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People v. Walker

Supreme Court of Michigan

July 11, 2019

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
HAROLD LAMONT WALKER, Defendant-Appellant.

          Argued on application for leave to appeal January 24, 2019.

          Chief Justice: Bridget M. McCormack Chief Justice Pro Tem: David F. Viviano Justices: Stephen J. Markman Brian K. Zahra Richard H. Bernstein Elizabeth T. Clement Megan K. Cavanagh

         Harold L. Walker was convicted following a jury trial in the Wayne Circuit Court of being a felon in possession of a firearm, MCL 750.224f; carrying a concealed weapon, MCL 750.227; and possession of a firearm when committing or attempting to commit a felony, MCL 750.227b(1). In August 2014, defendant was on parole from a prior felony conviction; conditions of defendant's parole prohibited him from possessing a weapon and from being around 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, defendant 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 they recovered a loaded revolver from the bush. Defendant asserted through his own testimony as well as that of a corroborating witness that the witness had earlier hidden the gun in the bushes and that defendant had tossed a beer 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, the juror was seated in view of the other jurors in the area reserved for in-custody criminal defendants 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-jury instruction), sent the jury members to lunch, and twice instructed the jury to let the court know if any jurors were failing to follow the instructions or failing to participate in deliberations. The jury found defendant guilty of all charges approximately 90 minutes after resuming deliberations following lunch. Defendant appealed in the Court of Appeals, arguing that he was entitled to a new trial because the 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, Fort Hood, P.J., and O'Brien, J. (Gleicher, J., dissenting), affirmed, reasoning that, in context, the instruction did not coerce a verdict. Defendant sought leave to appeal, and the Supreme Court ordered and heard oral argument on whether to grant the application or take other action. 501 Mich. 1088 (2018).

         In an opinion by Justice Cavanagh, joined by Chief Justice McCormack, and Justices Viviano, Bernstein, and Clement, the Supreme Court, in lieu of granting leave to appeal, held:

         M Crim JI 3.12 provides model jury instructions that may be used when a jury appears to be deadlocked. Although every deviation from M Crim JI 3.12 does not constitute error requiring reversal, the trial court's ad-lib supplemental instruction omitted nearly every safeguard provided by the model instruction and crossed the line from appropriately encouraging deliberation to being unduly coercive: the instruction (1) failed to offer constructive advice to encourage further deliberation, (2) omitted important safeguards of jurors' honest 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 before a different judge.

         1. When a jury indicates that it cannot reach a unanimous verdict, a trial court may give a supplemental instruction to encourage the jury to continue deliberating. If a jury indicates that it is deadlocked after deliberating too short a period for thoughtful 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 encourage deliberation without coercing a verdict and to offer constructive guidance on how to deliberate. In that regard, giving an honest-conviction reminder tempers the trial court's simultaneous emphasis on reaching a unanimous agreement. Encouraging jurors to single out jurors who are not participating when there is no indication that a juror has refused to deliberate can constitute undue pressure, threats, or 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 instruction, balances the goal of encouraging deliberation without coercing a verdict, but that is 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 reversal. The relevant inquiry-considering the factual context in which the instruction was given on a case-by-case basis-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.

         2. Taken together, the trial court's ad-lib supplemental instruction to the jury was unduly coercive because (1) the instruction lacked constructive guidance to the jury on how to continue deliberating and break through the impasse and encouraged an antagonistic relationship among the jurors when it prompted them to single out any juror who was refusing to deliberate when there was no indication that a juror had refused to deliberate; (2) the 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 deliberations, the instruction contained coercive language that telegraphed to jurors that failure to reach a verdict was not an option and suggested that jurors single out other jurors for refusing to deliberate 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 tolerate a hung jury. In addition, the quick turnaround in arriving at a guilty verdict after the court's supplemental instruction suggested 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 instruction affected defendant's substantial rights and the fairness, integrity, and public reputation of the judicial proceedings by affecting the jury's verdict.

         3. The case was assigned to a different judge on remand because, given the trial court's interactions with defendant during sentencing, the original trial judge would have substantial difficulty setting aside her previously expressed views. Reassignment 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 proportion to the gain in preserving the appearance of fairness.

         Reversed and remanded for a new trial.

         Justice Zahra, joined by Justice Markman, dissenting, disagreed with the majority's conclusion that the trial court's supplemental instructions were unduly coercive. The majority's holding did not reflect the traditional notion of jury coercion. While the majority acknowledged that it would have been permissible for the trial court to instruct the jury to continue its deliberations after it was deadlocked, the two statements relied on by the majority to support its coercion conclusion ignored the practical realities the trial court faced when the jury indicated it was deadlocked after deliberating for only 75 minutes. The trial court was uniquely situated to determine whether the jury needed a break or was at a true impasse, and the court reasonably concluded that that the jury had not engaged in a meaningful deliberative process that led to an impasse. Thus, the trial court's statements were directed at the jury's failure to engage in full-fledged deliberation, not its failure to reach a verdict. No reasonable juror would have interpreted the court's statements as compelling a verdict by force or intimidation. 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 should let the court know if any juror was failing to follow instructions or refusing to participate in the process did not amount to undue pressure, threats, or embarrassing assertions that tended to force a decision or make a juror abandon his or her conscientious dissent and defer to the majority. Significantly, the trial court did not appeal to civic duty or assert that 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 failure to remind the jurors that they should maintain their honest convictions after the jury suggested it might be at an impasse was not dispositive of whether the instructions were coercive; the instruction emphasized that the jurors had not deliberated a sufficient amount of time rather than emphasizing the need to reach a unanimous verdict, making the honest-conviction reminder unnecessary. Because the jury had been given a written copy of the court's final instructions that included honest-conviction reminders, the trial court's failure to reiterate that instruction did not transform the instruction to deliberate after returning from lunch into an unduly coercive one. The trial court did not have to provide guidance on how to continue deliberating and how to break through the impasse because it correctly decided that the jury was not truly deadlocked. While the correct inquiry was whether the supplemental instruction was coercive, the majority's holding promoted a per se rule that any departure from M Crim JI 3.12 would necessarily result in the instruction being unduly coercive. In addition, the majority incorrectly relied on portions of the lower court record that were unrelated to whether the supplemental instruction was coercive, and those portions did not support its conclusion that the instruction was coercive. The majority's conclusion demonstrated that it was disconnected from the trial-court process because the court's statements to Juror No. 8, which the majority relied on to support its ultimate conclusion, exhibited the trial court's interest in running a timely and efficient, no-nonsense courtroom; the statements did not signal to the remaining jurors that they should ignore the jury instructions and, instead, follow the court's implicit views of the case. Even if the trial court erred by giving the supplemental instruction, reversal was not required because defendant failed to demonstrate that the instruction affected the fairness, integrity, and public reputation of the judicial proceedings. Justice Zahra would have affirmed the judgment of the Court of Appeals.

         BEFORE THE ENTIRE BENCH

          OPINION

          Cavanagh, J.

         At issue in this case is whether the trial court committed error requiring reversal when it gave an ad-lib deadlocked-jury instruction. We conclude that it did. The instruction given by the trial court lacked constructive advice to encourage further deliberation, omitted important safeguards of jurors' honest convictions, included coercive language, and was delivered in a coercive atmosphere. We hold that the instruction crossed the line from appropriately encouraging deliberation and candid consideration to impermissibly coercing jurors to surrender their honestly held beliefs for the sake of 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 judgment of the Court of Appeals and 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 retried before a different judge. Because we hold that defendant is entitled to a new trial, we do not address his remaining issues.

         I. FACTS AND PROCEDURAL HISTORY

         On August 8, 2014, defendant, Harold L. Walker, was charged with 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 when committing or attempting to commit a felony (felony-firearm) under MCL 750.227b(1). At trial, multiple police officers testified that on August 5, 2014, while on routine 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 police officers approached the group, defendant quickly walked away, holding something that appeared to be heavy in a front pocket of his pants. When he reached the home's porch, defendant 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 conviction, defendant was not allowed to possess a weapon.

         Defendant offered an alternative explanation for the revolver being in the bush. Darryl Jevon Williams, Jr., lived in the neighborhood and was with 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 defendant testified that it was a Budweiser beer bottle that defendant had tossed into the bush and that defendant had tossed the bottle because he could not be around alcohol while on parole.

         At his trial, defendant presented one witness (Williams) and testified on his own behalf. The jury began deliberating at 11:19 a.m. At 12:36 p.m., the trial court announced to counsel that the jury "sent out a note saying that they can't reach a decision and they're deadlocked." The court stated that, later, if there was another 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 even made a [sic] effort."

         When the jury reentered the courtroom, the trial court stated that it had received two notes: one requesting to see the gun (which the trial court noted had already been accomplished), and one stating, "We are hung and I don't believe there will be and [sic] agreement with more time." The trial 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 fifteen 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 nourishment, other than candy, to help you all, you know, have clear heads and 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 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 end your deliberations at this point because you had a full day of testimony and you've only been at this, discussing 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 in 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 among you, three among you who are refusing to follow the instructions or participate 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 1½ hours after returning from lunch. The trial court sentenced defendant 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 consecutively to the mandatory 10-year sentence for third-offense felony-firearm.[2]

         Defendant filed a claim of appeal in the Court of Appeals arguing, among other assertions of error, that the trial court's deadlocked-jury instruction was impermissibly coercive. In an unpublished opinion, a divided Court of Appeals panel affirmed defendant's convictions. People v Walker, unpublished per curiam opinion of the Court of Appeals, issued December 1, 2016 (Docket No. 327063), p 12. In relevant part, the Court of Appeals majority reasoned that the trial court's jury instruction "stressed to the jury the 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 coercive and that defendant was entitled to a new trial. Id. (Gleicher, 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 MCR 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 the 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 N.W.2d 200 (2011). Because defendant failed to object to the instruction, [3]we apply the plain-error rule, which requires that (1) error must 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 affected the fairness, integrity or public reputation of judicial proceedings. People v Randolph, 502 Mich. 1, 10; 917 N.W.2d 249 (2018); People v Carines, 460 Mich. 750, 763; 597 N.W.2d 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 prejudice, i.e., that the error 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 trial 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 N.W.2d 441');">220 N.W.2d 441 (1974). The goal of such an instruction is to encourage further deliberation without coercing a verdict. People v Hardin, 421 Mich. 296, 314; 365 N.W.2d 101');">365 N.W.2d 101 (1984). See Allen v United States, 164 U.S. 492, 501; 17 S.Ct. 154; 41 L.Ed. 528 (1896) ("While undoubtedly, the verdict of the jury should represent the opinion of each individual juror, 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 unanimity by a comparison of views . . . ."). "If the charge has the effect of forcing a juror to surrender 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 deadlocked-jury instruction that has since been incorporated into our model jury instructions.[5] Id. at 341; M Crim JI 3.12. Although the model instruction is an example of an instruction that strikes the correct balance, it is not the only instruction that may properly be given. The relevant 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 the 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 straightforward-whether defendant took a gun from his pocket and threw it into a bush where it was recovered by the police-and the jurors deliberated for only about an hour and fifteen minutes before sending a note stating that they could not reach an agreement. Assuming that this was too short a period for thoughtful deliberation, a simple instruction to the jury to "continue your deliberations" would certainly have been permissible. See People v France, 436 Mich. 138, 165-166; 461 N.W.2d 621');">461 N.W.2d 621 (1990). See also Lowenfield v Phelps, 484 U.S. 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 achieve 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 instruction given in this case crossed the 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 consider the views of . . . fellow jurors" and "[t]alk things over in a spirit of fairness and frankness." 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 opinion but also give the facts and the reasons on which you base it." In this case, the only guidance provided by the trial court was that the jurors needed to get "clear heads." Significantly, instead of encouraging the jurors to consider their fellow jurors' views, the trial court encouraged an antagonistic relationship among the jurors by prompting them, without elaborating on what it meant, to report anyone who was "refusing to participate in the process."

         Second, the trial court failed to remind the jurors that they should 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 this honest-conviction reminder, which tempers the court's simultaneous emphasis on reaching a unanimous agreement. In People v Engle, 118 Mich. 287, 291-292; 76 N.W. 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 deadlocked-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 included the honest-conviction reminder. See, e.g., People v Coulon, 151 Mich. 200, 203-204; 114 N.W. 1013 (1908) (holding that the instruction in that case was distinguishable from the instruction in Engle, and therefore not erroneous, because the trial court had instructed that "no juror should yield his well-grounded convictions or violate his oath; that if upon further consideration 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 reasons stated in the Court of Appeals dissenting opinion, People v Rouse, 272 Mich.App. 665, 675-677; 728 N.W.2d 874 (2006) (Jansen, J., dissenting), which noted that the trial court had read the standard instruction, including the honest-conviction reminder, and had "emphasized that no juror should change his or her honest beliefs simply for the sake of reaching a verdict"); Hardin, 421 Mich. at 318 (holding that supplemental instructions were not unduly coercive because an honest-conviction reminder was given after the challenged instructions).[6]

         Third, the trial court's instruction included language that was unduly coercive. The jury's note was received approximately one hour and fifteen minutes after the jury began deliberating.[7] Before sending the note, the jury had obviously discussed the case, asked to see the gun, and at least one juror harbored doubt regarding defendant's guilt. Because the jury had already indicated that it was deadlocked, at that point, there was "a greater coercive potential." See People v Pollick, 448 Mich. 376, 385; 531 N.W.2d 159');">531 N.W.2d 159 (1995). Instead of simply instructing the jury to continue its deliberations 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, the trial court twice asked the jurors to "let us know that," signaling to jurors that they should single out their fellow jurors. The trial court's veiled threats were the type of "undue pressure, threats, embarrassing assertions, or other wording that would tend to force a decision or cause a juror to abandon his conscientious dissent and defer to the majority." Hardin, 421 Mich. at 321.[9]

         Finally, given our review of the record, we are left with a firm conviction that the tenor set by the trial court contributed to the instruction being unduly coercive.[10] As noted in Sullivan, the coercive nature of the instruction must be evaluated in light 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 and despotic atmosphere" that "likely persuaded dissenting jurors to abandon their principles." Walker (Gleicher, J., dissenting), unpub op at 4.

         After the trial court gave its ad-lib deadlocked-jury instruction and the jury returned from its lunch break, the jury returned a verdict in about 90 minutes. This quick turnaround in arriving at a guilty verdict after the trial court's supplemental instruction had been given suggests coercion. Lowenfield, 484 U.S. at 238. Furthermore, earlier that day, the trial court had made clear to the jury that dissent would not be tolerated and that public humiliation would be the consequence for anyone who stepped out of line. When the trial court called the case, it noted that one of the jurors (Juror No. 8) was late 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 involved in this case waiting any longer for someone who may or may not appear. And if that juror shows up then, you know, I don't know, bad things might happen to that person.
It's not fair for everyone involved to keep everyone waiting, and I do want to thank Juror No. 1, who knew she would be running a little 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 talking to you guys, okay?

         Juror No. 8 arrived during opening 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 not 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 things might happen to that person.") and its heavy-handed treatment of the recalcitrant juror may have had on the remaining jurors by situating that juror in the "prisoners' box" in view of the other jurors.[11]

         We hold that, taken together, the omission of constructive guidance to the jury on how to deliberate, the omission of an honest-conviction reminder, the addition of coercive language suggesting that jurors single out other jurors for refusing to deliberate when there was no indication that a juror had refused to deliberate, and the trial court's conduct throughout the proceedings telegraphed that failing to reach a verdict would not be tolerated; thus, the instruction was unduly coercive. We emphasize that not every deviation from M Crim JI 3.12 will be erroneous, but the instruction given in this case omitted nearly every safeguard M Crim JI 3.12 contains; added an unwarranted invitation to single out dissenters; and was administered in a "coercive and despotic atmosphere," Walker (Gleicher, J., dissenting), unpub op at 4. We hold that the ad-lib instruction 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 obvious. See id. Finally, in the greater context of the trial, the instruction seriously affected the fairness, integrity, and public reputation of the judicial proceedings by affecting the jury's verdict, and we therefore exercise our discretion to reverse defendant's conviction and remand this case to the Wayne Circuit Court for a new trial.

         We also hold that because of the unprofessionalism and bias displayed by the trial court against defendant during sentencing, the case must be assigned to a different judge on remand.[12] When determining whether remand to a different judge is required, we examine the following factors:

(1) whether the original judge would reasonably be expected upon remand to have substantial difficulty in putting out of his or her mind previously-expressed views or findings determined to be erroneous or based on evidence that must be rejected, (2) whether reassignment is advisable to preserve the appearance of justice, and (3) whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness. [People v Hill, 221 Mich.App. 391, 398; 561 N.W.2d 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 standards set forth in Hill had been met); Sparks v Sparks, 440 Mich. 141, 163; 485 N.W.2d 893 (1992) (reassigning the case to a different judge on remand because the appearance of justice would be better served with a new judge presiding).

         In this case, the trial court's behavior at defendant's sentencing hearing compels us to reassign this case to a new judge on remand. After defendant 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 times and a "coward"), with the exchange escalating to defendant stating, "F--- you," to which the trial court replied, "Oh, you wish you could." The trial court also admonished defendant, suggesting that he liked being in prison ("Cause that's what your life shows me, that 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 to 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 previously expressed views and that reassignment is necessary to preserve the appearance of justice given the hostility, bias, and incredulity directed against defendant by the court.[13] Finally, any waste or duplication is not out of proportion to the gain in preserving the appearance 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. Because we grant a new trial, we do not address the remaining issues raised by defendant.

          Zahra, J. (dissenting).

         I respectfully dissent. In the morning, following a full day of testimony in a relatively simple case, the jury heard closing arguments, received its final instructions, and retired to deliberate. After an hour and fifteen minutes of deliberation, the jury indicated that it had reached an impasse. With no objection, the trial judge informed the jurors that she did not believe they were truly deadlocked after their brief period of deliberation. Rather than providing the standard instruction for deadlocked juries, the trial judge sent the jurors to lunch to afford them nourishment and an opportunity to clear their heads. After lunch, the jurors resumed deliberations and, after an additional hour and a half of deliberations, the jury delivered a guilty verdict. Because the innocuous go-to-lunch instruction was far from being coercive, I discern no basis for reversing the jury's verdict.

         I. PERTINENT FACTUAL BACKGROUND

         Absent from the majority's opinion are the trial judge's instructions delivered to the jury following the conclusion of closing arguments, around one and a half hours before the jury announced it was at an impasse:

A verdict in a criminal case must be unanimous. In order to return 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 ...

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