Opinion
SC: 164019 COA: 351231
06-17-2022
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Howard Calvert COPELAND, Defendant-Appellant.
Order
On order of the Court, the application for leave to appeal the December 16, 2021 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Cavanagh, J., (concurring).
I concur in the Court's order denying leave to appeal. I write separately to express concern about the current model criminal jury instruction for possession of a firearm during the commission of a felony (felony-firearm) and to encourage the Committee on Model Criminal Jury Instructions to consider whether a revision is warranted. In short, I question whether the current model instruction—M. Crim. JI 11.34—unnecessarily creates an undue risk of juror confusion and inconsistent verdicts.
The defendant in this case was charged with second-degree murder (along with the lesser included offense of manslaughter) and felony-firearm. In instructing the jury on the elements of felony-firearm, the court advised the jury, consistently with M. Crim. JI 11.34, that:
To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt.
First, that the defendant committed the crime of murder or second degree murder or voluntary manslaughter. It is not necessary, however, that the defendant be convicted of that crime.
Second, that at the time the defendant committed the crime he knowingly carried or possessed a firearm. [Emphasis added.]
After some deliberation, the jury sought clarification as to the felony-firearm charge, asking: (1) "Is the felony-firearm charge tied to the murder or manslaughter charge?" and (2) "If the defendant is not guilty of those charges, does the firearm charge still stand?" In response, the trial court largely repeated the model instruction. The jury acquitted defendant of second-degree murder and manslaughter, but convicted him of felony-firearm.
Because a conviction for felony-firearm requires the prosecutor to prove that the defendant committed the underlying felony beyond a reasonable doubt (in this case, second-degree murder or manslaughter) the jury's decision to convict of felony-firearm but acquit of the underlying felony is seemingly inconsistent. This Court has held that a jury may generally render inconsistent verdicts, People v. Vaughn , 409 Mich. 463, 465-466, 295 N.W.2d 354 (1980), and more specifically that a jury can acquit a defendant of the underlying felony yet convict of felony-firearm, People v. Lewis , 415 Mich. 443, 450-455, 330 N.W.2d 16 (1982). I write here not to question the correctness of these decisions, which are binding under stare decisis and have not been challenged by defendant. Rather, I write to question whether M. Crim. JI 11.34 appropriately implements those decisions.
As indicated earlier, the model criminal jury instruction currently directs trial courts to instruct juries that "[i]t is not necessary ... that the defendant be convicted of [the underlying felony]" to find the defendant guilty of felony-firearm. M. Crim. JI 11.34 (3). While this is an accurate statement of the law under Lewis , this precise instruction is not required by that decision. In Lewis , the Court held that while commission of the underlying offense is a necessary element of felony-firearm, a conviction of the underlying offense is not an element. Lewis , 415 Mich. at 454-455, 330 N.W.2d 16. The Court rejected defense counsel's argument that the trial judge should have advised the jury " ‘that if they acquit the defendant of the underlying felony count, they cannot convict of felony-firearm,’ " and instead held that "the jury may not be instructed that it must convict of an underlying felony in order to convict of felony-firearm." Id. Thus, while Lewis held that a jury cannot be instructed that a conviction of the underlying felony is an element of felony-firearm, it did not hold that a jury must be instructed that a conviction of the underlying offense is not an element of felony-firearm.
Even though it is legally correct under Lewis that a jury need not convict a defendant of the underlying felony to convict of felony-firearm, I question whether we should as a policy matter be advising juries of this fact. As exemplified by this case, it seems like advising a lay jury that it must find that defendant committed the underlying felony beyond a reasonable doubt but need not actually convict of that underlying felony is likely to cause confusion. Moreover, it is one thing for the judiciary to accept that a jury might render inconsistent verdicts and decline to invalidate a conviction on that basis, but it is another to invite—and tacitly approve preemptively—such a result. It seems to me that the sentence "[i]t is not necessary, however, that the defendant be convicted of [the underlying felony]" could be removed from the current model instruction and the jury would still be properly instructed without increasing the chances of juror confusion and inconsistent verdicts.
Given that trial courts are generally bound by the model instructions and felony-firearm is one of the more common charges brought against criminal defendants, the decision to include this provision in the model instruction seems consequential. In light of the potential ramifications of this decision, I encourage the Committee on Model Criminal Jury Instructions to consider whether a revision is warranted.
See People v. Lyles , 501 Mich. 107, 122 n 8, 905 N.W.2d 199 (2017) (noting that "[u]nder MCR 2.512(D)(2), ‘[p]ertinent portions of the instructions approved by the ... Committee on Model Criminal Jury Instructions ... must be given in each action in which jury instructions are given’ if they are applicable, they accurately state the applicable law, and they are requested by a party") (alterations in original).