PEOPLE OF MI V CHARLES BRUCE MURRAY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 13, 1998
Plaintiff-Appellee,
v
No. 189291
Macomb Circuit Court
LC No. 94-002085-FH
CHARLES BRUCE MURRAY,
Defendant-Appellant.
Before: Sawyer, P.J., and Wahls and Reilly, JJ.
PER CURIAM.
A jury convicted defendant of one count of possession with intent to deliver less than fifty grams
of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv), and one count of possession with
intent to deliver marihuana, MCL 333.7401(2)(c); MSA 14.15(7401)(2)(c). Defendant was sentenced
to two to twenty years’ imprisonment on the first count and one to four years’ imprisonment on the
second count, sentences to be served concurrently and to run consecutively to a parole violation.
Defendant appeals as of right. We affirm defendant’s conviction of possession with intent to deliver
marihuana and reverse defendant’s conviction of possession with intent to deliver less than fifty grams of
cocaine.
Defendant was arrested in the upstairs bedroom of a townhouse in the City of Mount Clemens
after police officers forcibly entered the townhouse to execute a search warrant. Also present in the
townhouse were an eight-year-old boy and a woman named Dolores Washington. In the bedroom
where defendant was arrested, the officers found marihuana between the mattress and box springs of
the bed and a wad of cash amounting to $9,400. On the floor of the upstairs bathroom, the officers
found a little black bag containing paperwork, a pay stub with defendant’s name on it, and a cellophane
baggy (of the type commonly used to store narcotics) with a torn corner. In a ceramic jar in the living
room downstairs, the officers found .43 grams of cocaine in a plastic baggy and a pink paper receipt in
the name of “Dolores Washington.” The officers also found some marihuana in the living room. After
being advised of his Miranda1 rights at the townhouse, defendant allegedly told a police officer that he
had just flushed drugs down the toilet in the upstairs bathroom. At trial defendant denied making this
admission. Later, on the day of his arrest at the police station, defendant reportedly confessed to having
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flushed approximately twenty to thirty boulders of crack cocaine down the toilet in the upstairs
bathroom as the officers were entering the townhouse. Defendant also explained that he sold crack
cocaine in order to support his children. Defendant’s confessions were not recorded.
On appeal, defendant first argues that the trial court erred in allowing the prosecution to
introduce rebuttal evidence of an inculpatory statement made by defendant at the time of his arrest. We
disagree. Because a criminal trial does not follow a script, the trial judge must have “broad power to
cope with the complexities and contingencies inherent in the adversary process.” People v Figgures,
451 Mich 390, 398; 547 NW2d 673 (1996), quoting Geders v United States, 425 US 80, 86; 96 S
Ct 1330; 47 L Ed 2d 592 (1976). Accordingly, the admission of rebuttal evidence rests within the
discretion of the trial court and will not be disturbed absent a clear abuse of discretion. Figgures,
supra at 398.
Rebuttal evidence is admissible to contradict, repel, explain, or disprove evidence produced by
the other party. Figgures, supra at 399. The test of whether rebuttal evidence was properly admitted
is whether the rebuttal evidence was properly responsive to evidence introduced or a theory developed
by the defendant. Id. As a general rule, a party is free to contradict answers elicited from his adversary
on cross-examination regarding matters germane to the issue. See People v Vasher, 449 Mich 494,
504; 537 NW2d 168 (1995); People v McGillen No 1, 392 Mich 251, 266-267; 220 NW2d 67
(1974). However, a party may not elicit a denial of some statement not properly in the case so as to
interject a new issue into the case under the guise of rebutting a denial. Vasher, supra at 505; see also
People v Humphreys, 221 Mich App 443, 446 n 1; 561 NW2d 868 (1997), distinguishing Figgures,
supra. Thus, rebuttal evidence is admissible to contradict a defendant’s denial on cross-examination, so
long as the defendant’s denial on cross-examination addressed a matter (1) that is material to the
ultimate issue and (2) that was originally introduced into the case or further developed by the defendant.
See Vasher, supra at 504-506; see also People v Sutton (After Remand), 436 Mich 575, 597 n 23;
464 NW2d 276, amended 437 Mich 1208; 466 NW2d 281 (1990).
The issue in this case is complicated by the existence of a ruling by the trial court regarding the
prosecution’s use of the challenged evidence. On the first day of trial, the prosecutor informed the trial
court and defense counsel that he had just become aware of an oral statement made by defendant to
Sergeant Steve Thomas during the search of the townhouse. According to the prosecutor, Thomas was
prepared to testify that defendant admitted to having flushed drugs down the toilet immediately prior to
the search. Because defense counsel did not know about the statement until the day of the trial, the
prosecutor offered to refrain from introducing evidence of the statement during his case in chief. After
defendant objected to any use of the statement (because of the late notice), the trial court ruled that the
prosecution could not introduce evidence of the statement during its case in chief, but that it could use
the statement as rebuttal evidence.2 When Thomas testified during the prosecution’s case in chief, the
prosecutor avoided any questions regarding defendant’s alleged statement. However, on cross
examination, defense counsel asked Thomas whether defendant made any written statements to Thomas
at the time of his arrest. Thomas explained that defendant made a statement to him, but that it was not
written. Pursuant to the trial court’s earlier ruling, the prosecution was not allowed to address the
substance of defendant’s statement on redirect.
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Defendant then testified on his own behalf, but did not address the subject of his alleged
statement to Thomas. On cross-examination, defendant denied telling Thomas that he had just flushed
drugs down the toilet. On rebuttal, over defendant’s objection, the prosecution offered Thomas’
testimony regarding the statement. Thomas testified that when he Mirandized defendant and asked him
whether there were any drugs to be found, defendant replied, “[N]o you missed it, I flushed it.”
Because (1) defendant denied making the statement on cross-examination, (2) defense counsel originally
introduced the matter into the case during his cross-examination of Thomas (knowing that the
prosecution could not address the substance of defendant’s statement on redirect), and (3) the issue
was germane to the ultimate issue of defendant’s guilt, we hold that the trial court did not abuse its
discretion in allowing the prosecution to attempt to explain the matter and contradict defendant’s denial
by way of Thomas’ testimony on rebuttal. See Vasher, supra at 504-506; Figgures, supra at 398
399.
Defendant next argues that he was denied his right to a unanimous jury verdict on his conviction
of possession with intent to deliver less than fifty grams of cocaine when the trial court failed to
specifically instruct the jury that it was required to unanimously agree on the occurrence of one of the
two alleged acts of possession of cocaine. We agree. A trial court is required to instruct the jury
concerning the law applicable to the case and to fully and fairly present the case to the jury in an
understandable manner. MCL 768.29; MSA 28.1052; People v Mills, 450 Mich 61, 80; 537 NW2d
909, modified 450 Mich 1212; 539 NW2d 504 (1995). In this case, although the trial court instructed
the jury in general terms that its verdict must be unanimous, it did not instruct the jury that its verdict had
to be unanimous as to at least one of the two alleged acts of possession of cocaine. Defendant
expressed his satisfaction with the instructions as given and made no further request for a special
instruction concerning unanimity with respect to a particular act of possession. Because defendant failed
to object to the instructions given at trial or to request further instructions, we review this issue only to
determine if manifest injustice resulted. People v Van Dorsten, 441 Mich 540, 544-545; 494 NW2d
737 (1993); People v Maleski, 220 Mich App 518, 521; 560 NW2d 71 (1996). Manifest injustice
occurs when the erroneous or omitted instruction pertains to a basic and controlling issue in the case.
People v Johnson, 187 Mich App 621, 628; 468 NW2d 307 (1991).
Under the Michigan Constitution, a criminal defendant is entitled to a unanimous jury verdict.
Const 1963, art 1, § 14; People v Cooks, 446 Mich 503, 510-511; 521 NW2d 275 (1994). In order
to protect this right, the trial court must instruct the jury regarding the unanimity requirement. Cooks,
supra at 511. In some circumstances, a general unanimity instruction may not be adequate. If the
prosecution offers evidence of multiple acts by a defendant, each of which would satisfy the actus reus
element of a single charged offense, the trial court is required to instruct the jury that it must unanimously
agree on the same specific act if the acts are materially distinct or if there is reason to believe the jurors
may be confused or disagree about the factual basis of the defendant’s guilt. Id. at 530. The alternative
acts are “materially distinct” if the acts themselves are conceptually distinct or if either party has offered
materially distinct proofs regarding one of the alternatives. Id. at 524.
Here, the prosecution presented evidence (1) that cocaine was recovered from a ceramic jar in
the living room of the townhouse and (2) that defendant twice confessed to having flushed “narcotics”
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or cocaine down the toilet in the upstairs bathroom immediately before the search of the townhouse. In
his closing argument, the prosecutor referred to and relied on evidence of both the cocaine recovered in
the living room and the cocaine defendant allegedly flushed down the toilet. In response to the
prosecution’s case, defendant contended (1) that he was merely a visitor at the townhouse without
constructive possession over any of the narcotics recovered during the search, and (2) that the
testimony regarding his alleged confessions was unreliable. Because the prosecution offered materially
distinct proofs regarding each alleged act of possession, we cannot now discern the basis for the jury’s
verdict. It is possible that some of the jurors agreed only that defendant possessed the cocaine found in
the living room while others agreed only that defendant possessed the cocaine flushed down the toilet.
Given these facts, the trial court should have instructed the jury that in order to find defendant guilty of
possession with intent to deliver i was required to unanimously agree on at least one specific act of
t
possession with intent to deliver. Cooks, supra at 524, 530; cf. United States v Ferris, 719 F2d
1405, 1407 (1983) (holding that a general instruction on the requirement of unanimous verdict was
sufficient where the various acts indicating possession with intent to distribute were consistent with each
other). A trial court’s failure to give such an instruction when warranted under the circumstances
amounts to manifest injustice. See People v Yarger, 193 Mich App 532, 536-537; 485 NW2d 119
(1992). Therefore, we hold that defendant’s conviction of possession with intent to deliver less than
fifty grams of cocaine must be reversed. If defendant is retried, an appropriate instruction should be
given to the jury.
Defendant also argues that the admission of defendant’s confessions violated the corpus delicti
rule. We disagree. The corpus delicti rule provides that a defendant’s confession may not be admitted
unless there is direct or circumstantial evidence independent of the confession establishing (1) the
occurrence of the specific injury and (2) some criminal agency as the source of the injury. People v
Konrad, 449 Mich 263, 269-270; 536 NW2d 517 (1995). The purpose of the rule is to prevent the
use of a confession to convict a defendant of a crime that did not occur. Id. at 269. In this case,
cocaine was recovered from the townhouse and there was no evidence that any person was authorized
to possess the cocaine. Accordingly, the corpus delicti rule was satisfied by evidence independent of
defendant’s confession that cocaine existed and that it was possessed by someone. See Konrad,
supra at 270. Defendant’s confession merely provided additional evidence (1) that more cocaine
existed at the townhouse and (2) that it was possessed by defendant.
Next, defendant argues that he was denied a fair trial as a result of three instances of
prosecutorial misconduct. We disagree. When reviewing instances of alleged prosecutorial
misconduct, this Court must examine the pertinent portion of the record and evaluate the prosecutor’s
remarks in context. People v McElhaney, 215 Mich App 269, 283; 545 NW2d 18 (1996). The test
of prosecutorial misconduct is whether the defendant was denied a fair and impartial trial. Id. If the
defendant fails to object to the alleged prosecutorial misconduct, appellate review is precluded unless a
curative instruction could not have removed any prejudicial effect or failure to consider the issue would
result in a m
iscarriage of justice. People v Nantelle, 215 Mich App 77, 86-87; 544 NW2d 667
(1996).
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Defendant first contends that the prosecutor argued facts not in evidence when, during closing
argument, he speculated about the true owner of the $9,400 cash found in the townhouse. Defendant
did not object to this line of argument. Although the prosecutor may have strayed beyond reasonable
inference arising from the evidence, see People v Bahoda, 448 Mich 261, 282; 531 NW2d 659
(1995), a prompt curative instruction could have removed any prejudice, and our failure to consider the
issue on appeal will not result in a miscarriage of justice. Nantelle, supra at 86-87.
Second, defendant contends that the prosecutor improperly asked defendant to comment on the
credibility of a prosecution witness. Although it was improper for the prosecution to ask defendant to
comment on the credibility of a prosecution witness, see People v Buckey, 424 Mich 1, 17; 378
NW2d 432 (1985), the trial court gave a prompt curative instruction upon defense counsel’s objection.
Thereafter, defense counsel did not contest the language or effectiveness of the trial court’s curative
instruction. Accordingly, defendant was not denied a fair trial as a result of the prosecutor’s improper
comments.
Third, defendant contends that the prosecutor improperly commented on the absence of a
witness. Again, because the trial court gave a prompt curative instruction upon defense counsel’s
objection, defendant was not denied a fair trial.
Finally, defendant argues that it was reversible error for the trial court not to sua sponte instruct
the jury on the lesser included offenses of simple possession of cocaine and marihuana. We disagree.
With the sole exception of first-degree murder cases, a trial court’s failure to instruct on a lesser
included offense will not be regarded as reversible error, absent a request for such an instruction before
the jury retires to consider its verdict. People v Henry, 395 Mich 367, 374; 236 NW2d 489 (1975);
see also People v Stephens, 416 Mich 252, 261-262; 330 NW2d 675 (1982) (holding that a specific
request is also required for an instruction on a lesser included misdemeanor).
The Michigan Supreme Court, in People v Jenkins, 395 Mich 440, 442; 236 NW2d 503
(1975), held that a trial court was required to instruct the jury sua sponte on the lesser included offense
of second-degree murder in every trial for first-degree murder. The Court carved out this “sole
exception” to the general rule because of the significant differences in the penalties between first- and
second-degree murder and because second-degree murder is necessarily included within every charge
of first-degree murder. Id. Although, in this case, the penalties for simple possession are less severe
than the penalties for the corresponding offenses of possession with intent to deliver (as is usually the
case with lesser included offenses), we are not persuaded that we should stray from the general rule in
this instance. Unlike first-degree murder, neither charge in this case carried a penalty of life in prison
without parole. Compare MCL 750.316; MSA 28.548 and Jenkins, supra at 442 with MCL
333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv) and MCL 333.7401(2)(c); MSA 14.15(7401)(2)(c).
A defendant should not be allowed to assign error on appeal to something his own counsel deemed
proper at trial. 3 To do so would allow the defendant to harbor the alleged error as an appellate
parachute. See People v Lipps, 167 Mich App 99, 105; 421 NW2d 586 (1988); People v
Roberson, 167 Mich App 501, 516-517; 423 NW2d 245 (1988). Because defendant indicated
satisfaction with the jury instructions and did not request instructions on the lesser offenses of simple
possession, he is not entitled to relief on appeal. Henry, supra at 374; Stephens, supra at 261.
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Defendant’s conviction of possession with intent to deliver marihuana is affirmed. Defendant’s
conviction of possession with intent to deliver less than fifty grams of cocaine is reversed.
/s/ Myron H. Wahls
/s/ Maureen Pulte Reilly
1
See Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694, reh den 385 US 890;
87 S Ct 11; 17 L Ed 2d 121 (1966).
2
Defense counsel later characterized the trial court’s ruling as an “agreement” between the parties.
3
In this case, for instance, defendant’s decision not to request the instructions at trial may have been
part of a strategic attempt to avoid conviction altogether.
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