PEOPLE OF MI V MARK I RICHARDSON
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 21, 2001
Plaintiff-Appellee,
v
No. 214180
Oakland Circuit Court
LC No. 94-135060-FH
MARK I. RICHARDSON,
Defendant-Appellant.
ON REMAND
Before: Cavanagh, P.J., and Saad and Meter, JJ.
PER CURIAM.
A jury convicted defendant of conspiracy to deliver more than 225 but less than 650
grams of cocaine, MCL 333.7401(2)(a)(ii), possession with intent to deliver more than 225 but
less than 650 grams of cocaine, MCL 333.7401(2)(a)(ii), possession of an altered driver’s
license, MCL 257.324, and possession of a firearm during the commission of a felony, MCL
750.227b. A judge convicted him of possession of a firearm by a convicted felon, MCL
750.224f. After defendant appealed by right to this Court, we affirmed all his convictions.
Subsequently, defendant appealed to the Supreme Court, which remanded the case to us to
reconsider defendant’s conspiracy conviction only in light of People v Mass, 464 Mich 615; 628
NW2d 540 (2001), a case that had been pending in the Supreme Court at the time of our initial
decision. We now reverse the conspiracy conviction and remand for a new trial on that charge.
In Mass, supra at 638-639, the Supreme Court held that in order for a trier of fact to
convict a defendant of conspiracy to deliver more than 225 but less than 650 grams of cocaine, it
must find that the defendant “conspired to deliver, not just any amount of cocaine, but at least
225 grams.” Here, the trial court originally instructed the jurors as follows:
To find the defendant guilty of conspiracy you must be satisfied beyond a
reasonable doubt that there was an agreement to deliver between 225 and 650
grams of cocaine.
After deliberating for some time, the jurors asked, “In order to be found guilty of conspiracy to
deliver between 225 and 650 grams of cocaine, does each Defendant need to know the exact
amount to be delivered or that the amount is in that range?” The court responded:
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The amount need not be known to the Defendants. Only that there is a conspiracy
to deliver and that the substance is cocaine. The subsequent determination of the
amount determines the actual charge.
Defendant argues that this re-instruction requires reversal. We agree. Jury instructions
are to be read as a whole rather than extracted piecemeal to establish error, and even if the
instructions are somewhat imperfect, no error exists as long as the instructions fairly presented
the issues to be tried and sufficiently protected the defendant’s rights. People v Bell, 209 Mich
App 273, 276; 530 NW2d 167 (1995); People v Daniel, 207 Mich App 47, 53; 523 NW2d 830
(1994).
Here, even considering the court’s initial, correct instruction, we conclude that the
instructions as a whole did not fairly present the issues to be tried or sufficiently protect the
defendant’s rights. Indeed, the last instruction the jurors heard with regard to the conspiracy
charge informed them that “[t]he amount need not be known to the Defendants.” This is in clear
contravention to Mass and requires a new trial. See Mass, supra at 640-641.
Given our resolution of this issue, we need not address the additional basis on which
defendant contends that a new trial is warranted.
Reversed and remanded. We do not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Henry William Saad
/s/ Patrick M. Meter
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