Docket No. 103080.
Decided April 18, 1989. Leave to appeal applied for.
State Appellate Defender (by Derrick A. Carter), for defendant on appeal.
On May 13, 1987, a jury found defendant, Claxton Moore, guilty of two counts of felonious assault and one count of possession of a firearm during the commission of a felony, in violation of MCL 750.82; MSA 28.277 and MCL 750.227b; MSA 28.424(2) respectively. Defendant was sentenced to serve two years in prison on the felony-firearm conviction and placed on probation for two years for the felonious assault convictions, the sentences to run consecutively. Defendant appeals as of right.
Defendant contends that the trial court erred in denying his request for a full jury instruction on mixed direct and circumstantial evidence, CJI 4:2:02. While the trial court did give most of that instruction, it refused to give subparagraph (7) of the instruction, which reads as follows:
(7) If the direct and circumstantial evidence, taken together, is open to two reasonable constructions, one indicating guilt and the other innocence, it is your duty to accept the construction indicating innocence.
Use of the Michigan Criminal Jury Instructions is not mandatory. Cautionary instructions need only be given when the circumstantial evidence against the defendant is weak and, further, need not be given where there is direct evidence supporting conviction.
At trial, the two complainants testified that, during an argument with defendant, defendant pulled out a handgun and pointed it at one of them threatening to "blow [her] so and so head off." They further testified that defendant, soon thereafter, fired the gun in the direction of the second complainant. The bullet struck the floor approximately one foot away from the second complainant's feet. A police officer testified that, upon arrival at the scene, examination of defendant's right hand revealed an odor of gunpowder/nitrate — strong circumstantial evidence that defendant had recently fired a gun.
One of the complainants testified that "so and so" were her own words used in place of the actual phrase used by defendant.
Given the nature of the direct evidence and the strength of the circumstantial evidence, we find no error in this case in the trial court's refusal to give subparagraph (7) of CJI 4:2:02.
I concur in the opinion of Judges BEASLEY and GILLIS.
One issue which requires more extended discussion may be referred to as "a tale of two instructions."
The jury in every criminal case must be instructed on the presumption of innocence, the burden of proof on the prosecutor, and the definition of reasonable doubt. Under Administrative Order No. 1977-1, 399 Mich. lxxii, members of the bench and bar are "urged," but not required, to use the Michigan Criminal Jury Instructions, which contain proposed instructions on these issues in CJI 3:1:02, 3:1:03, and 3:1:04 or 3:1:05.
Problems arose, among others, with CJI 3:1:12, Witnesses-Conflicting Testimony, and 3:1:10, Mixed Direct and Circumstantial Evidence. As must be obvious, conflicting testimony arises in almost every criminal case, whereas circumstantial evidence is recognized as occurring in a much smaller, though substantial, percentage of the cases.
Former instruction CJI 3:1:12 (since deleted as of July 13, 1984) contained a paragraph 3 which read as follows:
However, if you have a reasonable doubt as to which testimony you believe, it is your duty to accept the testimony favorable to the defendant.
This instruction was based on People v Crofoot, 254 Mich. 167; 235 N.W. 883 (1931). The Supreme Court declined to reverse for failure to give the Crofoot instruction in People v Larco, 331 Mich. 420; 49 N.W.2d 358 (1951), since other instructions addressed the presumption of innocence, reasonable doubt, and the tests to be applied in determining witness credibility. Accord, People v Berry, 36 Mich. App. 1; 193 N.W.2d 401 (1971).
Another case emphasizing the need to read instructions as a whole is People v Stewart, 126 Mich. App. 374, 376; 337 N.W.2d 68 (1983), where this Court noted the Washtenaw circuit bench's belief that CJI 3:1:12(3) does not accurately state the law. A different panel of this Court was equally forthright in People v Vernon Johnson, 127 Mich. App. 587, 589-590; 339 N.W.2d 489 (1983), stating as follows:
Although requested to do so, the trial judge refused to give CJI 3:1:12(3). . . . We do not believe it accurately states the law. The issue is whether there is reasonable doubt as to the guilt of the defendant, not as to which testimony to believe. Certainly conflicting testimony may create a reasonable doubt but we find no basis for the statement that the jury has a duty to accept any testimony where there is a conflict.
When CJI 3:1:12 was deleted on July 13, 1984, by the Michigan State Bar Special Committee on Standard Criminal Jury Instructions, the committee noted:
The essence of instructions contained in CJI 3:1:12 has been moved into more general instructions: CJI 3:1:12(2) now appears in CJI 3:1:11(2), and CJI 3:1:12(3) appears in proposed CJI 3:1:03(3).
It is worth noting that proposed CJI 3:1:03(3) was never adopted.
An instruction paralleling the late and unlamented former CJI 3:1:12(3) appeared in CJI 3:1:10(6) and (7).
Judge Learned Hand in United States v Becker, 62 F.2d 1007, 1010 (CA 2, 1933), described a cautionary circumstantial evidence charge as "a refinement which only serves to confuse laymen into supposing that they should use circumstantial evidence otherwise than testimonial."
The United States Supreme Court has abolished the requirement of any such cautionary charge in the federal courts. See Holland v United States, 348 U.S. 121, 139; 75 S Ct 127, 137; 99 L Ed 150, 166 (1954). The United States Supreme Court found an admonishment unnecessary because it considered circumstantial evidence the probative equivalent of direct evidence and because reasonable doubt instructions adequately protected a defendant from a poorly proven case. Numerous states have followed Holland. See, Note, The circumstantial evidence charge in Texas criminal cases: a retrograde doctrine, 55 Tex L R 1255 (1977).
In this country, the case of Commonwealth v Webster, 59 Mass. 295 (1850), achieved great popularity and the jury instruction repeated therein by the author, Chief Justice Shaw of Massachusetts, sounding as it did terribly learned, was picked up and quoted all across the country. Because Justice Shaw's words, having been repeated time and again by judges repeating them because some other judge had used them, have become very familiar to lawyers, they have therefore become as comforting as litanies repeated in other contexts.
The difference is, jury instructions are theoretically intended to be heard by lay people, to whom Chief Justice Shaw's 1850 lecture is just so much mumbo jumbo. For an entertaining and downright devastating dismemberment of Justice Shaw's recommended jury charge, see People v Brigham, 25 Cal.3d 283; 157 Cal.Rptr. 905; 599 P.2d 100 (1979), especially the concurring opinion of Justice Mosk, 25 Cal.3d 292-316; 599 P.2d 106-121. Not many of us will seriously claim to be able to unscramble the idea that "a moral certainty" can arise only from consideration of "moral evidence" which must be totally distinguished from "physical evidence."
Justice Shaw's words were picked up in the Michigan case of People v Foley, 64 Mich. 148; 31 N.W. 94 (1887). In People v Dellabonda, 265 Mich. 486, 513; 251 N.W. 594 (1933), our Supreme Court held that cautionary instructions on circumstantial evidence should be given "in all cases where the guilt or innocence of the defendant depends entirely upon circumstantial evidence."
The real problem with the cautionary instruction originally found in CJI 3:1:10(7), now CJI 4:2:02(7), like the instruction formerly found in CJI 3:1:12(3), is that it requires the prosecution to prove its case to a higher degree of certainty than the already-high standard of proof of guilt beyond a reasonable doubt, in order to convict.
Even worse, it tells the jury that it is their "duty" to accept the construction indicating innocence. That is wrong. It is wrong to tell the jurors that they have a duty to acquit, even though they find that the people have established the guilt of the defendant beyond a reasonable doubt, just as it would be wrong to tell jurors that they may convict even if they do have a reasonable doubt as to the guilt of the defendant. The test of guilt has been, and hopefully will continue to be, whether or not the prosecution has proven the defendant's guilt beyond a reasonable doubt.
A defendant may come forth with a reasonable sounding story. A jury may find that this version of the facts is "reasonable." Nevertheless, if the jurors do not believe this "reasonable" story, and are convinced that the prosecution has proven the defendant guilty beyond a reasonable doubt, they should be allowed to convict.
I have searched the records of the Michigan Court of Appeals and the Michigan Supreme Court for every reported case in which CJI 3:1:10 or 4:2:02 has been cited. I have found no reported case in which 3:1:10(7) or 4:2:02(7) has been given after being requested by counsel. Yet, in every single case, on that issue at least, the Michigan Court of Appeals has affirmed. Over and over again, judges writing in the Court of Appeals have found some smidgen of evidence which is not circumstantial evidence (it is really extremely difficult to imagine any sort of case in which there is no evidence whatsoever other than circumstantial evidence) and therefore use of CJI 3:1:10(7) or CJI 4:2:02(7) was not required, and failure to utilize one or the other of these instructions, or some equivalent instruction, was therefore not error requiring reversal.
It is not just enough to criticize this instruction. That has been done repeatedly. We ought to be forthright about it and simply say that this instruction, now CJI 4:2:02, is bad law, that it is erroneous, and that this instruction should never be given under any circumstances.
The only problem with that is that all of the dozens of criticisms are at the trial court and the Court of Appeals levels, and the Michigan Supreme Court has yet to officially proscribe use of this instruction, which it last considered in 1933.
The problem was probably best stated by Judge Learned Hand in his dissenting opinion in Spector Motor Service, Inc v Walsh, 139 F.2d 809, 823 (CA 2, 1943), quoted by then Judge, now Justice LEVIN in his dissenting opinion in Abendschein v Farrell, 11 Mich. App. 662, 681-682, n 1; 162 N.W.2d 165 (1968), as follows:
"It is always embarrassing for a lower court to say whether the time has come to disregard decisions of a higher court, not yet explicitly overruled, . . . I agree that one should not wait for formal retraction in the face of changes plainly foreshadowed; the higher court may not entertain an appeal in the case before the lower court, or the parties may not choose to appeal. In either event the actual decision will be one which the judges do not believe to be that which the higher court would make. . . . I conceive that the measure of [the lower court's] duty is to divine, as best it can, what would be the event of an appeal in the case before it." [Emphasis in Abendschein.]
Judge LEVIN also noted in Abendschein, p 681, n 1, that Judge Clark, speaking for the majority in Spector, p 814, wrote:
"[O]ur function cannot be limited to a mere blind adherence to precedent. We must determine with the best exercise of our mental powers of which we are capable that law which in all probability will be applied to these litigants or to others similarly situated. If this means the discovering and applying of a `new doctrinal trend' in the Court, this is our task to be performed directly and straightforwardly, rather than `artfully' dodged. [Comment,] The Attitude of Lower Courts to Changing Precedents, 50 Yale L J 1448, 1459 ." [Citations omitted, emphasis in Abendschein.]
Cases in which the Michigan Court of Appeals has refused to reverse for failure to give the instruction requested in this case by defense counsel include: People v Chandler, 75 Mich. App. 585; 255 N.W.2d 694 (1977); People v Corbett, 97 Mich. App. 438; 296 N.W.2d 64 (1980); People v Browning, 106 Mich. App. 516; 308 N.W.2d 264 (1981); People v Peete, 113 Mich. App. 510, 515; 317 N.W.2d 666 (1982); People v Edgar, 75 Mich. App. 467; 255 N.W.2d 648 (1977); People v Reese, 126 Mich. App. 132, 135; 337 N.W.2d 7 (1983) (in which the Court notes: "Apparently, the Washtenaw circuit bench believes that these subparagraphs do not correctly state the law of Michigan."); People v Hatch, 126 Mich. App. 399, 403; 337 N.W.2d 79 (1983) (in which the Court also pointed out "[a]pparently, the Washtenaw circuit bench believes these subparagraphs do not correctly state the law of Michigan."); People v Cook, 131 Mich. App. 796, 809; 347 N.W.2d 720 (1984); People v Seabrooks, 135 Mich. App. 442, 454-455; 354 N.W.2d 374 (1984) (in which the Court noted that the giving of CJI 3:1:10(7) is confined to cases where the circumstantial evidence against the defendant is "weak," citing People v Freeland, 101 Mich. App. 501; 300 N.W.2d 616 (1980), lv den 417 Mich. 963 (1983). The Court also noted that this instruction incorrectly suggests that a burden of proof other than that of beyond a reasonable doubt is involved whenever there is circumstantial evidence. The Court also noted that these instructions have been "disapproved" in prior Court of Appeals decisions.); People v Frank Johnson, 146 Mich. App. 429, 435-436; 381 N.W.2d 740 (1985) (in which the defendant argued that subsection (7) of CJI 4:2:02 requires the jury to accept defendant's theory of innocence when two reasonable explanations, one indicating guilt and the other innocence, are offered. The Court held that "[O]ther than the language in subsection (7), defendant has cited no authority, and we find none, supporting the proposition that a jury is required to accept defendant's theory." [Emphasis in original]. The Court cited People v Edgar, 75 Mich. App. 467, 474; 255 N.W.2d 648 (1977), for the proposition that it is sufficient if the prosecution proves its theory beyond a reasonable doubt in the face of whatever contradictory evidence the defense may produce.) The great majority of recent panels of this Court have followed Edgar. People v Armentero, 148 Mich. App. 120, 132; 384 N.W.2d 98 (1986); People v Burgess, 153 Mich. App. 715, 726; 396 N.W.2d 814 (1986); People v Bell, 155 Mich. App. 408, 413; 399 N.W.2d 542 (1986); People v Gravedoni, 172 Mich. App. 195, 196-197; 431 N.W.2d 221 (1988). In Gravedoni, this Court stated:
We reject defendant's argument that the trial court committed error mandating reversal by refusing to read the cautionary instructions regarding the prosecutor's burden of disproving all reasonable theories of innocence when the prosecutor's case depends entirely on circumstantial evidence. CJI 4:2:02(6), (7).
A prosecutor need not specifically disprove all theories of a defendant's innocence. [Citations omitted.]
In short, if there are some circuit judges in the State of Michigan still utilizing CJI 4:2:02(7), they should be instructed not to do so.