun (which the trial court not ed had already been accomplished), and one stating, “We are hung and I don’t believ e there will be and [sic] agreement with more time.” The t rial court then delivered the following instruction: Well, that’s not the way this works. Your [sic] all heard a full day of testimony, and you deliberated for what a [sic] hour and fiftee n minutes, and now you just give up. That’s not the way it works , I’m sending you all to lunch, maybe what you need is some time a part [sic] and some n ourishment, other than candy, to help you all, you know, have clear heads a nd review the evidence that you heard.

1 Allen v United States , 164 US 492; 17 S Ct 154; 41 L Ed 528 (1896).4 Now, if there’s someone among yo u who’s failing to follow the instructions or there’s so meone who’s refusing to pa rticipate in the process, you can send us a note and let us know that and we can address that , but at this point I’m not inclined to e nd your deliberations at this p oint because you had a full day of testimony and you’ve only been at this, discu ssing it, for one hour. So I’m going to send you to lunch, maybe sometime [sic] apart w ill help you all to think about things, and then you’ll come back i n one hour and resume your deliberations. If you have any questions, if there is anything that you don’t understand or nee d clarification on send a note. And again, if there’s one among you or two among you, three among you who are refusing to follow the instructions or participat e in the process you can let us know that, too. [Emphasis added.] The jury returned a verdict of guilty on all counts at 3:07 p.m ., approximately 11⁄2 hours after returning from lunch . The trial court sentenced de fendant as a fourth-offense habitual offender, MCL 769.12, to concurrent prison terms of 46 months to 75 years for felon-in-possession and CCW, both of which were to be served co nsecutively to the mandatory 10-year sentence fo r third-offense felony-firearm. 2 Defendant filed a claim of appeal in the Court of Appeals argui ng, among other assertions of error, that the trial court’s deadlocked-jury ins truction was impermissibly coercive. In an unpublished opinion, a divided Court of Appeal s panel affirmed defendant’s convictions. People v Walker , unpublished per curiam opinion of the Court of Appeals, issued December 1, 20 16 (Docket No. 327063), p 12. In relevant part, the Court of Appeals majority reasoned that the trial court’s jury instru ction “stressed to the jury the

2 The Court of Appeals remanded to the trial court the ministeri al issue of correcting defendant’s judgment of sentence because the judgment should ha ve provided that his felony-firearm sentence is to be served consecutively to his fe lon-in-possession sentence only, and not consecutively to his CCW sentence. People v Walker , unpublished per curiam opinion of the Court of Appeals, issued December 1, 2016 (Docket No. 327063), p 6.5 importance of engaging in a full -fledged deliberation” and held that, in context, the instruction did not coerce a verdict. Id . at 4. The dissenting judge concluded that the instruction was impermissibly co ercive and that defendant was e ntitled to a new trial. Id

. (G LEICHER , J., dissenting) at 1, 5. Defendant sought leave to appeal in this Court. Oral argument was scheduled on whether to grant the application or to take other action, see M CR 7.305(H)(1), on issues including: “whether . . . defendant is entitled to a new trial based on the trial judge’s comments to the jury in lieu of t he standard ‘deadlocked jury’ instruction, M Crim JI 3.12.” People v Walker , 501 Mich 1088 (2018).
II. STANDARD OF REVIEW
“We review de novo claims of instructional error.” People v Kowalski , 489 Mich 488, 501; 803 NW2d 200 (2011). Because defendant failed to obj ect to the instruction, 3 we apply the plain-error rule, which requires that (1) error mu st have occurred, (2) the error was plain, (3) the plain error affected substantial rights, and (4) the error resulted in the conviction of an actually innocent defendant or seriously affec ted the fairness, integrity or public reputation of judicial proceedings. People v Randolph , 502 Mich 1, 10; 917 NW2d 249 (2018); People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999). An error is plain if it is “clear or obvious.” Carines , 460 Mich at 763. An error has affected a defendant’s substantial rights when there is “a showing of prej udice, i.e., that the error

3 The prosecution argues for the first time in its supplemental brief to this Court that defendant waived any challenge to the instruction by approving of the instruction before it was given. The prosecution abandoned this theory. People v McGraw , 484 Mich 120, 131 n 36; 771 NW2d 655 (2009).6 affected the outcome of the lower court proceedings.” Id . A defendant bears the burden of persuasion with respect to prejudice. Id

. III. ANALYSIS When a jury indicates it cannot reach a unanimous verdict, a t rial court may give a supplemental instruction—commonly known as an Allen 4 charge—to encourage the jury to continue deliberating. People v Sullivan , 392 Mich 324, 329; 220 NW2d 441 (1974). The goal of such an instruction is to encourage further deliber ation without coercing a verdict. People v Hardin , 421 Mich 296, 314; 365 NW2d 101 (1984). See Allen v United
States , 164 US 492, 501; 17 S Ct 154; 41 L Ed 528 (1896) (“While undo ubtedly, the verdict of the jury should represent the opinion of each individual jur or, it by no means follows that opinions may not be changed by conference in the jury room . The very object of the jury system is to secure unani mity by a comparison of views . . . .”). “If the charge has the effect of forcing a juror to su rrender an honest conviction, it is coercive and constitutes reversible error.” Sullivan , 392 Mich at 334 (quotation marks and citation omitted).
In Sullivan , this Court adopted a standard d eadlocked-jury instruction tha t has since been incorporated into our model jury instructions. 5 Id . at 341; M Crim JI 3.12. Although

4 Allen , 164 US 492.

5 M Crim JI 3.12 provides the following: (1) You have returned from delib erations, indicating that you b elieve you cannot reach a verdict. I am going to ask you to please re turn to the jury room and resume your deliberations in the hope that after furth er discussion you will be able to reach a verd ict. As you deliberate, please keep in mind the guidelines I gave you earlier.7 the model instruction is an example of an instruction that stri kes the correct balance, it is not the only instruction that may properly be given. The relev ant question is whether “the instruction given [could] cause a juror to abandon his [or her] conscientious dissent and defer to the majority solely for the sake of reaching agreement [.]” Hardin , 421 Mich at 314. The inquiry must consider the factual context in which th e instruction was given and is conducted on a case-by-case basis. Sullivan , 392 Mich at 332-334. The disputed factual issue in this case was relatively straight forward—whether defendant took a gun from his po cket and threw it into a bush w here it was recovered by the police—and the jurors deliber ated for only about an hour an d fifteen minutes before

(2) Remember, it is your duty to consult with your fellow juror s and try to reach agreement, if you can do so without violating your own judgment. To return a verdict, you must all agree, and the ver dict must represent the judgment of each of you. (3) As you deliberate, you shoul d carefully and seriously consi der the views of your fellow jurors. Talk things over in a spirit of f airness and frankness. (4) Naturally, there will be differences of opinion. You shoul d each not only express your opinion but also give the facts and the r easons on which you base it. By reasoning the matter out, jurors can often rea ch agreement. (5) If you think it would be helpful, you may submit to the bai liff a written list of the issues that ar e dividing or confusing you. It will then be submitted to me. I will attempt to clarify or amplify the inst ructions in order to assist you in your further deliberations. (6) When you continue your deliberations, do not hesitate to re think your own views and change your o pinion if you decide it was wro ng. (7) However, none of you should gi ve up your honest beliefs abo ut the weight or effect of the evidence only because of what your fellow jurors think or only for the sak e of reaching agreement.8 sending a note stating that they could not reach an agreement. Assuming that this was too short a period for thoughtful deliberation, a simple instructio n to the jury to “continue your deliberations” would certainl y have been permissible. See People v France , 436 Mich 138, 165-166; 461 NW2d 621 (1990). See also Lowenfield v Phelps , 484 US 231, 238; 108 S Ct 546; 98 L Ed 2d 568 (1988) (“ Surely if the jury had returned from its deliberations after only one hour and informed the court that it had failed to achi eve unanimity . . . , the court would incontestably have had the authority to insist that they deliberate further.”). Although the trial court seems to have recognized that an Allen charge was not yet required, it nevertheless ventured into Allen -territory with its ad-lib instruction. For the reasons below, we conclude the instructi on given in this case crossed t he line from appropriately encouraging deliberation to being unduly coercive. First, the trial court failed to provide the jurors guidance on how to continue deliberating and how to try to break through the impasse. For example, M Crim JI 3.12(3) advises jurors that they should “carefully and seriously consid er the views of . . . fellow jurors” and “[t]alk things over in a spirit of fairness and fra nkness.” M Crim JI 3.12(4) addresses how jurors might meaningfully engage with one another rather than just stating their positions: “You should each not only express your opinio n but also give the facts and the reasons on which you base it. ” In this case, the only guid ance provided by the trial court was that the jurors needed to get “clear heads.” Signifi cantly, instead of encouraging the jurors to consider their fe llow jurors’ views, the trial co urt encouraged an antagonistic relationship among the jurors by prompting them, without elabor ating on what it meant, to report anyone who was “refusing to participate in the process.”9 Second, the trial court failed to remind the jurors that they s hould not give up their honestly held beliefs for the sake of reaching an agreement. A review of our past decisions bears out the importance of thi s honest-conviction reminder, wh ich tempers the court’s simultaneous emphasis on reaching a unanimous agreement. In People v Engle , 118 Mich 287, 291-292; 76 NW 502 (1898), we ordered a new trial because after the jury indicated that it was unable to agree on a verdict, the trial court’s dea dlocked-jury instruction failed to state “that the verdict to which [the jury] agreed should be and must be each individual juror’s own verdict, the result of his own convictions, and not a mere acquiescence in the conclusion of his fellows[.]” Id . In contrast, this Court has upheld verdicts in cases in which the instruction given incl uded the honest-conviction remi nder. See, e.g., People v
Coulon , 151 Mich 200, 203-204; 114 NW 1013 (1908) (holding that the i nstruction in that case was distinguishable from the instruction in Engle , and therefore not erroneous, because the trial court had inst ructed that “no juror should yi eld his well-grounded convictions or violate his oath; that if upon further considera tion a juror cannot conscientiously yield, of course he ought not to do so”). See also People v Rouse , 477 Mich 1063 (2007) (reversing the Court of Appeals for the reason s stated in the Court of Appeals dissenting opinion, People v Rouse , 272 Mich App 665, 675-677; 728 NW2d 874 (2006) (J ANSEN , J., dissenting), which noted that the trial court had read th e standard instruction, including the hon est-conviction reminder, and had “emphasized that no juror should change his or her honest beliefs simply for the sake of reaching a verdict”); Hardin ,10 421 Mich at 318 (holding that sup plemental instructions were no t unduly coercive because an honest-conviction reminder was given after the challenged in structions). 6 Third, the trial court’s instruc tion included language that was unduly coercive. The jury’s note was received approxim ately one hour and fifteen min utes after the jury began deliberating. 7 Before sending the note, the jur y had obviously discussed the case, asked to see the gun, and at least one juror harbored doubt regarding de fendant’s guilt. Because the jury had already indicated that it was deadlocked, at that poin t, there was “a greater

6 We disagree with the dissent that the trial court’s failure to include an honest-conviction instruction in its ad-lib instr uction does not render the ad-li b instruction unduly coercive because the jury was given an h onest-conviction instruction wit h the final instructions and a written copy of these instruc tions was in the jury room durin g deliberations. The ad-lib instruction was the last instruc tion given, and its influence w as therefore unmitigated. Cf. Hardin , 421 Mich at 318 (noting that “any unwarranted inference by th e jury” from the trial court’s statements was mitigated by those statements havi ng preceded the trial court’s instruction that no juror should surrender his or her honest co nvictions for the purpose of returning a verdict). See also People v Pollick , 448 Mich 376, 385; 531 NW2d 159 (1995) (“It requires no special insight to see that there is a greater coercive potential when an instruction is given to a jury that already believes itself dea dlocked. Instructions given to a jury that has not yet begun to deliberate are less likely to weigh on a dissenting juror, or to be understood as a request that a particular dissenting juro r abandon the view that is preventing an otherwise unanimo us jury from reaching its verdic t.”).

7 Whatever the trial court’s motiv ation, we disagree with the di ssent’s assertion that it was reasonable for the trial court to conclude that “the jury had n ot engaged in an earnest and meaningful deliberative process that led to an intractable impa sse.” The jury had previously sent a note asking to see the gun, presumably becaus e of the prosecution’s contention that Williams’s descri ption of the weapon was inaccu rate (and that his testimony was therefore not credi ble). Simply put, the record indicates that the jurors were following instructions and deliber ating. To conclude otherwise on the basis of nothing more than the duration of deliber ations would permit trial cour ts to fashion ad-hoc instructions based on nothing more than a hunch that one or mor e jurors may not be deliberating in good faith. Our opinion in Sullivan , which encourages courts to use the model deadlocked-jury instru ction, is the better path.11 coercive potential.” See People v Pollick , 448 Mich 376, 385; 531 NW2d 159 (1995). Instead of simply instructing the jury to continue its delibera tions after lunch, the trial court twice admonished the jury that “that’s not the way this works,” telegraphing that failure to reach a verdict was not an option. 8 Furthermore, without an indication that any juror refused to participate in deliberations or follow directions, t he trial court twice asked the jurors to “let us know that,” signaling to jurors that they sho uld single out their fellow jurors. The trial court’s veiled threats were the type of “und ue pressure, threats, embarrassing assertions, or other wording that would tend to fo rce a decision or cause a juror to abandon his conscientious dissent and defer to the maj ority.” Hardin , 421 Mich at
321. 9

8 The dissent describes the trial court’s ad-lib instruction as an “innocuous go-to-lunch instruction” because the trial c ourt simply wanted to provide t he jurors with “nourishment and an opportunity to clear their heads.” This description ign ores the problematic aspects of the court’s instruction. We disagree with the dissent that “[n]o reasonable juror would interpret this statement as comp elling a verdict by force or in timidation.” First, the dissent distorts the standard by mistakenly asserting that “coercion” i n this context is a term of ordinary usage as opposed to a term of art. No one alleges tha t the trial judge used force to coerce the verdict, and we have yet to find a case that defi nes “coercion” this way in this context. Second, we think a reasonable juror, having just info rmed the judge that the jury is deadlocked, might interpret the judge’s rejoinder here in te rms far more emphatic than a simple order to eat lunch.

9 Unlike the dissent, we believe that the ad-lib instruction can be interpreted as an appeal to the jurors’ “civic duty.” See Hardin , 421 Mich at 316 (explaining that in People v Goldsmith , 411 Mich 555, 561; 309 NW2d 182 (1981), the Court held that “ an instruction that calls for the jury, as part of its civic duty, to reach a unanimous verdict and which contains the message that the failure to reach a verdict consti tutes a failure of purpose, is a substantial departure . . . becau se it tends to be coercive”). A reasonable juror may have interpreted the judge’s comment to mean that failure to reach a verdict was not an option, i.e., that it was part of the j ury’s civic duty to reach a verd ict.12 Finally, given our review of the record, we are left with a fir m conviction that the tenor set by the trial court contributed to the instruction bei ng unduly coercive. 10 As noted
in Sullivan , the coercive nature of the instruction must be evaluated in l ight of the factual context of the case. Sullivan , 392 Mich at 341. We agree with the dissenting Court of Appeals judge that this instruction was given in “a coercive an d despotic atmosphere” that “likely persuaded dissenting juro rs to abandon their principles .” Walker (G LEICHER , J., dissenting), unpub op at 4. After the trial court gave its a d-lib deadlocked-jury instructi on and the jury returned from its lunch break, the jury ret urned a verdict in about 90 m inutes. This quick turnaround in arriving at a guilty verdict after the trial court’s supplem ental instruction had been given suggests coercion. Lowenfield , 484 US at 238. Furthermore, earlier that day, the trial cour t had made clear to the jury that dissent would not be tolerated and that public humiliation would be the consequence for any one who stepped out of line. W hen the trial court called the case, it noted that one of t he jurors (Juror No. 8) was lat e and had not called in: All right, great. So we’re getting a fifty-five minutes (sic) late start, and as you can see one of your jurors never came back. I don’t wanna keep you all waiting and keep everybody invol ved in this case waitin g any longer

10 We disagree with the dissent that what it calls, “comments and methods by which a trial judge manages the trial,” are i rrelevant to an evaluation of “t he factual context in which [the supplemental] instruction is given.” Hardin , 421 Mich at 315. In fact, our analysis of whether the three challenged jury instructions in Hardin were unduly coercive opened with the statement that the issue “is better understood if we set fo rth, in some detail, the events that transpired” during deliberations, id . at 302-303, and closed with emphasis on “the tone and content of the trial court’s language,” id . at 320. All the trial court’s comments during deliberations in Hardin were relevant in considering th e factual context in which the challenged instructions were give n. In this case, the trial co urt’s conduct throughout the trial is part of the factual cont ext in which the ad-lib instru ction was given.13 for someone who may or may not appear. And if that juror shows up then, you know, I don’t kno w, bad things might happen to that person. It’s not fair for everyone involv ed to keep everyone waiting, a nd I do want to thank Juror No. 1, who k new she would be running a litt le late and she called. Hopefully, this case will finish today, and you all won’t have to worry about coming back tomorrow, but when you don’t come on time it sets everybody back, it waste[s] everyone’s time, so it’s important that everyone be on time, okay. I’m tal king to you guys, okay? Juror No. 8 arrived during openin g statements and was seated in the place reserved for in-custody criminal defendants—commonly referred to as the “prisoners’ box”— during the completion of the prosecution’s case. While we do n ot suggest that trial judges should not take steps to ensure that court proceedings begin in a timely fashion, we cannot discount the effect the trial court’s ominous threat (“[B]ad th ings might happen to that person.”) and its heavy- handed treatment of the recalcitrant ju ror may have had on the remaining jurors by situating th at juror in the “prisoners’ box ” in view of the other jurors. 11 We hold that, taken together, the omission of constructive guid ance to the jury on how to deliberate, the omission of an honest-conviction reminde r, the addition of coercive language suggesting that jurors single out other jurors for ref using to deliberate when there was no indication that a juror had refused to deliberate, and t he trial court’s conduct

11 A better approach, of course, wo uld be for the trial court to address the recalcitrant juror outside the presence of the other jurors and not situate that p erson in the “prisoners’ box” in plain view of the other jurors. The record also shows that the trial court was distracted during the proceedings. For examp le, the trial court told tria l counsel for both sides to “[h]old on, I think I’m about to get a new iPhone 6” when the a ttorneys asked to put a stipulation on the record. This inattention to the proceedings may have contributed to the trial court shifting blame to counsel for its own errors, such as when the trial court dismissively rebuffed defense counsel’s attempts to remedy a mi stake the court had made in restating a witness’s testimony.14 throughout the proceedings telegra phed that failing to reach a verdict would not be tolerated; thus, the instruction was unduly coercive. We empha size that not every deviation from M Crim JI 3.12 will be erroneous, but the instruction give n in this case omitted nearly every safeguard M Crim JI 3.12 c ontains; added an unwarranted i nvitation to single out dissenters; and was administered in a “coercive and despotic at mosphere,” Walker (G LEICHER , J., dissenting), unpub op at 4. We hold that the ad-lib inst ruction affected defendant’s substantial rights by affecting the jury’s verdict. See Carines , 460 Mich at 763. We also conclude that that the error was clear and obviou s. See id . Finally, in the greater context of the trial, the instruction seriously affecte d the fairness, integrity, and public reputation of the judicial proceedings by affecting the jury’s verdict, and we therefore exercise our discreti on to reverse defendant’s convic tion and remand this case to the Wayne Circuit Court for a new trial. We also hold that because of t he unprofessionalism and bias dis played by the trial court against defendant during sentencing, the case must be ass igned to a different judge on remand. 12 When determining whether rema nd to a different judge is requi red, we examine the following factors: (1) whether the original judge would reasonably be expected upo n remand to have substantial difficulty in putting out of his or her mind p reviouslyexpressed views or findings deter mined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) wh ether reassignment would entai l waste and duplication out of proportion to any gain in preserving the app earance of

12 The dissent does not reach this issue, presumably given its co nclusion on the instructional issue. We note, however, that the fairness of the trial court’ s sentence was raised by defendant as a basis for resentencing, independent of defendant ’s challenge to the deadlocked-jury instruction.15 fairness. [ People v Hill , 221 Mich App 391, 398; 561 NW2d 862 (1997) (quotation marks and citations omitted).]
See also People v Patton , 497 Mich 959 (2015) (declining to reassign the case to a new judge on remand when the Court was not persuaded that the stand ards set forth in Hill had been met); Sparks v Sparks , 440 Mich 141, 163; 485 NW2d 893 (1992) (reassigning the case to a different judge on remand because the appearance of j ustice would be better served with a new j udge presiding). In this case, the trial court’s behavior at defendant’s senten cing hearing compels us to reassign this case to a new judge on remand. After defendan t indicated at least eight times during his allocution that he had nothing further to say, the trial judge continued to bait him, engaging in name-calling (calling him a “clown” six t imes and a “coward”), with the exchange escalating to def endant stating, “F--- you,” to wh ich the trial court replied, “Oh, you wish you could.” The t rial court also admonished defe ndant, suggesting that he liked being in prison (“Cause tha t’s what your life shows me, t hat you like to go to prison.”) and stated that it would have sentenced him more leniently but for his disrespect toward the court (“I was inclined to give you the middle of the road, . . . but because you’re so disrespectful and you just seem t o want to go back to prison .

. . 

### . ”). Upon even a cursory review of the sentencing transcript, it is clear to us that the court would have substantial difficulty setting aside its previ ously expressed views and that reassignment is necessary to pres erve the appearance of justice given the hostility, bias, and incredulity directed against defendant by the court. 13 Finally, any waste or duplication

13 Although we do not rely on the sentencing transcript to suppor t our holding regarding the coercive nature of the court’s deadlocked-jury instruction, our review of the transcript gives us grave concern about the trial judge’s demeanor and app roach in her interactions16 is not out of proportion to the g ain in preserving the appearan ce of fairness. Defendant shall therefore be retried before a different judge. 14
IV. CONCLUSION We reverse the judgment of the Court of Appeals and remand this case to the Wayne Circuit Court for a new trial in front of a different judge. B ecause we grant a new trial, we do not address the remaining issues raised by defendant.

Megan K. Cavanagh Bridget M. McCormack David F. Viviano Richard H. Bernstein Elizabeth T. Clement

with this defendant. It is enough, at this point, to say that the trial judge’s conduct was well outside the bounds of what we consider an appropriate way to conduct a sentencing hearing—even one involv ing a difficult person. Had this exchan ge or one lik e it occurred earlier in the trial, there is little doubt it would have calle d into question whether defendant was deprived of a fair trial. See People v Stevens , 498 Mich 162; 869 NW2d 233 (2015) (holding that because the trial judge’s conduct pierced the vei l of judicial impartiality, the defendant was deprived of a fair trial).

14 The dissent challenges our trial court bona fides by lamenting our “disconnection from the realities of the trial-court process.” Such an approach do es little to illuminate the issues in this case and therefore does not warrant a response other th an to note that if the choice is between an ivory tower where the Constitution still holds sw ay, or an alternative universe where this judge’s performance during this trial and sentencing is deemed acceptable, we choose the former.S T A T E O F M I C H I G A N
SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v No. 155198 HAROLD LAMONT WALKER, Defendant-Appellant.

Z AHRA , J. ( dissenting ). I respectfully dissent. In the morning, following a full day o f testimony in a relatively simple case, the jury heard closing arguments, recei ved its final instructions, and retired to deliberate. After an hour and fifteen minutes of de liberation, the jury indicated that it had reached an impasse. With no objection, the trial j udge informed the jurors that she did not believe they were truly deadlocked after their brie f period of deliberation. Rather than providing the standard instruction for deadlocked j uries, the trial judge sent the jurors to lunch to afford them nourishment and an opportunity t o clear their heads. After lunch, the jurors resumed deli berations and, after an additiona l hour and a half of deliberations, the jury delivered a guilty verdict. Because th e innocuous go-to-lunch instruction was far from being coercive, I discern no basis for reversing the jury’s verdict.2 I. PERTINENT FACTUAL BACKGROUND Absent from the majority’s opinion are the trial judge’s instru ctions delivered to the jury following the conclusion of closing arguments, around one and a half hours before the jury announced it wa s at an impasse:
A verdict in a criminal case mus t be unanimous. In order to re turn a verdict it is necessary that each of you agrees on that verdict . In the jury room you will discuss the case among yourselves, but ultimately each of you have to make up your own mind. Any verdict must represent the individual considered judgement of each [of] you. It is your duty as jurors to talk to each other and make every reasonable effort to reach agreement. Express your opinions an d the reason for them, but keep an open mind as you listen to your [fellow] jurors. Rethink your opinions and do not hesitate to change your mind if you de cide that you were wrong. Try your best to w ork out your differences. However, although you should try to reach an agreement, none of you should give up your honest opinion about the case just because other jurors disagree with you or just for the sake of reaching a verdict. In the end, your vote must be your own, and you must vote hones tly and in good conscious [sic].
The record reveals that a written copy of these instructions wa s provided to the jury for reference during deliberati ons. The jury retired to delibe rate at 11:19 a.m. Roughly an hour and fifteen minutes later ( around 12:36 p.m.), it sent out a note that read, “We are hung, and I don’t believe there will [be] an agreement with mor e time.” The trial judge reconvened court, informed the parties that the jury had declar ed itself unable to reach a verdict, and stated her intent to instruct the jurors that they could not simply give up after an hour. Specifically, the tr ial judge stated as follows: I’ll sent [sic] them to lunch, they’ll be back at 1:35 and I’ll send them back in there. That’s it. And if they send another note, you know, they have to at least deliberate as long as it took [to] try the case, so . They’ll come back3 tomorrow, if they have to, but I’m not prepared to read them th e deadlock instruction, because I don’t belie ve that they’ve even attempte d to deliberate at this point, so. That’s it. Now if there’s—if I get another note that indicates that they a re deadlocked then I’ll read the Allen [1] Instruction, after lunch, but at this point after one hour of deliberations I don’t think, you know, that t hey’ve even made a[n] effort. So, I’m gonna bring them out, I’m gonna tell them just that and I’m sending to lunch. Is there anything else? Without any objection, the trial judge instructed the bailiff t o bring the jurors into the courtroom, and after reading their note into the record, sh e instructed them as follows: Well, that’s not the way this wo rks. Your [sic] all heard a fu ll day of testimony, and you deliberated for what a[n] hour and fifteen m inutes, and now you just give up. That’s not the way it works, I’m sending you all to lunch, maybe what you need is some time a part [sic] and some n ourishment, other than candy, to help you all, you know, have clear heads a nd review the evidence that you heard. Now, if there’s someone among you who’s failing to follow the instructions or there’s someone who’s refusing to participate i n the process, you can send us a note and let us know that and we can address that, but at this point I’m not inclined to e nd your deliberations at this p oint because you had a full day of testimony and you’ve only been at this, discu ssing it, for one hour. So, I’m going to send you to lunch, maybe sometime [sic] apart will help you all to think about things, and then you’ll come back i n one hour and resume your deliberations. If you have any questions, if there is anything that you don’t understand or need clarification on send a note. And again, if there’s one among you or two amo ng you, three among you who are refusing to follow instructions or participate in the process you can le t us know that, too. Remember you are not to discuss this case, when you are anywher e other than in the jury room cau se you’re still a juror. So eve n if you go to

1 Allen v United States , 164 US 492; 17 S Ct 154; 41 L Ed 528 (1896).4 lunch together some of you, you can not [sic] discuss this case cause you can only discuss it when you’re all t ogether and when you’re in the jury room. The judge dismissed the jurors for lunch at 12:41 p.m., and the y were expected to return around 1:40 p.m. About one and a half hours later, at 3 :07 p.m., the jury returned with its verdict, finding def endant guilty as charged.
II. LEGAL BACKGROUND When a jury indicates that it is unable to reach a verdict, th e trial court may give supplemental jury instructions and direct the jury to continue deliberations. 2 The textbook instruction in this co ntext is known as an “ Allen charge.” 3 The Allen charge is also known as a “dynamite charge,” 4 a “nitroglycerin charge,” 5 or a “shotgun instruction” 6 because of

2 See People v Hardin , 421 Mich 296, 316; 365 NW2d 101 (1984).

3 Allen , 164 US 492.

4 As the United States Court of A ppeals for the Ninth Circuit ex plained in United States v Berger , 473 F3d 1080, 1089 (CA 9, 2007): “The term ‘ Allen charge’ is the generic name for a class of supplemental jury instructions given when jurors are apparently deadlocked; the name derives from the first Supreme Court approval of such an instruction in Allen . . . . In their mildest form, these instructions carry reminders of the importance of sec uring a verdict and ask juror s to reconsider potentially unreasonable positions. In their stronger forms, t hese charges have been referred to as ‘dynamite charges,’ because of their a bility to ‘blast’ a verdict out of a deadlocked jury.” [Quoting United States v Mason , 658 F2d 1263, 1265 n 1 (CA 9, 1981).]

5 Huffman v United States , 297 F2d 754, 759 (CA 5, 1962) ( Brown, J., concurring in part and dissenting in part).

6 State v Nelson , 63 NM 428, 431; 321 P2d 202 (1958).5 its ability to rapidly generate a verdict from an otherwise dea dlocked jury. 7 A proper supplemental instruction facilitate s continue d deliber ation while avoiding coercion, but if the supplemental instruction would force a jur or to surrender an honest conviction, the instruction is impermissibly coercive. 8 This Court has identified the two essential hallmarks of a proper d eadlocked-jury charge: (1) enc ouragement of a respectful discussion in which the jurors consider all views and (2) respe ct for each individual juror’s right to disagree. A judge shoul d emphasize “that each juror h as to make an individual judgment” 9 and that “no juror need surrende r his honest convictions conce rning the evidence solely for the purpose of obtaining a unanimous agreem ent.” 10 “The optimum instruction will generate discu ssion directed towards the resol ution of the case but will avoid forcing a decision.” 11 Ultimately, an instruction “must be examined in the factual context in which it is given.” 12 This Court has identified various factors that guide the contex tual analysis of whether a deadlocked-jury instru ction is unduly coercive. The trial court’s instruction must not contain “undue pressure, threats, embarrassing assertions, or other wording that would tend to force a decision or cause a juror to abandon his consci entious dissent and defer to

7 Berger , 473 F3d at 1089.

8 People v Sullivan , 392 Mich 324, 334; 220 NW2d 4 41 (1974).

9 Id

. at 337.

10 People v Goldsmith , 411 Mich 555, 559; 309 NW2d 182 (1981).

11 Sullivan , 392 Mich at 334.

12 Hardin , 421 Mich at 315.6 the majority.” 13 Additional language will “rarely” be considered a substantial departure if it “contains ‘no pressure, threats, embarrassing assertions, or other wording that would cause this Court to feel that it constituted coercion.’ ” 14 The trial judge must also refrain from requiring or threatening to require “the jury to deliberate for an unreasonable length of time or for unreaso nable intervals.” 15 Additionally, the trial judge must not state or imply that the jury must reach a decision or else it has failed. 16 In fact, “an instruction that calls for the jury, as part of its civic duty, to reach a unanimous verdict and which contains the message tha t the failure to reach a verdict constitutes a failure of purpose, is a s ubstantial depa rture . . . because it tends to be coercive.” 17 For example, in People v Goldsmith , 18 this Court held that a jury instruction was unduly coercive because the trial judge stated, “ ‘A jury u nable to agree, therefore, is a jury which has failed in its purpose.’ ” The timing of the instruction is a relevant factor in determini ng whether the instruction was unduly coercive. That is, no special insight i s needed “to see that there is greater coercive potential when a n instruction is given to a ju ry that already believes itself

13 Id . at 321.

14 Id . at 315, quoting People v Holmes , 132 Mich App 730, 749; 349 NW2d 230 (1984).

15 Hardin , 421 Mich at 318-319.

16 See Goldsmith , 411 Mich at 561; Lowenfield v Phelps , 484 US 231, 239; 108 S Ct 546; 98 L Ed 2d 568 (1988), citing Jenkins v United States , 380 US 445, 446; 85 S Ct 1059; 13 L Ed 2d 957 (1965).

17 Hardin , 421 Mich at 316.

18 Goldsmith , 411 Mich at 558, 561.7 deadlocked” 19 because, at that point, there exists a “minority faction” that is prone to coercion. 20 But if a jury returns from its deliberations after a relative ly brief period, the court would incontestably have t he authority to insist that the jurors deliberate further. 21 Also, a quick turnaround of a guilty verdict after a supplement al instruction is given to the jury can be sugges tive of coercion. 22
III. DISCUSSION A. THE SUPPLEMENTAL IN STRUCTION DIRECTING THE JURORS TO BREAK

FOR LUNCH BEFORE CONTINUING D ELIBERATIONS WAS NOT IMPROPER OR COERCIVE The majority concludes that the supplemental instruction direct ing jurors to go to lunch before deliberating furthe r was so unduly coercive that d efendant was denied his constitutional right to a fair trial. I disagree. The majority’s holding that the s upplemental instruction “cross ed the line” does not accurately reflect the traditional understanding of jury coerci on. The majority acknowledges that the judge’s dir ection to the jurors to “conti nue your deliberations” might have been a permissible supplemental instruction 23 but then cites two specific statements by the trial judge that the majority concludes were coercive: ( 1) stating, “[T]hat’s not the way this works” and (2) twice asking the jurors to “let us know ” if one or more jurors were

19 People v Pollick , 448 Mich 376, 385; 531 NW2d 159 (1995).

20 Goldsmith , 411 Mich at 560 (quotation marks omitted).

21 Lowenfield , 484 US at 238.

22 Id . at 240.

23 Ante at 8; see People v France , 436 Mich 138, 165-166; 461 NW2d 621 (1990).8 refusing to participate or to follow the instructions even thou gh there was no indication that any juror had refused to participate in the deliberations or to follow the court’s instructions. The finding of coerciveness from these two phrases is extremely problematic because it ignores the practical reality the trial judge faced in this sit uation. 24 Contrary to the majority’s assertion, there was a complete abse nce of coercive language in the trial judge’s sup plemental instruction. Coerci on is commonly understood as the process of restraining or compelling by force or intimid ation. 25 In the majority’s view, the trial judge implied that a failure to reach a verdict would not be tolerated when it told the jury, “Well, that’s not the way this works.” The pert inent portions of the transcript suggest that the trial judge was referring to the jury’s failur e to engage in full-fledged deliberation, not its failure to reach a verdict . Notably, the judge continued this statement as follows: You[] all heard a full day of testimony, and you deliberated fo r what a[n] hour and fifteen minutes, and no w you just give up. That’s not the way it works, I’m sending you all to lunch, maybe what you need is som e time a

24 The trial judge is uniquely situated to size up a jury to dete rmine whether jurors are merely in need of a respite or t ruly at a point of impasse. Wh en a trial judge has reason to believe that a jury has not earnestly and interactively partici pated in the deliberative process, it would be imprudent and unwise to read an Allen charge, which, although sanctioned by this Court and the Supreme Court of the United St ates, nonetheless features coercive attributes. In this cas e, the trial judge reasonably concluded the jury had not engaged in an earnest and meaningf ul deliberative process that led to an intractable impasse. The decision to send th em to lunch before having them deliberate ag ain was not only not erroneous but prudent under the circumstances.

25 See Merriam Webster’s Collegiate Dictionary (11th ed); Random House Webster’s College Dictionary (1997). While the majority critic izes the ordinary usage of th is term, as opposed to using “coercion” as a term of art, it offers no a lternative definition of “coercion” to suggest it means anything other than the basic co ncept of compelling action by force or intimidation.9 part [sic] and some nourishment, other than candy, to help you all, you know, have clear heads and review t he evidence that you heard. Taken in context, a rational an d reasonable interpretation of t he statement suggests that the phrase “that’s not the way this works” was in no way c oercive. The trial judge followed these words with the con clusion that a lunch break was needed to provide the jurors with “nourishment” and “so me time a part” to help them “ have clear heads and review the evidence” after they r eturned to court. No reasonab le juror would interpret this statement as compelling a verdict by force or intimidation. To the contrary, the trial judge merely afforded the jurors a lunch break to help the jurors eng age in the deliberative process when they returned. Similarly, the trial judge’s direction that the jury should let the court know “if there’s someone among you who’s failing to follow the instructions or there’s someone who’s refusing to participate in the process ” was not coercive. 26 To the contrary, this instruction was sensible. The trial judge expressed the view that the juro rs had not engaged in meaningful deliberation and impl ied that additional effort by t he jury was needed before an impasse could be declared. Nonetheless, additional delibera tion would not be fruitful, and would in fact be counterproductive, if one or more jurors f ailed to follow the closing instruction that jurors “talk to each other and make every reas onable effort to reach agreement.” The trial judge mer ely informed the jury that addi tional deliberation was necessary and that the judge sh ould be alerted if there was a b reakdown in the process. Notably, the trial judge did not single out dissenting jurors—r ather, she instructed that further deliberations were not required if there were juro rs who refused to engage in

26 Emphasis added.10 the deliberative process. I strongly disagree with the majorit y’s view that these statements amounted to “undue pressure, thr eats, [or] embarrassing asserti ons . . . that would tend to force a decision or cause a juror to abandon his conscientious dissent and defer to the majority.” 27 To the contrary, these statemen ts properly reflect the notion that refusal to follow the final instructions or engage in the deliberative pro cess required by law is unacceptable. It is also significant that the trial judge did not appeal to “ civic duty” or assert that “failure to reach a verdict constitutes a failure of purpose.” 28 While the majority believes that a reasonable juror may have interpreted the judge’s commen ts to mean “that it was part of the jury’s civic duty to reach a verdict,” 29 the trial judge’s instr uction simply focused on the jury’s short period of de liberation and the need for nut rition and time apart before further deliberation. Given the majority’s logic, a “reasonabl e juror” could interpret almost any judicial instruction as an ap peal to his or her civic duty. Thus, the absence of any actual language appealing to the j ury’s civic duty is significa nt. In all practical reality, the supplemental instruction facilitated effective deliberation by ensuring that the jurors could resume deliberations with “clear heads” after eating something nutritious. The only requirement the trial judge imposed on the jurors was to go to lunch. In so doing, she in no way coerced one or more jurors to vote to convict.

27 Hardin , 421 Mich at 321; see Goldsmith , 411 Mich at 558-561.

28 Hardin , 421 Mich at 316.

29 Ante at 11 n 9.11 The majority also fails to give adequate consideration to the t rial judge’s unique relationship to these proceedings . That is, the jury indicated it was deadlocked after merely an hour and fifteen minutes of deliberation; thus, the trial ju dge, in her unique position, appeared to have a reasonable basis upon which to disbelieve th at the jurors were genuinely deadlocked. The trial judge’s comments therefore reflect a rea sonable degree of skepticism that the jury had given a real effort at deliberating. 30 The overall effect of the instruction was not to coerce the jur y but “to stress the need to engage in full-fledged deliberation.” 31 That is, the “comments were directed toward generating discussion and foster ing resolution of the case . . . .” 32 And while the trial judge did not remind the jurors that they should maintain their hones t convictions after the jury suggested it might be at an impasse, this omission is not dispo sitive of whether the supplemental instruction was, taken in context, coercive. As e loquently stated by the majority, an “honest-convictio n reminder . . . tempers the cour t’s simultaneous emphasis on reaching a unanimous agreement.” 33 In this case, nothing in the trial judge’s instruction emphasized that the jurors should reach agreement on a verdict. To the contrary, the trial judge merely emphasized that the jurors had not deliberated a s ufficient amount of time.

30 See Lowenfield , 484 US at 238 (“Surely if the jury had returned from its deli berations after only one hour and informed the court that it had failed t o achieve unanimity . . . , the court would incontestably have h ad the authority to insist that they deliberate further.”).

31 Hardin , 421 Mich at 321.

32 Id . at 320.

33 Ante at 9.12 This is a critical distinction that emphasizes why the “honestl y held beliefs” reminder was not necessary and is ther efore not dispositive. It is also significant that the jury had a written copy of the court’s final instructions in the jury room. Those instructions, which were given less th an 90 minutes before the jury announced that it was deadlocked, stre ssed in various ways the notion that the jurors are not to give up their “honest belief” during deliberations: In the jury room you will discus s the case among yourselves, bu t ultimately, each of you have to make up your own mind

. . . . * * * . . . Rethink your opinions and do not hesitate to change your mind if you decide that you were wrong. . . . * * * However, although you should try to reach an agreement, none of you should give up your honest opinion about the case just because other jurors disagree with you or just for t he sake of reaching a verdict. In the end, your vote must be your own, and you must vote honestly and in good conscious [sic]. [Emphasis added.] Therefore, the trial judge’s failure to once again encourage ju rors to maintain their own convictions did not transform the supplemental instruction to d eliberate after returning from lunch into an u nduly coercive one. In support of its conclusion that the failure to instruct juror s to maintain their “honest beliefs” was a fatal omission, the majority relies on People v Engle. 34 This Court ordered a new trial in that case because the jury was not instructed th at its verdict had to be the

34 People v Engle , 118 Mich 287, 291-292 ; 76 NW 502 (1898).13 product of each juror’s individual convictions. 35 The majority’s reliance on Engle is misguided. Significantly, the opinion in Engle does not disclose how long the jury deliberated before declaring they had reached an impasse. Further, the Court’s opinion in Engle suggests that the jury was never instructed that each juror sho uld maintain his or her own convictions. This is a si gnificant and critical distinctio n. But even assuming the Engle jury did receive such an instruction before beginning deliberat ions, another meaningful distinction remains: the Engle jury was instructed that each juror “must . . . try to be persuaded.” 36 Such an instruction tends to force a verdict because it may c ompel dissenting jurors to give in to their colle agues’ positions over their own . No instruction or utterance from the trial judge in the instant case compares to the coerci ve charge given by the trial judge in Engle

. The majority further faults the trial judge for failing to prov ide the jurors guidance on how to continue deliberating and how to try to break through the impasse, but these omissions are also not dispositiv e. Again, the trial judge rea sonably disbelieved that the jury had put forth a genuine effort in the deliberative process such that they were truly deadlocked in the first place. Had the trial judge concluded t hat the jury was actually deadlocked after their brief de liberation, it would have been n ecessary for her to guide the jurors on how to break through t he impasse and to instruct the jury in accordance with the other hallmark features of an Allen charge. But as a threshold matter, this trial judge had rejected the idea that the jury was deadlocked at that point in their deliberations. And the

35 Id

. 36 Id . at 291.14 judge’s remarks clearly indicate that if the jury had again exp ressed it was deadlocked after further deliberation, the judge would have given the Allen instruction. In my view, the trial judge acted prudently und er the circumstances. It is also troubling that the Court’s holding promotes a per se rule that any departure from M Crim JI 3.12 necessarily r esults in an unduly coercive i nstruction. This is inconsistent with this Court’s mandate that each instruction mu st be examined in its factual context and that only “substantial departures” from the model i nstruction constitute error requiring reversal. 37 In this sense, the majority focuses too closely on immaterial omissions from the model instruction. The inquiry is whether the court’s supplemental instruction was coercive, 38 not simply to what extent it fails to reflect M Crim JI 3.12. Accordingly, the omissions the majority identifies are not material, and the y are, therefore, not dispositive. The majority relies on portions of the lower court record that are wholly unrelated to whether the supplemental instruction itself was coercive to support its conclusion that the trial judge’s response to th e jury’s note conveyed a coerci ve message to the jury. This is no small matter. Never before has this Court determined tha t judicial actions unrelated to instructing the jury may re nder an otherwise innocuous instr uction coercive. While it is true that the instruction must be evaluated in light of the fac tual context of the case, 39 this context relates to the factual dispute presented to the jury, n ot the comments and methods

37 Hardin , 421 Mich at 313, 315.

38 Id . at 314; Sullivan , 392 Mich at 334.

39 Sullivan , 392 Mich at 334.15 by which a trial judge manages the trial. Of greater import, t he portions of the record the majority cites do not support its conclusion that the supplemen tal instruction was coercive. The majority accepts the dissenting Court of Appeals judge’s vi ew that the context in which the supplemental instruction was given was “a coercive and despotic atmosphere” that “likely persuaded dissenti ng jurors to abandon their princ iples.” 40 The majority cites three instances of the trial judge ’s conduct to suggest that “d issent would not be tolerated” and that jurors who misbehaved w ould be punished with “public h umiliation.” These three instances of conduct are: (1) her rebuke of an alternate juror who, without notice, arrived more than an hour late for trial ; (2) her reference to receivin g a new smart phone during the trial proceedings; and (3) her disagreement with defense co unsel over a minor point regarding the testimony of one w itness. None of this conduct, taken individually or collectively, supports the notion that the jury was coerced int o convicting defendant. The majority’s analysis of this behavior, and the weight afforded t o it in the majority’s analysis, establishes that the majority has improvidently concluded that the supplemental instruction coerced the jury into delivering a verdict. There is nothing autocratic, intim idating, or tyrannical in reg ard to the portion of the proceedings during which the judge was distracted and unable to accept a stipulation between counsel because she was “about to get a new iPhone 6.” This exchange evinces, at its absolute worst, a momentary lapse of professionalism. B ut the exchange does not contribute a scintilla of eviden ce toward a finding of a “despo tic” or “coercive” courtroom

40 People v Walker , unpublished per curiam opini on of the Court of Appeals, issue d December 1, 2016 (Docket No. 327063) (G LEICHER , J., dissenting), p 4.16 environment. The same conclusion applies to the trial judge’s disagreement with defense counsel regarding the substance of Sergeant Matthew Gnatek’s te stimony. 41 The trial judge incorrectly concluded that defen se counsel mischaracterized the officer’s prior testimony, but this error is wholly immaterial. More significantly, in ma king her ruling, the trial judge was not disrespectful, domineering, or imperious toward defense counsel. She simply stated she would not argue the point because she had made her r uling. Nothing in this exchange suggests that the instruction was coercive, as found b y the majority. Having dismissed these two examples of the coercive nature of the proc eedings, the majority is thus left to hang its claims of “ despotism” and “coercion” on t he events involving Juror
No. 8. We are indeed ruling from an unusually lofty ivory tower wherefrom we secondguess trial judges who rebuke—even harshly so—jurors who woeful ly fail to conform to the requirements of the court. This Court’s disconnection from the realities of the trialcourt process becomes even more troublesome when we conclude, a s the majority does here, that such conduct is evidence that the entirety of the tr ial was “despotic” and “coercive.” Chastising a juror who is more than an hour late f or trial without even extending the court the courtesy of calling to explain why that juror cannot timely appear is within the range of acceptable trial-court conduct. Because the judge’s response was

41 On direct examination Sergeant G natek testified he had observe d defendant sprinting away from the group with whom he was gathered. On cross-examin ation, defense counsel asked Sergeant Gnatek to reaffirm that he had observed defendan t sprinting away. The trial judge described this as a mischaracterization of Sergeant Gnatek’s prior testimony. The judge believed that the officer had testified that defendan t had run rather than sprinted away from the group.17 appropriate, it is not evidence of the coercive nature of a jur y instruction given a day after Juror No. 8 was rebuked and disc harged for being tardy. The tr ial judge merely displayed her interest in running a timely and efficient, no-nonsense cou rtroom. This action cannot be translated into a signal from the judge to the jurors that t hey are to act in accordance with her implicit views of the case. With the benefit of hindsight, th e majority describes “[a] bett er approach” to handle punctually challenged jurors. R egardless of whether the approa ch described by the majority is “better,” this Court should not be in the business of second-guessing the manner by which trial courts handle disc ourteous jurors who fail to ti mely appear for service as ordered by the court. Such jurors are not only disrespectful o f their fellow jurors and the court, they also delay our justice system to the detriment of t axpayers and litigants not only in the case in which they are serving but also in all other cas es on the trial court’s backlogged docket. While each tri al judge may choose to handle such occurrences differently, the action taken by any given judge rests in the i nherent discretion invested in each judge to manage the courtroom. And even if the remaining jurors perceived the act of requiring tardy Juror No. 8 to sit in an area of the courtro om normally reserved for remanded litigants as an act of public humiliation, jurors are fully competent to understand that even a harsh, but deserved, rebuke to a tardy juror is har dly a directive to the remaining jurors that they are therefore to ignore the instructions on th e law and, instead, subordinate their decision-making authority concerning matters of guilt or innocence to the implicit preferences of the trial judge. In sum, viewing the supplemental instruction in proper context, I conclude that the only “coercive” act by the trial judge was requiring the jury t o go to lunch before resuming18 its deliberations. Nothing in th e record supports the conclusi on that the trial judge implicitly directed the jurors to return a guilty verdict.
B. DEFENDANT HAS NOT SHOWN THA T THE SUPPLEMENTAL INSTRUCTION SERIOUSLY AFFECTED THE FAIRN ESS, INTEGRITY, AND PUBLIC REPUTATION OF THE JUDICIAL PROCEEDINGS Even if we were to concede that the trial judge erred by giving the supplemental instruction, reversal of defenda nt’s conviction is not warrante d because he has failed to satisfy the plain-error standard of review. 42 This standard requires a defendant to establish that (1) error occurred, (2) the error was plain (i.e., “clear or obvious”), and (3) the error affected the defendant’s substantial rights. 43 But even if the defendant satisfies these three elements, reversal is warranted only when the error results in e ither the conviction of an actually innocent defendant or ser iously affects the fairness, integrity, or public reputation of judicial proceedings independen t of the defendant’s innocenc e. 44 The majority’s application of t he fourth plain-error prong is deeply concerning: it summarily concludes that the suppl emental instruction “seriousl y affected the fairness, integrity, and public reputation of the judicial proceedings by affecting the jury’s verdict[.]” Simply put, the maj ority unduly strains the plain- error standard. Even assuming that the trial judge, in giving the supplemental instruction, c ommitted a clear or obvious

42 People v Aldrich , 246 Mich App 101, 124-125; 631 NW2d 67 (2001) (explaining tha t unpreserved claims of instructional error are reviewed for plai n error affecting the defendant’s substantial rights, while the instructions themselv es are reviewed in their entirety).

43 People v Carines , 460 Mich 750, 763; 597 NW2d 130 (1999), citing United States v Olano , 507 US 725, 731; 113 S Ct 1770; 123 L Ed 2d 508 (1993).

44 Carines , 460 Mich at 763.19 error of law that affected defen dant’s substantial rights, ther e is no basis for reversal under the fourth requirement of the plain-error standard. Neither the fairness nor the integrity nor the public reputati on of this trial was compromised when the trial judge gave the supplemental instruct ion that the jury should go to lunch and continue deliberating upon return. The trial j udge made it clear from the outset that she did not believe t he jury was indeed deadlocked. She informed the attorneys that the jury could not deliberate for 75 minutes and simply gi ve up. She informed counsel of her intent to tell the jurors exactly that. N ext, she infor med counsel that if it turned out that one or more jurors was not participating in the jury proce ss, the court would address that situation. Then, she stated that she was going to send th e jurors to lunch. She also expressed that she would give the Allen instruction if she received another “deadlocked” note after lunch. Finally, she again reminded the attorneys th at she would make these statements to the jury and then asked if there was anything els e to address. In providing this explanation, the trial judge essentially prov ided counsel multiple opportunities to object and on sev eral grounds. That is, she s pecifically afforded the opportunity to object based on the general omission of the Allen charge, the supposedly coercive statements made to the jury, and on the grounds that s he was sending the jurors to lunch at that time. But no objec tion was asserted. Without an y objection to a id or inform the trial judge about the substance of defendant’s concerns, th e judge brought the jury into the courtroom and instructed them as she had informed counsel s he would. And while the absence of an objection does not categorically preclude a defen dant from establishing plain error, the absence of objections in this context suggests that any error was certainly not clear or obvious, considering defense counsel was presented wit h several grounds upon20 which to object and was provided a detailed explanation as to what the court was going to tell the jury. But for the same reasons, even assuming defense counsel missed a clear or obvious error of law, the trial judge did not come close to com promising the fairness, integrity, or public reputation of the trial. On these facts, the plain-error standard is not even close to being satisfied.
IV. CONCLUSION This Court’s holding misapprehen ds the traditional understandin g of juror coercion, fails to recognize the practical realities of trial-court proce edings, and strains the requirements for reversing a jury’s verdict under the plain-err or standard of review. At most, the trial judge merely required the jury to go to lunch. Nothing said by the trial judge coerced the jury to convict defen dant. Accordingly, I would af firm the judgment of the Court of Appeals.

Brian K. Zahra Stephen J. Markman