Kavanagh, C. J., and Williams, Levin, Coleman, Fitzgerald, Lindemer, and Ryan, JJ., concurred.
1. Trial -- Instructions to Jury -- Rereading Testimony.
Instructions to the jury which foreclosed the opportunity to have testimony reread to the jury during deliberations were reversible error in the absence of any record of the jury's deliberations upon which to review whether the error was harmless.
2. Appeal and Error -- Harmless Error -- Record on Appeal.
Conjecture about what went on in the jury room should not be the basis for determining whether giving an erroneous instruction to the jury was harmless error.
The opinion of the court was delivered by: Per Curiam
Henry L. Smith was convicted by a jury in Recorder's Court of Detroit, Henry Heading, J., of armed robbery. The trial Judge instructed the jury before their deliberations started that he intended to deny any request for rereading of testimony during their deliberations. The Court of Appeals, T. M. Burns, P. J., and Quinn and M. J. Kelly, JJ., affirmed (Docket No. 20845). The defendant applies for leave to appeal. Held:
Foreclosing the opportunity to have testimony reread to the jury during deliberations was reversible error; application of the harmless error doctrine is inappropriate in the absence of any factual basis concerning what went on in the jury room upon which to review whether the error was harmless.
65 Mich App 95; 237 NW2d 199 (1975) reversed.
The trial Judge instructed the jury:
"Now before you go in, I will not reread any testimony, so don't ask for that. If there is a question of law, all you will have to do is rap on the door and I will bring you back out and explain that to you. A question of law, but not a question of fact. Do we understand that? All right. Will you kindly step inside the jury room."
The jury convicted defendant of armed robbery. On appeal, defendant argues that the trial Judge's instruction was reversible error. The Court of Appeals agreed that the instruction was erroneous in light of People v Howe, 392 Mich 670; 221 NW2d 350 (1974):
"If it is error for a trial court to refuse a jury's request for a rereading of particular excerpts of testimony on the ground that undue emphasis might be placed on the same , a fortiori, it is error where the trial court, before the jury has retired to consider its verdict, completely forecloses the possibility of having any testimony reread. This is what happened in the case at bar, and accordingly we find that the trial court erred in failing to recognize that it had such discretion and, therefore, in failing or refusing to exercise it." 65 Mich App 95, 99; 237 NW2d 199 (1975).
The Court of Appeals nevertheless affirmed because they found the error harmless. They found no "confusion or ambiguity as to the testimony of witnesses," noted that the jury reached its verdict in less than two hours, and concluded that the "totality of circumstances * * * convinces us ...