People v. Smith

In People v. Smith, 396 Mich 109; 240 NW2d 202 (1976), the trial judge specifically instructed the jury before it began deliberations that the opportunity to have testimony read back was foreclosed. The Court had affirmed the defendant's conviction, concluding that the error was harmless because the jury indicated no confusion or ambiguity as to the testimony of witnesses, and the jury had reached its verdict in less than two hours. People v. Smith, 65 Mich App 95, 100; 237 NW2d 199 (1975). The Supreme Court reversed, holding that the harmless error doctrine could not be applied to the facts of the case: Since the judge specifically foreclosed any rereading, it is impossible for one not present in the jury room to know if in fact the jury needed testimony read back to it 'to resolve a disagreement or correct a memory failure.' Howe, supra at 676. Although we pointed out potential sources of ambiguity in Howe, we also said, 'We have no knowledge, of course, of the extent of the jury's confusion.' Id. at 678. We were able in Howe to pinpoint the jury's concern about specific testimony because the instruction foreclosing rereading came after the jury had begun deliberating and in response to a request to the court for further enlightenment. In this case, the judge's instruction before the jury began deliberations that a request would not be honored informed the jury that a request would have been unavailing. Smith, supra at 111.