PEOPLE OF MI V WAYNE L YOUNG
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED MARCH 29, 2005
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 124811
WAYNE L. YOUNG,
Defendant-Appellant.
_______________________________
BEFORE THE ENTIRE BENCH
CORRIGAN, J.
In People v McCoy, 392 Mich 231; 220 NW2d 456 (1974),
this
Court
invented
a
new
rule
regarding
cautionary
instructions on accomplice testimony.
That rule provided
that
give
the
trial
court’s
failure
to
a
cautionary
instruction upon a defense request requires reversal of a
conviction.
absence
of
Moreover, reversal may be required even in the
a
defense
“closely drawn.”
request
if
the
issue
of
guilt
is
We reject the McCoy rule because it has
no basis in Michigan law.
Indeed, it contravenes long-
standing authorities according discretion to trial courts
in deciding whether to provide a cautionary instruction on
accomplice
testimony.
inconsistent
with
Moreover,
MCL
768.29,
the
which
McCoy
provides
rule
that
is
the
failure to instruct on a point of law is not a ground for
setting aside a verdict unless the instruction is requested
by the accused, and MCR 2.516(C), which states that a party
may assign as error the failure to give an instruction only
if the party objects on the record before the jury retires
to consider the verdict.
We
further
clarify
that
an
unpreserved
claim
of
failure to give a cautionary accomplice instruction may be
reviewed
only
in
the
arguments on appeal.
same
manner
as
other
unpreserved
That is, appellate review is confined
to the plain-error test set forth in People v Grant, 445
Mich 535; 520 NW2d 123 (1994), and People v Carines, 460
Mich 750; 597 NW2d 130 (1999).
We therefore affirm the
judgment of the Court of Appeals, because it reached the
correct
result
in
affirming
defendant’s
convictions
and
sentences.
I. UNDERLYING FACTS AND PROCEDURAL HISTORY
Defendant shot and killed two people in an executionstyle slaying while robbing a drug house in Detroit.
other
evidence
of
guilt,
the
2
prosecution
Among
presented
testimony from two witnesses whom defendant now claims were
his accomplices, Michael Martin and Eugene Lawrence.
Martin testified that defendant came to his house and
asked him for a gun to rob someone.
Martin had no gun.
Defendant then spoke on the telephone to Martin=s brotherin-law, Lawrence.
Martin did not hear their conversation.
Martin then drove defendant to Lawrence=s house.
After they
arrived, defendant and Lawrence spoke in a back room away
from Martin, who again could not hear their conversation.
Lawrence
defendant
testified
asked
him
threatened him.
that
for
Martin’s home.
gun
this
because
conversation,
some
men
had
Defendant did not mention to Lawrence any
plan to rob a drug house.
defendant.
a
during
Martin
and
Lawrence did furnish a gun to
defendant
then
drove
back
to
Martin went inside his home while defendant
walked off in the direction of a nearby drug house.
Defendant later telephoned Martin, stating that he was
planning to rob a drug house.
Martin hung up.
Later that
day, defendant visited Martin’s home and admitted that he
had shot the two victims in the head.
left, Martin contacted Lawrence.
went to defendant=s home.
After defendant
Martin and Lawrence then
Defendant told them that he was
angry because he had killed the victims for only six rocks
of crack cocaine.
Defendant called an unknown person and
3
directed
him
Defendant
to
tell
eventually
Martin
to
find
Martin
directed
where
the
and
gun.
Lawrence
to
a
field near Martin’s home where Martin found the gun.
The police questioned Martin twice.
During the second
interview, he disclosed what had happened.
retrieved
the
murder
weapon.
Martin
The police then
and
Lawrence
were
never charged with a crime in connection with the murders.
In addition to the testimony of Martin and Lawrence,
the
prosecution
guilt.
presented
other
evidence
of
defendant’s
One witness testified that defendant had also asked
him for a gun.
Another witness, Ronald Mathis, had seen
defendant
in
occurred.
At that time, defendant offered to sell Mathis a
gun.
Mathis
the
drug
then
left
house
the
just
before
premises.
the
Upon
murders
his
return
approximately fifteen minutes later, Mathis discovered the
victims’
bodies
and
noted
that
defendant
was
gone.
Finally, a cigarette butt recovered at the murder scene
contained deoxyribonucleic acid (DNA) material that matched
defendant=s DNA.
Defendant was charged with several offenses, including
first-degree
defendant
of
murder,
two
MCL
counts
750.316.
of
The
jury
second-degree
convicted
murder,
MCL
750.317; one count of assault with intent to commit armed
robbery, MCL 750.89; one count of possession of a firearm
4
during the commission of a felony, MCL 750.227b; and one
count of possession of a firearm by a person convicted of a
felony,
MCL
concurrent
terms
imprisonment
forty
to
750.224f.
Defendant
of
for
the
sixty
forty-five
was
to
second-degree
years’
sentenced
seventy
murder
imprisonment
for
to
years’
convictions,
the
assault
conviction, and two to five years’ imprisonment for the
felon
in
possession
of
a
firearm
conviction.
Those
sentences are to be served consecutively to the two-year
term of imprisonment for the felony-firearm conviction.
The Court of Appeals affirmed defendant’s convictions.1
It rejected defendant=s contention that the trial court had
erred
under
McCoy
in
failing
to
sua
sponte
provide
a
cautionary instruction on accomplice testimony, concluding
that:
(1)
this
case
did
not
present
a
closely
drawn
credibility contest, and (2) it was not clear that Martin
and Lawrence were accomplices.
We
appeal.
granted
defendant’s
application
470 Mich 869 (2004), mod
for
leave
to
471 Mich 862 (2004).
II. STANDARD OF REVIEW
Whether the McCoy rule has a basis in Michigan law and
whether it is consistent with MCL 768.29 and MCR 2.516(C)
1
Unpublished opinion per curiam, issued September 25,
2003 (Docket No. 240832).
5
are questions of law that we review de novo.
Jenkins v
Patel, 471 Mich 158, 162; 684 NW2d 346 (2004).
Moreover,
as discussed later in this opinion, the decision whether to
give a cautionary accomplice instruction falls within the
trial
court’s
sound
discretion.
MCL
768.29;
People
v
Dumas, 161 Mich 45, 48-49; 125 NW 766 (1910); People v
Wallin, 55 Mich 497, 505; 22 NW 15 (1885).
We therefore
review that decision for an abuse of discretion.
Finally,
where, as here, the defendant failed to preserve his claim,
our review is confined to the plain-error framework set
forth in Grant and Carines.
III. ANALYSIS
A. Legal Background
In McCoy, this Court discussed dangers that inhere in
accomplice
testimony,
including
“'the
effect
of
threats, hostility, motives, or hope of leniency.'”
fear,
McCoy,
supra at 236, quoting 30 Am Jur 2d, Evidence, § 1148, p
323.
The McCoy Court stated that in People v Jenness, 5
Mich 305, 330 (1858), this Court referred to a judge’s duty
to comment, where warranted, on the nature of accomplice
testimony.
The
subsequent
case
discretion
in
McCoy
law
Court
acknowledged,
reflected
deciding
accomplice instruction.
whether
that
to
the
6
trial
provide
See Dumas, supra.
however,
a
court
that
had
cautionary
The McCoy Court also acknowledged that federal courts
have not articulated a definitive rule regarding cautionary
instructions on accomplice testimony.
Indeed, the United
States Supreme Court refused to reverse a conviction on the
basis of a failure to give such an instruction in Caminetti
v United States, 242 US 470, 495; 37 S Ct 192; 61 L Ed 442
(1917).
The
Caminetti
absolute
rule
of
law
Court
stated
preventing
that
“there
convictions
testimony of accomplices if juries believe them.”
is
on
no
the
Id.
Despite these authorities, the McCoy Court invented a
novel rule:
“For cases tried after the publication of this
opinion, it will be deemed reversible error . . . to fail
upon request to give a cautionary instruction concerning
accomplice testimony and, if the issue is closely drawn, it
may be reversible error to fail to give such a cautionary
instruction even in the absence of a request to charge.”
McCoy, supra at 240.
Justice Coleman dissented in McCoy.
768.29,
which
instruct
on
setting
aside
provides:
any
point
the
“The
of
failure
law
verdict
of
shall
the
She cited MCL
of
the
not
be
jury
instruction is requested by the accused.”
court
ground
unless
to
for
such
She also quoted
the predecessor to MCR 2.516(C), GCR 1963, 516.2: “No party
may assign as error the giving or the failure to give an
7
instruction
unless
he
objects
thereto
before
the
jury
retires to consider the verdict, stating specifically the
matter
to
which
he
objects
and
the
grounds
of
his
objection.”
Justice
Jenness
of
Coleman
a
duty
noted
to
that
comment
the
on
articulation
accomplice
predated both the statute and the court rule.
testimony
Moreover,
Jenness “was not a rigorously applied precedent.”
supra at 248.
in
McCoy,
For example, in Dumas, this Court stated:
It is the long settled rule in this State
that the credibility of an accomplice, like that
of any other witness, is a question exclusively
for the jury.
And while there have been
intimations, rather than rulings, to the effect
that it is proper, or is not improper, especially
in cases where an accomplice is the sole witness
upon a material point, for the trial court to
direct
the
attention
of
the
jury
to
the
circumstance and invite the exercise of caution
upon the part of the jury, we know of no decision
of this court in which it is held or intimated
that the failure of the court to indulge in
voluntary comment is ground for reversal. [Dumas,
supra at 48.]
The Dumas Court had also quoted from Wallin, supra,
where the trial court had refused a defense request to
instruct the jury regarding circumstances that tended to
discredit a witness.
Chief Justice Cooley, writing for a
unanimous Court in Wallin, rejected the defense argument:
"We repeat that instructions respecting the
credibility
of
witnesses,
which
involve
no
question of law, are not matter of right.
The
8
judge is under no obligation to comment upon the
facts; he may, if he chooses, confine himself
strictly to laying down such rules of law as must
guide the action of the jury, and leave the facts
to them without a word of comment. In many cases
this is no doubt the desirable course. And it is
always within the discretion of the judge to
adopt it." [Id. at 48-49, quoting Wallin, supra
at 505.]
Justice
Coleman’s
dissenting
opinion
in
McCoy
also
noted that the Court of Appeals had rejected an argument
for
a
cautionary
Sawicki,
because
4
Mich
defense
accomplice
App
467;
counsel
instruction
145
on
NW2d
236
in
People
(1966),
in
cross-examination
had
v
part
fully
explored the circumstances of the accomplice=s testimony:
In a criminal case it is not only proper but
it is the duty of counsel for defendant to place
before the jury all circumstances surrounding the
people=s witness upon the stand, as well as any
fact which would have any reasonable tendency to
affect their credibility.
It is the function of
the jury to decide first if the witness is
interested, and second if the witness’ interest has
affected the credibility of his testimony.
The
trial judge is not required to comment in his
instruction concerning a witness’ interest since it
bears upon the question of credibility which is
reserved to the jury. [Id. at 475 (citations
omitted).]
In
light
of
these
concluded
in
McCoy
that
required
the
court
to
authorities,
neither
give
a
Justice
statute
nor
cautionary
instruction in the absence of a request.
Coleman
case
law
accomplice
Moreover, the
failure to so instruct did not deny the defendant in McCoy
9
a fair trial, because “the accomplice was thoroughly crossexamined and the jury fully aware of all facets of his
involvement.
testimony
motive,
The
of
all
judge
correctly
witnesses
prejudice,
bias
should
or
instructed
be
interest
that
considered
in
the
the
as
to
outcome.”
McCoy, supra at 250.
This Court discussed the holding in McCoy in People v
Reed,
453
Mich
685;
556
NW2d
858
(1996).
In
Reed,
a
codefendant testified in a joint trial, and the defendant
argued on appeal that a cautionary accomplice instruction
should have been given sua sponte.
that
argument
because
such
an
This Court rejected
instruction
would
have
prejudiced the codefendant.
The Court in Reed also explained that McCoy does not
require
automatic
reversal
for
failure
sponte in a closely drawn case.
that
such
a
failure
to
to
instruct
sua
Rather, McCoy says only
instruct
may
require
reversal.
Before Reed, this Court had not established standards for
determining
when
the
requires reversal.
was
not
jury
by
problems
other
to
instruct
sua
sponte
The Reed Court concluded that reversal
required
credibility
failure
means,
where
have
such
the
accomplice=s
potential
been
plainly
presented
as
through
defense
10
to
the
counsel’s
cross-examination of the alleged accomplice.
Reed, supra
at 693.
The Reed Court did not require reversal because the
codefendant/accomplice=s credibility problems were plainly
apparent to the jury.
Defense counsel and the prosecutor
had explored credibility problems during cross-examination.
Moreover, the accomplice was not a prosecution witness, but
was a codefendant, and thus was not the beneficiary of any
favorable bargains from the prosecution.
In
People
v
Gonzalez,
468
Mich
(2003), this Court questioned McCoy.
636;
664
NW2d
159
We quoted MCL 768.29,
which provides that “[t]he failure of the court to instruct
on any point of law shall not be ground for setting aside
the
verdict
of
the
jury
unless
such
instruction
is
requested by the accused,” and MCR 2.516(C), which states
that “[a] party may assign as error the . . . failure to
give an instruction only if the party objects on the record
. . . .”
We then stated:
In this case, defendant neither requested a
cautionary accomplice instruction nor objected to
the court=s failure to give one.
Therefore,
defendant is precluded from arguing that the
omitted instruction was error.
MCR 2.516(C).
Furthermore, because he failed to request the
omitted instruction, defendant is not entitled to
have the verdict set aside.
MCL 768.29.
Consequently, defendant=s only remaining avenue
for relief is for review under People v Grant,
445 Mich 535; 520 NW2d 123 (1994).
11
Because defendant failed to object to the
omitted instruction, defendant=s claim of error
was forfeited.
A forfeited, nonconstitutional
error may not be considered by an appellate court
unless the error was plain and it affected
defendant=s substantial rights.
Grant, supra at
552-553. [Gonzalez, supra at 642-643.]
We then concluded that no error occurred because there
was no evidence that the alleged accomplice was involved in
the
crime,
and
because
the
cautionary
accomplice
instruction would have been inconsistent with the defense
theory
at
trial.
Because
the
defendant
could
not
demonstrate an error, he could not establish a plain error
that affected his substantial rights, and thus he was not
entitled to relief for the forfeited claim under Grant.
B. Analysis
The rule created in McCoy has no basis in Michigan
law.
The McCoy rule mandates reversal of convictions for
failing to give a cautionary accomplice instruction upon
request, and allows reversal for failing to give such an
instruction sua sponte where the issue of guilt is “closely
drawn.”
But
demonstrates,
as
Justice
Coleman’s
dissent
this
Court’s
decisions
have
in
McCoy
historically
accorded discretion to trial courts in deciding whether to
provide a cautionary accomplice instruction.
The mandatory
rule invented in McCoy subverts this historical discretion.
12
Moreover, the discretion that this Court had, before
McCoy, accorded to trial courts in this area is consistent
with our statutory law.
MCL 768.29 states: “The court
shall instruct the jury as to the law applicable to the
case and in his charge make such comment on the evidence,
the testimony and character of any witnesses, as in his
opinion the interest of justice may require.”
added.)
(Emphasis
The phrase “as in his opinion the interest of
justice may require” vests discretion in the trial court to
decide
to
what
extent
it
is
appropriate
to
matters such as the credibility of witnesses.
comment
on
The McCoy
Court failed to consider this provision of MCL 768.29.
Despite these authorities, the McCoy Court chose to
invent an unfounded rule.
Indeed, in People v Atkins, 397
Mich 163, 171; 243 NW2d 292 (1976), this Court acknowledged
the lack of a historical basis for the McCoy rule: “[T]he
McCoy
rule
application
under
for
the
discussion
reason
was
that
given
it
went
prospective
beyond
long-
established Michigan precedent to the effect that special
instructions
regarding
credibility
was
[sic]
a
matter
within the sound discretion of the trial court.”
Further, the first portion of the McCoy rule, i.e.,
that
reversal
is
automatically
13
required
when
the
court
fails to give an instruction upon request, conflicts with
MCL 769.26.
That provision states:
No judgment or verdict shall be set aside or
reversed or a new trial be granted by any court
of this state in any criminal case, on the ground
of misdirection of the jury, or the improper
admission or rejection of evidence, or for error
as to any matter of pleading or procedure, unless
in the opinion of the court, after an examination
of the entire cause, it shall affirmatively
appear that the error complained of has resulted
in a miscarriage of justice.
As we explained in People v Lukity, 460 Mich 484; 596
NW2d 607 (1999), in light of MCL 769.26, a defendant on
appeal must demonstrate that a preserved nonconstitutional
error was not harmless by persuading the reviewing court
that it is more probable than not that the error affected
the outcome of the proceedings.
have
been
‘outcome
determinative’
reliability of the verdict.”
751,
766;
614
NW2d
595
“An error is deemed to
if
it
undermined
the
People v Elston, 462 Mich
(2000).
See
also
People
Rodriguez, 463 Mich 466, 474; 620 NW2d 13 (2000).
v
The
McCoy mandate of automatic reversal for failing to give a
cautionary
contradicts
accomplice
MCL
instruction
769.26.
upon
Accordingly,
request
we
plainly
reject
the
automatic-reversal portion of the rule.
Next,
the
portion
of
the
McCoy
rule
permitting
reversal in the absence of a defense request if the issue
14
of guilt is “closely drawn” contradicts MCL 768.29, which
states that “[t]he failure of the court to instruct on any
point of law shall not be ground for setting aside the
verdict of the jury unless such instruction is requested by
the accused,” and MCR 2.516(C), which says that "[a] party
may
assign
as
instruction
. . . ."
error
only
if
the
the
.
.
party
.
failure
objects
to
on
give
the
an
record
As we explained in Gonzalez, an appellate court’s
review of unpreserved claims is governed by MCL 768.29 and
MCR 2.516(C).
This Court in Reed correctly observed that McCoy does
not by its own terms require automatic reversal for failure
to instruct sua sponte where the issue of credibility is
closely drawn.
The McCoy Court said that reversal may be
required in the absence of a request, not that reversal is
automatic.
rule,
The central flaw in this aspect of the McCoy
however,
is
that
it
authorizes
reversal
without
regard to the plain-error analysis required by Grant and
Carines, by focusing solely on whether the issue of guilt
is
closely
drawn.
As
this
Court
explained
in
Reed,
potential credibility problems in a closely drawn case may
become
plainly
apparent
to
a
cautionary instruction.
15
jury
in
the
absence
of
a
Fundamentally,
assess
the
it
is
credibility
the
of
province
of
witnesses.
the
In
jury
making
to
that
assessment, the jury should decide whether witnesses harbor
any
bias
or
prejudice.
Sawicki, supra.
through
Dumas,
supra;
Wallin,
supra;
And it is the role of defense counsel,
cross-examination
of
prosecution
witnesses
and
closing argument, to expose potential credibility problems
for the jury to consider.
rule
fails
adequately
Id.
to
The McCoy “closely drawn”
take
account
of
these
central
components of our system of trial by jury.
For
these
reasons,
we
hold
that,
as
with
all
unpreserved claims of error, an unpreserved claim that the
court failed to give a cautionary accomplice instruction
may
be
reviewed
only
substantial rights.
Grant/Carines
for
plain
error
that
affects
An appellate court must follow the
plain-error
analysis,
and
only
when
the
defendant satisfies that test is reversal ever appropriate.
We
discern
no
basis
for
treating
this
one
category
of
unpreserved claim any differently from other categories of
alleged error that a defendant has failed to preserve.
Moreover, in considering whether a plain error exists,
a
reviewing
court
should
be
mindful
of
the
discretion
historically accorded to trial courts in deciding whether
16
to give a cautionary accomplice instruction.
Dumas, supra;
Wallin, supra.
Finally, applying the plain-error test to this case,
we
conclude
burden.
that
A
defendant
cautionary
has
not
accomplice
met
his
instruction
clearly or obviously required in this case.
appellate
was
not
As the Court
of Appeals noted, it is not clear that Martin and Lawrence
were accomplices in any event.
Moreover, the prosecution
presented evidence of guilt beyond the testimony of the
alleged
accomplices,
including
testimony
from
other
witnesses and physical evidence that defendant was at the
murder scene.
Further, defense counsel thoroughly cross-
examined Martin and Lawrence and challenged their testimony
during closing argument, thereby exposing their potential
credibility
problems
to
the
jury.
The
court
also
instructed the jury to consider any bias, prejudice, or
personal interest that a witness might have.
For these
reasons, defendant has not demonstrated a plain error that
affected his substantial rights.
V. CONCLUSION
We
Michigan
conclude
law
and
that
is
the
inconsistent
768.29, and MCR 2.516(C).
deciding
whether
to
McCoy
rule
with
has
MCL
no
basis
769.26,
in
MCL
A trial court has discretion in
give
17
a
cautionary
accomplice
instruction.
Also, an unpreserved claim that the court
failed to give a cautionary accomplice instruction may be
reviewed
only
for
plain
error,
forth in Grant and Carines.
under
the
framework
set
Accordingly, we overrule McCoy
and affirm the judgment of the Court of Appeals.
Maura D. Corrigan
Clifford W. Taylor
Elizabeth A. Weaver
Robert P. Young, Jr.
Stephen J. Markman
18
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
No. 124811
WAYNE L. YOUNG,
Defendant-Appellant.
_______________________________
KELLY, J. (concurring).
I would affirm the Court of Appeals decision, but I
strongly
disagree
with
the
majority’s
reasoning.
The
decision in People v McCoy1 should not be applied to this
case.
It represents a valid rule of law that we should
retain, and the majority should not use this case as a
vehicle to abandon it.
MCCOY
IS
INAPPOSITE
In McCoy, we stated:
[I]t will be deemed reversible error . . .
to fail upon request to give a cautionary
instruction concerning accomplice testimony and,
if the issue is closely drawn, it may be
reversible
error
to
fail
to
give
such
a
cautionary instruction even in the absence of a
request to charge. [McCoy, supra at 240.]
1
392 Mich 231; 220 NW2d 456 (1974).
1
Defendant did not request a cautionary instruction in
this case.
To warrant giving the instruction, as McCoy
tells us, the issue must be “closely drawn.”
is
said
to
be
closely
drawn
if
a
Id.
An issue
credibility
contest
between the defendant and an alleged accomplice must be
resolved in order to rule on it.
People v Gonzalez, 468
Mich 636, 643 n 5; 664 NW2d 159 (2003); McCoy, supra at
238-239.
This case does not involve a closely drawn issue.
It
is not one in which contrary versions of the facts were
offered, leaving the jury to choose between them.
Instead,
the defense proceeded under the theory that the prosecution
would
be
unable
to
prove
every
element
of
the
charged
offenses.
In argument before the jury, defense counsel attacked
the story offered by the prosecution.
He tried to show
that the prosecution failed to meet the requirements for
conviction.
In some cases, to create a credibility contest
between
defendant
defendant
a
would
circumstances
have
could
credibility contest.
and
an
to
arise
alleged
take
as
well
the
that
accomplice,
stand.
would
the
Other
create
a
However, because defendant in this
case did not take the stand and his credibility was not
2
otherwise
put
at
issue,
he
was
not
entitled
cautionary instruction permitted by McCoy.2
to
the
Id. at 240.
I also agree with the Court of Appeals that there was
insufficient evidence to conclude that Michael Martin and
Eugene
Lawrence
were
defendant’s
accomplices.
Whereas
Martin accompanied defendant on some of his travels on the
day of the murders, he never agreed to participate in the
crime.
In fact, he refused to participate.
Martin may not
have done enough to stop defendant, but his failure does
not make him defendant’s accomplice legally.
Lawrence
provided
defendant
with
a
gun.
But
the
evidence suggests that Lawrence was unaware that defendant
planned to use it to commit a felony.
Defendant asked
Lawrence for the gun to protect himself from a person who
had threatened him.
Although insufficient evidence exists
that Lawrence was defendant’s accomplice, defense counsel
implied during closing argument that Lawrence and Martin
were defendant’s accomplices.
The facts of the McCoy case were entirely different.
There, the police arrested an individual whom they believed
had
been
an
accomplice
in
a
robbery.
The
accomplice
admitted that he and McCoy had committed the crime.
2
Id. at
At oral argument in this case, defense counsel
admitted that McCoy was a “narrow case” and did not fit the
facts of this case.
3
241 (Coleman, J., dissenting.).
admission.
All
the
evidence
Here, there was no such
suggested
Lawrence were not involved in the crime.
that
Martin
and
Because they were
not accomplices, the trial court did not err in failing to
give the special instruction on accomplice testimony.
Id.
at 238-240.
Hence, the McCoy decision has no application to this
case, and the majority offers no justification for reaching
and overruling it here.
It is as inappropriate to address
McCoy in this case as it was in People v Gonzalez, supra,
in which Justice Young wrote:
[W]e conclude that there was no evidence of
an accomplice in this case, and, therefore,
McCoy's "closely drawn" rule is not implicated.
For that reason, we do not reach the question
whether
McCoy
conflicts
with
MCL
768.29.
[Gonzalez, supra at 643 n 6.]
We should not do here what we chose not to do in Gonzalez.
MCCOY REPRESENTS
A
VALID RULE
3
OF
LAW3
Given that McCoy is inapposite, there is no need to
apply it to the facts of this case.
However, because the
majority has decided to overturn McCoy, I provide a full
discussion of the rules of law laid out in that case.
Therefore, I will discuss both the requested cautionary
instructions and sua sponte instructions. I feel that both
were wisely recognized in McCoy and that both fit well
within the established framework of appellate review in
this state.
4
The majority accuses the McCoy decision of lacking any
basis in Michigan jurisprudence and of inventing a novel
rule of law.
Those claims should be examined more closely.
This Court stated long ago:
We think the credibility of an accomplice,
like that of any other witness, is exclusively a
question for the jury; and it is well settled
that a jury may convict on such testimony alone
without confirmation. There is no good sense in
always applying the same considerations in every
case to every witness who may stand in the
relation of particeps criminis.
We think it is
the duty of a judge to comment upon the nature of
such testimony, as the circumstances of the case
may require; to point out the various grounds of
suspicion which may attach to it; to call their
attention to the various temptations under which
such witness may be placed, and the motives by
which
he
may
be
actuated;
and
any
other
circumstances which go to discredit or confirm
the witness, all of which must vary with the
nature and circumstances of each particular case.
[People v Jenness, 5 Mich 305, 330 (1858).]
This was a rule of law that has been endorsed by this Court
repeatedly over the past 134 years.4
Obviously, because
McCoy represents a natural growth of that history, it is
neither novel nor lacking in legal basis.
REQUESTED CAUTIONARY INSTRUCTIONS AND
ABUSE OF DISCRETION/HARMLESS ERROR REVIEW
Not
only
does
McCoy
have
substantial
historical
support, it fits well within Michigan’s long established
4
See People v Schweitzer, 23 Mich 301, 305 (1871),
People v Hare, 57 Mich 505, 518; 24 NW 843 (1885), People v
Considine, 105 Mich 149, 163; 63 NW 196 (1895), and People
v Koukol, 262 Mich 529, 532-533; 247 NW 738 (1933).
5
McCoy5 holds that “it will
framework of appellate review.
be deemed reversible error . . . to fail upon request to
give
a
cautionary
instruction
concerning
accomplice
testimony . . . .”
The majority concludes that this rule contradicts the
review
established
for
harmless error issues.
both
abuse
of
discretion
and
It accuses McCoy of ignoring the
discretion of the trial court to instruct the jury.
The opposite is true.
trial
court’s
discretion
discretion standard.
McCoy explicitly recognizes the
and
hews
to
the
McCoy, supra at 237.
abuse
of
Moreover, it
provides guidance to when the standard is met.
McCoy recognizes that it is an abuse of discretion for
a
trial
court
to
refuse
of
to
instruct
jury
inherent
unreliability
236-237.
This is consistent with MCL 768.29.6
5
testimony.
about
Id.
the
at
If the trial
Supra at 240.
6
accomplice
a
MCL 768.29 provides:
It shall be the duty of the judge to control
all proceedings during the trial, and to limit
the introduction of evidence and the argument of
counsel to relevant and material matters, with a
view
to
the
expeditious
and
effective
ascertainment of the truth regarding the matters
involved. The court shall instruct the jury as to
the law applicable to the case and in his charge
make such comment on the evidence, the testimony
and character of any witnesses, as in his opinion
the interest of justice may require. The failure
6
court fails to give an accomplice instruction, it fails to
work toward “the expeditious and effective ascertainment of
the truth regarding the matters involved.”
MCL 768.29.
And it fails to make the comments on the evidence, the
testimony,
and
the
character
of
witnesses
that
justice
requires.
As McCoy noted, accomplice testimony is fraught with
dangers.
Whether because of fear, threats, or hostility
caused by government overreaching or the witness’s greed or
hopes
of
leniency
testimony
accomplice
occasioned
has
severe
by
government
credibility
deals,
problems.
Given this inherent weakness, a skeptical approach to such
testimony
“'is
justice.’”
a
mark
of
the
fair
administration
of
McCoy, supra at 236, quoting 30 Am Jur 2d,
Evidence, § 1148, p 323.
Therefore, a court fails to meet
the mark of fair administration of justice when it omits a
requested accomplice instruction.
Moreover, the omission
constitutes an abuse of discretion.
For the same reason, the McCoy rule does not violate
the
tenets
inherent
conviction
of
review
unreliability
based
on
for
harmless
of
such
error.
accomplice
testimony,
Given
testimony,
absent
a
any
proper
of the court to instruct on any point of law
shall not be ground for setting aside the verdict
of the jury unless such instruction is requested
by the accused.
7
the
instruction, will affirmatively appear to be a miscarriage
of justice.
The failure to give the instruction fails to
meet the mark.
We should avoid letting the standards of
the Michigan criminal justice system fall below this mark.
The inclusion of the accomplice witness instruction
ensures the fairness of the trial.
is
merited,
undermines
the
Accordingly,
the
cannot
error
Its exclusion, when it
reliability
be
of
the
harmless.
verdict.
People
v
Krueger, 466 Mich 50, 54; 643 NW2d 223 (2002).
SUA SPONTE INSTRUCTION
AND
REVIEW
FOR
PLAIN ERROR
McCoy states that it may be error requiring reversal
to fail to give the accomplice instruction if the issue is
closely drawn, even absent a request from counsel.
McCoy,
supra at 240.
The majority attacks this portion of McCoy,
claiming
it
plain
that
error.
A
contradicts
failure
to
the
established
instruct
when
review
there
was
for
no
request is subject to review for plain error, the majority
reasons, because the issue was neither raised nor addressed
in the trial court.
For there to be plain error, our Court has decided,
there must first be an error.
clear and obvious.
Next, the error must be
Finally, it must adversely affect the
defendant’s substantial rights.
750, 763; 597 NW2d 130 (1999).
8
People v Carines, 460 Mich
To warrant reversal, the
error must either result in the conviction of an actually
innocent
defendant
integrity,
or
proceedings.
or
it
public
Id.
must
affect
reputation
of
the
fairness,
the
judicial
Again, the McCoy rule fits within the
confines of these principles.
The first two elements of the plain error test are
satisfied
if
a
judge
mistakenly
cautionary accomplice instruction.
it is clear and obvious.
error
adversely
rights.
To
to
give
the
The error exists, and
The next question is whether the
affected
determine
fails
the
if
an
defendant’s
error
affects
substantial
substantial
rights, the appellate court makes the same inquiry as when
reviewing
for
harmless
error,
except
bears the burden of persuasion.
that
the
defendant
United States v Olano, 507
US 725, 734; 113 S Ct 1770; 123 L Ed 2d 508 (1993).
The
failure
to
give
the
cautionary
accomplice
instruction if it is appropriate undermines the reliability
of any jury verdict.
harmless.
Hence, the error cannot be considered
Krueger, supra at 54.
This is especially true
when the case boils down to a closely drawn credibility
contest.
Without
basic
protections,
a
criminal
trial
cannot reliably serve as a vehicle for properly determining
guilt.
Arizona v Fulminante, 499 US 279, 310; 111 S Ct
1246; 113 L Ed 2d 302 (1991).
9
Because this failure to
instruct meets the harmless error standard, it also meets
the plain error standard.
Olano, supra at 734.
Moreover, such closely drawn cases will likely always
meet the requirements for reversal.
The omission of the
instruction would mean that the trial court failed to meet
the mark of the fair administration of justice.
supra at 236.
McCoy,
This failure would raise serious questions
regarding fairness, integrity, or the public reputation of
the proceedings.
Carines, supra at 763.
Contrary to the majority’s conclusion, McCoy does not
contradict MCL 769.267 or MCR 2.516(C).8
7
MCL 769.26 and MCR
MCL 769.26 provides:
No judgment or verdict shall be set aside or
reversed or a new trial be granted by any court
of this state in any criminal case, on the ground
of misdirection of the jury, or the improper
admission or rejection of evidence, or for error
as to any matter of pleading or procedure, unless
in the opinion of the court, after an examination
of the entire cause, it shall affirmatively
appear that the error complained of has resulted
in a miscarriage of justice.
8
MCR 2.516(C) provides:
Objections. A party may assign as error the
giving of or the failure to give an instruction
only if the party objects on the record before
the jury retires to consider the verdict (or, in
the
case
of
instructions
given
after
deliberations have begun, before the jury resumes
deliberations), stating specifically the matter
to which the party objects and the grounds for
the objection. Opportunity must be given to make
the objection out of the hearing of the jury.
10
2.516(C) merely require that a defendant preserve issues
for review.
Those issues not preserved are subject to
review for plain error.
McCoy
review.
works
In
within
the
framework
overruling
it,
the
of
majority
plain
error
abandons
an
because
no
important protection.
CONCLUSION
McCoy
does
credibility
not
contest
apply
to
this
existed
and
there
case
was
insufficient
evidence to justify characterizing Martin and Lawrence as
accomplices.
inappropriate
Therefore,
vehicle
for
this
the
case
majority
to
provides
attack
an
McCoy.
Moreover, McCoy represents a valid rule of law that fits
well within the established rules of appellate review.
should not be struck down.
Marilyn Kelly
Michael F. Cavanagh
11
It
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