                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  December 20, 2018
              Plaintiff-Appellee,

v                                                                 No. 338867
                                                                  Genesee Circuit Court
DARYL TREMAINE TIBBS,                                             LC No. 16-038959-FC

              Defendant-Appellant.


Before: CAVANAGH, P.J., and SERVITTO and CAMERON, JJ.

PER CURIAM.

        Defendant appeals by right his jury convictions of first-degree felony murder, MCL
750.316(1)(b), armed robbery, MCL 750.529, and possession of a firearm during the commission
of a felony, MCL 750.227b. We affirm.

        On September 18, 2015, Travis Galloway was shot eight times and killed during a
robbery in his home. Defendant had been temporarily staying at Galloway’s house because he
was homeless. Galloway’s mother, Rose Glover, and Galloway’s friend, Deandre Smith, also
lived in the house. According to the evidence, the night before the shooting defendant,
Galloway, and Smith had celebrated defendant’s birthday at the house, and all three men had
slept in the living room. The next morning, Smith left to go to the store and, 15 minutes later,
Glover left to meet a nearby neighbor. Defendant was awake and Galloway was still sleeping
when both Smith and Glover left. Glover heard a brief contentious exchange between defendant
and Galloway. Moments later, witnesses heard several gunshots.

       A short time later, defendant emerged from the side of the house indicating that he had
been shot in the leg by an intruder, whom he identified as a person who had previously sold hats
to him and Galloway. Other than defendant, no one else was seen leaving Galloway’s house. At
defendant’s urging, Smith removed two of Galloway’s guns from the home. The police
transported defendant to the hospital to address his “superficial” wound and, when collecting
defendant’s possessions, recovered a wallet that matched the description of Galloway’s wallet.
Galloway’s DNA was found on both the wallet and a chain attached to the wallet. The wallet
contained $1,250. In a videotaped interview, defendant repeatedly denied shooting Galloway
and claimed that the wallet belonged to him, but he could not account for the source of the
$1,250 in the wallet. Defendant’s description of the event was also inconsistent with other



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physical evidence found by the police. The defense theory at trial was that the “hat seller” was
the shooter.

        On Friday, April 21, 2017, after several days of witness testimony, the trial court
completed its final jury instructions. Jury deliberations then began at 3:33 p.m. and lasted for the
reminder of the afternoon. On the following Monday, the jury resumed deliberations. At 2:02
p.m., after receiving a note from the jury, the trial court instructed the jury in accordance with the
ABA standard deadlocked jury instruction, M Crim JI 3.12. The jury resumed deliberations at
2:05 p.m. but was unable to reach a verdict before the end of the day. Deliberations resumed the
next day. At approximately 3:15 p.m., the trial court further instructed the jury in response to
questions the jury had submitted. After the jury was again excused to resume deliberations, it
was discovered that the trial court’s supplemental instruction had not been recorded. Therefore,
at 3:47 p.m., in an effort to “recreate what happened,” the trial court placed the following
summary of its supplemental instruction on the record:

               What I said was about a half an hour ago a juror wrote, “I’m tired of being
       treated like an outsider just because I do not agree with the other, and being called
       out of my name.” And then 10 or 15 minutes after that we received a note from
       the jury saying, “If one person refuses to come to a decision on anything and will
       not elaborate why, how do we proceed?” So the Court called the jury out here
       and I said to them that it was apparent there was a personality conflict going on.
       That the jury should make their decision based upon the facts and the elements
       and not on personal disagreements. I said it’s natural that people can disagree,
       but—and there’s a natural inclination to take it personally, but the Court wanted
       them to avoid the personal nature of any disagreement and focus on the facts and
       be more objective.

                And then the Court suggested to them that—reminded them that the
       instructions say that they can make a verdict on one charge or all charges. And if
       they had the unanimous agreement on any one charge they’re free to come back
       out and announce that and then continue deliberating on the rest of them. And I
       told them to use the facts and go back and discuss it some more. Now before I
       did all that Mr. Beauvais objected . . . .

The jury continued deliberations until the end of the day and resumed at 9:00 a.m. the following
morning. At the end of the day, the jury sent a note asking the court to define “cold-blooded
murder” and to explain the difference between first-degree and second-degree murder. The
parties agreed that the trial court would read the applicable instructions, which the court did.
Later that day, at 12:10 p.m., the jury returned its verdict, finding defendant guilty of first-degree
premeditated murder, armed robbery, and felony-firearm. The jurors were individually polled
and each agreed with the verdict.

       On appeal, defendant argues that the trial court abused its discretion when, after the jury
reported that it was unable to reach a verdict on the third day of deliberations, the court failed to
declare a mistrial, particularly because this was the second time that the jury reported that it was
unable to reach a verdict. We disagree.


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        We review a trial court’s denial of a motion for a mistrial for an abuse of discretion.
People v Schaw, 288 Mich App 231, 236; 791 NW2d 743 (2010). “This Court will find an abuse
of discretion if the trial court chose an outcome that is outside the range of principled outcomes.”
Id. “A trial court should grant a mistrial only for an irregularity that is prejudicial to the rights of
the defendant and impairs his ability to get a fair trial.” Id. (quotation marks and citation
omitted).

        When a jury indicates that it is unable to reach a verdict, the trial court may give
supplemental jury instructions and direct the jury to continue deliberations. People v Hardin,
421 Mich 296, 316; 365 NW2d 101 (1984). A proper supplemental instruction facilitates
continued deliberation while avoiding coercion. People v Sullivan, 392 Mich 324, 334; 220
NW2d 441 (1974). However, “[i]f the charge has the effect of forcing a juror to surrender an
honest conviction, it is coercive and constitutes reversible error.” Id. (citation omitted). “The
optimum instruction will generate discussion directed towards the resolution of the case but will
avoid forcing a decision.” Id. To this end, the Sullivan Court adopted the ABA standard jury
instruction 5.4 for use with deadlocked juries and also held that “[a]ny substantial departure
[from this instruction] shall be grounds for reversible error.” Sullivan, 392 Mich at 342. The
Michigan Model Criminal Jury Instructions incorporates the ABA standard instruction 5.4 in the
deadlocked jury instruction found in M Crim JI 3.12. People v Pollick, 448 Mich 376, 382 n 12;
531 NW2d 159 (1995).

        The test for whether a given instruction constitutes a substantial departure from this
instruction, such that it requires reversal, is whether the instruction has “an undue tendency of
coercion—e.g., could the instruction given cause a juror to abandon his conscientious dissent and
defer to the majority solely for the sake of reaching agreement?” Hardin, 421 Mich at 314. The
instruction “must be examined in the factual context in which it is given” to determine whether
there was a coercive effect on the jury. Id. at 315. Additional language will “rarely” be
considered a substantial departure if it “contains ‘no pressure, threats, embarrassing assertions, or
other wording that would cause this Court to feel that it constituted coercion[.]’ ” Id. (citation
omitted). The evaluation of an instruction’s potential coercive effect should also consider
“whether the court required, or threatened to require, the jury to deliberate for an unreasonable
length of time or for unreasonable intervals.” Id. at 316. In addition, an instruction is coercive if
it directs the jury to reach a unanimous verdict “as part of its civic duty” and “contains the
message that the failure to reach a verdict constitutes a failure of purpose[.]” Id.

         In this case, on the second day of deliberations the trial court gave the jury the standard
deadlocked jury instruction after the jury reported that it was unable to reach a verdict.
Defendant did not object to the trial court’s handling of the matter or to the instruction as given.
On appeal, defendant takes issue with the trial court’s supplemental instruction given on the third
day of deliberations. Although the jury had previously reported that it was unable to reach a
verdict, in this instance the jury sought direction on how to proceed “[i]f one person refuses to
come to a decision on anything and will not elaborate why . . . [.]” As summarized by the trial
court, it viewed the jury’s inquiry as reflecting “a personality conflict going on.” As a result, the
court tailored its instruction to this particular situation by instructing the jurors to “make their
decision based upon the facts and the elements and not on personal disagreements” and to “avoid
the personal nature of any disagreement and focus on the facts and be more objective.” The
court stated nothing concerning the law to be applied to the case or in any way bound a juror to

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reach a particular result. The court also did not require or threaten to require the jury to
deliberate for an unreasonable length of time or for unreasonable intervals. The court’s overall
message was that the jury must focus on the facts and the elements in deciding the case, and not
on any personality issues.

        Although the instruction departed from the ABA instruction, it was responsive to the
situation presented, which involved a juror who was not fully participating in the deliberative
process, rather than a situation where all jurors were fully participating, but unable to come to an
agreement. Significantly, there is no indication that the court’s instruction contained any
pressure, threats, embarrassing assertions, or other wording that would constitute coercion.
While we do not endorse departures from the standard instruction, in the context of this case,
where the court specifically was addressing “a personality conflict going on” and had given the
deadlocked instruction on the previous day, the impact of the jury instruction given “was not to
coerce the jury, but indeed seemed to stress the need to engage in full-fledged deliberation.”
Hardin, 421 Mich at 321. And based on the jury’s subsequent question about the elements of
first-degree murder and second-degree murder, it appears that the jury did, in fact, engage in
deliberations, focusing on the elements and the facts, as instructed. The supplemental
instruction, as summarized by the court, was not unduly coercive. Therefore, the trial court did
not abuse its discretion by denying defendant’s motion for a mistrial. See Schaw, 288 Mich App
at 236.

       Affirmed.



                                                             /s/ Mark J. Cavanagh
                                                             /s/ Deborah A. Servitto
                                                             /s/ Thomas C. Cameron




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