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 N.E.2d 456 (1978), Seitz v Seitz, 35 Wis.2d 282; 151 N.W.2d 86 (1967).
Wilson v Hartley, 365 Mich. 188; 112 N.W.2d 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.
M.F. CAVANAGH, J., (dissenting).
I strongly disagree with the majority's conclusion that the grant of a new trial in this case was error. My brothers note that the strict rule prohibiting any communication with the jury outside of the courtroom and the presence of counsel has been relaxed in some states. This is not so in Michigan.
There is no dearth of Michigan law on this point, yet my brothers fail to mention, let alone distinguish, the decisions in Zaitzeff v Raschke, 387 Mich. 577; 198 N.W.2d 309 (1972), People v Heard, 388 Mich. 182; 200 N.W.2d 73 (1972), People v Olson, 66 Mich. App. 197; 238 N.W.2d 579 (1975), lv den 396 Mich. 824 (1976), People v Percy Harris, 43 Mich. App. 746; 204 N.W.2d 734 (1972), People v Kangas, 366 Mich. 201; 113 N.W.2d 865 (1962), People v Zeegers, 61 Mich. App. 546; 233 N.W.2d 76 (1975), lv den 395 Mich. 807 (1975).
In Zaitzeff, supra, 579, Justice BLACK stated:
"With what was written so plainly in 1961 for Wilson v Hartley, 365 Mich. 188 [ 112 N.W.2d 567], concerning the indefensible practice of entering the jury room while the jurors are there, no matter by whom done, one would think that this Court had said enough to prevent what took place here. Yet the practice seems to go on, and on, and on, encouraged occasionally by `no prejudice shown' conclusions of a group of Justices who cannot hope to know what was said, or done, or gestured, or hinted, in the sanctity of the jury room."
In People v Kangas, supra, the Court stated at pages 206-207:
"[C]ommunications or instructions by the court to the jury, after they have retired for deliberations, out of court and in the absence of the parties or their counsel, are grounds for a new trial, regardless of whether such communications or instructions were prejudicial." (Emphasis added.)
How much more explicitly can it be stated?
In the instant case the communication to the jury was in the nature of an instruction, off the record and without counsel, in (at the perimeter of) the jury room, and while the jury was deliberating. The facts of this case are indistinguishable from those in People v Zeegers, supra, and People v Kangas, supra. Accordingly, I think leave was improvidently granted by this Court, and I would affirm the trial court's granting of a new trial.
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