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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, FOR PUBLICATION August 2, 2016 9:10 a.m.

v No. 325883 Mackinac Circuit Court GARY MICHAEL TRAVER, LC No. 2012-003474-FH

Defendant-Appellant.

Before: G LEICHER , P.J., and S AWYER and M. J. K ELLY , JJ.

G LEICHER , P.J.

More than a century ago, our Supreme Court declared that “it i s the duty of the circuit judge to see to it that the case goes to the jury in a clear an d intelligent manner, so that they may have a clear and correct understa nding of what it is they are t o decide, and he shall state to them fully the law applicable to the facts.” People v Murray , 72 Mich 10, 16; 40 NW 29 (1888). In this case, the circuit court shirked that duty in two respects. First, the court provided the jurors with written instructions regardi ng the elements of the offense s with which defendant, Gary Traver, was charged, but never read the elements aloud. While providing a jury with written instructions is a welcome reform, it does not substitute for a spoken charge. Second, the written felony-firearm instruction hande d to the jury was hopelessly in correct, as it omitted the actual elements of the offense.

These errors compel us to reverse Traver’s convictions for ass ault with a dangerous weapon (felonious assault), MCL 750.82, and possession of a fir earm during the commission of a felony (felony-firearm), M CL 750.227b, and remand for a new t rial.

I

Traver and his neighbor, Patri ck St. Andre, shared an access r oute to their adjacent properties. They disagreed about where each was entitled to pa rk. Tensions flared when Traver allegedly threatened to shoot St. Andre if St. Andre touched Tr aver’s car. A sheriff’s deputy called to the scene temporarily defused the situation by sugges ting that the two resolve their dispute in “civil court.”

The feud re-erupted the next morning. St. Andre recalled that as he walked toward his cabin, Traver shouted obscenities from his trailer window and b randished a gun. Traver advanced an alternate account. St. Andre appeared at his trail er window before daybreak, Traver-2- asserted, “yelling and screaming . . . maybe a little window ba nging.” Traver recounted that he pulled out the “Glock 40” he kept next to his bed, pointed it “ at a 90” and told St. Andre to “get away from my window. Whic h he did.” St. Andre called 911.

According to St. Andre, Traver “came around the corner with th e gun and proceeded to assault me,” grabbing St. Andre by the shoulders and pushing hi m down. St. Andre maintained that Traver clutched a weapon throughout the attack. Traver te stified that St. Andre had approached in the semidarkness “with his hand out in front of h im,” so Traver “swatted it out of my face” before returning to his trailer and calling a towing c ompany to have St. Andre’s car moved. Traver denied possession of his gun during this phase o f the action. When the tow truck arrived, Traver recounted, he put his gun in his back pocket. Traver denied pointing the gun at anyone that day.

In addition to these two widely divergent recollections, allie s of the combatants offered conflicting eyewitness versions of what had transpired. A frie nd of St. Andre’s claimed that Traver “flung” St. Andre to the ground and was “waving a handgu n . . . all over the place.” Traver’s friend testified that Traver did not have a gun and th at he did not see Traver physically assault St. Andre. An audiotape of St. Andre’s 911 call capped the evidence. From start to finish, this was a cr edibility cont est rather than a slam dunk for the prosecution.

Following closing arguments, the trial court read to the jury most of the routine model criminal jury instructions, but excluded M Crim JI 3.20, which provides in relev ant part that “[y]ou may find the defendant gui lty of all or [any one/any com bination] of these crimes . . . or not guilty.” The cour t then stated:

When you go to the jury room, ladies and gentlemen, you will b e provided with a written copy of these instructions should you so choose . If there are instructions that I have given and others that I will give you wish [sic] copies of, they will be provided to you. You’ve already received the char ges and the elements of the same. [Emphasis added.]

At the outset of the trial, the court had provided the jurors with written instructions reciting the elements of the charged offenses. 1 An official copy of these instructions is nowhere to be found in the record. Attached to a couple of handwritten juror questions stuck loosely in the court file are two heavily folded copies of a two-page, typ ed document, which we reprint in their entirety here, compl ete with a juror’s notes:

1 In its preliminary instructions the trial court stated: “[T]o prove the charges, the prosecutor must prove beyond a reasonable do ubt the following information that you have in your hand. I’d ask you take a look now at what has been passed out to you.”-3--4- Likely these are the same instructions distributed at the outs et of the case. At no time did the trial court orally instruct the jury regarding the elements of the charged offenses. The jury convicted Traver of felonious assault and felony-firearm. It a cquitted him of carrying a concealed weapon, MCL 750.227, and interfering with electronic communications, MCL 750.540(5)(a).

II

Traver’s appellate counsel conten ds that the trial court “depr ived the jury of an understanding of what the Prosecutor had to prove beyond a reas onable doubt” by failing to read aloud the elements of the two counts on which Traver was found guilty. The absence of any objection to this omission, Traver asserts, constitutes ineffec tive assistance of counsel. Appellate counsel further complains that the trial court failed to give M Crim JI 3.20, and that the instructions as give n were defective.

Two court rules address the process of instructing a jury. Ne ither specifically states that the instructions must be oral. But both contemplate that instr uctions must always be spoken, at least in the first instance. Under the court rules, written in structions serve as an adjunct to the spoken instructions. Read in context, a trial court may not si mply skip the reading-aloud step by merely handing the jurors a docum ent listing the elements of th e charged crimes.

The first pertinent court rule, MCR 2.512, provides that after the parties submit written requests for jury instructions, “[t]he court shall inform the a ttorneys of its proposed action on the requests before their arguments to the jury.” MCR 2.512(A)(4). Perhaps that was done here,-5- despite that it was not recorded. 2 Once the trial court determines which instructions it will gi ve, it “shall instruct the jury on the applicable law” either befor e or after the arguments of counsel, “or at both times as the court elects.” MCL 2.512(B)(2). If t he Committee on Model Criminal Jury Instructions approves an i nstruction, it must be given if it applies, is accurate, and is requested by a party. MCL 2.512(D)(2).

MCL 2.513(N) also addresses jur y instructions. It provides in relevant part:

(1) Before closing arguments, the court must give the parties a reasonable opportunity to submit written reque sts for jury instructions. Each party must serve a copy of the written request on all other parties. The court must inform the parties of its proposed action on the requests before their clo sing arguments. After closing arguments are made or waived, the court must inst ruct the jury as required and appropriate, but at the discretion of the court, a nd on notice to the parties, the court may instruct the jury before the parties mak e closing arguments. After jury deliberations begin, the court may give additional i nstructions that are appropriate.

The phrase “the court must instruct the jury” carries a plain, ordinary, and commonly understood meaning. Judges instruct jurie s by speaking to them out loud, reading jury instructions or reciting them from memory. Spoken communication of the final i nstructions is deeply ingrained in the history of jury trials. “Charging” a jury, a time-honor ed description of the instruction process, involves a judge telling the jurors what the law is, and explaining the deliberative
process.
Subsection (N)(3) cements our co mmon-sense construction of the court rules as a mandate for spoken instr uctions. It states:

Copies of Final Instructions. The court shall provide a written copy of the final jury instructions to take into the jury room for delibera tion. Upon request by any juror, the court may provide additional copies as necessary . The court, in its discretion, also may provide the jury with a copy of electronic ally recorded instructions.

Had the Supreme Court contemplated that a trial court could dis pense with orally instructing the jury, MCL 2.513(N)(3) would be surplusage.

Resorting to a dictionary yields the same conclusion. The rul es cited above repeat the same verb in relation to a trial court’s task of imparting the law: “instruct.” That word is commonly defined as “to give kn owledge to: teach, train,” “to p rovide with authoritative

2 The trial court required the parties to submit written jury in structions, and those instructions appear in the record. Conspicuously absent from the record is any indication that the court and the parties discussed the jury i nstructions. If a conference o ccurred, it was not transcribed or otherwise noted. No “official” complete copy of the instructio ns appears in the record.-6- information or advice,” or “to give someone an order or command .” Merriam-Webster’s Collegiate Dictionary (11th ed), p 649. While “instructions” may be in written form, by using the word “instruct” in the court rules, the Supreme Court signa led that a trial judge would orally “teach” the jury the law. Teaching almost always begins as a v erbal experience. And historically, judges have taught j urors the law by speaking to them, reading instructions, and by answering their questions aloud. 3

There are important reasons that in the English and American l egal traditions, jury instructions are always spoken. “Reading a complete set of ins tructions after the evidence ensures that the jury hears and considers all applicable law be fore deliberations.” State v Nelson

, 1998 SD 124; 587 NW2d 439, 444 (1998). “Instruction of the jur y is one of the most fundamental duties of the court and it is only through their or al delivery that the court can be assured that the jury has actually received all of the instruct ions.” State v Norris , 10 Kan App 2d 397, 401; 699 P2d 585 (1985).

In Nelson , the South Dakota Supreme Court explained that reading instruc tions aloud facilitates a fair trial. Read ing out loud “aids understanding .” Nelson , 587 NW2d at 444. “Repetition by first hearing the instructions and then reading them enhances recall as well as comprehension.” Id. And the court cannot assume that all jurors have actually rea d the instructions sent into the jury room, even if each was handed a copy. Id. We would add several other considerations. First, some jurors may not be able to re ad, or may read poorly. For such jurors, hearing instructions r ead aloud is the only method that insures a measure of comprehension. Poorer readers may elect not to engage in the d eliberations for fear that their comprehension may be called into question. Second, that a judg e speaks the elements of an offense, in conjunction with the admonition that all must be pr oven beyond a reasonable doubt, communicates the gravity of the task of sitting in judgment. H anding jurors a few pieces of paper and telling them, in essence, to “make the best of it” se nds a message that the legal “technicalities” are too unimpor tant to justify further expendi ture of the court’s time. 4

3 As sagely stated in Smith, Effective Instructions to the Federal Jury in Civil Cases: A Consideration in Microcosm , 18 Syracuse L Rev 559, 570 (1967): A jury charge is in effect a lecture on the law and the facts of a particular case. As such, the judge becomes a professor and acting in tha t capacity he must impart to his students, the jur ors, a wide yet basic understand ing of many new and complicated matters (some of which are not easily comprehended by lawyers) in one lecture. If impediments in the court’s medium of communica tion arise, the charge may just as well have bee n delivered in a foreign langua ge.

4 The Kansas Court of Appeals raised similar concerns in Norris , 10 Kan App 2d at 401: If, for example, written copies of the instructions are given t o each juror, a divergence in literacy and reading comprehension may well leave some jurors uninstructed. On the other hand, if the foreman is directed to read the instructions to the other jurors, defendant is deprived of the opportunity t o witness the manner-7- The trial court’s failure to ve rbally communicate a complete s et of jury instructions constituted plain error that affected Traver’s substantial “rig ht to have a properly instructed jury pass upon the evidence.” People v Liggett , 378 Mich 706, 714; 148 NW2d 784 (1967). That error seriously affected the integrity of the proceedings, as a defendant in a criminal case “has a constitutional right to have a jury determine his or her guilt from its consideration of every essential element of the charged offense.” People v Kowalski , 489 Mich 488, 501; 803 NW2d 200 (2011). It is impossible to determine whether the jurors w ho determined Traver’s guilt actually received and considered the instructions addressing th e elements of the charged offenses. This hole in the record impugns the integrity of the proceedings, requiring reversal of both convictions.

III

A second instructional error more definitively compels a new t rial.

As displayed above, the written information given to the jury regarding the felonyfirearm charge covered the issu e of possession, but said nothin g at all about the actual offense of felony-firearm. The model instr uction for this ch arge states a s follows:

M Crim JI 11.34

Possession of Firearm at Time of Commission or Attempted Commis sion of Felony (Felony Firearm)

(1) The defendant is also charged with the separate crime of possessing a firearm at the time [he/she] committed [or attempt ed to commit] the crime of ______.

(2) To prove this charge, the prosecutor must prove each of th e following elements beyond a reasonable doubt:

(3) First, that the defendant committed [or attempted to commi t] the crime of __________, which has been defined for you. It is not necessary, however, that the defendant be convicted of that crime.

(4) Second, that at the time the defendant committed [or attem pted to commit] that crime [he/she] know ingly carried or possessed a fi rearm.

in which the foreman intones the instructions. A judge is obli gated to act in an impartial and unbiased manner in delivering instructions. He m ay not sneeringly describe the defendant’s defense or make editorial comments whi le reading the instructions. A jury foreman is under no such constraint once the case has been submitted. Moreover, if, as in this case, the court does not e ven instruct the jury to read the instructions before deliberating, there is no assur ance that the instructions were in fact read or that the verdict is based upo n an application of the law to the evidence.-8- The jury was not instructed as to either of the two elements o f this offense. Nor did defense counsel request that the trial court instruct the jury as to the elements of felony-firearm. To his credit, the prosecutor did. By failing to provide the j ury with the model instruction, the trial court violated MCR 2.512(D)(2), as the instruction reques ted by the prosecutor was applicable and accurate.

We need not dwell on the standard governing the review of this error, or resort to ineffective assistance of counsel principles to circumvent pote ntial waiver issues, as the bottom line is not subject to debate. “A criminal defendant has a con stitutional right to have a jury determine his or her guilt from its consideration of every esse ntial element of the charged offense.” Kowalski , 489 Mich at 501. Although instru ctional errors that misstate or omit elements of a crime do not necessarily mandate a new trial, id ., the absence of any instruction at all surely does. Indeed, our Supreme Court held in a substanti ally similar case, People v Duncan , 462 Mich 47; 610 NW2d 551 (2000), that the failure to instruc t on the elements of felony-firearm constitutes struct ural error. The Court iterate d a “bright line rule” that governs this case: “It is structural error requiring automatic reversal to allow a jury to deliberate a criminal charge where there is a complete failure to instruct t he jury regarding any of the elements necessary to determine if the prosecution has proven t he charge beyond a reasonable doubt.” Id . at 48.

The trial court never instructed the jury regarding the elemen ts of the crimes and then provided inaccurate written instructions regarding the elements of felony-firearm. This error obligates this Court to reverse Traver’s convictions, both for felonious assault and felonyfirearm.

IV

Traver also contends that ineffective assistance of counsel ta inted his decision to withdraw a plea agreement that w ould have avoided incarceration . Traver alleged in an affidavit that he would not have proceeded to withdraw his plea had he kn own that the prosecution planned to add a felony-firearm charge if the plea-withdrawal m otion succeeded. In his accompanying affidavit, Traver avers:

9. . . . [S]ubsequent to my motion to withdraw plea being gran ted the prosecutor added a cha rge of felony firearm.

10. . . . I [sic] was never explained that the prosecutor was going to do this and that I was not told that this charge carried a 2 year mandatory prison sentence if convicted.

Traver’s allegations regarding his counsel’s deficient perform ance require a remand for an evidentiary hearing pursuant to People v Ginther , 390 Mich 436; 212 NW2d 922 (1973). The United States Supreme Court held in Padilla v Kentucky , 559 US 356; 130 S Ct 1473; 176 L Ed 2d 284 (2010), that the right to the effective assistance of co unsel encompasses counsel’s obligation to inform a defendant of the immigration consequence s of a guilty plea. The converse must also apply: before withdraw ing a guilty plea , a defendant must be advised of the advantages and disadvantages of such an act. Whether Traver was adequatel y advised of the promised-9- collateral consequence of plea withdrawal cannot be ascertained on this record. Accordingly, before retrying Traver on the charges levied against him, the t rial court must conduct a Ginther hearing if Traver requests one. If the court determines that c ounsel performed ineffectively by failing to advise Traver that the prosecutor intended to file a felony-firearm charge carrying a mandatory two-year imprisonment penalty, and that Traver would have declined to withdraw his plea had he been aware of this risk, the court must then order the prosecutor to reoffer the original plea agreement. See Lafler v Cooper , __ US __; 132 S Ct 1376, 1391; 182 L Ed 2d 398 (2012).

We reverse Traver’s convictions and sentences and remand for f urther proceedings consistent with this opinion. We do not retain jurisdiction.

/s/ Elizabeth L. Gleicher /s/ Michael J. Kelly