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People v. Traver

Supreme Court of Michigan

June 15, 2018

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,
v.
GARY MICHAEL TRAVER, Defendant-Appellee.

          Argued on application for leave to appeal December 6, 2017.

          Chief Justice: Stephen J. Markman Justices, Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Kurtis T. Wilder.

         Syllabus

         Gary M. Traver was convicted following a jury trial in the Mackinac Circuit Court of assault with a dangerous weapon (felonious assault), MCL 750.82, and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b, but was acquitted of interfering with electronic communications, MCL 750.540(a), and carrying a concealed weapon (CCW), MCL 750.227. Defendant had an ongoing dispute with his neighbor over the use of their shared driveway, culminating in an altercation between the two men that resulted in defendant being charged with the four offenses. After the jury was sworn in, the court, William W. Carmody, J., gave preliminary oral instructions to the jury, which included the elements of CCW but not the elements of the remaining charges. In addition to the oral instructions, the trial court gave the jury written instructions on the elements of CCW, felonious assault, and interfering with electronic communications, but the written instructions were incomplete with regard to the offense of felony-firearm in that only the definition of possession was included for that offense. Defense counsel approved the instructions on the record. After closing arguments, the trial court orally instructed the jury regarding routine points of law, but the court did not orally instruct regarding the elements of the offenses, stating that the jury had already received written instructions regarding those offenses and the elements for each offense. After objecting to the felony-firearm instruction and requesting and receiving a clarifying instruction regarding that offense, defense counsel indicated that he was satisfied with the instructions. Defendant appealed. In a split decision, the Court of Appeals, Gleicher, P.J., and M. J. Kelly, J. (Sawyer, J., dissenting), reversed defendant's convictions, reasoning that the trial court's failure to orally instruct the jury regarding the elements of the charged offenses constituted plain error that affected defendant's substantial right to have a properly instructed jury consider the evidence. 316 Mich.App. 588 (2016). Judge Sawyer dissented, stating that defendant had waived any claim of instructional error by expressing satisfaction with the instructions. The prosecution sought leave to appeal in the Supreme Court, and the Supreme Court ordered and heard oral argument on whether to grant the prosecution's application for leave to appeal or take other action. 501 Mich. 938 (2017).

         In an opinion by Chief Justice Markman, joined by Justices McCormack, Bernstein, Wilder, and Clement, the Supreme Court held:

MCR 2.512 and MCR 2.513 require that trial courts provide instructions orally to the jury. In this case, however, defendant waived his claims of instructional error.

         1. A court must properly instruct a jury so that the jury may correctly and intelligently decide the case. In that regard, the instructions to a jury must include all the elements of the charged offenses. A complete failure to instruct a jury regarding any of the elements necessary to determine if the prosecution has proven a charge beyond a reasonable doubt constitutes structural error that requires automatic reversal. In contrast, imperfect instructions that omit an element of an offense, or otherwise misinform the jury of an offense's elements, do not necessarily render a criminal trial unfair such that the conviction must be set aside. An imperfect instruction is not grounds for setting aside a conviction if the instruction fairly presented the issues to be tried and adequately protected the defendant's rights. Defense counsel waives any error resulting from an imperfect instruction when counsel explicitly and repeatedly approves the instruction.

         2. MCR 2.512(B)(2) provides that before or after arguments or at both times, as the court elects, the court shall instruct the jury on the applicable law, the issues presented by the case, and, if a party requests as provided in MCR 2.512(A)(2), that party's theory of the case. MCR 2.513(A) provides, in part, that after the jury is sworn in, the court must provide the jury with pretrial instructions reasonably likely to assist in its consideration of the case, including instructions regarding the elements of all charged offenses. Similarly, MCR 2.513(N)(1) requires a trial court to instruct the jury as required and appropriate after closing arguments are made. Under MCR 2.513(N)(2), upon concluding the final instructions, the court must invite the jurors to ask any questions in order to clarify the instructions before the jurors retire to deliberate. MCR 2.513(N)(3) requires the trial court to provide a written copy of the final jury instructions for the jury to take into the jury room for deliberation; the court may also provide additional copies of the instructions if requested by any juror and may provide the jury with a copy of electronically recorded instructions.

         3. Neither MCR 2.512 nor MCR 2.513 expressly states whether instructions must be provided orally to the jury. When interpreting court rules, the rules must be read in context and as a whole, taking into consideration the grammatical usage of the words in the rule. Reading the word "instruct" in MCR 2.512 and MCR 2.513 in context-that is, the requirement that a trial court must "instruct" the jury-the court rules affirmatively require oral instructions to the jury, even though neither rule expressly states that requirement. In grammatical terms, the MCR 2.513(N)(2) gerund phrase "[u]pon concluding the final instructions" refers to the subject of the sentence-the trial court-and it would not be correct to read the phrase as referring to a jury's reading of written instructions. In addition, the MCR 2.513(N)(2) command that invites jurors to ask clarifying questions, coupled with the subrule's timing element-"[u]pon concluding the final instructions"-suggests that the trial court must read the instructions aloud; a jury would not be able to ask clarifying questions at the conclusion of the final instructions if there were no oral instructions because the jury would not yet be cognizant of what the instructions entailed had the jury just been handed written instructions. The MCR 2.513(N)(3) requirement that the court provide a written copy of the final jury instructions to the jury and the MCR 2.513(N)(3) provision that the trial court may provide electronically recorded instructions also indicate that the final jury instructions must be given orally. MCR 2.513(A) similarly suggests that the initial act of instructing the jury must be oral because the subrule requires the trial court to instruct the jury before trial on all claims and then requires the court to provide each juror with a copy of the instructions. The manner in which MCR 7.312(D)(2)(d) refers to "jury instructions" also supports the conclusion that the court rules require oral instructions.

         4. In this case, the trial court erred when it failed to orally instruct the jury regarding the elements of several offenses. The issue did not constitute structural error because the jury was instructed in some form or another on the elements of all the offenses. Instead, because the manner in which the instructions were given constituted nonstructural error, the issue was subject to waiver analysis. Here, defendant waived the claim because defense counsel repeatedly approved the instructions as given. Defendant similarly waived his claim that the trial court failed to instruct the jury regarding felony-firearm, in light of the fact that the trial court further instructed the jury after defense counsel objected to the initial felony-firearm instruction and defense counsel orally approved that additional instruction. Accordingly, although the Court of Appeals correctly concluded that instructions must be given orally to the jury, the Court of Appeals erred by concluding that defendant was entitled to a new trial because of the instructional error.

         Affirmed in part, reversed in part, and remanded to the Court of Appeals for consideration of defendant's previously unaddressed ineffective-assistance-of-counsel claims.

         Justice Zahra, concurring in part and dissenting in part, agreed with the majority that defendant was not entitled to relief on the basis of his claims of instructional error but disagreed with the majority's conclusion that MCR 2.512 and MCR 2.513 require a trial court to orally deliver instructions to the jury. MCR 2.512(B)(2) and MCR 2.513(N)(1) require the trial court to "instruct" the jury. Applying the dictionary definition to those subrules, the plain and ordinary meaning of the transitive verb "instruct" requires the trial court to provide the jury with authoritative information or advice as required and appropriate, including the applicable law, the issues presented, and the party's theory of the case if requested by the party. These subrules do not require the trial court to deliver the instructions orally, and the instructions may therefore be delivered orally or in written form. The court rules plainly allow trial courts the flexibility to accommodate all qualified jurors-especially those with impairments or disabilities for whom written instructions may be more appropriate. Justice Zahra disagreed with the majority's conclusion that the MCR 2.513(N)(2) language "[u]pon concluding the final instructions, the court shall invite the jurors to ask any questions in order to clarify the instructions before they retire to deliberate" suggests that the trial court must read those instructions aloud because the jury would not be able to ask clarifying instructions without them. The prepositional gerund phrase "[u]pon concluding the final instructions" functions adverbially because it addresses when the court must invite questions from jurors. While the majority correctly suggests that one logical reading of the sentence includes a trial court orally instructing the jury and then inviting questions from the jurors, that is not the only logical reading because gerunds and participles are often misplaced. The grammatical structure of the sentence could be improved on to better clarify the subject of the prepositional gerund phrase, and its weight as a contextual cue requiring oral instruction is therefore minimal. The MCR 2.513(N)(3) requirement that the jury must be provided a written copy of the final jury instructions and that the trial court may provide electronically recorded instructions does not suggest that the instructions were originally delivered orally; the subrule does not require that a trial court read the instructions aloud, and providing a copy of the instructions merely allows jurors to not remember every single instruction. The plain language of MCR 2.513(A) similarly does not suggest that preliminary instructions must be delivered orally. The majority's reliance on MCR 7.312(D)(2)(d) is misplaced because if written instructions were provided to the jurors, they would be a relevant portion of the record required to be included in the appendix under that subrule. Although oral instructions are not currently required, the court rules should be amended to require a trial court to provide both oral instructions and written copies of the final instructions.

         Justice Viviano, concurring in part and dissenting in part, agreed with the majority that defendant was not entitled to relief on the basis of his claims of instructional error but disagreed that a requirement for oral instruction arises contextually within the court rules. While MCR 2.513(N)(2) suggests a sequence of events culminating in jurors being allowed to ask clarifying questions, MCR 2.513(A) and MCR 2.513(N)(3) do not require that the first step in the sequence be oral instructions. The court rules should be amended to require trial courts to provide oral instruction, in conformity with the practice in the federal circuit courts and some states. The purpose of the 2011 amendments of the Michigan Court Rules was to require the trial court to supplement the traditional verbal instructions with a written copy to improve juror comprehension, but the amendment did not make the intention explicit. Because he concluded that the court rules do not presently require oral jury instructions, Justice Viviano would not have addressed whether the trial court's failure to provide them was subject to a waiver analysis.

         BEFORE THE ENTIRE BENCH

          OPINION

          Markman, C.J.

         At issue is whether the trial court erred by providing written instructions to the jury concerning elements of the charged offenses but failing to read those instructions aloud. Although we conclude that our court rules require oral instructions, defendant here waived any claims of instructional error. Therefore, we affirm the judgment of the Court of Appeals to the extent that it held that the court rules require oral instructions, but we reverse to the extent that it held that this claim and additional claims of instructional error required reversal of defendant's convictions. In addition, we remand to the Court of Appeals for consideration of defendant's previously unaddressed arguments relating to ineffective assistance of counsel.[1]

         I. FACTS AND HISTORY

         Defendant shared a driveway with his neighbor, Patrick St. Andre, and the two were involved in an ongoing dispute regarding use of the driveway. As a result of allegations arising from the dispute, defendant was charged with carrying a concealed weapon (CCW), MCL 750.227; assault with a dangerous weapon (felonious assault), MCL 750.82; interference with electronic communications, MCL 750.540(5)(a); and possessing a firearm during the commission of a felony (felony-firearm), MCL 750.227b. After swearing in the jury, the trial court gave preliminary oral instructions to the jury and stated the following, in relevant part:

To prove the charges, the prosecutor must prove beyond a reasonable doubt the following information that you have in your hand. I'd ask you to take a look now at what has been passed out to you.
In count one, the defendant is charged with the crime of carrying a concealed weapon. To prove this charge, the prosecutor must prove, beyond a reasonable doubt, those elements so listed. First, that the defendant knowingly carried a weapon, a pistol. It does not matter why the defendant was carrying the weapon, but to be guilty of the crime, the defendant must have known that it was a weapon. Second, that this pistol was concealed, complete invisibility is not required. A weapon is concealed if it cannot easily be seen by those who come into ordinary contact with the defendant.
Now, as you can see in count two and count three, and count four, those are the elements, ladies and gentlemen, that you will need to pay attention to during the course of this trial. Those are the four counts that Mr. Traver is charged with, and the attorneys will be discussing all of those as we proceed through here by questions of the witnesses. Okay?

         The trial court then provided the jury with a two-page typed document that contained the definition of the term "possession" for felony-firearm and the elements of CCW, felonious assault, and interference with electronic communications; defense counsel expressed satisfaction with these instructions. Following closing arguments, the trial court again orally instructed the jury, but only as to routine points of law, such as the meaning of reasonable doubt and the fact that attorneys' arguments do not constitute evidence. It did not orally instruct regarding the elements of the charges, stating:

When you go into the jury room, ladies and gentlemen, you will be provided with a written copy of these instructions should you so choose. If there are instructions that I have given and others that I will give that you wish copies of, they will be provided to you. You've already received the charges and the elements of the same.

         At the conclusion of these instructions, the trial court inquired whether defense counsel was satisfied, and counsel sought clarification regarding the felony-firearm instruction; the trial court responded with further instructions in that regard. Defense counsel then again expressed satisfaction with the instructions. The jury found defendant guilty of felonious assault and felony-firearm and not guilty of the remaining charges.

         Following sentencing, defendant appealed as of right, raising numerous issues-- in particular, that the trial court erred by failing to orally instruct the jury on the elements of the charges. In a split decision, the Court of Appeals reversed defendant's convictions, reasoning that the trial court had failed to orally instruct the jury regarding the elements of the charged offenses. People v Traver, 316 Mich.App. 588; 894 N.W.2d 89');">894 N.W.2d 89 (2016). Judge Sawyer dissented, asserting that defendant had waived any claim of instructional error by expressing satisfaction with the instructions. Id. at 603.

         The prosecutor then sought leave to appeal in this Court, and on December 6, 2017, we heard oral argument regarding whether to grant the application. Because there was uncertainty regarding the specific written instructions the jury had received, we remanded to the trial court "for appropriate proceedings to settle the record as to the content of the written jury instructions on the elements of the charged crimes." People v Traver, 501 Mich. 938 (2017). On remand, the trial court determined that the two-page typed document cited by the Court of Appeals was identical to the content provided to the jury by the trial court. We now address the claims of instructional error that the Court of Appeals majority held warranted reversal of defendant's convictions.

         II. STANDARD OF REVIEW

         "We review de novo claims of instructional error" and "must consider the instructions as a whole, rather than piecemeal, to determine whether any error occurred." People v Kowalski, 489 Mich. 488, 501; 803 N.W.2d 200 (2011). Similarly, we review de novo the proper interpretation and application of court rules. People v Comer, 500 Mich. 278, 289; 901 N.W.2d 553 (2017). The same broad legal principles governing the interpretation of statutes apply to the interpretation of court rules; therefore, when interpreting a court rule, this Court begins with the text of the court rule and reads the individual words and phrases in their context within the Michigan Court Rules. Id.

         III. LEGAL BACKGROUND

         "A court must properly instruct the jury so that [the jury] may correctly and intelligently decide the case." People v Clark, 453 Mich. 572, 583; 556 N.W.2d 820 (1996) (opinion by Mallett, J.). "The instruction to the jury must include all elements of the crime charged, and must not exclude from jury consideration material issues, defenses or theories if there is evidence to support them." People v Reed, 393 Mich. 342, 349-350; 224 N.W.2d 867 (1975) (citations omitted). The pertinent rules governing jury instructions are set forth in MCR 2.512 and MCR 2.513. MCR 2.512 provides, in relevant part:

(A) Request for Instructions.
(1) At a time the court reasonably directs, the parties must file written requests that the court instruct the jury on the law as stated in the requests. In the absence of a direction from the court, a party may file a written request for jury instructions at or before the close of the evidence.
(B) Instructing the Jury.
(1) At any time during the trial, the court may, with or without request, instruct the jury on a point of law if the instruction will materially aid the jury in understanding the proceedings and arriving at a just verdict.
(2) Before or after arguments or at both times, as the court elects, the court shall instruct the jury on the applicable law, the issues presented by the case, and, if a party requests as provided in subrule (A)(2), that party's theory of the case.

MCR 2.513 provides, in relevant part:

(A) Preliminary Instructions. After the jury is sworn and before evidence is taken, the court shall provide the jury with pretrial instructions reasonably likely to assist in its consideration of the case. Such instructions, at a minimum, shall communicate the duties of the jury, trial procedure, and the law applicable to the case as are reasonably necessary to enable the jury to understand the proceedings and the evidence. The jury also shall be instructed about the elements of all civil claims or all charged offenses, as ...

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