PEOPLE OF MI V JOE LEWIS POWELL JR
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
May 24, 2002
Plaintiff-Appellee,
V
No. 196550
Oakland Circuit Court
LC No. 91-110424 FC
JOE LEWIS POWELL, JR.,
Defendant-Appellant.
ON REMAND
Before: Jansen, P.J., and Hood and Wilder, JJ.
PER CURIAM.
This case is before us on remand from the Supreme Court to consider whether, in light of
People v Mass, 464 Mich 615; 628 NW2d 540 (2001), defendant’s jury conviction of conspiracy
to deliver between 50 and 224 grams of cocaine, MCL 750.157a, must be vacated because the
trial court failed to instruct the jury that the prosecution was required to prove that defendant
knowingly conspired to deliver at least 50 grams of cocaine. After reconsidering this issue, we
again affirm.
In our previous opinion, we rejected defendant’s argument concerning the trial court’s
failure to properly instruct the jury on the elements of conspiracy. Specifically, our opinion
stated:
Although the trial court did not specify the quantity involved in the
conspiracy, such omission does not require reversal of defendants’[1] conspiracy
convictions where the conspiracy instruction was preceded by an instruction on
delivery of over 50 grams of cocaine which explicitly required proof that the
cocaine weighed between 50 and 224 grams. See People v Marji, 180 Mich App
525, 536; 447 NW2d 835 (1989). Moreover, the conspiracy instruction
referenced the offense of delivery between 50 and 224 grams of cocaine several
times such that the jury was adequately informed of that element of the crime.
1
Defendant’s appeal was originally consolidated with that of his codefendant, Demetrius Titus.
However, Titus did not appeal our previous decision; thus, on remand, this case concerns only
defendant.
-1-
Further, the uncontroverted evidence was that defendants delivered over 50
grams[2] of cocaine to the informant, thereby establishing the requisite element of
the offense. Under these circumstances, the trial court’s omission of the amount
of cocaine involved in the conspiracy from the instruction was harmless and does
not warrant reversal. Marji, supra. [People v Powell, unpublished opinion per
curiam of the Court of Appeals, issued July 28, 2000, (Docket Nos. 196550), slip
op, 5.]
In Mass, supra at 645-646, the Supreme Court held that
a defendant charged with conspiracy to deliver 225 grams or more but less than
650 grams of cocaine is entitled to have the jury instructed that the defendant is
guilty only if the prosecution has proved beyond a reasonable doubt that
defendant conspired to deliver, not just some amount of cocaine, but at least 225
grams of cocaine.
The Supreme Court also found that where a trial court erred by failing to instruct the jury that the
prosecution must prove beyond a reasonable doubt that the defendant conspired to deliver a
specific amount of cocaine, but defendant forfeited the error by failing to object, defendant’s
conviction should only be reversed if “‘the defendant is actually innocent or the error seriously
affected the fairness, integrity, or public reputation of judicial proceedings independent of the
defendant’s innocence.’” Id. at 640, quoting People v Carines, 460 Mich 750, 774; 597 NW2d
130 (1999). On the basis of this standard of review, the Supreme Court concluded:
Here, the trial court omitted an element from its conspiracy instruction,
i.e., the requirement that the prosecution show that defendant specifically agreed
to deliver at least 225 or more grams of cocaine. We conclude that this error
seriously affected the fairness, integrity, or public reputation of defendant’s trial.
[Mass, supra at 640-641.]
We conclude based on our renewed review on remand that reversal of defendant’s
conviction is not required, because the trial court’s failure to specifically instruct that the
prosecution was required to prove that the conspiracy was to deliver more than 50 grams of
cocaine did not “seriously affected the fairness, integrity, or public reputation of defendant’s
trial.” Id. at 640-641. In this regard, we find the facts of this case are distinguishable from those
in Mass.
In Mass, the trial court gave the following conspiracy instruction:
2
The evidence clearly established that defendant and Titus sold an informant
approximately 83 grams of cocaine on May 15, 1991, and approximately 165 grams of
cocaine on June 13, 1991. People v Powell, unpublished opinion per curiam of the Court
of Appeals, issued July 28, 2000, (Docket Nos. 196550), slip op, 6.]
.
-2-
The defendant is charged with the crime of Conspiracy to Commit the
Delivery of Cocaine. Anyone who knowingly agrees with someone else to
commit the Delivery of Cocaine is guilty of Conspiracy. To prove the
defendant’s guilty the prosecutor must prove each of the following elements
beyond a reasonable doubt. First, that the defendant and someone else knowingly
agreed to commit Delivery of Cocaine. [Id. at 639.]
In the instant case, the trial court’s conspiracy instruction referred to the amount at issue and
stated, in relevant part, as follows:
Now, the defendants are charged with the crime of conspiracy to deliver
50 to 224 grams of cocaine. Anyone who knowingly agrees with somebody else
to deliver cocaine is guilty of conspiracy.
***
Now the crime of conspiracy to deliver 50 to 224 grams of cocaine
requires proof of a specific intent. This means that the prosecution must prove
not only that the defendants did certain acts, but that they did these acts with the
intent to cause a particular result.
For the crime of conspiracy to deliver 50 to 224 grams of cocaine, this
means that the prosecution must prove that the defendant intended to deliver
cocaine to someone else. The defendants’ intent may be proved by what they
said, what they did, how they did it, or by any other facts and circumstances in
evidence. [Powell, supra at 4-5.]
Unlike the instructions in Mass, the instructions in this case clearly described the charge against
defendant as conspiracy to deliver the specific amount of 50 to 224 grams of cocaine. Because
the jury was instructed of the specific amount being charged, and further, because there was
evidence that defendant Titus knowingly delivered between 50 and 224 grams of cocaine, we
conclude that the trial court’s failure to specifically instruct the jury that the prosecution had to
prove beyond a reasonable doubt that defendant specifically intended to deliver a specific
amount of cocaine did not result in the conviction of someone who was actually innocent or
“seriously affect[] the fairness, integrity, or public reputation” of defendant’s trial. Mass, supra
at 640, quoting Carines, supra.
Our conclusion is buttressed by the Supreme Court’s recent decision in People v Hunter,
___ Mich ___; ___ NW2d ___ decided April 24, 2002 (Docket No. 112713). There, the
Supreme Court reversed this Court and reinstated the defendant’s conviction for conspiracy to
deliver 650 grams or more of cocaine:
[W]e conclude that the evidence was sufficient for the jury to find that the
defendant and Jenkins conspired to possess with intent to deliver 650 or more
grams of a controlled substance. The evidence clearly showed that defendant and
Jenkins conspired to possess cocaine with intent to deliver. . . .
-3-
Other evidence in the case was sufficient for the jury to infer that the
amount involved met the statutory minimum.
***
Finally, the amount of drugs the defendant mailed from California . . . may
be considered in evaluating the coconspirators’ intent regarding the amount to be
obtained. What the conspirators actually did in furtherance of the conspiracy is
evidence of what they had agreed to do. See Mass, 464 Mich 634; People v
Kanar, 314 Mich 242, 249; 22 NW2d 359 (1946); People v Newsome, 3 Mich
App 541, 560; 143 NW2d 165 (1966). In this case, the package contained 1,040
grams, well above the statutory amount of 650 grams.
From all this evidence the jury could have concluded that the defendant
and Jenkins intended to possess an amount of cocaine in excess of the statutory
minimum. [Hunter, slip op 7-9.]
Affirmed.
/s/ Kathleen Jansen
/s/ Harold Hood
/s/ Kurtis T. Wilder
-4-
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