PEOPLE v. CAIN, 94 Mich. App. 644

R. B. Burns, P.J. Defendant was convicted by a jury of armed robbery, MCL 750.529; MSA 28.797, and felony firearm, MCL 750.227b; MSA 28.424(2). In a post-trial hearing the court officer testified that the jury adjourned to deliberate at approximately 9:00 a.m. At approximately 9:30 a.m., there was a knock on the jury room door. The bailiff answered the door and was handed a note. In the note the jury asked whether the verdict had to be unanimous. The bailiff took the note to the judge who read it and told the bailiff to tell the jurors that their verdict had to be unanimous.

The bailiff returned to the jury room, knocked on the door and opened it. Standing in the doorway, not entering the jury room, he told the jurors that their verdict had to be unanimous. The trial court granted defendant’s motion for a new trial. We are well aware of the numerous cases wherein trial courts have been chastised for allowing anyone to communicate with the jury outside of the courtroom and the presence of counsel. However, lately there has been a relaxation of the rule and some states are requiring a showing of prejudice before granting a new trial.

Gale v Hoekstra, 59 Ill App 3d 400; 16 Ill Dec 583; 375 NE2d 456 (1978), Seitz v Seitz, 35 Wis 2d 282; 151 NW2d 86 (1967). Wilson v Hartley, 365 Mich 188; 112 NW2d 567 (1961), presented facts very similar to this case. The jury foreman sent a note to the judge inquiring as to the form of the verdict. The judge, who was trying another case, gave oral instructions to the clerk of the court to give to the jury. The clerk and bailiff went to the jury room and the clerk informed the jury: "There is no form which you will use in giving your verdict.

I will ask your foreman if he has reached a verdict, and if so, what it is. He will tell me what you have agreed on. And then I will read a form to you and that will be all.” 365 Mich 188, 189. Justice Thomas M. Kavanagh, writing for a unanimous Court, stated: "Although we do not condone such improper method of handling a jury trial, under the circumstances we are of the opinion that no prejudice resulted to plaintiff and that the situation does not constitute a just reason for reversal of the verdict and judgment.” Id., 190. So, in our present case.

In our opinion the court acted improperly, but the actions do not require a new trial. Reversed. D. E. Holbrook, Jr., J., concurred.