Opinion
SC 164608 SC 164609COA 349640 COA 358067
05-23-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JESSICA LYNN HURLEY, Defendant-Appellant.
Wayne CC: 19-000925-FC
Elizabeth T. Clement, Chief Justice Brian K. Zahra David F. Viviano Richard H. Bernstein Megan K. Cavanagh Elizabeth M. Welch Kyra H. Bolden, Justices
ORDER
On December 6, 2023, the Court heard oral argument on the application for leave to appeal the May 19, 2022 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
BOLDEN, J. (concurring).
I agree with the majority's decision to deny leave in this case. After considering the briefs and arguments presented in this case, I agree with the Court of Appeals.
Defendant was jury-convicted of three counts of first-degree criminal sexual conduct, MCL 750.520b(1)(b) (relationship with a victim who was at least 13 years old but less than 16 years old); one count of delivery of a controlled substance to a minor, MCL 333.7410(1); one count of furnishing alcohol to a minor, MCL 436.1701(1); and one count of third-degree criminal sexual conduct, MCL 750.520d (relationship with the victim). Defendant's convictions stemmed from her stepson's allegations that defendant had provided him with alcohol, marijuana, and cocaine and that the two had engaged in oral and vaginal sex on several occasions when defendant was 15 or 16 years old.
A few weeks after defendant was convicted, defendant received a notarized letter signed by NB, a juror who was empaneled as an alternate, but dismissed prior to deliberations. The notarized letter raised allegations of juror misconduct. Among other things, NB averred:
[J]uror #2 did not discuss the case inappropriately, which is why I didn't say anything to the judge as I didn't think what she had done was breaking a rule, but she mentioned something I found troubling. One morning in the jury room before we went out to listen to the case, she mentioned how she knew we weren't allowed to do any research into the case in any way so she didn't but that she had researched the rates of sexual assault in men, claiming that she read a statistic that something like 70% of men had been sexually
assaulted in some form but that they didn't report it because they liked it. She said that maybe that could apply to this case, but then said nothing else about the topic. I fear that she had a predisposed notion that the defendant was guilty specifically because she read into those statistics and believed that Ms. Hurley could have raped her stepson. I do not believe she perceived Ms. Hurley innocent until proven guilty beyond a reasonable doubt; I believe she thought the opposite.
It is NB's comments about Juror No. 2 that are now at issue.0F With defendant's appeal pending at the time she received this information, she successfully moved the Court of Appeals to remand the case to the trial court for an evidentiary hearing on the matter and the Court of Appeals retained jurisdiction. Juror No. 2 testified at the evidentiary hearing on remand, and the following exchange occurred:
NB also averred that Juror No. 5 had possibly fallen asleep at some point during trial. During the hearing, the trial court found that Juror No. 5 was not asleep during trial and rejected this basis for a new trial. Defendant did not appeal this finding, and it is not the subject of the case as now positioned before us.
[The prosecution]: And there was discussion about a statement that you made.
You mentioned some sort of statistic how, about men being assaulted.
Do you remember what that statistic is?
[Juror No. 2]: I didn't say a statistic. I would just speak from my experience.
[The prosecution]: And what-and, so, from your experience, you mentioned that something like seventy percent of men are sexually assaulted?
[Juror No. 2]: Verbatim, I don't know what I said, but I do agree with that statement.
[The prosecution]: Okay. And, was that based on-did you do any research, in this case, to come up with that statistic?
[Juror No. 2]: No, that's my life experience. * * *
[The prosecution]: Based off, based off of your life experiences, did you feel that the defendant was probably guilty, or did you consider that the defendant was guilty until-or, goodness. Innocent until proven guilty?
I'm sorry, we did not hear you. The, the connection cut out.
[Juror No. 2]: I said, she's innocent until proven guilty. [Verbal pauses omitted.]
On cross-examination, Juror No. 2 gave insight into the genesis of this belief about sexual assault, which developed through her work experience as a boiler engineer in a male-dominated field. She testified that over the years, in casual workplace conversations, "hundreds" of her coworkers had disclosed that they were sexually assaulted by women while they were underage. Defense counsel asked what made Juror No. 2 believe that these men were telling the truth. Juror No. 2 said, "I wouldn't think that anybody would just reveal that, just to lie." Defense counsel asked why this information was not disclosed during voir dire, and Juror No. 2 said, "It just, it really didn't dawn on me."
At the end of the hearing, the trial court concluded that Juror No. 2 had exposed the jury to an extraneous influence that created a real and substantial possibility that the jury could have been affected. See People v Budzyn, 456 Mich. 77 (1997). On this basis, the trial court awarded defendant a new trial.
Because the Court of Appeals had retained jurisdiction in its remand order, the case returned to the Court of Appeals once the trial court's orders entered. The Court of Appeals heard oral arguments and reversed. People v Hurley, unpublished per curiam opinion of the Court of Appeals, issued May 19, 2022 (Docket Nos. 349640 and 358067). Defendant filed an application seeking leave to appeal in this Court. We directed the parties to file briefs on the application, addressing:
(1) whether a verdict may be impeached based on juror misconduct if the misconduct occurred prior to the jury's deliberative process, see [Budzyn, 456 Mich. 77]; and (2) whether there may be cases of "juror bias so extreme that, almost by definition, the jury trial right has been abridged," see Warger v Shauers, 574 U.S. 40 (2014), and if so, whether that exception applies to the facts of this case[.] [People v Hurley, 510 Mich. 1120, 1120 (2022).]
After reviewing the briefs and considering oral arguments, I am convinced that the Court of Appeals came to the correct conclusion in this case.
On appeal, a trial court's ruling on a motion for a new trial is reviewed for an abuse of discretion. People v Cress, 468 Mich. 678, 691 (2003). An abuse of discretion occurs when the trial court's decision is outside the range of reasonable and principled outcomes. Woodman v Dep't of Corrections, 511 Mich. 427, 439 (2023). "A trial court necessarily abuses its discretion when it makes an error of law." Id. at 439-440. I agree with the Court of Appeals-the trial court abused its discretion when it awarded a new trial.
To ensure that a criminal defendant has a fair trial, the defendant's convictions must be obtained before a fair and impartial jury. Budzyn, 456 Mich. at 88. During deliberations, a jury may only consider evidence presented to it in open court during trial. Id. Where extraneous facts not introduced in evidence are considered during deliberations, a Sixth Amendment violation may occur. Id. To establish that such a violation occurred requiring reversal by way of a new trial, defendant must show: (1) that the jury "was exposed to extraneous influences," and (2) that these influences "created a real and substantial possibility that they could have affected the jury's verdict." Id. at 88-89.
In the instant case, even assuming that defendant can show that the statements were extraneous influences, defendant cannot establish that the extraneous influences "created a real and substantial possibility that they could have affected the jury's verdict." Id. at 89. Juror No. 2 confirmed that none of her beliefs about sexual assault or the conversations she had with colleagues about the subject affected how she viewed this particular defendant in reaching this particular verdict. The particularized concern raised by NB in their affidavit was, "I do not believe she perceived Ms. Hurley innocent until proven guilty beyond a reasonable doubt; I believe she thought the opposite." However, under oath, Juror No. 2 swore that she did not, in fact, think the opposite, stating: "I said, [defendant is] innocent until proven guilty." Further, Juror No. 2 testified under oath that her stated beliefs did not affect her ability to view defendant as innocent until proven guilty, and no evidence was brought forth to suggest that any member of the jury was affected by Juror No. 2's statements. Therefore, a real and substantial possibility that said statements affected this jury verdict has not been shown in this case.
Simply, there was no evidence brought forward to suggest any real and substantial possibility that there were extraneous influences that could have affected the jury's verdict. For the trial court to award a new trial on the basis of this record was an abuse of discretion. Denying leave is appropriate because the Court of Appeals reached the correct result for the correct reasons in this case.
CAVANAGH, J. (dissenting).
I respectfully dissent from this Court's order denying leave to appeal. Defendant stood accused of sexually assaulting her 15-year-old stepson and was subsequently convicted of three counts of first-degree criminal sexual conduct (CSC) and one count each of third-degree CSC, delivering a controlled substance to a minor, and furnishing alcohol to a minor. The allegations arose during a bitter divorce in which defendant's now exhusband, the father of her stepson, tried to leverage the allegations to his advantage. Specifically, he sought defendant's acquiescence to his preferred division of marital property in exchange for dropping the allegations. Defendant refused, and the prosecutor filed charges. After a jury convicted defendant as described earlier, an alternate juror, NB, sent a letter to defense trial counsel. She wrote, "Whether or not Ms. Hurley is guilty, I do not believe she has received her right to a fair trial, and I hope that this letter can bring any information to light to allow Ms. Hurley to get a fair chance to be tried by an actively listening and unbiased jury."
Specifically, NB worried that Juror No. 5, CM, had been sleeping during the trial, and that Juror No. 2, TM, had expressed bias. NB described TM's conduct:
One morning in the jury room before we went out to listen to the case, she mentioned how she knew we weren't allowed to do any research into the case in any way so she didn't but that she had researched the rates of sexual assault in men, claiming that she read a statistic that something like 70% of men had been sexually assaulted in some form but that they didn't report it because they liked it. She said that maybe that could apply to this case, but then said nothing else about the topic.
Appellate counsel filed a motion for new trial in the Court of Appeals, which remanded the case to the circuit court.
The circuit court held an evidentiary hearing. NB repeated the allegations from her letter and added that TM had said these things in front of the entire jury. TM acknowledged having said that 70% of men are sexually assaulted but said that her belief came from her life experience rather than any research. She said that in her work as a boiler operator over the years, "hundreds" of men had opened up and disclosed to her that they had been sexually assaulted as minors. The circuit court inquired why hundreds of men would disclose this to her, and she replied that it simply came up in casual conversation- hundreds of times. The circuit court described TM's testimony as "shocking," "surprising," and "worthy of significant analysis."
The circuit court looked to People v Budzyn, 456 Mich. 77 (1997), and correctly indicated that the applicable test requires the defendant to "prove that the jury was exposed to extraneous influences" and to "establish that these extraneous influences created a real and substantial possibility that they could have affected the jury's verdict." Id. at 88-89. The circuit court found that NB's testimony was credible and that TM essentially "embraced" that testimony as well. Given those factual findings, the court found that the first prong of the Budzyn test was satisfied: "[T]here can be no doubt that [TM] made statements to this jury . . . that exposed them, one and all, to extraneous influence, and evidence." The circuit court also found that the second prong of the Budzyn test was satisfied:
Obviously, this record shows . . . that extrinsic influence, the-what we learned during [TM's] evidentiary hearing testimony, there's no question
that it substantially related to the material aspects of this case, because [TM] talked about her opinion, and her belief, that seventy percent of the male population, people close to her, her co-workers, had been raped, or sexually assaulted, or sexually abused, when they were minors. When they were males under the age of eighteen.
And that, of course, is exactly the issue that this Court, that this jury, . . . had to decide . . . in this case.
The court acknowledged that Budzyn held that the prosecution could still show that the error was harmless beyond a reasonable doubt. However, the court found nothing in the record that might support that argument and granted a new trial.
The Court of Appeals reversed, reasoning that "[m]atters inherent to the deliberative process do not constitute extraneous influences." People v Hurley, unpublished per curiam opinion of the Court of Appeals, issued May 19, 2022 (Docket Nos. 349640 and 358067), p 4. Further, it stated that "TM testified that her belief regarding the prevalence of male sexual assault victims was not a 'statistic.' Rather, she explained, it was deduced from years of conversations with male coworkers about the issue. In other words, her belief about male sexual assault related to her personal experiences." Id.
Appellate courts review a trial court's decision to grant or deny a motion for new trial for an abuse of discretion. People v Johnson, 502 Mich. 541, 564 (2018). Appellate courts review a trial court's factual findings for clear error. Id. at 565. Questions of law are reviewed de novo. People v Reichard, 505 Mich. 81, 85 (2020).
The Court of Appeals began by noting that matters inherent to the deliberative process do not constitute extraneous influences and found significance in TM's testimony at the evidentiary hearing that her belief was not a statistic, but rather her life experience derived from hundreds of men all disclosing childhood abuse to her in casual conversation. The panel did not explain why this might matter. Presumably, as argued by the prosecution, the Court of Appeals might have reasoned that the life experiences jurors bring to the deliberative process are inherent in jury fact-finding. However, the circuit court found that TM had reported this belief to the jury as statistical research, which was consistent with NB's testimony. There is significance to the fact that TM explained her "belief" as coming from her alleged observations that men by the hundreds routinely and casually disclosed sexual abuse to her. But the Court of Appeals got the significance backwards. The circuit court's basic questions posed at the evidentiary hearing exposed the "statistic" as a mere "belief" with dubious foundations. TM essentially purported to provide expert, out-ofcourt, statistical evidence to the jury with no opportunity for cross-examination from defendant.1F That her testimony was based only on her own outlandish belief does not make the error any less harmful. To the contrary, this fact illustrates how serious the breach was.
When factual determinations otherwise turn on credibility determinations, expert testimony can provide an easy tiebreaker for a jury. See People v Thorpe, 504 Mich. 230 (2019); People v Beckley, 434 Mich. 691, 722 (1990) (opinion by BRICKLEY, J.) ("To a jury recognizing the awesome dilemma of whom to believe, an expert will often represent the only seemingly objective source, offering it a much sought-after hook on which to hang its hat."). Given this, and that this was essentially a credibility contest, I agree with the circuit court's determination that the error was not harmless. Again, the circuit court found no evidence in the record to indicate that it might be.
Moreover, I disagree with Justice BOLDEN that the trial court erred when it found a "real and substantial possibility" that the extraneous information "could have affected the jury's verdict." Budzyn, 456 Mich. at 88-89.2F It is true that TM testified that her personal belief did not affect her ability to view defendant as innocent until proven guilty. However, there were eleven other members of the jury that may have been affected by TM's extraneous comment. Although there was no concrete evidence brought forth that would definitively prove that the remaining members of the jury were swayed by TM's comments, such proof is not required under Budzyn. Instead, "[g]enerally, in proving [the second prong], the defendant will demonstrate that the extraneous influence is substantially related to a material aspect of the case and that there is a direct connection between the extrinsic material and the adverse verdict." Id. at 89. Here, TM introduced outside information-a false statistic about the prevalence of sexual assault among males-that would tend to lend credibility to the complainant's accusations. As the trial court concluded, this extraneous information was substantially related to "exactly the issue" that the jury was tasked with deciding.
Because the Court of Appeals concluded that the jury was not exposed to an extraneous influence, it did not discuss this second prong of the Budzyn test.
NB took the bold step of raising the alarm, writing, "I do not believe [defendant] has received her right to a fair trial ...." The circuit court agreed, concluding that "there can be no doubt that [TM] made statements to this jury . . . that exposed them, one and all, to extraneous influence, and evidence," and correctly granted a new trial. The Court of Appeals reinstated the conviction, and this Court, having heard argument, now chooses to simply deny leave to appeal without any explanation of how this was not outcome determinative error. I would reverse the Court of Appeals and reinstate the circuit court's decision granting defendant a new trial.
WELCH, J. (dissenting).
I respectfully dissent from the Court's decision to deny leave to appeal. In this case, the trial court ultimately found "very substantial proof of this jury having been exposed to extraneous influence and evidence, which created a real and substantial possibility that [defendant] . . . could have been adversely affected, in the jury's verdict." The judge, as a result, vacated the defendant's conviction and granted a new trial. "This Court reviews a trial court's decision to grant or deny a motion for new trial for an abuse of discretion." People v Cress, 468 Mich. 678, 691 (2003), citing People v Lemmon, 456 Mich. 625, 648 n 27 (1998). I agree with Justice CAVANAGH's dissent to the extent that deference is owed to the trial court. Given the fact-intensive inquiry in this matter, I would simply defer to the trial court's finding.
BERNSTEIN, J., joins the statement of WELCH, J.