Order Michigan Supreme Court
Lansing, Michigan
December 2, 2009 Marilyn Kelly,
Chief Justice
137908 Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
PEOPLE OF THE STATE OF MICHIGAN, Diane M. Hathaway,
Plaintiff-Appellant, Justices
v SC: 137908
COA: 269739
Macomb CC: 2005-003002-FH
STEVEN JAMES HOCH,
Defendant-Appellee.
_________________________________________/
On November 4, 2009, the Court heard oral argument on the application for leave
to appeal the October 30, 2008 judgment of the Court of Appeals. On order of the Court,
the application is again considered, and it is DENIED, because we are not persuaded that
the question presented should be reviewed by this Court.
CORRIGAN, J. (concurring).
I concur in the order denying leave to appeal. Nevertheless, I question the
conclusion of the Court of Appeals that a new trial was required because the trial judge
engaged in an ex parte communication with the jury during its deliberations. A trial
judge’s substantive communication with a jury may require reversal if that
communication was ex parte. People v France, 436 Mich 138, 166 (1990). But, without
regard to whether the communication here was substantive, I question the reflexive
conclusion of the Court of Appeals that the trial court communicated with the jury on an
ex parte basis.
“Ex parte” generally means “[d]one or made at the instance and for the benefit of
one party only, and without notice to, or argument by, any person adversely interested.”
Black’s Law Dictionary (7th ed). MCR 6.414(B) provides that a trial court “may not
communicate with the jury or any juror pertaining to the case without notifying the
parties and permitting them to be present.” Here, the record plainly does not show that
defendant was not notified or went unrepresented during the communication. Rather, the
trial judge forgot to turn on the recording equipment. The Court of Appeals broadly
2
assumed that the communication was ex parte merely because the judge’s communication
with the jury was not transcribed and because defendant’s trial attorney was not present.
But, crucially, defendant admitted at the sentencing hearing that “[s]omebody else
stood in” for his attorney, stating:
[T]he jury sent a note out asking for further instructions on an
inadvertent assault as the assault element for robbery. And I wasn’t in here.
I was kept in the holding cell. And I would just like you to—ask you what
I—I was told by my—even my attorney wasn’t here. Somebody else stood
in. I have no idea who it was, but he said that you refused further
instruction on inadvertent assault and I don’t know what happened. If I
don’t ask you now, I’ll never know as long as I live. And that’s why I’m
just askin’ to be filled in a little bit on what happened on that.
In other words, it appears from the record that defendant was represented by “somebody”
other than his trial attorney. Nothing in the record suggests that the “somebody” who
stood in was anyone but a properly assigned substitute attorney. Indeed, neither
defendant nor his attorney suggested that defendant was unrepresented during the
communication or otherwise complained about the process. Rather, defendant requested
additional information about the judge’s remarks and reasoning, which the judge
proceeded to give him.
Indeed, at the oral argument before this court, the appellate prosecutor confirmed
that a second attorney represented defendant during the judge’s communication with the
jury, stating: “I’m certain there was a substitute.” The appellate prosecutor stated that
defense counsel at trial, Hugh Marshall, was unavailable when the jury requested
clarification from the judge, so Marshall ensured that another attorney filled in and
represented defendant during the communication. Marshall recalled that David Morelli
was the attorney who agreed to fill in, but apparently Morelli had no specific recollection
of the event.
The threshold problem in this case was simply that the record was incomplete
because of the trial court’s mistaken failure to comply with MCR 6.414(B), which
requires the court to “ensure that all communications pertaining to the case between the
court and the jury or any juror are made a part of the record.” Normally, an appellant
may cure such a defect by moving the trial court to certify a settled statement of facts to
serve as a substitute for the transcript pursuant to MCR 7.210(B)(2).1 Defendant
1
MCR 7.210(B) provides in part:
(2) Transcript Unavailable. When a transcript of the proceedings in
the trial court or tribunal cannot be obtained from the court reporter or
3
observes, however, that he was unable to comply with the initial 14-day deadline
provided by this rule because several months elapsed between the filing of the claim of
appeal and the time when the trial court reporter confirmed that no transcript of relevant
jury communication was available. Accordingly, at the oral argument before this Court,
we asked the appellate prosecutor whether it would be appropriate to remand for
reconstruction of the record under a process akin to that described in MCR 7.210(B)(2).
The appellate prosecutor repeatedly declined this suggestion, stating that remand would
be “needless” and “would not make any difference.” He requested that this Court rely on
the existent record to support his arguments on appeal.
An evidentiary hearing might establish, at a minimum, whether defendant was
actually represented during the court’s communication with the jury. The appellate
prosecutor’s comments at oral argument before this Court practically establish as much.
Because this issue has not been developed on remand to the trial court, we cannot know
what the collective memories and notes of the trial judge, attorneys, and potentially the
jury foreperson might reveal. The trial judge may well be able to confirm that he
contacted both parties when the jury requested further instruction and that both parties
were represented by attorneys during the communication. At a minimum, the trial judge
might shed light on his normal practices under such circumstances. If, on remand, the
trial court could establish that defendant was properly represented by substitute counsel,
recorder, the appellant shall file a settled statement of facts to serve as a
substitute for the transcript.
(a) Within 14 days after filing the claim of appeal, the appellant shall
file with the trial court or tribunal clerk, and serve on each appellee, a
proposed statement of facts. The proposed statement of facts must
concisely set forth the substance of the testimony, or the oral proceedings
before the trial court or tribunal if no testimony was taken, in sufficient
detail to inform the Court of Appeals of the nature of the controversy and of
the proceedings in the trial court or tribunal.
(b) The appellant shall notice the proposed statement of facts for
prompt settlement before the trial court or tribunal. An amendment or
objection to the proposed statement of facts must be in writing, filed in the
trial court or tribunal before the time set for settlement, and served on the
appellant and any other appellee.
(c) The trial court or tribunal shall settle any controversy and certify
a statement of facts as an accurate, fair, and complete statement of the
proceedings before it.
(d) The statement of facts and the certifying order must be filed with
the trial court or tribunal clerk and a copy of the certifying order must be
filed with the Court of Appeals.
4
the communication would not have been ex parte, and a primary reason underpinning the
Court of Appeals order of reversal would be negated. Requiring an entire new trial under
these circumstances—as opposed to remanding for an evidentiary hearing—seems to me
a great waste of the taxpayers’ resources.
Nonetheless, because the appellate prosecutor repeatedly insisted that a remand
would be futile, we cannot confirm whether defendant was properly represented by
substitute counsel. Accordingly, I feel constrained to concur in the order denying leave.
Finally, in light of defendant’s apparent conundrum in presenting a full record on
appeal to the Court of Appeals, I ask that this Court open an administrative file to
consider whether the 14-day period listed in MCR 7.210(B)(2)(a) should be lengthened
or modified in some manner to accommodate situations like that presented here. Perhaps
the rule should be amended to allow for an extension of the period, either by the Court of
Appeals or by stipulation of the parties, when appropriate. Defendant reasonably
observes that many appellants cannot know within 14 days of the filing of the claim of
appeal whether a necessary transcript is unavailable.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
December 2, 2009 _________________________________________
p1124 Clerk