A.Unanimity Requirement and Alternate Theories of the Offense
“The text and structure of the Constitution clearly suggest that the term ‘trial by impartial jury’” [found in the Sixth Amendment] requires that “[a] jury must reach a unanimous verdict in order to convict.” Ramos v Louisiana, 590 US ___, ___ (2020). See also MCR 6.410(B). “This mandate implicitly prohibits a stipulation or waiver to a less than unanimous verdict.” 1989 Staff Comment to MCR 6.410.
When the prosecution “offers evidence of multiple acts by a defendant, each of which would satisfy the actus reus element of a single charged offense, the trial court is required to instruct the jury that it must unanimously agree on the same specific act if the acts are materially distinct or if there is reason to believe the jurors may be confused or disagree about the factual basis of the defendant’s guilt.” People v Cooks, 446 Mich 503, 530 (1994). “When neither of these factors is present . . . a general instruction to the jury that its verdict must be unanimous does not deprive the defendant of his [or her] right to a unanimous verdict.” Id.
“[A]lternate theories of a defendant’s state of mind relate to a single element of a single offense.” People v Johnson, 187 Mich App 621, 629 (1991). “When a statute lists alternative means of committing an offense which in and of themselves do not constitute separate and distinct offenses, jury unanimity is not required with regard to the alternate theory.” Id. at 629-630. For example, the mental state of malice necessary to support a conviction for second-degree murder may be established in three ways: (1) by proof that the defendant acted with an intent to kill; (2) by proof that the defendant acted with an intent to inflict great bodily harm; or (3) by proof that the defendant acted with wanton and willful disregard of the likelihood that the natural tendency of his behavior would cause death or great bodily harm. Id. at 629. Where the trial court instructed the jurors that it was unnecessary that they unanimously agree on which of those three alternative states of mind the defendant held so long as they unanimously agreed that the defendant acted with one of those states of mind, the defendant’s right to a unanimous verdict was not violated. Id. at 629-630.
Similarly, where the defendant was charged with unlawful imprisonment and the jury was given the option to convict “on the basis of either [the] defendant’s restraint of the victim by means of a weapon or dangerous instrument, [MCL 750.349b(1)(a),] or on [the] defendant’s restraint of the victim in order to facilitate the commission of another felony, [MCL 750.349b(1)(c),]” a specific unanimity instruction was not required because MCL 750.349b “expressly provides alternative theories under which a defendant may be convicted.” People v Chelmicki, 305 Mich App 58, 67-68 (2014), citing Cooks, 446 Mich at 515, and Johnson, 187 Mich App at 629-630.
Bodily injury, mental anguish, and the other conditions listed in the definition of personal injury, MCL 750.520a(n),1 are merely different ways of defining the single element of personal injury for the crime of first-degree criminal sexual conduct; therefore, these listed conditions should not be construed to represent alternative theories upon which jury unanimity is required. People v Asevedo, 217 Mich App 393, 397 (1996). Accordingly, if the evidence of any one of the listed conditions is sufficient, then the element of personal injury has been proven. Id. at 397.
The jury does not have to unanimously decide whether the defendant was the principal or an aider and abettor where both theories are supported by the evidence. People v Smielewski, 235 Mich App 196, 201-203 (1999).
B.Inconsistent and Mutually Exclusive Verdicts
“[C]onsistency in jury verdicts is not necessary.” People v Russell, 297 Mich App 707, 722 (2012), citing People v Vaughn, 409 Mich 463, 465-467 (1980); see also Dunn v United States, 284 US 390, 393 (1932). “Each count in an indictment is regarded as if it was a separate indictment.” Dunn, 284 US at 393. “Verdicts are considered inconsistent when the verdicts cannot rationally be reconciled. Inconsistent verdicts within a single jury trial are permissible, and do not require reversal absent a showing of confusion by the jury, a misunderstanding of the instructions, or impermissible compromises. The burden is on the defendant to prove evidence of one of these three things. The defendant may not merely rely on the alleged inconsistency itself to support such an argument.” People v Montague, 338 Mich App 29, 51 (2021) (quotation marks and citations omitted). “[A]n apparent inconsistency between a jury’s verdict of acquittal on some counts and its failure to return a verdict on other counts [does not] affect[] the preclusive force of the acquittals under the Double Jeopardy Clause of the Fifth Amendment.” Yeager v United States, 557 US 110, 112 (2009).
“Juries are not held to any rules of logic nor are they required to explain their decisions.” Vaughn, 409 Mich at 466. “The ability to convict or acquit another individual of a crime is a grave responsibility and an awesome power.” Id. “An element of this power is the jury’s capacity for leniency.” Id. Conversely, “a trial judge sitting as the trier of fact may not enter an inconsistent verdict.” People v Walker, 461 Mich 908, 908 (1999).
Generally, an inconsistent verdict arises in a situation where the jury acquits the defendant of one charge and convicts him or her of another even though the acquittal on one charge renders it impossible for the jury to have found the existence of all the elements of the charge on which it convicts; for example, where a defendant is acquitted of an underlying felony charge but convicted of felony-firearm. People v Davis, 320 Mich App 484, 491 (2017) (noting that “[i]n these circumstances, it is easily surmised that the jury did its job but acted leniently”), vacated in part on other grounds 503 Mich 984 (2019)2.
While the Michigan Supreme Court indicated that it is unclear if Michigan “jurisprudence recognizes the principle of mutually exclusive verdicts,” see People v Williams 504 Mich 892 (2019),3 the Michigan Court of Appeals has held that felonious assault, MCL 750.82, and assault with intent to do great bodily harm (AWIGBH) less than murder, MCL 750.84(1)(a) are mutually exclusive verdicts requiring one of the convictions to be vacated, People v McKewen, 326 Mich App 342, 352, 353 (2018). “By convicting defendant on [the charge of AWIGBH], [the jury] made a finding–one we may not disturb–that defendant acted with the intent to do great bodily harm. But that finding is inconsistent with felonious assault as defined by MCL 750.82.” McKewen, 326 Mich App at 353. “[T]he proper action for the trial court is to enter judgment of conviction on the AWIGBH charge but not on felonious assault charge, even though the jury found defendant guilty of both.” Id. (it was problematic that the trial court did not instruct on negative elements because “two crimes [were] charged based on the same conduct, one of which [had] a negative element that is the direct opposite of a positive element of the other charge,” and “the lack of instruction on the negative element deprive[d] the jury of knowledge that their verdicts [were] inconsistent”).
“[T]he Court of Appeals erred by relying on the principle of mutually exclusive verdicts to vacate [only] defendant’s aggravated domestic assault conviction” where the defendant challenged his aggravated domestic violence and assault with intent to do great bodily harm (AWIGBH) convictions under double-jeopardy principles. People v Davis, 503 Mich 984, 985 (2019). Although “the statutory language of AWIGBH requires a defendant to commit assault with the specific intent to do great bodily harm, whereas the statutory language of aggravated domestic assault requires a defendant to commit assault without the intent to commit great bodily harm,” “the jury was not instructed that it must find that defendant acted without the intent to inflict great bodily harm” relative to the aggravated domestic assault charge. Id. (“the jury was instructed that to convict defendant of AWIGBH, it must find that defendant acted ‘with intent to do great bodily harm . . .’”). Therefore, “the jury never found that defendant acted without the intent to inflict great bodily harm,” and his “guilty verdict for [aggravated domestic violence] was not mutually exclusive to [his] guilty verdict for AWIGBH, where the jury affirmatively found that defendant acted with intent to do great bodily harm.” Id. (remanded to address the merits of defendant’s double-jeopardy argument).
Similarly, “the Court of Appeals erred by relying on the principle of mutually exclusive verdicts to vacate the defendant’s larceny in a building conviction,” where “the jury was instructed that to convict the defendant of larceny from a person, it must find that the defendant took the property from the victim’s person or immediate presence,” but “with respect to the larceny in a building conviction, the jury was not instructed that it must find that the property was not taken from the victim’s person or immediate presence.” Williams, 504 Mich at 892. “Since, with respect to the larceny in a building conviction, the jury never found that the property was not taken from the victim’s person or immediate presence, a guilty verdict for that offense was not mutually exclusive to the defendant’s guilty verdict for larceny from a person, where the jury affirmatively found that the property was taken from the victim’s person or immediate presence.” Id. (“reinstat[ing] the defendant’s conviction of larceny in a building”).
A verdict must be returned on each count if there is more than one count; a general verdict of guilty cannot be received. People v Huffman, 315 Mich 134, 137-139 (1946).
MCR 6.420(C) allows a jury deadlocked on one or more of multiple charges to issue verdicts on those counts on which it can reach a unanimous verdict.
A verdict form is defective if it does not give the jury the opportunity to return a general verdict of not guilty or to find the defendant not guilty on each count. People v Wade (Michael), 283 Mich App 462, 468 (2009) (reversing the defendant’s conviction where the verdict form only gave the jury the options of finding the defendant guilty or not guilty of first-degree murder, guilty of second-degree murder, or guilty of involuntary manslaughter; the jury was not given the opportunity to find the defendant generally not guilty, or not guilty of the lesser included offenses).
“The court may require the jury to return a special verdict in the form of a written finding on each issue of fact, rather than a general verdict.” MCR 2.515(A). The form of a special verdict must be settled on the record or in writing, “in advance of argument and in the absence of the jury[.]” Id. MCR 2.515(A) provides, in part:
“The court may submit to the jury:
(1) written questions that may be answered categorically and briefly;
(2) written forms of the several special findings that might properly be made under the pleadings and evidence; or
(3) the issues by another method, and require the written findings it deems most appropriate.”
The court must adequately instruct the jury on the matter submitted so that the jury is able to make findings on each issue. MCR 2.515(A).
The court must enter judgment in accordance with the special verdict. MCR 2.515(B).
Where the court omits from the special verdict form an issue of fact that was raised in the pleadings or the evidence, a party must demand its submission before the jury retires, or else the party is deemed to have waived the right to a jury trial on that issue. MCR 2.515(C). “The court may make a finding with respect to an issue omitted without a demand. If the court fails to do so, it is deemed to have made a finding in accord with the judgment on the special verdict.” Id.
E.Verdict Against the Great Weight of the Evidence
“A verdict is against the great weight of the evidence when ‘the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand.’” In re JP, 330 Mich App 1, 13 (2019), quoting People v Lacalamita, 286 Mich App 467, 469 (2009). “A verdict may be vacated only when it does not find reasonable support in the evidence, but is more likely attributed to causes outside the record such as passion, prejudice, sympathy, or some extraneous influence.” People v Allen, 331 Mich App 587, 612-613 (2020), vacated in part on other grounds 507 Mich 856 (2021)4 (also noting that “[a]bsent compelling circumstances, the credibility of witnesses is for the jury to determine”) (quotation marks and citation omitted).
See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 3, Chapter 1, for more information on grounds to support a motion for new trial, including when the verdict is against the great weight of the evidence.
MCR 6.420(D) provides:
“Before the jury is discharged, the court on its own initiative may, or on the motion of a party must, have each juror polled in open court as to whether the verdict announced is that juror’s verdict. If polling discloses the jurors are not in agreement, the court may (1) discontinue the poll and order the jury to retire for further deliberations, or (2) either (a) with the defendant’s consent, or (b) after determining that the jury is deadlocked or that some other manifest necessity exists, declare a mistrial and discharge the jury.”
The option “permitting the court to ‘discontinue the poll and order the jury to retire for further deliberations’ requires the court to cut off the polling as soon as disagreement is disclosed. The court should not allow the polling to continue because of its potentially coercive effect. Nor, for the same reason, should the court question the jury to determine where the jury stands numerically. See [People v Wilson, 390 Mich 689, 692 (1973)].” 1989 Staff Comment to MCR 6.420.
A jury verdict in a criminal case becomes final when it is announced in open court, assented to by the jury, and accepted by the trial court. People v Henry, 248 Mich App 313, 319-320 n 19 (2001); see also MCR 6.420(A). But a jury may change the form and substance of its verdict to coincide with its intent if the jury has not yet been discharged. Henry, 248 Mich App at 320 n 20. Before being discharged, a jury may return to deliberations after announcing a verdict and polling discloses lack of unanimity. MCR 6.420(D). The jury cannot be reconvened after being discharged in a criminal case. Henry, 248 Mich App at 320.
Committee Tip:
Because the jury cannot be reconvened after being discharged, trial judges should individually poll jurors in every case, even if the attorneys do not request it.
“[W]hen a jury finds a defendant not guilty of a charge, that verdict may be reflected by the entry of a dismissal of the charge in the judgment of sentence[.]” People v Kenny, 332 Mich App 394, 405 (2020).